xxx:
IN THE CIRCUIT COURT OF ZZZ COUNTY
XXXX,
Plaintiff
vs.
XXX,
Defendant
CASE NO.
AMENDED COMPLAINT
1. Plaintiff XXX(hereinafter “Plaintiff”), pro se, files
this Amended Complaint against Defendant XXX(hereinafter
“Defendant”) and alleges as follows:
NATURE OF ACTION
2. Plaintiff seeks a judgment from this honorable court that Defendant breached
the Marital Agreement (hereinafter the “Agreement”) entered between Plaintiff and
Defendant.
3. Said Agreement contained terms that waived all causes of action and required
all parties to hold each other harmless from liability.
4. Defendant the acts are alleged herein, which violated the aforementioned
terms, to the detriment of Plaintiff.
5. Plaintiff also prays for a Rule to Show Cause against Defendant.
PARTIES
6. Plaintiff XXX is a member of the Armed Forces of the
XXX, serving on active duty with the XXX Air Force. Plaintiff’s current
residence is [ENTER ADDRESS].
7. Defendant XXX is not currently a member of the
Armed Forces of the United States serving on active duty. Defendant’s current residence is
[ENTER ADDRESS].
8. Plaintiff and Defendant (hereinafter “Parties”) were married on ,
XXX.
9. Parties got divorced on or about XXX, and a Divorce Order was
entered on the self-same date by this honorable court.
JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction pursuant to Va. Code § 17.1-513 and
§8.01-274.1.
11. Venue is proper in this judicial district pursuant to Va. Code § 8.01-262 because
the Agreement was executed in this County. The Divorce Order was also entered in this
honorable court.
FACTUAL BACKGROUND
12. Parties were separated on or about XXX.
13. Parties executed a Marital Agreement on or about XXX, whereby
the Parties settled and determined all questions of property and support and other rights
existing between them as a result of their matrimonial relation.
14. On or about XXX, the Agreement was affirmed, ratified, and
incorporated into the Order of the Court.
15 Parties got divorced on or about XXX.
16. On or about XXX, Defendant sued Plaintiff in the United States
District Court for the Western District of Washington. On or about XXX,
Defendant filed an amended Complaint at the self-same Court.
17. Court dismissed Plaintiff’s res judicata defense and Defendant eventually
won part of the case.
CAUSES OF ACTION
COUNT 1
BREACH OF CONTRACT
18. Plaintiffs re-allege the facts in Paragraphs 1-17 and incorporate the same
herein by reference as if set forth in full.
19. In order to prove a breach of contract claim, a Plaintiff must demonstrate that
there exists a contract imposing a duty on the Defendant, and that the Defendant failed to
fully perform that duty; the Plaintiff must also prove that the amount of damages claimed is
necessary to place the Plaintiff in the position it would have occupied had the duty been
fulfilled. Restatement (Second) of Contracts §235(b).
20. Marital agreements, or agreements made by a couple who is already married,
are determined using the same criteria as those which apply to premarital agreements (VA
Code §20-155) which, in turn, are enforceable if otherwise valid as a contract. (VA Code
§20-154). It follows; Marital agreements are upheld and interpreted by normal contract law
provisions. See Pysell v. Keck, 263 Va. 457, 559 S.E.2d 677 (Va., 2002).
21. Marital agreements are subject to the same formalities as those of Pre-nuptial
Agreements. In that regard, Plaintiff avers that there was a valid contract between Plaintiff
and Defendant. Notably, the Agreement was in writing and was signed by both Parties, per
Va. Code § 20-149. The Agreement also contained, inter alia, rights and obligations of both
Parties under the Agreement, per Va. Code § 20-150. Besides, on or about March 14, 2016,
the Court affirmed, ratified, and incorporated the Agreement into the Order of the Court.
Particulars of Breach
22. Defendant breached Section 21 of the Marital Agreement. Section 21 of the
Agreement stated that:
WAIVER OF CAUSES OF ACTION
Each party hereby WAIVES and FORGIVES any claim or cause of action which
each may presently have against the other by any reason, and each hereby agrees
that the consideration set forth herein includes full satisfaction for any such claim,
except for any cause of action for divorce and except for any claim based on the
provisions of this agreement.
23. Defendant breached this term in the following manner: Defendant’s initial
complaint (EXHIBIT 1) and amended complaint (EXHIBIT 2) both claim damages prior to
the Agreement being signed. Notably, the Agreement was entered on or about XXXX and the two Complaints were filed on or about XXXX, and XXXX,
respectively. In the Complaints Defendant sued Plaintiff for I-864 support from day 1 of the
Parties’ marriage. Additionally, the Defendant alleged emotional abuse which was also
claimed during the Parties’ marriage and prior to signing the Agreement. Additionally,
Defendant declared in Federal Court that she received 26 hours of legal counsel exclusively
on the I-864, on the days prior to signing the I-864. Therefore, Defendant knew she had a
present claim but decided to hold it in her pocket for another 2 years. Defendant files these
claims in contravention of the said provision which forbids her from instituting any claim or
cause of action subject to the exceptions therein.
24. Defendant also breached Section 27 of the Marital Agreement. Section 27 of
the Agreement stated that:
HOLD HARMLESS FROM LIABILITY
Each party hereto shall hold the other harmless from any and all liability of every
kind on his or her specific obligations under the agreement and shall indemnify
the other for any expense he or she may necessarily incur in connection therewith.
25. Defendant breached this term in the following manner: Defendant knew she
was waiving her rights to sue and as such agreed to hold Plaintiff harmless for ANY and ALL
liability of EVERY kind. However, in contravention of the said provision, Defendant went
ahead to institute the said Federal claims against Plaintiff.
26. Plaintiff admits that indeed, the contract (I-864) Under Section 213A of the
Immigration and Nationality Act, INA, still existed between Plaintiff Scott A. Anderson and
the United States of America, with Defendant being the third-party beneficiary. However,
Defendant Inge Theodora Anderson waived her right to sue. Per the Federal Register, “if the
sponsored immigrant is an adult, he or she probably can, in a divorce settlement, surrender
his or her right to sue the sponsor to enforce an affidavit of support.” Federal Register / Vol.
71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations., page 35740. (Emphasis
added). Accordingly, Defendant knowingly and willfully executed the Matrimonial
Agreement with the intent to waive the I-864. Per page 3 of EXHIBIT 3 “Motion to Retax”
Defendant filed under perjury with the 9th Circuit asking for attorney fees of $7,830 for the I-
864 counsel, which is approximately 26 hours of legal counsel. This clearly shows that the I-
864 was the intent of the MA. Defendant’s counsel went right up to the day of signing the
Marital Agreement. Additionally, when Defendant filed her complaint for divorce, she stated
I-864 and abuse claims, but in the end; the court ruled on Plaintiff’s behalf and the Marital
Agreement was entered into the Parties’ divorce. Defendant received cash payments, support
for citizenship, life insurance and other numerous benefits through the Parties’ Marital
Agreement. Therefore, it is very clear that Defendant waived her rights to sue or hold
Plaintiff accountable of the I-864.
27. Defendant should have included the I-864 claim in her divorce action, case
number CL2016-690. Defendant should also have included the negligence and domestic
violence claims in the said divorce complaint. Both of the claims involve allegations of
conduct that took place during the Parties’ marriage. Indeed, Virginia is among those few
remaining States where fault is potentially involved in every aspect of a divorce case. See Va.
Code § 20-91 (grounds for divorce from bond of matrimony). The said provision lists the
grounds for divorce as:
§ 20-91. Grounds for divorce from bond of matrimony; …
A. A divorce from the bond of matrimony may be decreed:
(1) For adultery; or for sodomy or buggery committed outside the marriage;
…
(6) Where either party has been guilty of cruelty, caused reasonable apprehension
of bodily hurt, or willfully deserted or abandoned the other, such divorce may be
decreed to the innocent party after a period of one year from the date of such act;
…
28. Virginia law recognizes that a litigant must unite every joinable claim that she
has against a particular defendant in one proceeding or risk the preclusion of her other claims.
This position was echoed in Miller v. Smith, 109 Va. 651, 655, 64 S.E. 956, 957 (1909) where
the court held that, “Every litigant should have opportunity to present whatever grievance he
may have to a court of competent jurisdiction; but having enjoyed that opportunity and
having failed to avail himself of it, he must accept the consequences.” Thus, the “effect of a
final decree is not only to conclude the parties as to every question actually raised and
decided, but as to every claim which properly belonged to the subject of litigation and which
the parties, by the exercise of reasonable diligence, might have raised at the time.” Smith v.
Holland, 124 Va. 663, 666, 98 S.E. 676, 677 (1919). Therefore, Defendant was obliged to
raise the I-864 and the other claims in the divorce complaint. Besides, with regards to the I-
864, Defendant had approximately 26 hours of legal counsel specifically dedicated to the I-
864 up to the day of executing the Marital Agreement, and later made her clear intent on the
said Marital Agreement.
29. In the divorce action, Defendant had the responsibility of setting forth and
arguing her case properly. Additionally, the Court, in its order delivered on or about April 28,
2016, ordered Plaintiff to pay Defendant $8500 for attorney fees. Clearly, Defendant had the
resources to represent herself but chose to proceed pro se. Therefore, Defendant cannot argue
that she was not aware that she should have included all the aforementioned claims in the
divorce action. Although pro se pleadings should be liberally construed, pro se litigants
should not take advantage of the liberality to avoid acting diligently. Pro se litigants are
obligated to comply with the Court’s rules much in the same manner as those represented by
counsel. Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999). The court in
Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656-57 (1987), cert. denied,
485 U.S. 971 (1988) maintained the same sentiments when it held that "the ‘right of self-
representation is not license’ to fail ‘to comply with the relevant rules of procedural or
substantive law."
30. From the foregoing, it is evident that Defendant has breached the Parties’
contract by filing the Complaint(s) against Plaintiff.
31. As a result of the breach, Plaintiff continues to suffer financial, physical,
emotional, and mental harm.
COUNT II
MALICIOUS PROSECUTION
32. Plaintiff incorporates the allegations in paragraphs 1 through 31 above as if set
forth in full.
33. In Virginia, a cause of action for malicious prosecution lies when a plaintiff
wrongfully causes an action to be instituted. In the action, plaintiff must prove four elements:
that the prosecution was (1) malicious; (2) instituted by or with the cooperation of the
defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the
plaintiff. O’Connor v. Tice, 281 Va. 1, 7, 704 S.E.2d 572, 575 (2011); Baker v. Elmendorf,
271 Va. 474, 476, 628 S.E.2d 358, 359 (2006).
34. In this case, the Defendant sued Plaintiff in the United States District Court for
the Western District of Washington. On or about August 7, 2018, Defendant filed an
amended Complaint at the self-same Court. Ultimately, the Court dismissed Plaintiff’s res
judicata defense and Defendant eventually won part of the case.
35. First, Plaintiff asserts that Defendant filed said action with malice. As already
stated above, Section 21 of the Marital Agreement shows that Defendant waived her right to
sue for any claim or cause of action under the agreement. Also, Section 27 of the Marital
Agreement provided that the Defendant shall hold Plaintiff harmless from any liability arising
in and out of the agreement. Defendant therefore showed malice when she sued Plaintiff for
I-864 support from day 1 of the Parties’ marriage. It is notable that Defendant knew she was
waiving her rights to sue and as such agreed to hold Plaintiff harmless for ANY and ALL
liability of EVERY kind.
36. Also, Form I-864, Affidavit of Support under Section 213(a) of the INA, is a
contract an individual signs agreeing to use their financial resources to support the intending
immigrant named on the affidavit. The individual who signs the affidavit of support becomes
the sponsor once the intending immigrant BECOMES A LAWFUL PERMANENT
RESIDENT. 8 C.F.R. § 213a.2 (d) provides as follows:
Legal effect of affidavit of support. Execution of an affidavit of support
under this section creates a contract between the sponsor and the U.S.
Government for the benefit of the sponsored immigrant, and of any
Federal, State, or local governmental agency or private entity that
administers any means-tested public benefits program. The sponsored
immigrant, or any Federal, State, or local governmental agency or private
entity that provides any means-tested public benefit to the sponsored
immigrant after the sponsored immigrant acquires permanent resident
status, may seek enforcement of the sponsor’s obligations through an
appropriate civil action. (Emphasis added)
37. Plaintiff asserts that Defendant was not a beneficiary and Plaintiff was not the
“Sponsor” of the I-864 until XXXXX, which was clearly within the dates of the
marriage. Notably, U.S. immigration law allows a U.S. citizen to petition for a alien fiancé(e)
to obtain a K-1 nonimmigrant visa to travel to the United States and seek admission. Within
90 days after being admitted as a K-1 nonimmigrant, the alien must enter into a bona fide
marriage with the U.S. Citizen who filed the Form I-129F, Petition for Alien Fiance(e) on his
or her behalf. Consequently, after being admitted to the United States as a K-1 nonimmigrant
and marrying the U.S. citizen petitioner within 90 days, the alien spouse can then apply for
LAWFUL PERMANENT RESIDENT status in the United States (Green Card).
38. It follows; Defendant had not acquired permanent resident status when she
filed her complaint. She received her Green Card or Permanent Resident status December
2011, which is four months into their marriage. As such, Defendant knowingly waived ALL
CAUSES OF ACTION and FORGAVE all claims or cause of actions as stated under the
Agreement.
39. However, in contravention of the foregoing, Defendant went ahead to institute
the said Federal claims against Plaintiff.
40. Next, the Defendant instituted the case without probable cause. Notably,
Defendant declared in the Federal Court that she received 26 hours of legal counsel on the I-
864, on the days prior to signing the I-864. Defendant therefore knew she had a present claim
but decided to hold it in her pocket for another 2 years. It is Plaintiff’s assertion that
Defendant should have included the I-864 claim, and the negligence and domestic violence
claims in her divorce action, case number CL2016-690. Besides, the claims involve
allegations of conduct that took place during the Parties’ marriage.
41. Another reason Defendant filed her complaint without probable cause is that
the complaint was filed in violation of a court order. Notably, on March 14, 2016, the Court
affirmed, ratified, and incorporated the I-864 into the Order of the Court. The Agreement
clearly showed that Defendant waived her right to bring a cause of action. Defendant also
agreed to hold Plaintiff harmless. It follows; the Defendant filed her complaint in violation of
the court order.
42. Further, Defendant wrongly gained access to Plaintiff’s assets and property.
As already discussed above, Defendant was not yet a LAWFUL PERMANENT RESIDENT
when she filed the case in court. She received her Green Card or Permanent Resident status
December 2011, which is four months into the marriage. She was therefore not entitled to
Defendant’s property.
43. Lastly, the matter was decided partly in Plaintiff’s favor and partly in
Defendant’s favor.
43. The foregoing therefore shows how Defendant maliciously prosecuted
Plaintiff when she filed the Complaint at the Federal Court.
WHEREFORE, Plaintiff XXXX prays that the Court enter judgment in
its favor and award the relief set forth below.
A. As to COUNT I , the reliefs set forth below:
1. An award of damages;
2. Interest and costs;
3. Such further relief as this Court may deem just and equitable.
B. As to COUNT II , the reliefs set forth below:
1. An award of damages;
2. Interest and costs;
3. Such further relief as this Court may deem just and equitable.
Respectfully submitted,
____________________________
XXXX
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Complaint have
been sent to the Defendant in the following address:
[ENTER ADDRESS FOR DEFENDANT].
____________________________
XXXX
[ENTER ADDRESS]
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