Open-ended spousal support award approved

The circuit court properly  awarded spousal support to wife for an undefined duration circuit after their 10-month marriage ended.

Overview

The parties married in May 2016 and separated in March 2017, a few days after their son was born. Wife came from India to the United States in 2006 on a student visa. She earned a bachelor’s degree and worked as a software developer beginning in 2009. Her employer sponsored her for an H-1B visa.

She worked through January 2017. Her employer had no other projects for her but continued to pay her through July 2017 when her maternity leave ended. Her visa terminated and her employer discontinued assisting her in obtaining a green card.

“Husband filed a I-130 petition to sponsor wife for a ‘green card’ in December 2016, but he withdrew the petition in April 2017 after he and wife separated. … Although husband told wife in March 2017 that he was withdrawing the petition, wife misunderstood the communication and continued to believe the petition would be granted until she met with an immigration officer in September 2017.

“Without a H-1B visa or a ‘green card,’ wife was no longer authorized to work or remain lawfully in the United States. However, if she sought employment elsewhere, such as in India, she would lose custody of her young son because she was under a court injunction, obtained by husband, not to remove the child from the United States.”

The trial court ordered husband to pay wife $2,100 per month in spousal support “and did not specify the duration of the spousal support award.

“The court’s order stated that ‘[t]his award is expressly based on [wife’s] presence in the United States and her inability to earn an income lawfully due to immigration limitations, and her inability to return to India without her baby.’” Husband appealed.

Analysis

“Husband argues that the trial court improperly relied only on wife’s financial need and did not give appropriate weight to the other factors enumerated in Code § 20-107.1(E). He contends that a marriage lasting only ten months did not merit an award of spousal support, particularly an award of indefinite duration. …

“The record here shows that in setting the amount of spousal support for wife, the trial court appropriately considered the factors set forth in Code § 20-107.1(E). …

“In considering the income and expenses of both husband and wife, the trial court found that wife needed support and that husband had the ability to pay support. The court determined that both parties had ‘the education and skills necessary to make a nice living,’ but wife had no lawful ability to earn an income at that time due to her immigration status.

“The court found that there was no evidence that other employment opportunities were available to wife when she lost her job in 2017, but there was evidence that she would have done more to keep her H-1B visa if she had known her ‘green card’ application had been withdrawn.

“The court concluded that it could only speculate whether wife could have retained her H-1B visa or received a ‘green card’ through husband’s petition, but it was clear that once husband withdrew the petition, it would not be granted.

“The court determined that husband had ‘a financial interest in helping [wife] get a work authorization’; but by withdrawing the petition, he had foreclosed one opportunity for wife to work lawfully in the United States and contribute financially to her own support and that of their child.

“The trial court acknowledged that a marriage of only ten months was ‘of such short duration that any spousal support would be unusual.’ But the court balanced that factor with wife’s particular, difficult situation. The court stated that if no support was ordered, wife ‘would have the choice of living in the United States without the ability to lawfully support herself, or she would leave the United States without her child,’ because even though another court had ordered that she was the child’s primary custodian, that same court had prohibited her from leaving the country with the child. …

“We hold that the court did not abuse its discretion in ordering husband to pay spousal support to wife.

“Husband also contends that the trial court erred in not limiting the duration of the spousal support award. He asserts that the court’s order potentially obligates him to pay spousal support for the rest of his or wife’s life. …

“Under Code § 20-109, the trial court retained jurisdiction to alter the amount of the support award upon a proper showing of a material change of circumstances. Accordingly, if wife’s situation changes because, for example, she found lawful employment, husband may petition the circuit court to decrease or terminate the support order. …

“We conclude that the trial court did not err in awarding spousal support for an undefined duration.”

Affirmed.

Hyat v. Hina, Record No. 1882-19-4, June 23, 2020. CAV (Annunziata) from Fairfax County Cir. Ct. (Oblon) John K. Cottrell for appellant, Afsan Hina, pro se. VLW 020-7-135, 7 pp. Unpublished.