NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT INGE ANDERSON, Nos. 19-36000 20-35223 Plaintiff-Appellant/Cross-Appellee, D.C. No. 2:17-cv-00891-RSL v. MEMORANDUM* SCOTT ANDERSON, Defendant-Appellee/Cross-Appellant. Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Argued and Submitted November 20, 2020 Seattle, Washington Before: GOULD and FRIEDLAND, Circuit Judges, and OTAKE,** District Judge. Inge Anderson (“Inge”) appeals several of the district court’s rulings during and after a trial in which the jury entered a verdict in Inge’s favor on her breach of contract claim, which was premised on her ex-husband Scott Anderson’s (“Scott”) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jill A. Otake, United States District Judge for the District of Hawaii, sitting by designation. failure to satisfy his financial sponsorship obligations to her under his Form I-864, Affidavit of Support. We affirm in part, reverse in part, and remand for recalculation of damages. Scott cross-appeals the district court’s order dismissing his affirmative defenses (res judicata, fraud in the inducement, violation of public policy, lack of legislative intent/standing, vagueness and lack of specificity, and waiver) and his counterclaim for misrepresentation. We decline to consider his cross-appeal because it is predicated on the granting of a new trial.1 As the parties are familiar with the facts, we do not recount them here. A. Trial Rulings 1. Jury Instruction No. 14 Scott’s financial obligation to Inge under the I-864 is reduced by any income Inge receives during the support period. See Erler v. Erler, 824 F.3d 1173, 1178 (9th Cir. 2016). Inge argues that the district court erred in instructing the jury that in addition to wages and cash payments, her “income” includes “property, services, gifts, or educational grants” and “constructively-received income.” She contends 1 Inge also moves to strike portions of Scott’s briefs for failure to raise issues below and to cite to authorities and for responding a second time to the primary appeal in his Reply Brief to the cross-appeal. Because the arguments at issue do not affect the disposition of the appeal or cross-appeal, the motions are denied as moot. 2 that this instruction caused her damages award to be offset by items that were improperly treated as income—a judgment against her for Scott’s attorney’s fees in their divorce proceeding, TRICARE health insurance benefits, and an educational grant. We review a district court’s formulation of civil jury instructions for an abuse of discretion but consider de novo whether the challenged instruction correctly states the law. See Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014). We do not reverse if any error relating to the jury instructions was harmless. See id. “Harmless error review for a civil jury trial . . . shifts [the burden] to the defendant to demonstrate that it is more probable than not that the jury ...
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