Virginia Lawyers Weekly VA Lawyers Weekly
The court was constrained to abstain from claims by a lawful permanent resident, in divorce proceedings with her estranged American husband, who sought to enforce the Affidavit of Support her husband had executed when they married pursuant to the Immigration & Naturalization Act.
Background
Shirong Wigley, a citizen of China, married Richard Wigley, a U.S. citizen, in 2012. Shirong then filed a petition to become a lawful permanent resident in the U.S. As part of that process, Richard executed an I-864 Affidavit agreeing to maintain Shirong at an income level of at least 125 percent of the federal poverty guideline.
The marriage subsequently deteriorated, and in March 2017, Shirong petitioned a Virginia Juvenile & Domestic Relations Court for spousal support. The J&DR court ordered Richard to pay Shirong $580 per month. Richard filed for divorce in circuit court and requested an equitable distribution of the parties’ real and personal property.
On September 13, 2017, Shirong filed this action to enforce the I-864 Affidavit. She charges Richard with domestic violence and alleges that he did not buy her enough food to live on from January 2015 onward. She also asserts that the $580 monthly amount does not maintain her at 125 percent of the federal poverty guideline and does not account for Richard’s lack of support prior to April 2017.
Richard has moved to dismiss this action. He argues that Shirong raised the issue of the I-864 Affidavit during the spousal support proceedings, and the record shows she also raised it during the divorce proceedings. On December 15, 2017, the Franklin County Circuit Court entered a final divorce degree, declining to enter a new support award and upholding the April 2017 order.
Younger abstention
In this case, the first two requirements for abstention under Younger v. Harris, 410 U.S. 37 (1971), are clearly met. First, it is undisputed that, when Shirong filed this action, the parties were engaged in ongoing divorce proceedings in state court and that Shirong raised the issue of support under the I-864 Affidavit in those proceedings. Moreover, the parties have represented to the court that the divorce proceedings remain pending before the Court of Appeals of Virginia. Second, courts have long recognized that the area of family relations involves important state interests.
As to the third requirement, Shirong has had and continues to have an adequate opportunity to raise the issue of the I-864 Affidavit in the divorce proceedings. She has not alleged that the state courts would improperly avoid her claim. Under these circumstances, the test for Younger abstention is met.
The 4th Circuit has strictly applied Younger, diverting from it only upon a showing of bad faith or extraordinary circumstances. While Shirong alleges that Richard has not acted in good faith over the course of their marriage, there are no allegations that Richard is avoiding the issue of support under the I-864 Affidavit in state court. Nor does the record indicate any other extraordinary circumstances warranting an exception to Younger.
Motion to dismiss granted.
Wigley v. Wigley, Case No. 7:17cv425, Mar. 5, 2018. WDVA at Roanoke (Conrad). VLW No. 018-3-075, 5 pp.
