Petition — Wasserman v. Wasserman

OCTOBER TERM. 1981

No.

IRWIN WASSERMAN, et al.,

Petitioners,

v.

SYLVIA WASSERMAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHELDON H. BRAITERMAN

506 Tower Building

Baltimore, Maryland 21202

Attorney for Petitioners

Sa

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1981

No.

IRWIN WASSERMAN, et al.,

Petitioners,

Vv.

SYLVIA WASSERMAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

=

Petitioners respectfully pray that a

Writ of Certiorari be issued to review the

opinion and judgment of the United States

Court of Appeals for the Fourth Circuit.+

lithe parties to the proceeding before the

Fourth Circuit were Sylvia Wasserman,

Appellant, and Irwin Wasserman, Arlene

Cornblatt Wasserman, Jacob Wasserman, Helen

Ann Wasserman, Irwin Liptz, Armand Robinson,

Murray Kivitz, and the partnership of

Kivitz, Robinson & Liptz, Appellees.

l

QUESTION PRESENTED

Did the Court of Appeals err in hold-

ing that a federal court had jurisdiction

to resolve a case alleging liability for

child enticement, intentional infliction

of emotional distress and conspiracy to

remove, etc., where the claims arise from

a domestic relations dispute and where

federal courts have traditionally excluded

such conflicts from diversity jurisdiction?

Table of Contents

Questions Presented

Opinions Below

Jurisdéctive

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

I.

II.

Table of Authorities Cited

Memorandum Opinion of

United States District

Court for the District

of Maryland, Wasserman

v. Wasserman,

HMB0-1988, May 12, 1981.

Opinion of the United

States Court of Appeals

for the Fourth Circuit,

Wasserman v. Wasserman,

Cases

'

1. Askew v. American Waterways

Gperetors, Inc., ZII U.S.

2. Barber v. Er rissa) U.S.

(ZI How) 582 (185

A-13

14

13.

14,

te én ae

Crouch v. Crouch, 566 F.2d

t Zs 8)

De Camas v. Bria, 424 U.S.

Gargallo v. Gar alle. 487

973),

appeal chet aned “414 U.S.

In re Burrus, 136 U.S.

Jagiella v. Jagiella, 647

Fa 565th tir, 1981)

National League of Cities v.

Usery, 426 U.S. 833 (1976)

Oregon v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977)

Overman v. United States,

563 F.2d 1

r. 1977)

Pennhurst State Schoor Vv.

rman, ‘

Rizzo v. Goode, 423 U.S.

Solomon v. Sol , 516

F.2d 1018 (Grd Cir 1975)

Stone v. Powell, 428 U.S.

Page

12

14

ll

10

11

13

15. Sutter v. Pitts, 639

F.2d 842 (Uist Cir. 1981)

16. Trainor v. Hernandez, 431

U.S. 434 (1977)

17. Zacchini v. Scripps-Howard

Broudeaeting Co., 233 U.S.

Statutes

28 u.s.c. § 1254

Other Authorities

Weinberg, "New Judicial Federa-

lism", 29 STANFORD L. REV.

1191 (1977)

Gibbons, "Our Federalism",

12 SUFFOLK U. L. REV.

1087 (1978)

11

13

14

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OPINIONS BELOW

The opinion of the Fourth Circuit

Court of Appeals in this case appears at

671 F.2d 837 (1982). The memorandum opin-~

ion of the District Court for the District

of Maryland appears at page A-l of the

Appendix to this Petition for a Writ of

Certiorari.

JURISDICTION

The judgment of the Fourth Circuit

Court of Appeals was entered on February

24, 1982. This petition for certiorari

was filed within 90 days of that date.

The jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1254.

STATEMENT OF THE CASE

On July 30, 1980, Sylvia Wasserman

filed an action in the United States Dis-

trict Court for the District of Maryland

seeking compensatory and punitive damages

against Irwin Wasserman, her former husband,

hl ;

==

and against his present wife, both his

parents, his three attorneys and the law

firm representing him in the Wassermans'

divorce and child custody proceedings for

the alleged wrongful removal of three

of the four Wasserman children from her

custody. Her three count complaint alleged

child enticement, intentional infliction

of emotional distress, and civil conspi-

racy to remove the children from her

and interfere with her relationship with

them. Mrs. Wasserman asserted federal

diversity jurisdiction based on her Cali-

fornia citizenship and the Maryland citi-

zenship of all the defendants.

The jugular facts of this case where

the husband took the children were liti-

gated in the state court prior to this

action. The father was incarcerated,

fined, and had his future visitation

rights subjected to a new exeat bond.

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The facts on which Mrs. Wasserman bases her

child enticement, infliction of emotional

distress, and conspiracy counts are those

relating to these alleged violations of

the child custody order of the state court

when the husband took the children from

Maryland to California. There were two

years of litigation in the state court.

The matters were fully litigated between

the parents, decisions were entered by

the state cvurt, and the litigation was

completed and finished. Now the plaintiff

attempts to bring the identical problem

to the Federal Court. There are no new

facts that were not considered by the

state court. The only new element is that

the husband's second wife, the husband's

parents, and the husband's attorneys are

now added as co-defendants.

All defendants filed Motions to Dis-

miss asserting ‘tack of subject matter

jurisdiction because the child custody dis-

pute at the heart of each of the counts

in the complaint brought all the issues

raised within the domestic relations

exception to federal diversity jurisdic-

tion. These motions were granted after

hearing by memcrandum order on May 12, 1981,

the judge finding the counts, though alleg-

ing intentional torts, to be fundamentally

a domestic squabble over child custody and

parent-child relations.

Mrs. Wasserman filed an appeal from

this decision to grant the motions to dis-

miss in the Fourth Circuit Court of Appeals.

The Fourth Circuit reversed the lower

court's decision on February 24, 1982.

It is from this decision that this appeal

is taken by petitioners Irwin Wasserman,

Arlene C. Wasserman, Jacob Wessernen, and

Helen Ann Wasserman.

tus

REASONS FOR GRANTING THE WRIT

1. Inconsistency in Circuit Court

decisions. The decision below creates a

direct conflict with the prior decisiuns

of this court and the decisions of four

other Circuit Courts of Appeals on the

same matter of law relating to the exemp-

tion of domestic relations issues including

custody dteputes from federal diversity

jurisdiction. The varying decisions of

another Circuit Court reflect an internal

conflict. This nationwide conflict and

confusion among and within circuits can

only be reconciled by this Court.

The question whether federal diversity

jurisdiction may lie in cases dealing with

child custody disputes and domestic rela-

tions issues has been previously considered

by this Court in In re Burrus, 136 U.S.

586 (1890) and Barber v. Barber, 62 U.S.

(21 How.) 582 (1858). This Court held

10

that there is no federal jurisdiction over

such issues.

The First, Third, Sixth, and Eighth

Circuits have all subsequently considered

this question and have held that there can

be no federal jurisdiction in diversity

cases involving domestic relations and

child custody disputes. See Sutter v.

Pitts, 639 F.2d 842 (let Cir. 1981) (a

complaint of civil rights violation based

on disobeying a custody order); Solomon v.

Solomon, 516 F.2d 1018 (3rd Cir. 1975) (a

complaint of breach of contract under a

separation agreement involving custody) ;

Gargallo v. Gargallo, 487 F.2d 914 (6th

Cir. 1973), appeal dismissed, 414 U.S.

805 (1973) (a suit for perjury, conversion,

and malicious prosecution in a-divorce

proceeding); Overman v. United States,

563 F.2d 1287 (8th Cir. 1977) (an injunc-

tion to garnish wages for alimony and

child support).

ll

a

i

The Fifth Circuit has considered in

two cases whether to find jurisdiction over

such matters and has held differently in

each. In the first, Crouch v. Crouch, 566

F.2d 486 (5th Cir. 1978) federal jurisdic-

tion was upheld in a breach of contract of

a voluntary separation agreement. In

Jagiella v. Jagiella, 647 F.2d 565 (Sth

Cir. 1981), federal jurisdiction was de-

nied in a suit for support arrearages,

mental anguish, alienation of affection

and visitation.

2. An important legal question.

The decision below usurps from the states

one area of law historically under exclu-

sive state jurisdiction, that relating

to family disputes. As a result, the

decision below is in direct conflict with

this Court's increased deference to state

administration, adjudication, and juris-

diction.

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Areas of judicial consideration to

which this Court has recently given the

states preemptive jurisdiction include

state institutional reform, Pennhurst

State School v. Halderman, 101 S.Ct 1531

(1981); civil attachment proceedings,

Trainor 7. Hernaridez, 431 U.S. 434 (1977);

title to land changed by navigable rivers,

Oregon v. Corvallis Sand & Gravel Co,

429 U.S. 363 (1977); habeas corpus relief,

Stone v. Powell, 428 U.S. 465 (1976); in-

junctions against state officials, Rizzo

v. Goode, 423 U.S. 362 (1976); and state

agency administrative decisions, National

League of Cities v. Usery, 426 U.S. 833

(1976).

Some matters previously preempted

by federal jurisdiction have by recent

decisions been deferred to the states

by this Court such as intellectual pro-

perty, Zacchini v. Scripps-Howard Broad-

casting Co., 433 U.S. 562 (1977);

13

employment regarding illegal aliens, De

Camas v. Bria, 424 U.S. 35 (1976); and

anti-pollution regulations, Askew v. Ameri-

can Waterways Operators, Inc., 411 U.S.

325 (1973).

For a more comprehensive list of

this Court's decisions to give deference

to state jurisdiction in a wide variety

of subjects, see Weinberg, "New Judicial

Federalism", 29 STANFORD L. REV. 1191,

1193 n.10 (1977); and Gibbons, “Our

Federalism", 12 SUFFOLK U.L. REV. 1087,

1113 (1978).

The decision below, instead of fos-

tering a deference to the states, effec-

tively eliminates state jurisdiction over

an area traditionally governed exclusively

by state law. The conflict this restric-

tion of state jurisdiction causes with

this Court's decision to augment state

court jurisdiction should be conclusively

determined.

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CONCLUSION

For the foregoing reasons, the Writ

of Certiorari should be granted and the

judgment of the United States Court of

Appeals for the Fourth Circuit reversed.

Respectfully submitted,

ti Mn.

Sheldon H. Braiterman

506 Tower Building

Baltimore, Maryland 21202

(301) 727-8020

Attorney for Petitioners

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