Appendix — Wasserman v. Wasserman

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IN THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MARYLAND

SYLVIA WASSERMAN

v. : Civil No. HM80-1988

IRWIN WASSERMAN,

et al.

. 000...

MEMORANDUM

Plaintiff Sylvia Wasserman has

brought this action against her ex-husband,

Irwin Wasserman, other members of the

Wasserman family, and three attorneys,

Irwin Liptz, Armand Robinson and Murray

Kivitz. Count I of the complaint alleges

that Irwin Wasserman removed three of the

four Wasserman children from Plaintiff's

rightful custody with the full knowledge

and connivance of the other defendants,

that this was done with full awareness by

defendants of plaintiff's lack of consent,

and that defendants prevented said chil- E

dren from contacting plaintiff by any

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means and endeavored to conceal the chil-

dren's whereabouts from plaintiff. Count

II alleges that defendants engaged in this

conduct in order to interfere with the

parent-child relationship of plaintiff

with the children and to prejudice plain-

tiff's position as a litigant in a pend-

ing divorce proceeding (at that time) by

forcing plaintiff into a settlement, all

of which resulted in a considerable pecuni-

ary loss to plaintiff and physical and

psychological distress as well. Count

III charges the defendants with civil

conspiracy to interfere with the rightful

and lawful relationship between plaintiff

and the three children “by unlawful means

when the minor children of the plaintiff

were by force, persuasion and false pre-

tenses abducted and enticed away from

the plaintiff, who at the time of this

occurrence, had the lawful and sole cus-

tody of the three minor children. .. ."

‘Sag ies

2

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Compl. para. 13. The commplaint also

asserts that, pursuant to a decree of the

Circuit Court for Montgomery County dated

June 8, 1976, sole custody of all four

children was granted to the plaintiff,

during the pendency of the aforementioned

divorce proceedings, which resulted in a

decree of divorce dated June 8, 1978.

Defendants have moved to dismiss the

complaint on various grounds, the princi-

pal contention being lack of subject mat-

ter jurisdiction in the federal court.

The complaint, although erroneously assert-

ing 28 U.s.c. §§ 1331 and 1391 as juris-

dictional bases, is really brought under

the diversity provision, 28 U.s.c.§ 1332.

The thrust of defendants’ motions to dis-

miss is the by now well-settled principle

that federal courts should be reluctant

to exercise jurisdiction in cases involv-

ing domestic relations, even though diver-

sity of citizenship exists. This exception

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to the diversity jurisdiction is not statu-

tory in origin, but is rather a judge-made

doctrine stemning from two nineteenth cen-

tury decisions of the Supreme Court.

In dicta contained in the opinion of

the Court in Barber v. Barber, 62 U.S. 582,

584 (1859), the Supreme Court stated that

the federal courts have no jurisdiction

over suits for divorce or the allowance

of alimony incident to divorce. The

second case, In re Burrus, 136 U.S. 586

(1890) involved, as does the case at bar,

a dispute over child custody, and the

Court therein stated, “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." Id. at 593-94.

Subsequent decisions in the lower

federal courts have construed Barber and

Burrus as prohibiting federal jurisdiction

in domestic relations cases in general,

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and child custody cases in particular.

See, e.g., Delavigne v. Delavigne, 402 F.

Supp. 363. 366 (D. Md. 1975), aff'd, 530

F.2d 598 (4th Cir. 1976); Cherry v. Cherry,

438 F. Supp. 88, 89-90 (D. Md. 1977). See

also Wilkins v. Rogers, 581 F.2d 399, 403-

04 (4th Cir. 1978); Spindel v. Spindel,

283 F. Supp. 797 (E.D. N.Y. 1968) (setting

forth, in detail, the history of the do-

mestic relations exception) ; 13 C. Wright,

A. Miller & E. Cooper, Federal Practice

& Procedure § 3609 (1975 & Supp. 1980).

The principles underlying the domes-

tic relations exception are judicially

sound. We begin, of course, with Justice

Holmes’ observation in Ohio ex rel. Popo-

vici v. Agler, 280 U.S. 379, 383-84 (1930):

If when the Constitution was

adopted the common understand-

ing was that the domestic rela-

tions of husband and wife and

parent and child were matters

reserved to the States, there

is little difficulty in con-

fest the instrument accord-

y. . * *

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After discussing the Supreme Court deci-

sions in detail, the Thira Circuit Court

ef Appeals in Solomon v. Solomon, 516 F.2d

1018, 1024-25 (1975) said:

Our understanding of these

cases requires us to conclude

that the district court pro-

perly refused to exercise

jurisdiction over the instant

case. The ~ re of the

Supreme Count's language in

these cases is that the federal

courts do not have jurisdiction

in domestic relations suits

excert where 4 ype jot to the

effectuation of prior state

court judgments lving the

same matters or where juris-

diction lies by dint of the

participation and review of

territorial courts. ..

* * 7 +

In hold that the domes-

tic relations trine applies

to the case before us, we do

pv Bac Pring suggest that a

separat agreement may never

be ene ee ted in the federal

Pn snenr ol between whom

ones is d of citizen-

ship. Ina different case,

ciate

was pending state court

action nor an agreement to

litigate in the state courts,

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and in which there was no

threat Phat a FeudTng couple

p ay one court system

re) t Other, we might

well assume jurisdiction. ...

The domestic relations

exception to the jurisdictional

powers of federal courts repre-

sents an historically engrained

limitation upon us. It is

true that the rationale upon

which it is premised has shifted

from conceptions regarding the

powers of ancient ecclestas-

tical courts, . . .the non-

diversity of married couples

and the of monet value

of a divorce, .. .to

modern view that state courts

have developed both a well-

known expertise in these cases

and a oe way <4 in dis-

pee of . See C. Wright,

dbook of the Law of Federal

Courts 84 (2d ed. 1970)...

(Emphasis supplied)

Yet another equally valid underlying

justification for the domestic relations

exception is the efficient administration ,

of justice in federal courts. Our court

of appeals has recently noted, in Cole v.

Cole, 633 F.2d 1083, 1088 (4th Cir. 1980),

the concerns expressed by other district

judges within this circuit, such as that

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which motivated Chief Judge Northrop, in

Cherry v. Cherry, supra, to refuse "to

increase the workload of this already

overburdened court by ignoring a rule that

has existed for over 100 years without any

intimation of Congressional disapproval",

or the concern that gave rise to the fol-

lowing observations by Judge Hemphill in

Thrower v. Cox, 425 F. Supp 570, 573

(D.S.C. 1976):

Domestic relations matters,

such as divorce and child custody,

are very common types of liti-

ation which, even with the

iversity requirements, would

greatly increase the workload

of an already overburdened court

system. The nature of domestic

relations law is such that this

is not merely a recapitulation

of the old “floodgates” argu-

ment. In granting alimon

and deciding matters of ld

custody, the court must retain

jurisdiction and freqeuntly re-

consider the case to determine

if changed circumstances warrant

e change in the original decree.

This requires constant a

vision of the court, Addition-

ally, in order to perform the

job adequately, state family

courts out of necessity

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frequently work in close conjunc-

tion with social welfare agencies

which assist them in carrying out

their functions. Such assistance

is not presently available in the

federal system, nor do we need

to create an additional bureauc-

racy to needlessly complicate

these state services. Perhaps

the most convincing evidence that

the federal courts should refuse

jurisdiction in this area is the

state's own treatment of this

t of litigation. the field

of ‘omestic r ons is so

oT ng an

exclus y.

The federal-court cases cited by

plaintiff do not alter the correctness

of these principles. Abdul-Rahman Omar

Adra v. Clift, 195 F. Supp. 857 (D. Md.

1961) was a decision of Judge Thomsen in

a case brought under the Alien Tort Sta-

tute, 28 U.S.c. § 1350; in that case,

Judge Thomsen weighed the above-mentioned

prudential considerations against the

Le

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palpable federal interest in adjudicating

questions of nationality and entry into the

United States, as wellas relations with

the foreign nation of which the plaintiff

was a domiciliary. In contrast, the issue

of domestic relations exception was not

even considered by the court in Kajtazi v.

Kajtazi, 488 F. Supp. 15 (E.D. N.¥. 1978),

but insofar as the court's silence in that

case can reasonably be interpreted as a

contrary result, this court declines

to follow it, particularly in the light

of a decision by the circuit court which

holds dominion over the district in which

Kajtazi was decided adopting the position

taken herein. Hernstadt v. Hernstadt,

373 F.2d 316 (2d Circ. 1967).

The case at bar, though couched in

terms of a series of intentional torts,

is fundamentally concerned with alleged

abridgment of the parent-child relation -

ship. Permitting actions such as this to

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be maintained in a federal court sitting in

diversity would invite any party to a domes-

tic squabble to render the domestic rela-

tions exception a nullity merely by deft

turns of phrase and ingenious legal theo-

ries. This court will not eountenance.

such a result.

For the foregoing reasons, this

court will grant the motions to dismiss

for lack of subject matter jurisdiction.

Dated: May , 1981

United States District Judge

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IN THE UNITED STATES

DISTRICT COURT FOR THE

_DISTRICT OF MARYLAND

SYLVIA WASSERMAN

v. : Civil No. HM80-1988

IRWIN WASSERMAN

et al.

ss i wie

ORDER

For the reasons outlined in the fore-

going memorandum, it is this __ day of

May 1981, by the United States District

Court for the District of Maryland,

ORDERED:

(1) that defendante' motion to dis-

miss for lack of subject matter jurisdic-

tion be, and the same hereby is, (C anted;

and

(2) that the Clerk of the Court mail

copies of this memorandum and order to

Counsel for the parties.

United States District Judge

Appellant,

Irwin Wasserman, et al.,

Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore, Serbert fF. Murray, District Judge.

Argued January 4, 1962 Decided February 24. 1982

Before WINTER, Chief Judge, BUTEWER, Circuit Judge, and INGRASAM,*

Senior Circuit Judge.

(Stuart M. Salebury, teraelson & Jackson, P.A. on brief) for

Appellant; (Nell 8. Strachan, James K. Archibald: Sheldon 8.

Braeiterman; Armand Robinson on brief) for Appellees.

*Honorable Joe Ingraham, Senior United States Circuit Judge

for the Fifth Ciscuit Court of Appeals, = < eo

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INGRAHAM, Circuit Judge:

Sylvia Wasserman appeals from the dismissal of a diversity suit

against her former husband and other defendants in which she had

alleged the defendants removed, or assisted in removing, her children

from her custody without her consent during the Wassermans' divorce

proceedings in 1977 and 1978. The district court dismissed the

complaint for lack of subject-matter jurisdiction, describing the

suit as a “dispute involving child custody,“ and thus within the

domestic relations exception to federal diversity jurisdiction.

We reverse and remand for further proceedings.

I. Background’

Appellant Sylvia Wasserman is the former wife of appellee

Irwin “Wasserman. The Wassermans are the perents of four minor

children. In addition to appellee Irwin Wasserman the complaint

also named Irwin's present wife, his parents and the attorneys

whe represented his in the divorce and related proceedings dur-

ing the periods relevant to the complaint.

On June &, 1976, the Circuit Court for Montgomery County,

Marylend, granted custody of the minor Wesserman children to

appellant for the duration of the proceedings then underway.

The final decree of divorce was eventually granted on June &,

1978. Om December 14, 1977, appellee Irwin Wasserman removed

the three youngest children from appellant's custody (with the

alleged knowing assistance of the other appellees) and took

Lpor purposes of reviewing the motion to dismiss, we ac-

cept as true the facts as al in the complaint.

» 633 F.2d 384, 386 (4th Cir. iseof Sere

° -Ct. 1972 (1981).

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them outside the State of Maryland. From December 14, 1977 until

March 9, 1978, the appellees allegedly prevented the children

from returning to or contacting appellant and concealed their

lecation from her. Appellant charged that these facts gave rise

to three causes of action: child enticemen.:' intentional infliction

of emotional distress; and civil conspiracy.

Appellees filed motions to dismiss and supplementa) motions to

dismiss urging, among other grounds, that the district court lacked

subject-matter jurisdiction because the suit involved domestic

relations matters. After « hearing was held on these motions on

May 11, 1981, the district court dismissed the suit by semorandus

order dated May 12, 1981.

II. Discussion

As the district court correctly observed, the federal courts

have long held that diversity jurisdiction does not include the

power to grant divorces, determine alimony or support obligations,

or determine child custody rights. See Sutter v. Pitts, 639 F.24

842, 843 (let Cir. 1981); Cole v. Cole, 633 F.24 1083, 1087 (4th

Cir. 1980); Wilkins v. Rogers, S81 F.24 399, 403-04 (4th Cir.

1978. This doctrine, referred to as the domestic relations excep-

tion, is generally thought to originate in the dicta of two early

Sus eme Court cases, Barber v. Barber, 62 U.S. (21 How.) 582, $84

(1858), and Ex Parte Burrus, 136 U.S. 586 (1890). While the

supposed origin and nature of the doctrine has not escaped exact-

ing criticism, see, ¢.g., Solomon v. Solomon, 516 F.2d 1018, 1027

(34 Cir. 1975) (Gibbons, J., dissenting); Spindel v. Spinisel,

283 F.Supp. 797 (E.0.N.¥. 1968) (Weinstein, J.), it undoubtedly

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survives as a limitation, in some form, on the exercise of diversity

jurisdiction. Sutter v. Pitts, supra, 639 F.2d at 643; Phillips.

Wiser, Benjamin, Krim 6 Ballon v. Rosenstiel, 490 F.24 509, $14

(24 Cir. 1973).

In this circuit application of the doctrine must be guided

by the principles announced in Cole v. Cole, 633 7.24 1083,

1087-89 (4th Cir. 1980). In Cole, # suit brought by the former

husband against his ex-wife, the district court hed dismissed

Claims of malicious prosecution and abuse of process, arson,

conspiracy and conversion in the belief that the claims concerned

matters of domestic relations. This court reversed, holding that:

Se ee ae Rather it sust

consider the nature r asserted

or of the breaches » aes long as diver-

sity jurisdiction endures, courts cannot

shirk the inconvenierce of sometines in

633 7.24 at 1088-69. Sxamining the claims alleged by Mr. Co: it,

the court found the suit did sot present any true domestic

relations issues.

In so holding, the Cole court made the following observations:

“The duty to abstain from salicicus prosecution, from abuse of

process, from arson, end from conversion does not arise out of or

require. . . & present or prior family relation"; “deciding this

case would not require the court either to adjust family status

or to establish duties unter family-relations law or to determine

whether or not such duties hed been breached"; “the claims asserted

could have arisen between strangers, and certainly between people

with no marital relationship whatever"; and the asserted causes

of action “do not require the existence of any rule particularly

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marital in nature as a subscantial ingredient to give them vitali-

ty." Id.

Apply!.¢ these considerations to the case at hand we believe

Cole compels the district court to entertain this suit. Appellant's

complaint alleges generally cognizable common law torts. ?/ As in

Cole, the previous marital relationship of the parties and the

presumably strong feelings associated with that relationship may

as a factual matter have contributed to the underlying events and

initiation of this suit; however, the torts of child enticement

and intentional infliction of emotional distress are in no way de-

pendent on a present or prior family relationship. Purthersore,

prosecution of these torts will not require the existence of my

rule particularly marital in nature. Similarly, these clains

could have arisen between persons with no marital relationship

whatsoever and in fact have done so in this case in view of the

allegations relating to appellees other than Irwin Wasserman.

Most importantly, appellant is not seeking a determination

of entitlement to custody or any other adjustment of family

status. This is manifestly not a case in which the parties actual-

ly seek a declaration of present or future rights as to custody

or visitation. Cf. Doe v. Dos, 660 F.24 101 (4th Cir. 1981) (writ

2/

We note only that child enticement and

Snare ia, eran een esas, PME

, . 1 ’ 1 21 (.D.8.¥.

+ intentional infliction of

tress); ¥ 281 a. 560, 300 Ata ll hens A. ati

tional as, 281s distress); qs , 262

Or. 433, $78 P.24 1259 (1978) of

the Law of Torts § 124 at 883-84 (éth na. "1971) (cha

Sekine ee kd PEATEMENT (SECOMG OF SORES. § 700 (1979) tankanies

taking of child). At this stage, of course, we offer no opinion

G0 te the sufficiency ox or merit of these clains.

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of habeas corpus not available to contest child custody); Gargalio

¥. Gargallo, 472 7.24 1219 (6th Cir.), cert. denied, 414 U.S. 805

973); Herneteadt v. Hernstadt, 373 F.24 316 (24 Cir. 1967). The

only genuine custody issue - whether appellant was entitled to

custody for all times relevant to the complaint - was definitive-

ly determined by order of the Circuit Court of Montgomery County

in June of 1976. Appellees concede the existence of that decree

and suggest neither an intent to challenge it or any way the decree

is susceptible of such challenge insofar as it stated the rights

of the parties during the relevant time period. Accordingly,

this case, unlike Hernstadt, does not involve a custody decree

still subject to review and modification.

As the Cole court observed, federal courts have often exer-

cised diversity jurisdiction to rule on the validity of prior

state decrees or to determine the existence of « breach of

Guties established in such decrees, especially when the duties

are no longer subject to modification. 633 F.24 at 1087; ef. id.

at 1088 n.5. See also Jagiella v. Jagiella, 647 F.2d 561 (Sth

Cir. 1981)) Crouch v. Crouch, 566 F.2¢ 486 (Sth Cir. 1978); Keating

¥. Keating, 542 F.24 910 (4th Cir. 1976). ‘The court below will

not have to make a significantly more intrusive inquiry into the

Gomestic relations of these parties than required in those cases.

. REVERSED ond REMANDED

» 4 m ‘ ‘

wee”. le eee es ie