Nwankwo v. Nwankwo

• Court: Court of Appeals for the First Circuit
• Decided: December 9, 1992
• Docket: 92-1624
• Status: Published

Opinion

USCA1 Opinion

December 9, 1992      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-1624

FERDINAND NWANKWO,
                                Plaintiff, Appellant,

                                          v.

                                 KIMBERLY NWANKWO AND
                                   EDWARD MITCHELL,
                                Defendants, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, U.S. District Judge]
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                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
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                                 ___________________

Ferdinand Nwankwo on brief pro se.
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               Edward M. Kaplan,  Sean M.  Dunne and Sulloway  & Hollis  on
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          brief for appellees.
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                                  ___________________

Per  Curiam.   This  case involves  two conflicting  state
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          court child custody decrees.   After a bench trial,  the district

          court  dismissed  one  of  plaintiff's  claims  against defendant

          Kimberly  Nwanko on  jurisdictional grounds,  and the  others for

          failure  to prove a claim.   The claims  against defendant Edward

          Mitchell were dismissed on the merits.  As we have concluded that

          all claims against Kimberly Nwanko should have been dismissed for

          lack  of subject  matter jurisdiction,  we partially  reverse and

          vacate  the judgment below, remanding for entry of a dismissal in

          accordance with this  opinion.   We affirm the  dismissal on  the

          merits of the claims against Edward Mitchell. 

                   Plaintiff  was  awarded  physical  custody  of  his  two

          children  by a  temporary decree  from a  New Hampshire  court in

          April, 1990.   At  the time  of this  order, his  wife, defendant

          Kimberly  Nwanko, and the children  were residing in  Florida.  A

          few months later, a Florida court awarded custody of the children

          to Kimberly Nwanko, rejecting the New Hampshire court's decree on

          the  ground that it had been issued without jurisdiction over the

          children.   Plaintiff subsequently  obtained a permanent  custody

          and divorce decree from the New Hampshire court.  Kimberly Nwanko

          did not appear in the New Hampshire action.

                 Although plaintiff had  appeared specially in the  Florida

          action to seek  recognition of the New  Hampshire custody decree,

          he did not  pursue a direct appeal.  Instead,  he returned to New

          Hampshire and filed a complaint in federal district court against

          Kimberly  Nwanko and her father, Edward Mitchell.   The complaint

claimed  that the federal court had jurisdiction by virtue of the

          Parental Kidnapping  Prevention Act, 18 U.S.C.    1738A ("PKPA").

          It  sought  an injunction  enforcing  the  New Hampshire  custody

          decree and an unspecified amount in damages for interference with

          plaintiff's parental  rights, emotional distress, and expenses in

          seeking custody of his children.  

                 After  the  complaint was  referred  to  a magistrate  who

          issued  a  "report and  recommendations,"  plaintiff  amended his

          complaint.     In  an  apparent  attempt  to  cure  the  original

          complaint's jurisdictional defects, the amended complaint made no

          mention of the PKPA  nor injunctive relief.  Instead,  it alleged

          diversity  jurisdiction   only,  and  sought  damages  above  the

          jurisdictional amount  for three state law tort  causes of action

          against  both defendants: intentional  interference with parental

          custody,  intentional  infliction of  emotional  distress,  and a

          claim of  uncertain legal  origin, seeking reimbursement  for the

          support and care of  Fawn Mitchell, Kimberly Nwanko's child  by a

          prior relationship.   

                  By  motion shortly thereafter, however, plaintiff renewed

          his request  for an injunction under the PKPA.  And in later pre-

          trial and post-trial motions  and responses to motions, plaintiff

          requested  that  the district  court  enforce  the New  Hampshire

          custody decree by virtue  of either or both its  federal question

          and diversity jurisdiction. 

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As  the  district  court  held,  there was  no  basis  for

          original subject matter jurisdiction over the PKPA claim under 28

          U.S.C.     1331, because  the PKPA  does  not provide  an implied

          private  federal  cause  of  action  to  determine  which  of two

          conflicting  state  custody  decrees   is  valid.    Thompson  v.
                                                               ________

          Thompson, 484 U.S. 174,  182, 186 (1988).  The PKPA  is addressed
          ________

          to the States and state courts.  Congress did not intend  thereby

          to entangle the federal  courts in traditional domestic relations

          questions that  "they have little  expertise to resolve."  Id. at
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          186  n.4.  If plaintiff felt aggrieved by the Florida orders, his

          remedy was to appeal through the state courts. Id. at 187 ("State
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          courts  faithfully administer  the Full  Faith and  Credit Clause

          every  day ...  we  can  think  of  no  reason  why  the  courts'

          administration of  federal law  in custody  disputes will  be any

          less  vigilant;" but the Supreme Court  is available for ultimate

          review of "truly intractable" deadlocks). 

              Nor was there subject matter jurisdiction to  enforce the New

          Hampshire custody  decree  under  the  diversity  of  citizenship

          statute,  28 U.S.C.   1332.  Ankenbrandt  v. Richards, 112 S. Ct.
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          2206 (1992).   Ankenbrandt, decided after the lower  court issued
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          its   opinion   in   this  case,   reexamined   the   theoretical

          underpinnings of the "domestic relations  exception" to diversity

          jurisdiction first articulated by the  Supreme Court in Barber v.
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          Barber, 62 U.S. (21  How.) 582, 16 L. Ed. 226  (1859).  The Court
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          determined  that,  given the  long  passage of  time  without any

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expression of Congressional dissatisfaction, the exception is now

          rooted  in the diversity statute itself.  Ankenbrandt, 112 S. Ct.
                                                    ___________

          at 2213.   

                 As reaffirmed  by the Court in  Ankenbrandt, the "domestic
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          relations  exception"  is  a narrow  one.    In  order to  assure

          decisions  by those with the greatest  judicial expertise and the

          resources to  enforce them, the exception  "divest[s] the federal

          courts of the power  to issue divorce, alimony and  child custody

          decrees."  Id. at  2215.  But federal courts  retain jurisdiction
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          over  cases involving  intra-family  torts, unless  abstention is

          otherwise required by the Younger or Burford abstention doctrines
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          to avoid interference with  pending state proceedings,  important

          and difficult questions of state policy, or effectuation of state

          decrees.  Id. at 2216; see Younger v. Harris, 401 U.S. 37 (1971);
                    __           ___ _______    ______

          Pennzoil Co.  v. Texaco, Inc., 481 U.S.  1 (1987), cited by Court
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          as among authorities extending Younger abstention to civil cases;
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          Burford v. Sun Oil Co., 319 U.S. 315 (1943); Colorado River Water
          _______    ___________                       ____________________

          Conservation Dist.  v. United States,  424 U.S. 800,  813 (1976),
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          cited by Court for basic abstention principles.

                 In Ankenbrandt, the domestic  relations exception was held
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          inapplicable  to a claim seeking damages against a father and his

          companion  for  alleged  child  abuse.    The  claim  there  only

          peripherally touched  on  domestic relations  issues because  the

          plaintiff "in no way"  sought the issuance of a  divorce, custody

          or alimony  decree.  Ankenbrandt, 112  S. Ct. at 2215.   Nor were
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there  any issues of status  to be resolved  that might interfere

          with effectuation of a state court decree.  Id. at 2216. 
                                                      __

                 By contrast, here  plaintiff's real aim, as  stated in his

          original complaint, was  to obtain direct  enforcement of one  of

          two conflicting state court  custody decrees.  Thus there  was no

          subject   matter  jurisdiction   over  the   original  complaint.

          Ankenbrandt,  112  S.  Ct.  at  2215.    And  although  plaintiff
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          attempted to cure the jurisdictional deficit by filing an amended

          complaint  seeking only  damages, the  inherent infirmity  of the

          state tort claims pleaded in that  document belied the pleading's

          genuineness as a predicate  for jurisdiction.1  If there  was any

          doubt,  the real purpose of  this suit quickly  reappeared in the

          contradictory relief plaintiff sought by motion.  

                 Because  plaintiff  appeared pro  se  and  the facts  were
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          somewhat  murky,  the  district  court  liberally  construed  his

          pleadings  and  motions.   And  the  defendants apparently  never

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          1.  From the  outset, it was a legal  impossibility for plaintiff
          to  succeed on these state  law claims, because,  as he admitted,
          there  was no custody decree in his favor when defendant Kimberly
          Nwanko  moved with  the  children  to  Florida.    At  least  one
          essential element of the claim was thus always  missing, although
          the  language of  the complaint  tended  to obscure  the temporal
          sequence of events.  Plante v. Engel, 124 N.H. 213, 217, 469 A.2d
                               ______    _____
          1299,  1302 (1983)  (tort claim  for "interference  with parental
          custody" lies "where a parent has been awarded custody of a child
          by  a  court  decree  and  the  noncustodial  parent  abducts the
          child"); Morancy v. Morancy,  134 N.H. 493, 593 A.2d  1158 (1991)
                   _______    _______
          (tort  claim  for  intentional infliction  of  emotional distress
          requires showing  of "outrageous" conduct).   While plaintiff may
          have  believed  that  the  state  law  should  be  changed,  that
          question,  too, was beyond the competence of the federal court in
          a diversity case. 

                                         -6-

objected  for lack of subject matter jurisdiction.  But even when

          the parties are content to  have the case decided on  the merits,

          where the suit's  transparent purpose is to  embroil the district

          court  in a  dispute involving  conflicting custody  decrees, the

          suit must be dismissed for  lack of subject matter jurisdiction.4

          See Mansfield, C.  & L.  M. R.  Co. v.  Swan, 111  U.S. 379,  382
          ___ _______________________________     ____

          (1884), quoted  in Bender  v. Williamsport  Area Sch. Dist.,  475
                  __________ ______     __________________ __________

          U.S. 534, 546 (1985) ("The first and fundamental question is that

          of jurisdiction ... this question  the court is bound to ask  and

          answer for itself, even when not otherwise suggested, and without

          respect  to the  relation of  the parties  to it");  Louisville &
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          Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (it is the duty of
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          appellate  court to see to it that lower court's jurisdiction not

          exceeded,  even when parties do not complain). See also Sutter v.
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          Pitts,  639 F.2d  842 (1st  Cir. 1981)  (under former  version of
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          domestic  relations  exception,  case  properly  dismissed  where

          plaintiff's complaint  stated civil  rights action but,  with its

          "constitutional  cloak removed"  actually  sought enforcement  of

          probate court's custody order).   Accordingly, all claims against

          Kimberly  Nwanko must  be dismissed  for  lack of  subject matter

          jurisdiction. 

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          4.  The district court seemingly  recognized that the case should
          have been dismissed earlier.  In ruling on a post-judgment motion
          several months  later, it described  the dismissal of  the claims
          against Kimberly as  "in essence" for  lack of jurisdiction,  and
          the dismissal  of  the  claims  against Edward  Mitchell  as  "in
          essence" on his motion for summary judgment.

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The claims  against Edward  Mitchell, however, stand  on a

          different footing.  Those  claims do not seem to  have inevitably

          involved resolution  of the  parties' status, enforcement  of any

          custody   decree,  nor   interference  with  any   pending  state

          proceedings. They were thus  were not barred for lack  of subject

          matter  jurisdiction  by  the  domestic  relations  exception  or

          related abstention  doctrines. Ankenbrandt,  112 S. Ct.  at 2215.
                                         ___________

          Under state law, however, they, too, were  apparently infirm from

          the  outset, and might properly  have been dismissed  on a motion

          for  failure to  state a  claim or, as  the district  court later

          said, on a  motion for  summary judgment.   The factual  findings

          underlying  the  court's  conclusion   that  plaintiff  had   not

          sustained his  burden of proof against  defendant Edward Mitchell

          were not clearly erroneous.  Fed. R. Civ. P. 52(a); DesRosiers v.
                                                              __________

          Moran, 949  F.2d 15,  19  (1st Cir.  1991).   We have  considered
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          plaintiff's  other assertions of legal  and factual errors in the

          disposition  of these  claims and  find them  without merit.   We

          therefore affirm  the  judgment  dismissing  the  claims  against

          Edward Mitchell on the merits. 

                 The   judgment   dismissing  plaintiff's   claims  against

          Kimberly  Nwanko is reversed, vacated and remanded for entry of a
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          dismissal on the grounds of lack of subject matter  jurisdiction.

          The   judgment  dismissing  plaintiffs'   claims  against  Edward

          Mitchell is affirmed.
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