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STEVENS v. SLEY

February 13, 1976

Benjamin H. STEVENS
v.
Ronald SLEY and Catherine E. W. Stevens



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 Presently before the Court is the motion of the defendants to dismiss the plaintiff's complaint. The defendant, Ronald Sley, contends that there has been an insufficient service of process as to him and therefore the Court lacks jurisdiction over his person. Mr. Sley also contends that as to him the complaint fails to state a cause of action upon which relief can be granted. Finally, both Mr. Sley and defendant Catherine E. W. Stevens contend that this Court lacks subject matter jurisdiction over the plaintiff's complaint. For the reasons set forth herein, we grant the defendants' motion to dismiss for want of subject matter jurisdiction. *fn1"

 Diversity jurisdiction is alleged pursuant to 28 U.S.C. § 1332. The complaint alleges that the plaintiff, Benjamin H. Stevens, is a resident of Massachusetts and that Ronald Sley and Catherine Stevens are residents of Pennsylvania and that the amount in controversy is in excess of $10,000.00.

 Benjamin Stevens and Catherine Stevens were married on February 14, 1952. Marital difficulties arose and the parties separated on December 14, 1970. On February 25, 1972 Mr. and Mrs. Stevens entered into a Post-Nuptial Agreement which settled all financial obligations between the parties, including alimony and child support, as well as custody of their children and the visitation rights of Mr. Stevens. Pursuant to the Agreement, Mr. Stevens agreed to pay Mrs. Stevens alimony totaling $190,000.00 to be paid periodically over a specified period of time, which alimony payments were terminable by the husband upon the remarriage of Mrs. Stevens during the period of alimony payments. *fn2" Mr. Stevens further agreed to pay to Mrs. Stevens $2,500.00 annually for the support of the couple's four minor children. *fn3" The Agreement also sets forth the visitation rights of Mr. Stevens in connection with the couple's children. *fn4" The complaint further alleges that after 1972, and unknown to the plaintiff, Catherine Stevens entered into a common law marriage with Ronald Sley, which common law marriage terminated the obligation of the plaintiff, Mr. Stevens, to pay alimony to Catherine Stevens. The complaint also alleges that Ronald Sley and Catherine Stevens have conspired and engaged in a course of conduct detrimental to the welfare and best interests of the children by depriving the children of an adequate education, and by subjecting them to an immoral, inadequate, inappropriate and unstable environment and that the defendants have neglected to take reasonable care of said children. The plaintiff further alleges that Ronald Sley and Catherine Stevens have squandered the alimony and child support paid by the plaintiff pursuant to the Agreement and that Ronald Sley has induced Catherine Stevens to use the alimony and child support payments to finance the personal projects of Mr. Sley, causing irreparable damage to the children. In addition, the complaint alleges that Catherine Stevens has been, and continues to be, an unfit mother and that she repeatedly and continually refuses to abide by the visitation provisions of the Post-Nuptial Agreement.

 In his prayer for relief the plaintiff asks this Court to:

 
1. Issue a declaratory judgment that the provisions for alimony under Paragraph 5 of the Agreement dated February 25, 1972 is terminated because of the common law marriage of defendants.
 
2. Remove John Andrew Stevens, Richard Randall Stevens and Edith Elizabeth Stevens from the custody of Catherine E. W. Stevens and order them placed in the custody of the plaintiff.
 
3. Enjoin Ronald Sley and Catherine E. W. Stevens from depriving John Andrew Stevens, Richard Randall Stevens and Edith Elizabeth Stevens of an adequate education, and from further keeping John Andrew Stevens, Richard Randall Stevens and Edith Elizabeth Stevens in an immoral, inadequate, inappropriate and unstable environment.
 
4. Order Catherine E. W. Stevens to abide by the visitation agreement attached to the Agreement dated February 25, 1972.
 
5. Order termination of the child support for John Andrew Stevens, Richard Randall Stevens and Edith Elizabeth Stevens provided in the Agreement dated February 25, 1972, which is being squandered by defendants.
 
6. Grant such other and further relief as may be appropriate, including temporary, preliminary and final restraining orders and injunctions against defendants and damages against defendants for the alimony and child support squandered by them to the date of trial, as well as punitive damages against each defendant in the sum of $1,000,000. *fn5"

 The defendants in their motion to dismiss contend that this action is a "domestic relations" matter over which this Court lacks subject matter jurisdiction. The plaintiff argues that the action against defendant, Catherine Stevens, is a declaratory judgment action based upon the alleged breach by Catherine Stevens of the Post-Nuptial Agreement. The plaintiff argues that the action against Ronald Sley is one for malicious interference by defendant Sley with the Post-Nuptial Agreement. The plaintiff contends that the requisite diversity of citizenship exists as well as the $10,000.00 jurisdictional amount and that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Once subject matter jurisdiction is established the plaintiff contends that the Court has pendent jurisdiction of the ancillary relief sought by him in connection with child custody and visitation rights.


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