F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 27 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DEBORAH LYNN WIGINGTON,
Plaintiff-Appellant,
No. 96-7134
v. (D.C. No. CV-96-384)
(E.D. Okla.)
PATRICK MICHAEL McCARTHY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Deborah Wigington appeals the United States District Court of
the Eastern District of Oklahoma's dismissal of her complaint for lack of
jurisdiction. We affirm.
I.
This action arises out of the ongoing dispute between Ms. Wigington and
her former husband, Patrick McCarthy, surrounding custody of their son, Michael
McCarthy. The parties in this case were divorced in Texas in 1994 after an eight-
day jury trial. The jury determined the parents would be "Joint Managing
Conservators," but gave Mr. McCarthy "primary possession" of Michael along
with the exclusive right to determine Michael's residence and domicile. During
Ms. Wigington's 1995 summer visitation with Michael in Oklahoma, rather than
returning Michael to Mr. McCarthy as Texas court ordered, Ms. Wigington
retained Michael and filed an application for custody in Oklahoma's Bryan County
District Court. Mr. McCarthy filed for an order of contempt in Texas, and the
Texas court issued a contempt order and a warrant for Ms. Wigington's arrest. In
February 1996, Oklahoma's Bryan County District Court awarded custody to Ms.
Wigington and gave Mr. McCarthy visitation. In July 1996, Mr. McCarthy took
Michael to Texas and obtained an order there granting him sole custody of
Michael. Mr. McCarthy also appealed the custody decision reached in
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Oklahoma's Bryan County District Court to the Oklahoma Court of Appeals.
Attempting to invoke the federal district court's diversity jurisdiction
pursuant to 28 U.S.C. § 1332 (1994), Ms. Wigington brought this action alleging
Mr. McCarthy illegally removed Michael from Oklahoma and took him to Texas
in violation of Okla. Stat. Ann. tit. 43, § 111.2 (West 1990 & Supp. 1997). Ms.
Wigington sought, inter alia, the following relief: damages in excess of $50,000;
a declaratory judgment establishing Oklahoma as the proper jurisdictional forum
for the custody dispute; equitable relief in the form of a district court order
mandating Michael's return to Oklahoma; and an order stating the Oklahoma
custody decision was entitled to full faith and credit in Texas. Mr. McCarthy
filed a motion to dismiss the complaint for lack of jurisdiction. The district court
granted the motion and dismissed the complaint for lack of jurisdiction.
On appeal, Ms. Wigington argues the district court erred in dismissing for
lack of jurisdiction for two reasons: 1) because her complaint does not seek a
child custody order but instead sounds in tort, the district court erred in applying
the domestic relations exception to diversity jurisdiction; and 2) the district court
erred in refusing to consider "the validity of the stalemated custody decisions of
the States of Oklahoma and Texas."
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II.
While not specifically stated in the motion to dismiss or in the district
court's order, dismissal of a complaint for lack of jurisdiction is proper pursuant
to Fed. R. Civ. P. 12(b)(1); we assume it was pursuant to this rule the district
court dismissed the complaint. Fed. R. Civ. P. 12(b)(1). We review an order
granting a motion to dismiss for lack of subject matter jurisdiction de novo.
Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996).
While Ms. Wigington properly alleged the requirements for diversity
jurisdiction under the version of 28 U.S.C. § 1332(a) in effect at the time she
filed her complaint, 1 the mere presence of such allegations does not end our
analysis. The federal courts have judicially carved out a "domestic relations"
exception to diversity jurisdiction, an exception which originated from early
Supreme Court law. Vaughan v. Smithson, 883 F.2d 63, 64 (10th Cir. 1989); see
also Ex Parte Burrus, 136 U.S. 586, 593-94 (1890) ("The whole subject of the
domestic relations of husband and wife, parent and child, belongs to the laws of
the States and not to the laws of the United States."); Barber v. Barber, 62 U.S.
(21 How.) 582, 584 (1858) ("We disclaim altogether any jurisdiction in the courts
1
28 U.S.C. § 1332(a) (1994) has since been amended such that to invoke
diversity jurisdiction, a plaintiff must allege the amount in controversy equals at
least $75,000. 28 U.S.C.A. § 1332(a) (West Supp. 1997).
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of the United States upon the subject of divorce, or for the allowance of
alimony."). More recently, the Supreme Court reaffirmed the propriety of the
domestic relations exception holding the exception exists as a matter of statutory
construction; Congress "'adopt[ed] that interpretation' when it reenacted the
diversity statute [in 1948]." Ankenbrandt v. Richards, 504 U.S. 689, 701 (1992)
(quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)).
The domestic relations exception to diversity jurisdiction is based on
several policy considerations: the states have a strong interest in domestic
relations matters; the states have developed an expertise in settling domestic
disputes; such disputes require ongoing supervision, a task better suited to the
states; federal determination of domestic disputes increases the chances for
conflict between federal and state court decisions; domestic cases would crowd
the federal docket while serving no particular federal interest. Ankenbrandt, 504
U.S. at 703-04; Vaughan, 883 F.2d at 65. Consequently, federal courts do not
have diversity jurisdiction over divorce and alimony decrees and child custody
orders. Ankenbrandt, 504 U.S. at 703; Vaughan, 883 F.2d at 64.
Ms. Wigington argues the domestic relations exception to federal diversity
jurisdiction does not apply in this case because she is not seeking an order for
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child custody, but is instead only requesting the federal courts to determine
whether Mr. McCarthy "committed a tort when he abducted [Ms. Wigington's]
son." We disagree. While it is true the Court has narrowly construed the
domestic relations exception as encompassing "only cases involving the issuance
of a divorce, alimony, or child custody decree," even assuming the Oklahoma
statute under which Ms. Wigington brings her claim applies to Mr. McCarthy, 2
this dispute cannot be so easily characterized as a claim sounding in tort.
Ankenbrandt, 504 U.S. at 704. To determine whether Mr. McCarthy has engaged
in illegal "child stealing" under Okla. Stat. Ann. tit. 43 § 111.2 would necessarily
require the district court to make determinations regarding conflicting custody
decrees and the parties' respective custody and visitation rights. These are the
type of questions the federal courts are singularly unqualified to answer. Further,
Ms. Wigington does not only seek damages, but also seeks an order demanding
Michael's return to her custody. Notwithstanding Ms. Wigington's attempt to
2
We are doubtful whether this statute would apply to Mr. McCarthy due to
his status as "a party to a child custody proceeding." Okla. Stat. Ann. tit. 43
§ 111.2 reads in pertinent part:
Any person who is not a party to a child custody proceeding,
and who intentionally removes, causes the removal of, assists in the
removal of, or detains any child under eighteen (18) years of age
with intent to deny another person's right to custody of the child or
visitation under an existing court order shall be liable in an action at
law.
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characterize her claim as one sounding in tort, the reality remains she is asking
the federal courts to determine her and Mr. McCarthy's respective custody rights
regarding Michael. We refuse to open the back door of the federal courts to
issues of child custody -- issues that are better left to the state courts' expertise.
III.
Ms. Wigington also argues the district court should have issued an order
declaring which state's custody order is proper. In her complaint, Ms. Wigington
sought a declaratory judgment establishing Oklahoma as the forum with
jurisdiction over the custody dispute and an order mandating that Texas give
Oklahoma's custody decision full faith and credit. Relying on Thompson v.
Thompson, 484 U.S. 174, 175 (1988), the district court held it did not have
jurisdiction to issue such an order.
In Thompson, the Supreme court held the Parental Kidnaping Prevention
Act of 1980, 28 U.S.C. § 1738A (1994), did not furnish a "cause of action in
federal court to determine which of two conflicting state custody decrees is
valid." Thompson, 484 U.S. at 187. On appeal, Ms. Wigington argues the
Supreme Court left the door of jurisdiction in the federal courts ajar by stating:
"ultimate review remains available in this Court for truly intractable jurisdictional
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deadlocks." Id. Ms. Wigington argues because the present dispute falls within
that category, federal jurisdiction exists in this case. Ms. Wigington's argument
fails for two reasons.
First, it is clear from the context of the quoted language the Court was
referring to jurisdiction available in the Supreme Court pursuant to 28 U.S.C.
§ 1257(a) (1994), which gives the Court jurisdiction over "[f]inal judgments or
decrees rendered by the highest court of a State in which a decision could be
had." Thompson, 484 U.S. at 187. Nothing in Thompson suggests the Supreme
Court was attempting to create a loophole in its general statement the Parental
Kidnaping Prevention Act did not create a cause of action in federal court to
resolve conflicting state child custody orders. Id.
Second, we are no longer faced with a "truly intractable jurisdictional
deadlock[]." Id. Between the time Ms. Wigington filed her brief before this court
and Mr. McCarthy filed his, the Oklahoma Court of Appeals held the Bryan
County District Court exercised jurisdiction over the issue of Michael's custody in
violation of the Uniform Child Custody Jurisdiction Act and the Parental
Kidnaping Prevention Act. Okla. Stat. tit. 43 §§ 501-527 (1991); 28 U.S.C.
§ 1738A (1994). Also, the Supreme Court of Oklahoma has since denied Ms.
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Wigington's petition for certiorari. Consequently, the "deadlock" has been
resolved, and any exception that may exist to Thompson's general rule does not
apply in this case.
For the foregoing reasons, we AFFIRM the district court's dismissal for
lack of jurisdiction.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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