# Appendix — Wasserman v. Wasserman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0048%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1014 ## Text A-1 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 , Wc « bg ; ” Re ONS path * anEe as gy © 1 * : : Ve Et ag SS eee? SO ogee on BA, ieee 4 peti” Vai x walle 3! A-2 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 A-3 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 A-4 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, A-5 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. . * * A-6 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, A-7 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 A-8 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 A-9 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 A-10 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 A-11 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 A-12 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 A-14 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). A-15 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 A-16 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 A-17 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. A-18 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0048%3A2. Public record. Not legal advice.