Amount of Support

SUPPORT

11-1 AMOUNT OF SUPPORT

11-1.28 Guidelines/Deviation

The wife is a German citizen whose relationship with the husband bore a single child during 2003. The wife married the husband on October 29, 2005. In order to facilitate the wife’s lawful immigration status and permit her to become a permanent resident of the United States, the husband executed a Form I-864 affidavit of support pursuant to section 213A of the Immigration and Nationality Act (INA), 8 U.S.C. § 1183a. The affidavit required the husband to sponsor the wife and provide her with a minimum level of financial support equal to 125 percent of the federal poverty guidelines. The parties separated in May of 2009, after which the wife filed a complaint for spousal and child support. The trial court ordered the husband to pay $622.00 per month in child support and $323.00 per month in spousal support, to which the wife filed exceptions. The I-864 affidavit was not applied or considered by the trial court in setting the support obligation, which was based solely on the trial court’s determination that the Pennsylvaniasupport guidelines were the controlling support consideration. The wife appealed from the allocated support order. The issue considered by the appellate court was whether the trial court erred in fashioning the support order without regard for the husband’s contractual obligations as set forth in the I-864 affidavit. The affidavit imposed a contractual obligation upon the husband to support the wife, which was independent of his spousal support obligations. The trial court erred in failing to apply Pa.R.C.P. 1910.16-5 in order to enforce the baseline amount of support established in the affidavit as a deviation from the presumed guideline amount. Under Rule 1910.16-5, the trial court is permitted to fashion a support order that deviates from the support guidelines as long as it identifies the guideline amount and specifies the reason for the deviation. The affidavit memorializing the husband’s commitment to support the wife at a minimum baseline level was relevant evidence upon which the trial court was authorized to deviate from the support guidelines. Hence, the trial court’s support order was reversed and the trial court was directed to fashion an award that reflected the husband’s obligation consistent with the I-864 support affidavit. Love v. Love, 33 A.3d 1268 (Pa.Super. 2011).