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GILL v. GILL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 8, 1976

JOHN H. GILL
v.
KATHLEEN M. GILL

The opinion of the court was delivered by: DITTER

DITTER, J.

 Attempting to invoke the jurisdiction of this court under alternative diversity of citizenship and civil rights theories, plaintiff seeks to have set aside a state court order awarding custody of his minor daughter to his estranged wife. Defendant has moved to dismiss the complaint on grounds of insufficient service of process, absence of personal and subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to comply with applicable rules of procedure. I conclude that for want of subject matter jurisdiction and for failure to state a cognizable claim the complaint must be dismissed. *fn1"

 Taking as true the allegations of the complaint, Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 1734, 12 L. Ed. 2d 1030 (1964), and all reasonable inferences deducible therefrom, Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974), *fn2" as I must do on a motion to dismiss, it appears that defendant deserted plaintiff on January 27, 1975, taking with her the couple's minor daughter, Karen M. Gill. Plaintiff effected the return of Karen to his home on April 30, 1975. *fn3" On October 9, 1975, the Honorable James L. Stern, Judge of the Family Division of the Court of Common Pleas of Philadelphia, entered an order awarding custody of the child to defendant. *fn4" Plaintiff thereafter instituted the present action, seeking to have this court stay execution of the Common Pleas order, and to entertain a hearing on the merits of his custody petition.

 Alleging that he is a citizen of Pennsylvania and his wife a citizen of New Jersey, plaintiff first seeks to maintain this suit pursuant to this court's diversity jurisdiction under 28 U.S.C. § 1332. Inasmuch as the complaint is devoid of any claim of damages, let alone an amount in controversy exceeding the requisite $10,000., jurisdiction does not lie under that statute. Harms v. Federal Housing Administration, 256 F. Supp. 757, 760 (D. Md. 1966). Had plaintiff sought damages in an amount sufficient to satisfy Section 1332, under the more recent authorities, the fact that the parties remain legally married to each other would not necessarily preclude invocation of this court's diversity jurisdiction. *fn5" As Judge Weinstein concluded in a remarkable opinion in Spindel v. Spindel, 283 F. Supp. 797, 813 (E.D.N.Y. 1968):

 

Whatever the ancient doctrine a wife is capable of acquiring a domicile separate from that of her husband; at least to this extent legal equality of the sexes is embodied in the Fourteenth and Nineteenth Amendments. Cf. 42 U.S.C. §§ 2000a et seq. "If there has been an actual rupture of marital relations, [a wife] * * * may acquire a separate domicile of her own even though she was the party at fault. And she may likewise do so if for any reason she is living apart from her husband even though her relations with him are wholly amicable." Restatement 2d, Conflict of Laws § 21, comment d (Proposed Official Draft, Part I, 1967). See also cases collected, id., Reporter's Notes, pp. 111-12; Goodrich and Scoles, Conflict of Laws, pp. 51-53 (4th ed. 1964) ("The more recent authorities now recognize the separate domicile of the wife whenever she in fact makes her home apart from her husband, regardless of her motive or propriety of her conduct."). *fn6"

 Taking a still broader tack, however, and relying upon the statement of the Supreme Court in In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500 (1890), that "[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," *fn7" defendant would have me eschew any consideration of this suit. *fn8" A survey of cases decided by federal courts on the question of federal jurisdiction in matters of domestic relations yields frequently seemingly inconsistent and occasionally quite puzzling results. *fn9" Judge Weinstein, after an exhaustive survey and critique of the subject, opted in Spindel v. Spindel, supra, for an approach which frankly would render federal courts more hospitable to actions from which those courts historically have abstained on the basis of their domestic relations content. *fn10" Whatever may recommend itself in Judge Weinstein's approach, *fn11" it was specifically rejected by the Court of Appeals for this Circuit only last year in Solomon v. Solomon, 516 F.2d 1018. There the district court, in a former wife's diversity action for nonsupport, based in contract upon a separation agreement, entered summary judgment in favor of the ex-husband on grounds that federal jurisdiction was lacking. *fn12" In agreeing with the district court's jurisdictional determination, the majority of the appellate court held that federal courts have jurisdiction in domestic relations suits only where it is necessary to the effectuation of prior state court judgments involving the same matters, or where jurisdiction lies by dint of the participation and review of territorial courts. Id. at 1024. *fn13" With specific reference to the facts before it the Solomon court concluded that inasmuch as state litigation between the parties was pending, the threat existed that the feuding couple might play one court system off against another, and since custody of the couple's children was involved, the district court properly found that it had no jurisdiction. Id. at 1024. Indeed, it has been the unswerving rule in this Circuit that there is no federal diversity jurisdiction in a domestic relations case involving a child. Albanese v. Richter, 161 F.2d 688, 689 (3d Cir.), cert. denied, 332 U.S. 782, 68 S. Ct. 49, 92 L. Ed. 365 (1947), cited with approval in Solomon v. Solomon, supra at 1024 n. 17, and Magaziner v. Montemuro, 468 F.2d 782, 787 (3d Cir. 1972). *fn14" Accordingly, insofar as plaintiff's claim sounds in domestic relations, it cannot be maintained in this court.

 Apparently recognizing that he might encounter some rather formidable barriers in pressing this suit as a custody action, plaintiff alternatively seeks to recover for an alleged violation of his civil rights and those of his daughter. *fn15" Giving a liberal reading to the complaint, plaintiff apparently alleges that his wife and her attorney *fn16" wrongfully conspired to deprive him of his daughter's custody, and effectuated their scheme by means of perjury, misrepresentations to the state court, and other measures. *fn17"

 Even should the foregoing allegations be deemed to be sufficiently specific for a civil rights action, *fn18" they would fail to constitute a claim upon which relief could be afforded. At most, the plaintiff is asserting that the wrong decision was reached, although he concedes the appropriate processes were employed.

 While it is conceivable that state judicial machinery might be used to deprive a person of his property without due process of law or to deny him the equal protection of the laws, in order to make out such a case under the civil rights act, a plaintiff must show that federally protected rights were denied in state proceedings which were so abused or manipulated that they were in effect a nullity. To hold otherwise would be to make the federal courts the arbiter of the correctness of every state decision. Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948). See also, Basista v. Weir, 340 F.2d 74, 83 (3d Cir. 1965). Neither the civil rights statutes nor the Fourteenth Amendment secure a person against malicious, unfounded claims, the receipt of inadmissible evidence, or erroneous decisions, especially when the laws and courts of the state are available to furnish adequate remedies to an aggrieved individual. See Curry v. Ragan, 257 F.2d 449, 450 (5th Cir.), cert. denied, 358 U.S. 851, 79 S. Ct. 78, 3 L. Ed. 2d 85, reh. denied, 358 U.S. 914, 79 S. Ct. 238, 3 L. Ed. 2d 235 (1958); Bradford v. Lefkowitz, 240 F. Supp. 969, 977 (S.D. N.Y. 1965). *fn19" Plaintiff's challenges to the Pennsylvania proceedings must be addressed to the courts of that Commonwealth, which both at the trial *fn20" and appellate level can afford whatever relief to which he may be entitled.

 For the reasons expressed above, defendant's motion to dismiss the complaint will be granted.

 AND NOW, this 8th day of April, 1976, for the reasons expressed in the accompanying Opinion, it is ordered that the motion of defendant to dismiss the complaint is hereby granted.

 BY THE COURT:

 J. William Ditter, Jr. / J.


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