APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 73-2831).
Van Dusen, Gibbons and Hunter, Circuit Judges. Gibbons, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
This appeal is from the district court's grant of summary judgment in favor of defendant-appellee. The district court ruled that plaintiff's diversity suit for non-support, based in contract upon a separation agreement executed in Pennsylvania, could not be maintained in the federal courts under the circumstances of this record. It premised this holding upon the federal courts' traditional policy against intervention in "domestic relations" cases. We conclude that the district court acted within its authority in holding that this case could not be maintained in federal court. We will, however, reverse the district court's entry of an order granting summary judgment and remand with directions to enter judgment dismissing this suit for want of subject matter jurisdiction.
Lynne E. Solomon ("plaintiff") and John F. Solomon, Jr. ("defendant") were married on August 16, 1958. Three children were born of this union. Marital difficulties arose and consequently, on November 22, 1968, husband and wife signed a separation agreement providing, inter alia, that the wife have custody of the children, that the husband pay a stipulated weekly amount for child support, and that -- subject to certain restrictions -- the husband be granted visitation rights. Paragraph 2(g) of the agreement provided in part:
". . . in the event that the parties cannot resolve the issue of Husband's future visitation rights between themselves, they hereby agree to submit any dispute for resolution in the Court of Common Pleas of Montgomery County, Pennsylvania. Both parties herewith agree to submit voluntarily to the jurisdiction of said Court in any such proceedings."*fn1 (Emphasis added.)
Moreover, the parties agreed in Paragraph 17 to a mechanism for the resolution of other disputes:
"Except with respect to paragraph 2(g) of the Agreement, all disputes, differences, questions of interpretation, questions of construction, disagreements and other problems which may arise in any manner out of this Agreement of the separation of the parties shall be referred to Victor J. Roberts, Esquire, and William L. O'Hey, Jr., Esquire, for decision. If they cannot agree they shall refer the matter to a third person agreeable to them for decision, which shall include the allocation of any costs incurred.
"The parties agree to abide by the decision thus reached . . . ."*fn2
The tranquility of separation was short-lived. On March 14, 1969, defendant brought a habeas corpus action in the Montgomery County Court of Common Pleas, contending that his visitation rights had been infringed. A hearing was held on April 3, 1969, and plaintiff submitted herself to the jurisdiction of the Montgomery County Court. By court order of May 19, 1969, defendant was granted specified visitation rights and plaintiff was required to post a $5,000.00 bond upon condition that she not remove the children from the court's jurisdiction without express written approval of the court. The bond was finally posted on June 13, 1969, after defendant had petitioned for a contempt citation against plaintiff. While the case was pending, plaintiff and the children moved to Florida in violation of the court's order.*fn3 Subsequently, on November 10, 1969, plaintiff was declared in contempt, judgment on the bond was granted, and a bench warrant for plaintiff's arrest, which remains outstanding, was issued.*fn4 The above-mentioned (1) May 19, 1969, state court order recited that ". . . the mother, Lynne E. Solomon, stated in Court on April 13, 1969, that she submitted to the jurisdiction of the Courts of Montgomery County, Pennsylvania . . ." (37a), and (2) November 10, 1969, state court order recited that ". . . Lynne E. Solomon having stated at the initial hearing on June 13, 1969, and again on August 8, 1969, and again on August 11, 1969, that she would abide by the jurisdiction of the Montgomery County, Pennsylvania Court . . ." (40a).*fn5 Defendant concedes non-payment of support after November 1969, but contends that he did so only after plaintiff had materially breached the separation agreement by denying his visitation rights.
After plaintiff secured residence in Florida, defendant obtained a divorce decree and remarried.*fn6 In August 1972, plaintiff and the children moved from Florida to Newark, Delaware. On December 13, 1973, plaintiff filed suit, based upon diversity of citizenship, in the federal district court for the Eastern District of Pennsylvania, seeking money damages for non-support, specific enforcement of the separation agreement, and appropriate equitable relief.*fn7 This suit was instituted by plaintiff in her representative capacity as parent and natural guardian of the children and in her own right. Defendant submitted alternative motions for summary judgment, dismissal, or a stay of proceedings pending resolution of the litigation in the Montgomery County Court of Common Pleas. The district court granted the motion for summary judgment on the ground that it lacked jurisdiction to adjudicate a cause of action involving "domestic relations."*fn8 This appeal followed.
Traditionally, the federal courts have evinced great reluctance to entertain cases involving domestic relations. This doctrine is not premised upon explicit statutory language limiting the jurisdictional authority of federal courts. Indeed, the jurisdictional statute utilized by plaintiff to bring suit grants original jurisdiction to federal district courts "in all civil actions"*fn9 where there is jurisdictional amount and diversity of citizenship.*fn10 28 U.S.C. § 1332. Rather, the jurisdictional exception for domestic relations has been judicially carved, beginning with and extending through a series of dicta in decisions of the United States Supreme Court.
In Barber v. Barber, 62 U.S. (21 How.) 582, 16 L. Ed. 226 (1859), the Court entertained a suit filed in federal court in Wisconsin by a wife residing in New York against her husband, who lived in Wisconsin. Her suit sought to enforce a decree of the New York state courts which granted her separation and alimony. Although ruling that the district court had properly exercised jurisdiction, the Court commented:
"Our first remark is -- and we wish it to be remembered -- that this is not a suit asking the court for the allowance of alimony. That has been done by a court of competent jurisdiction. The court in Wisconsin was asked to interfere to prevent that decree from being defeated by fraud.
"We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony or as an incident to divorce a vinculo, or to one from bed and board."
Chief Justice Taney and Justices Daniel and Campbell remained unplacated by this caveat and dissented, arguing that the federal courts had absolutely no jurisdiction over the subjects of divorce and alimony.
In re Burrus, 136 U.S. 586, 34 L. Ed. 500, 10 S. Ct. 850 (1890), involved a dispute over child custody in which the child's father had applied in the federal district court of Nebraska for a writ of habeas corpus to recover the child from the care of her grandparents. The district court granted the writ and, when the grandfather refused to relinquish the child, cited him for contempt and committed him to jail. The grandfather petitioned directly to the Supreme Court for a writ of habeas corpus, contending that he was illegally imprisoned because the district court had erred in assuming jurisdiction of the father's custody case. The Supreme Court agreed, explaining that federal courts have no jurisdiction over child custody suits. It emphasized:
"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." (Emphasis added.)
In Simms v. Simms, 175 U.S. 162, 44 L. Ed. 115, 20 S. Ct. 58 (1899), the Court heard an appeal from a divorce decree and alimony award which had been affirmed by the territorial Supreme Court of Arizona. It concluded that the jurisdictionally restrictive dictum of Barber was not applicable to the jurisdiction of territorial courts or to the United States Supreme Court's appellate jurisdiction over those courts. The only statutory restriction upon appeals from the territorial Supreme Courts to the United States Supreme Court was that the matter in dispute exceed $5,000.00. In holding that the alimony award, but not the divorce decree, met that requirement, the Court remarked:
"It may therefore be assumed as indubitable that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court. Within the States of the Union, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the State, and not to ...