Stewart v. Warren

The court incorporates by reference in this paragraph and adopts as the findings and analysis

of this court the document set forth below. This document has been entered electronically in

the record of the United States Bankruptcy Court for the Northern District of Ohio.

Wea"

uy, Ptr

John P. Gustafson

Dated: March 4 2025 United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

In Re: ) Case No. 23-32252

)

Steven N. Warren, ) Chapter 7

)

Debtor. ) Adv. Pro. No. 24-03005

)

Jennifer Ann Stewart, ) Judge John P. Gustafson

Plaintiff, )

V. )

)

Steven N. Warren, )

)

Defendant. )

)

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT’S MOTION

TO DISMISS ADVERSARY PROCEEDING

This cause comes before the court on Defendant Steven N. Warren’s (“Defendant” or

“Debtor”) “Motion to Dismiss Adversary Proceeding” [Doc. #31] (“Motion”). Plaintiff Jennifer

Ann Stewart (“Plaintiff’) filed a “Memorandum in Opposition to Motion to Dismiss”

(“Response”). [Doc. #32]. No Reply was filed by, or on behalf, of the Debtor.

Plaintiff’s Complaint seeks a determination that a debt is owed by Defendant-Debtor

Steven N. Warren, her ex-husband, and asserts that it should be held nondischargeable in his

chapter 7 case under 11 U.S.C. §§523(a)(5) or (a)(15). For the reasons below, Defendant’s Motion

to Dismiss the Complaint is denied.

JURISDICTION AND VENUE

The court has jurisdiction over this adversary proceeding under 28 U.S.C. §1334(b) as a

civil proceeding arising in or related to a case under Title 11. The Chapter 7 case and all

proceedings in it arising under Title 11, including this adversary proceeding, have been referred to

this court for decision. 28 U.S.C. §157(a); General Order 2012-7 of the United States District Court

for the Northern District of Ohio. This is a core proceeding under 28 U.S.C. §157(b)(2)(I) and (J).

Venue is proper under 28 U.S.C. §1409(a).

BACKGROUND

According to the allegations in Plaintiff’s Complaint,1 Defendant and Plaintiff “were

married in Fort Erie, Ontario on November 12, 2016.” [Doc. #1, p. 9, ⁋40]. To facilitate his wife’s

entry into the U.S., on April 9, 2021 Defendant signed an affidavit required under Section 213A

of the Immigration and Naturalization Act, Form I-864 (“Affidavit of Support”). [Doc. #1-1,

Exhibit 1]. Plaintiff alleges that this Affidavit of Support constituted a binding contract obligating

the Defendant to maintain the Plaintiff’s income at no less than 125% of the Federal Poverty

Guidelines for her household. [Doc. #1, p.2, ⁋5, p.5, ⁋20; p.8, ⁋38]. The Affidavit of Support’s

purpose is alleged to be to prevent the person immigrating from becoming a “public charge.” [Id.,

p.5, ⁋⁋15-17]. Without the Affidavit of Support, the Defendant could not have legally brought his

spouse into the U.S. [Id., p.5, ⁋⁋15-19].

Plaintiff became a resident on November 2, 2021, and continues to maintain that status.

[Id., p. 11, ⁋55]. On September 17, 2022, the parties separated. [Id., p. 11, ⁋58]. On October 3,

1/ This background constitutes a summary of the factual allegations drawn from Plaintiff’s Complaint, construed in

the light most favorable to Plaintiff, accepting all well-pleaded factual allegations as true, and drawing all reasonable

inferences in the Plaintiff’s favor. Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir.

2020). The court makes no binding findings of fact here, as resolving any factual disputes would be inappropriate at

this stage in the litigation. Additionally, this court may consider “documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice,” such as the contents of its case docket and Debtors’

schedules. Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp., 830 F.3d 376, 383 (6th Cir. 2016)(quoting

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)); Fed. R. Bankr.

P. 9017; Fed. R. Evid. 201(b)(2); Job v. Calder (In re Calder), 907 F.2d 953, 955 n.2 (10th Cir. 1990); St. Louis

Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1171-72 (6th Cir. 1979)(stating that judicial notice is

particularly applicable to the court’s own records of litigation closely related to the case before it).

2022, Plaintiff filed a Complaint for Divorce in the Court of Common Pleas for Wood County,

Ohio (cause number 2022DR0110). [Id., p. 12, ⁋70]. While this case was pending, Plaintiff filed

a Complaint for Breach of the U.S. Citizenship and Immigration Services Form I-864 on August

23, 2023, in the United States District Court for the Northern District of Ohio. [Doc. #1, p. 13,

⁋72].

The divorce case proceeded to trial in front of a magistrate of the Wood County Court of

Common Pleas (“Family Court”), finally resulting in a Judgment Entry of divorce journalized on

December 11, 2023. [Id., p. 13, ⁋76 & Exhibit 9].

The Family Court’s Judgment Entry stated:

30. The Plaintiff is requesting a spousal support award of $1500 per month for a

period of two years.

31. There are no temporary orders for spousal support in this matter.

32. The Defendant has assumed and paid for all the parties’ marital debts during

the pendency of this matter.

33. The Plaintiff has filed a lawsuit in Federal Court to enforce the parties’

immigration contract and testified that any spousal support award herein would be

reduced from the immigration contract award. 34. Pursuant to ORC 3105.18(B),

the Magistrate finds that Plaintiff has requested an award of spousal support in her

Complaint for Divorce.

Doc. #1, Exhibit 9, p. 5, ⁋⁋30-34.

Defendant points to this portion of the Judgment Entry of divorce to support his Motion to

Dismiss:

10. There shall be no spousal support obligation in this matter by either party and

this provision is nonmodifiable and not subject to the continuing jurisdiction of the

court.

Doc. #1, Exhibit 9, p. 9, ⁋10.

However, in the Judgment Entry, the Family Court also found:

36. The Magistrate finds that there is pending litigation in Federal Court as to the

Defendant’s contractual obligation under federal law regarding the terms contained

in the affidavit of support; there was no evidence submitted as to said Affidavit or

the substance and status of the pending litigation.

37. After consideration of all applicable factors set forth in RC

3105.18(C)(1), the Magistrate finds that an award of spousal support in the instant

matter could be appropriate, however, the pending litigation in Federal Court is the

more appropriate forum to determine the Defendant’s contractual obligation of

support to Plaintiff.

[Id., Ex. 9, p. 7, ⁋36 & ⁋37].

All of these Magistrate findings were incorporated in the Family Court’s final

Judgment Entry.

On December 19, 2023, Defendant filed a voluntary petition for relief under Chapter 7 of

the Bankruptcy Code. [Doc. #1, Case No. 23-32252]. Subsequently, Plaintiff initiated this

Adversary Proceeding by filing the above captioned Complaint, which requests a judgment against

the Defendant for Breach of Contract, an award of actual damages based on the baseline of 125%

of the poverty guidelines for a single household, from the date of separation to the judgment, and

a declaration that the Plaintiff is entitled to continued financial support from the Defendant at the

same rate, minus actual income, until a Terminating Event2 occurs. Additionally, the Plaintiff

requests an order requiring Defendant to make monthly payments of the specified amount by the

fifth day of each month to Plaintiff’s law firm trust fund, an award of attorney fees and costs, and

the right to amend the Complaint based on trial evidence.

Plaintiff’s Complaint also seeks an order of nondischargeability under 11 U.S.C.

§§523(a)(5) and (a)(15). [Doc. #1, p. 2].

On June 6, 2024, Defendant answered the Complaint and asserted four separate affirmative

defenses:

24. The Plaintiff’s Complaint fails to state a claim upon which relief can be

granted.

25. The Plaintiff waived any claim to spousal support by not objecting to

the Magistrate’s Decision in the divorce action thereby allowing to stand the

Magistrate’s Decision rendering $0 spousal support.

26. The alleged “debt” to the Plaintiff is not in the nature of a Domestic

2/ Plaintiff uses the term “Terminating Events” “to refer collectively to the legal events that conclude the sponsor’s

obligations under the Affidavit.” [Doc. #1, p. 7-8, ⁋⁋31-36]. These events include: Plaintiff becoming a U.S. citizen;

working or receiving credit for 40 quarters under the Social Security Act; no longer being a permanent resident and

departing the U.S.; being subject to an order of removal but obtaining a new grant of adjustment of status through a

new affidavit of support in removal proceedings; or Plaintiff’s death. [Id.].

Support Obligation.

27. The Plaintiff is not a “public charge” invoking the statutes in the

Plaintiff’s Complaint.

[Doc. #27].

On July 27, 2024, Defendant filed his Motion seeking dismissal of the Complaint. [Doc.

#31]. The Motion argues that the Complaint should be dismissed under Fed. R. Civ. P. 12(b)(6)

for two reasons: (1) “[t]he Affidavit has not been established as a DSO as required by the plain

language of 11 USC 101(14A)(c)(i), (ii) or (iii),” and (2) “the doctrine of res judicata bars the

Plaintiff’s claims.” [Id., p. 4].

On July 30, 2024, Plaintiff filed a Response arguing that (1) Defendant’s Motion is

untimely because “the Debtor was ordered to file any motion to dismiss no later than July 26,

2024,” yet “[l]ate in the evening of Saturday, July 27th, the Debtor filed an untimely motion to

dismiss.” [Doc. #32, p. 6]; (2) The debt under the Affidavit of Support is “in the nature” of

“alimony, maintenance, or support” regardless of its label or the Family Court’s lack of a specific

spousal support order. [Id. pp. 6-12]; (3) That it is irrelevant that the Family Court did not award

alimony because its decision expressly deferred to the pending federal district court case on the

debt at issue; [Id., pp. 12-13]; (4) “The doctrine of res judicata is inapplicable [because (A)]

alimony adjudications cannot defeat federal support rights under the Affidavit of Support, and

[(B)] on the facts of the case, because . . . the family law court expressly declined to rule on the

Affidavit claim, and expressly preserved the issue for federal court.” [Id., pp. 14-16]; (5) Because

the Defendant addressed only two claims in his Motion, the remaining affirmative defenses not

addressed — “failure to state a claim and that the Creditor is not a public charge” — should be

considered abandoned. [Id., pp. 16-18]; and (6): The Plaintiff has established an alternative theory

that the debt constitutes a DSO under 523(a)(15), and since “the Debtor has neither challenged this

theory in his Answer nor via the motion at bar, and his deadline for asserting any facial challenge

to the Complaint has expired.” [Id., pp. 18-19].

LAW AND ANALYSIS

I. Legal Standards.

A. Rule 12(b).

A motion brought by a defendant to dismiss an adversary proceeding is governed by

Federal Rule of Civil Procedure 12(b), made applicable to this proceeding by Federal Rule of

Bankruptcy Procedure 7012(b)3. Under Rule 12(b)(6), a defendant may move to dismiss for failure

to state a claim upon which relief can be granted.

On June 6, 2024, Defendant filed an Answer to the Complaint. [Doc. #27].

On July 27, 2024, Defendants filed the Motion challenging Defendant’s Complaint for

failing to state a claim upon which relief can be granted, and the court’s subject-matter jurisdiction.

[Doc. #31]. A Rule 12(b) motion must be made before any responsive pleading is filed. Thus,

Plaintiff asserts that Defendant’s Motion under Rule 12(b)(6) was late filed.

However, a party does not waive a defense based on subject-matter jurisdiction by failing

to raise it by motion before filing a responsive pleading. The procedural basis for an examination

of this court’s subject-matter jurisdiction is its authority under Federal Rule of Bankruptcy

Procedure 7012(b), making Fed. R. Civ. P. 12(h)(3) applicable in adversary proceedings. Rule

12(h)(3) authorizes the court to dismiss an action “at any time” for lack of subject-matter

jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

B. Res Judicata

Challenges to subject-matter jurisdiction “come in two varieties: a facial attack or a factual

attack.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012)(quoting Gentek Bldg.

Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). A “facial attack” on

subject-matter jurisdiction “questions merely the sufficiency of the pleading,” Gentek Bldg.

Prods., Inc., 491 F.3d at 330 (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325

(6th Cir. 1990)), in which case all allegations in a complaint must be considered as true. Id.; Abbott

v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007)(citation omitted). A “factual attack,” on the other

hand, places the “factual basis for jurisdiction” at issue, “in which case the trial court must weigh

the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” Abbott, 474 F.3d

at 328 (citation omitted).

In this case, by asserting that this court lacks subject-matter jurisdiction based upon res

3/ Federal Rule of Bankruptcy Procedure 7012(b) makes Federal Rules of Civil Procedure 12(b)-(i) applicable in

bankruptcy adversary cases.

judicata,4 Defendant’s Motion is a “facial attack” on Plaintiff’s jurisdictional claim.5 See, Reguli

v. Guffee, 371 F. App’x 590, 595 (6th Cir. 2010). Accordingly, a court is bound to consider the

challenge to subject-matter jurisdiction under Rule 12(h)(3) as a preliminary matter, “since the

Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction.” Moir v.

Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

Defendant’s Motion to Dismiss is largely based on the State Court’s Judgment Entry

stating: “10. There shall be no spousal support obligation in this matter by either party and this

provision is nonmodifiable and not subject to the continuing jurisdiction of the court.” [Doc. #1-

9, p. 9, ⁋10]. From this provision of the Judgment Entry, Defendant argues that the obligations set

forth in the Affidavit of Support are not “established pursuant to a separation agreement, divorce

decree or property settlement or by any court of record.” [Doc. #31, p. 4]. Therefore, Defendant

argues, the obligations under the Affidavit of Support cannot be nondischargeable under 11 U.S.C.

§§523(a)(5) or 523(a)(15). [Id.] Plaintiff did not appeal the State Court Judgment Entry, therefore

the Defendant argues he is entitled to dismissal of the non-dischargeability Complaint, because it

is entitled to be given “full faith and credit” by this court, and Plaintiff’s assertion that monies are

owed under the Affidavit of Support are barred by res judicata. [Doc. #31, pp. 4-5].

However, as will be discussed below, Plaintiff’s statement of the facts leaves out important

parts of the State Court Judgment Entry, where it specifically deferred to the pending federal

District Court litigation. Further, the argument that there is a legal requirement that a support

obligation be “established pursuant to a separation agreement, divorce decree or property

settlement or by any court of record” before the bankruptcy is filed does not appear to be required

by the statute or existing case law.

4/ In Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the

United States Supreme Court expressed its preference for usage of the terms “issue preclusion” and “claim preclusion”

to refer to the preclusive effect of a judgment in foreclosing future litigation, rather than the more common terms of

“collateral estoppel” and “res judicata.”

5/ To the extent that Defendants present a “factual attack” on subject-matter jurisdiction, Defendants have not

presented any competing facts, such as affidavits or other additional matter, raising a factual controversy that at least

one of the Complaint’s allegations is demonstrably untrue that would call into question this court’s jurisdiction. See,

e.g., Mata v. Eclipse Aerospace, Inc. (In re AE Liquidation, Inc.), 435 B.R. 894, 903 (Bankr. D. Del. 2010)(a “factual

attack” on jurisdiction may include an event that occurred after the filing of the complaint that renders the case moot);

Ogilvie v. Nationstar Mortg. LLC (In re Ogilvie), 533 B.R. 460, 465 (Bankr. M.D. Pa. 2015)(“In a factual attack, the

face of the pleadings satisfy the jurisdictional requirements. However, at least one of the allegations is demonstrably

untrue, negating the court’s jurisdiction.”).

C. Federal Court Jurisdiction.

Here, federal court jurisdiction starts with 8 U.S.C. § 1183a(e)(1), which states: “An action

to enforce an affidavit of support ... may be brought against the sponsor in any appropriate court

... by a sponsored alien, with respect to financial support”.

The Sixth Circuit has noted this statute’s plain meaning:

Section 1183a, however, clearly states that “[a]n action to enforce an

affidavit of support ... may be brought against the sponsor in any appropriate court

... (1) by a sponsored alien, with respect to financial support; or (2) by the

appropriate entity of the Federal [or State] Government ... with respect to

reimbursement.” 8 U.S.C. § 1183a(e).

Davis v. U.S., 499 F.3d 590, 594 (6th Cir. 2007)(emphasis omitted); see also, §1183a(1)(C) (the

affidavit is a contract in which: “the sponsor agrees to submit to the jurisdiction of any Federal or

State court for the purpose of actions brought under subsection (b)(2).”); Belevich v. Thomas, 17

F.4th 1048, 1051 (11th Cir. 2021)(The statute also creates a federal cause of action so that “the

sponsored alien, the Federal Government, [or] any State” may enforce a support affidavit against

a sponsor.”); Wenfang Liu v. Mund, 686 F.3d 418, 420 (7th Cir. 2012)(“The Immigration and

Nationality Act, 8 U.S.C. §1183a(e), authorizes suit “in any appropriate court ... by a sponsored

alien” “to enforce an affidavit of support executed under” section 1183a(a); Flores v. Flores, 590

F. Supp. 3d 1373, 1379 (W.D. Wash. 2022) (“By signing the I-864 Affidavit of Support, Defendant

submitted himself to the personal jurisdiction of any federal or state court in which an enforcement

lawsuit is brought.”).

Thus, the lawsuit pending in federal court arises under federal law, making the federal

District Court an “appropriate court” in which to bring the suit. Ibrhim v. Abdelhoq, 2024 WL

3521842 at *2, 2024 U.S. Dist. LEXIS 130268 at **5-6 (N.D. Ohio July 24, 2024)(“Section 1183a

‘creates a federal cause of action so that ‘the sponsored alien, the Federal Government, [or] any

State’ may enforce a support Affidavit against a sponsor.”).

Defendant has asserted that the failure to appeal the state court Judgment Entry requires

dismissal of this action. While the Motion to Dismiss does not specifically cite the Rooker-

Feldman doctrine, that is the starting point for the court’s analysis.

The “Rooker-Feldman doctrine provides that inferior federal courts lack jurisdiction to

review the final judgments of state courts.” WLP Cap., Inc. v. Tolliver (In re Tolliver), 2021 WL

6061853, at *9, 2021 Bankr. LEXIS 3463, at *24 (6th Cir. BAP Dec. 20, 2021)(quoting

Hutcherson v. Lauderdale Cnty., Tenn., 326 F.3d 747, 755 (6th Cir. 2003)); see also, Davis v. U.S.,

499 F.3d 590, 595 (6th Cir. 2007).

Since the Rooker-Feldman doctrine strips federal courts of jurisdiction, it should be

considered first. Hutcherson, 326 F.3d at 755. Under the Rooker-Feldman doctrine, lower federal

courts lack subject-matter jurisdiction to hear cases that require them to review or set aside a state

court judgment. Tolliver, 2021 WL 6061853, at *10, 2021 Bankr. LEXIS 3463, at **25-26

(citation omitted). The Rooker-Feldman doctrine, however, occupies “narrow ground”. See

generally, Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284-289, 125 S.Ct.

1517, 1522-1524, 161 L.Ed.2d 454 (2005). The doctrine “is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517.

Rooker-Feldman “does not prevent [federal courts] from deciding an independent claim,”

id. (quoting Sill v. Sweeney (In re Sweeney), 276 B.R. 186, 195 (B.A.P. 6th Cir. 2002)), and

“provides no protection in areas where Congress has explicitly endowed federal courts with

jurisdiction.” Id. (quoting Hamilton v. Herr (In re Hamilton), 540 F.3d 367, 372 (6th Cir. 2008)).

If the State Court judgment had actually determined a support obligation based upon the

obligations imposed by the Affidavit of Support, the court would have to consider the split of

authority that appears to exist on the application of Rooker-Feldman to Affidavits of Support in

domestic relations cases. Compare, Grabois v. Grabois, 737 F. App’x 388 (9th Cir. Sept. 10,

2018); and Ronchin v. Hoop, 2021 WL 4902456 at *3, 2021 U.S. Dist. LEXIS 203134 at **4-7

(N.D. Ill. Oct. 21, 2021) with, In re Schwartz, 409 B.R. 240 (10th Cir. BAP 2008). But here, it

does not appear that the Complaint seeks to vacate or nullify the State Court Judgment. Plaintiff

was not a state court “loser” on the issue of the Affidavit of Support. Instead, the Family Court’s

Judgment Entry deferred to the District Court litigation, where the issues relating to the Affidavit

of Support were already pending.

In addition to not meeting the “state court loser” element under Exxon, an additional

requirement for the application of res judicata that is not met here. Specifically, Exxon limited

Rooker-Feldman to “injuries caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and rejection of those judgments.”

Exxon, 544 U.S. at 284, 125 S.Ct. at 1517 (emphasis added); see also, In re Rugiero, 502 F. App’x.

436, 438 (6th Cir. Oct. 10, 2012)(citing cases in the context of a §523(a)(5) action).

Taking the allegations and exhibits to the Complaint as true, the Family Court’s Judgment

Entry was not rendered before the District Court proceedings were commenced by Plaintiff. This

is made clear by the specific reference to the pending District Court litigation in the Family Court’s

Judgment Entry. [Doc. #1, Exhibit 9, p. 9, ⁋10]. Moreover, Defendant-Debtor appears to admit

that the District Court action to enforce the Affidavit of Support was filed first: “during the

separation, but before the divorce trial, Plaintiff Stewart initiated litigation in the Northern

District of Ohio under a third-party liability theory to compel the Plaintiff to provide funds

pursuant to the Affidavit.” [Doc. #31, p. 2] (emphasis added).

Further, based on the pleadings attached to the Complaint, the state court Judgment Entry

explicitly elected to defer to the pending District Court litigation on the issue of the support

required to be paid under the Affidavit of Support. Thus, there is no need to “overturn” the

Judgment Entry of divorce because it did not decide the issue of support under the Affidavit of

Support – either for or against either of these litigants.

Nor does the case law support Defendant’s position. In Mao v. Bright, 645 F. Supp. 3d

805 (S.D. Ohio 2022), the sponsored spouse waived spousal support in her state court divorce

action. Id., at 810 (“In the Final Judgment Entry and Decree of Legal Separation, Defendant and

Plaintiff both waived any rights to ‘spousal support, which either spouse may now have or ever

acquire against the other.’”). However, the District Court held that: “Defendant’s financial

obligations as Plaintiff’s immigration sponsor under federal law exist completely independent of

any obligations to pay spousal support under state divorce laws.” Id., at 810-811 (citing, Liu v.

Mund, 686 F.3d 418, 419-20 (7th Cir. 2012)(“[t]he right of support conferred by federal law exists

apart from whatever rights [a sponsored immigrant] might or might not have under [state] divorce

law.”); see also, Ronchin v. Hoop, 2021 WL 4902456 at **2-3, 2021 U.S. Dist. LEXIS 203134 at

**4-7 (N.D. Ill. Oct. 21, 2021)(citing cases rejecting the defense of res judicata based upon a prior

divorce action); Cyrousi v. Kashyap, 386 F. Supp. 1278, 1283 (C.D. Cal. 2019)(denying summary

judgment for sponsor based on Marital Settlement Agreement).

The Mao decision cites the holding in Erler v. Erler, 824 F.3d 1173, 1176-1177 (9th Cir.

2016) that neither a divorce judgment nor a premarital agreement may terminate an obligation of

support under the I-864. See also, Belevich v. Thomas, 17 F.4th 1048, 1052 (11th Cir. 2021), cert.

denied, 142 S. Ct. 2754, 213 L.Ed.2d 998 (2022)(“The I-864 affidavit, which both sponsors

executed, repeats [8 C.F.R. § 213a.2(e)(2)(i)’s] terminating events and expressly notes that divorce

is not a terminating event.”); Forchielli v. Forchielli, 2023 WL 7170650 at *1, 2023 U.S. Dist.

LEXIS 202189 at *3 (E.D. Mich. June 16, 2023)(quoting Belevich, 17 F.4th at 1052.

For all of these reasons, the Rooker-Feldman doctrine, res judicata (claim preclusion), and

collateral estoppel (issue preclusion) do not prevent this court from hearing the issues raised in the

Complaint.

D. Failure To State a Claim.

Defendant’s Motion also seeks dismissal under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted. Dismissal for failure to state a claim may be raised by moving

for judgment on the pleadings under Rule 12(c) or at trial. Fed. R. Civ. P. 12(h)(2). Since the only

difference between Rule 12(c) and Rule 12(b)(6) is the timing of the motion to dismiss, the

“manner of review under Rule 12(c) is the same as a review under Rule 12(b)(6).” Vickers v.

Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir. 2006). Accord Bates v. Green Farms Condo.

Assoc., 958 F.3d 470, 480 (6th Cir. 2020). Accordingly, the court will treat Defendant’s Motion

as one for judgment on the pleadings brought under Rule 12(c). See, Sun Fed. Credit Union v.

Montague (In re Montague), 2021 WL 2816326, at *1, 2021 Bankr. LEXIS 1787, at *3 (Bankr.

N.D. Ohio July 6, 2021)(Whipple, J.).

“For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment.” Moderwell v.

Cuyahoga Cnty., 997 F.3d 653, 659 (6th Cir. 2021)(citation omitted). “But we ‘need not accept

as true legal conclusions or unwarranted factual inferences.’” Id. (citation omitted). “A Rule 12(c)

motion ‘is granted when no material issue of fact exists and the party making the motion is entitled

to judgment as a matter of law.’” Id. (citation omitted).

II. Plaintiff’s Claims.

A. Sections 523(a)(5) and 523(a)(15).

The Complaint asserts that the Defendant’s obligation under the Affidavit of Support “was

owed qua his role as her [former] spouse and immigration sponsor,” thereby satisfying the

definition for “domestic support obligation” under 11 U.S.C. §101(14A)(A)(i) and rendering the

debt nondischargeable under §523(a)(5). [Doc. #1, p. 14]. Alternatively, the Complaint asserts

that the Defendant’s debt to the Plaintiff “is another form of marital debt” falling under the

exception to discharge described in §523(a)(15). [Id., p. 15].

As a general rule, “exceptions to discharge in §523(a) must be narrowly construed.” Bd. of

Trs. v. Bucci (In re Bucci), 493 F.3d 635, 642 (6th Cir. 2007)(citing Meyers v. IRS (In re Meyers),

196 F.3d 622, 624 (6th Cir. 1999)). However, other courts have held that Section 523(a)(5) and

(a)(15), working in tandem, reflect a general purpose of encouraging the payment of familial

obligations, “thus overriding the general policy of reading exceptions to discharge narrowly.” 4

Collier on Bankruptcy, ⁋523.05 at p. 523-21 & ⁋523.23 at p. 523-131 n.1b (16th ed. 2024).

“In any §523(a) analysis, the creditor bears the burden of proving by a preponderance of

the evidence that a debt is excepted from discharge.” Conti v. Arrowood Indem. Co. (In re Conti),

982 F.3d 445, 448 (6th Cir. 2020), cert. denied sub nom. Conti v. Arrowood Indem. Co., 141 S.Ct.

2862, 210 L.Ed.2d 965 (2021)(alterations omitted)(internal quotation marks omitted)(citation

omitted).

Section 523(a)(5) excepts from discharge any debt “(5) for a domestic support

obligation”.

The term “domestic support obligation” is defined in §101(14A), which states:

(14A) The term “domestic support obligation” means a debt that accrues before,

on, or after the date of the order for relief in a case under this title, including interest

that accrues on that debt as provided under applicable nonbankruptcy law

notwithstanding any other provision of this title, that is–

(A) owed to or recoverable by –

(i) a spouse, former spouse, or child of the debtor or such child's

parent, legal guardian, or responsible relative; or

(ii) a governmental unit;

(B) in the nature of alimony, maintenance, or support (including assistance

provided by a governmental unit) of such spouse, former spouse, or child of

the debtor or such child’s parent, without regard to whether such debt is

expressly so designated;

(C) established or subject to establishment before, on, or after the date of

the order for relief in a case under this title, by reason of applicable

provisions of –

(i) a separation agreement, divorce decree, or property settlement

agreement;

(ii) an order of a court of record; or

(iii) a determination made in accordance with applicable

nonbankruptcy law by a governmental unit; and

(D) not assigned to a nongovernmental entity, unless that obligation is

assigned voluntarily by the spouse, former spouse, child of the debtor, or

such child’s parent, legal guardian, or responsible relative for the purpose

of collecting debt.

11 U.S.C. §101(14A).

Separately, §523(a)(15) renders nondischargeable any debt:

to a spouse, former spouse, or child of the debtor and not of the kind

described in paragraph (5) that is incurred by the debtor in the course of a

divorce or separation or in connection with a separation agreement, divorce

decree or other order of a court of record, or a determination made in

accordance with State or territorial law by a government unit ...

11 U.S.C. §523(a)(15).

In this case, the Defendant argues in its Motion that to be non-dischargeable, any obligation

“must be established by reason of a divorce decree. The Divorce Decree (See Exhibit B)

specifically states that there shall be no spousal support obligation . . . . There is no DSO by

specific order of a State Court which considered and decided the issue.” [Doc. #31].

In this asserted basis for dismissal of the Complaint, the Defendant does not dispute the

existence (or at least the prior obligation) owed under Form I-864. Instead, he asserts that this debt

does not qualify as a nondischargeable domestic support obligation because “there is no DSO by

specific order of a State Court”.

Although this issue has not previously been litigated in this court, Judge Jennemann held,

on summary judgment, that an “Affidavit of Support is a Non–Dischargeable Domestic Support

Obligation under 11 U.S.C. § 523(a)(5).” See, Hrachova v. Cook (In re Cook), 473 B.R. 468, 473

(Bankr. M.D. Fla. 2012). In a separate case, the same judge stated: “To allow defendant now to

discharge these obligations would contravene the purpose of §523 of subordinating a debtor’s fresh

start to the more compelling interest of requiring debtors to pay all legitimate domestic support

obligations.” In re Ortiz, 2012 WL 5556935 at *3, 2012 Bankr. LEXIS 5324 at *8 (Bankr. M.D.

Fla. Oct. 31, 2012).

As to the specific arguments raised by Defendant-Debtor, the statutory language must be

the starting point. There is no requirement that any pre-petition domestic support order be entered

for a debt to be held nondischargeable under §523(a)(5). The statute makes nondischargeable - as

a domestic support obligation - “a debt that accrues before, on, or after the date” of the bankruptcy.

§101(14A). Moreover, the statutory definition includes debts: “established or subject to

establishment before, on, or after the date of the order for relief in a case under this title, . . . .”

§101(14A)(C). Thus, the statute does not support any requirement that a judicial determination

must be made regarding the existence of the debt, or the amount, before the filing of the bankruptcy

case.

Further, while most debts litigated under §523(a)(5) are divorce related debts and look to

state court determinations, the statutory language is not limited to such cases. For example, Section

523(a)(5) includes the word “support” - and “support” appears to be the very purpose behind

requirement that a sponsor sign the form I-864 Affidavit of Support. As an Ohio District Court

stated in Nasir v. Shah:

Under 8 U.S.C. §1183a, immigrants who are likely to become a public

charge are ineligible for admission into the United States unless their applications

for admission are accompanied by an Affidavit of Support Form I–864. A person

petitioning for the admission of a family-sponsored immigrant must sign a Form I–

864 affidavit, which is a legally enforceable contract between the sponsor and the

sponsored immigrant. By signing the affidavit, the sponsor agrees to provide

support to maintain the sponsored alien at an annual income that is not less than

125 percent of the Federal poverty line during the period in which the affidavit is

enforceable. 8 U.S.C. § 1183a(a)(1)(A).

Nasir v. Shah, 2013 WL 3085208 at *2, 2013 U.S. Dist. LEXIS 85285 at *6 (S.D. Ohio June 18,

2013).

In the same vein, there is no statutory requirement that the support obligation be imposed

by a state domestic relations court. The definitional provision includes debts that are “established

or subject to establishment . . . by reason of applicable provisions of – . . . (ii) an order of a court

of record; . . . .” §101(14A)(C). The United State District Court is a “court of record” and the

action for enforcement of the Affidavit of Support is pending there, subject to “establishment” if

Plaintiff prevails. Similarly, the legislation implementing the new Bankruptcy Code specifically

stated that bankruptcy courts would be “courts of record”. 28 U.S.C. §151(a)(1976 ed., Supp. IV);

1 Collier on Bankruptcy, ⁋2.01[2] at p. 2-3 (16th ed. 2024)(“Section 201 of the Bankruptcy Reform

Act of 1978 established in each judicial district a new court of record, to be called the United States

Bankruptcy Court.”)(footnote omitted).

While the Complaint appears to state a claim under 11 U.S.C. Section 523(a)(5) – and this

decision so holds – if a debt is found non-dischargeable under §523(a)(5) that means that the

obligation is not nondischargeable under Section 523(a)(15). This is because the definition of a

debt that is non-dischargeable under §523(a)(15) excludes debts that are nondischargeable under

§523(a)(5). See, 11 U.S.C. §523(a)(15) (“and not of the kind described in paragraph (5)”); In re

Taylor, 737 F.3d 670, 675 (10th Cir. 2013)(Ҥ523(a)(15) will apply to a debt only if that debt does

not qualify as a ‘domestic support obligation’ under § 523(a)(5) . . .”.); In re Zaepfel, 665 B.R. 58,

62 (Bankr. W.D. Ky. 2024)(to establish a nondischargeable debt under §523(a)(15) creditor must

establish that “(2) the debt is not a support obligation of the type described in § 523(a)(5); . . .”); 4

Collier on Bankruptcy, ⁋523.23 at p. 523-132 (16th ed. 2025)(“In their joint operation, §523(a)(15)

begins after §523(a)(5) operates;. . .” citing, Lakeman v. Weed (In re Weed), 479 B.R. 533, 538

(Bankr. D. Minn. 2012).6

Accordingly, in moving forward, focusing on a determination of the dischargeability of

this obligation under §523(a)(5) would appear to be a more economical way to proceed.

CONCLUSION

For these reasons, the court finds that the Family Court’s decision to essentially give comity

to the U.S. District Court where the issue was first raised - leaving the issue of spousal support for

the federal court to decide – is not, as a matter of law under a Rule 12(b) Motion to Dismiss, a

decision that prevents Plaintiff from seeking to enforce Defendant’s financial obligations under

the I-864 Affidavit of Support as a DSO.

Accordingly, because the Complaint pleads factual allegations that, taken as true, state a

6/ There are other difficult questions regarding the application of Section 523(a)(15) to Affidavits of Support. Rather

than being “incurred” in the course of a divorce related proceeding, or potentially “incurred” in some future decision

of a court of record – the case law reflects that the obligation under the Affidavit of Support is fixed earlier under

federal law. See e.g., Ibrhim v. Abdelhoq, 2024 WL 3521842 at *4, 2024 U.S. Dist. LEXIS 130268 at * (N.D. Ohio

Nov. 7, 2024)(“Thus, the only condition precedent that triggers a sponsor's obligation [under an affidavit of support]

to provide support is the granting of the sponsored immigrant's application for admission or adjustment of

status.”)(citing 8 C.F.R. § 213a.2(e)(1)). Because Section 523(a)(15) does not apply because a claim is stated under

Section 523(a)(5), the leave further consideration of the issue for consideration if Section 523(a)(5) is held to be

inapplicable to the obligations arising under the Affidavit of Support.

plausible cause of action under §523(a)(5), the Motion to Dismiss is denied. See, Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

This matter will be set for further pre-trial on how to proceed regarding the issue of non-

dischargeability and, if the debt is non-dischargeable, which court (this court or the United States

District Court) should decide the amount (if any) to be awarded by judgment.

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