Appeal from the United States District Court for the District Court for the District of New Jersey - Newark.
Gibbons and Sloviter, Circuit Judges, and Mencer, District Judge.*fn*
In Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984), this court held that a claim alleging noncompliance with the Parental Kidnapping Prevention Act of 1980 (PKPA)*fn1 arises under federal law within the meaning of 28 U.S.C. § 1331 (1982). In this case we are asked to decide whether the so-called "domestic relations" exception to the diversity jurisdiction bars federal jurisdiction over PKPA-related state-law claim for damages arising from the wrongful abduction of a child from the spouse entitled to custody. We hold that the complaint alleges a colorable claim under the PKPA. We also hold that no "domestic relations" exception to the diversity jurisdiction bars the district court's subject-matter jurisdiction over the state-law claim.
This is an action arising out of a dispute over custody of the minor children of Douglas DiRuggiero and Rebecca Rodgers. Douglas is the natural father of Douglas Jr. and Paul DiRuggiero. He brings this action on behalf of himself and as guardian ad litem for both children. The defendants include Douglas' former wife Rebecca, her current husband Ted Rodgers, Ted's daughter Wendy, Rebecca's natural daughter (and Douglas' adoptive daughter) Gina, and their counsel Larry Thomas Black (the "private-party defendants"). The complaint also names as defendants three Justices of the General Court of Justice of the State of North Carolina and the State of North Carolina itself (the "public-party defendants").
Like the facts of so many custody disputes, those before us reveal a tumultuous case history. Early in 1978 Douglas and Rebecca separated after she became involved with another man. Rebecca later established a relationship with Ted Rodgers, her current husband. During much of this time, fourteen-year-old Gina cared for the younger children. Upon learning that Rebecca and Ted intended to travel to Japan, leaving the children in several temporary homes, Douglas moved back into the house and changed the locks. After several difficult months, Rebecca sued for divorce.
On November 9, 1979, a North Carolina court awarded custody of all three children to Douglas. The order established a visitation schedule and directed that Rebecca make monthly support payments of $270.00. In December of 1981, in connection with a change of employment, Douglas and the three children moved to Summit, New Jersey. Rebecca promptly filed a motion to regain custody. On May 7, 1982, Judge Rose L. Harris of the North Carolina General Court of Justice denied that motion and established a modified visitation schedule. In part the May 7 order permitted Rebecca to visit with the children in Charlotte, North Carolina during the weekends of May 7-9 and September 10-12.
Douglas avers that he received notice of the May 7 order in New Jersey on May 10, too late to accommodate Rebecca's right to visitation in North Carolina on May 7. On May 17, Rebecca moved in North Carolina to hold Douglas in contempt for violating the May 7 visitation order. Rebecca also moved to regain custody and to terminate her child support payments. The court scheduled a hearing on these motions for June 28.
Douglas then turned to the offensive. On June 24 he instituted proceedings in New Jersey Superior Court for an order enforcing the prior North Carolina custody determinations in his favor, and for a temporary restraining order enjoining Rebecca from relitigating the custody issue in North Carolina. An affidavit attested that Rebecca had made applications in North Carolina to regain custody "every other month" since August of 1979 and that it "has become financially impossible for me to continue to deal with the North Carolina courts." App. at 86. Later that day Judge Edward T. Toy of the New Jersey Superior Court issued the requested temporary restraining order.
On July 7, 1982, the New Jersey and North Carolina courts entered inconsistent orders pertaining to custody of the children. Judge Toy of the New Jersey Superior Court concluded that New Jersey "has jurisdiction pursuant to the Uniform Child Custody [Jurisdiction] Act [UCCJA] over all issues involving the care and custody of the parties' minor children. . . ." App. at 90.*fn2 The court agreed, however, to defer to North Carolina with respect to visitation rights and Rebecca's motion to hold Douglas in contempt -- provided that Rebecca would submit to the New Jersey court's jurisdiction. On the same day, Judge T. Michael Todd of the North Carolina General Court of Justice entered a conflicting order accepting jurisdiction over custody matters in North Carolina. The North Carolina order recited that "prior to assuming jurisdiction, the State of New Jersey had insufficient information provided to it by [Douglas] to enable the Presiding Judge [Toy] to evaluate the case properly before proceeding under the Uniform Child Custody Jurisdiction Act. . . ." App. at 92. Unless Douglas appeared on July 19 in North Carolina, the order provided, "the Court may proceed to enter such orders as are just and proper . . . including, if proper, an award of custody." App. at 93.
Judges Toy of New Jersey and Todd and Patrick Matus of North Carolina later conferred by telephone in an effort to resolve the ongoing dispute over jurisdiction under the Uniform Act. In an agreement memorialized in a letter from Judge Matus to Judge Toy dated August 26, the New Jersey and North Carolina courts agreed that North Carolina would retain jurisdiction over contempt proceedings. New Jersey, in contrast, would retain jurisdiction over custody matters, but would defer any such proceedings "until the contempt hearing is completed in North Carolina." App. at 94-95.*fn3 If Douglas did not appear in North Carolina, however, or if he appeared, was held in contempt, and did not purge himself of contempt, then Judges Todd and Matus recommended that the New Jersey court decline to exercise jurisdiction under two provisions of the UCCJA.*fn4
On September 10, 1982, without informing Douglas of her intention, Rebecca flew to New Jersey, located the children, and returned with them to North Carolina for the weekend. Rebecca attests that she called Douglas from the airport and informed him that the May 7 visitation order authorized her to visit with the children in Charlotte during the weekend of September 10-12. Although the "boys begged not to be sent back," she attested, "I obeyed the Court Order and returned them." App. at 257. Rebecca stated that she "took the foregoing actions upon the advice of my lawyer, Larry Thomas Black, that the New Jersey Court Orders then outstanding were a nullity and that the May 7, 1982 Order of the North Carolina Court authorized me to do what I did." App. at 257-58.
Thereafter matters escalated into small-scale internicene warfare. On September 15, Douglas moved for an injunction restraining Rebecca from removing the children from the State of New Jersey. He also sought an order limiting visitation to "supervised daytime visitation" and entering a default judgment on matters of custody. Douglas' affidavit asserted that Rebecca had "snatched" the children on September 10 and on several prior occasions. Before the New Jersey court ruled on these motions, however,*fn5 the North Carolina General Court of Justice held Douglas in criminal contempt of the May 7 visitation order. Douglas was neither present nor represented in this proceeding. Moreover, despite Judge Matus' August 26 letter agreeing that New Jersey would exercise jurisdiction over matters of custody, the North Carolina court reversed itself and held on October 4 that North Carolina had jurisdiction over all custody matters. That court ruled:
The Court has carefully considered the allegation that New Jersey had become the children's home state by virtue of the Defendant's having become a resident of the State of New Jersey for a period of six months and the Court finds said argument unpersuasive. Residence in the State of New Jersey, the Court finds, is significant to the Defendant only if this State declines its jurisdiction. The Court specifically finds that it is in the best interest of the children, under all the facts and circumstances, that jurisdiction be retained.
App. at 112. Having purported to establish its jurisdiction over custody, the court scheduled a custody hearing for October 11, 1982.*fn6 Douglas did not appear at this hearing. On October 20, Judge Resa L. Harris awarded custody of the children to Rebecca. That order was to become effective on November 1.
Douglas, in turn, renewed his motion before Judge Toy for an order establishing his right to custody and for an injunction restraining Rebecca from removing the children to North Carolina. Judge Toy denied that motion on October 28. See note 5 supra. Later that day, however, the New Jersey Appellate Division reversed the order of the Superior Court, directing the court to "determine the issue of jurisdiction in New Jersey" and, if jurisdiction were established, to "proceed to decide the issue of custody, visitation and other pertinent issues that are raised." App. at 149.
On October 31, 1982 -- one day before Rebecca was to obtain custody under Judge Harris' order, and three days after the Appellate Division had ordered Judge Toy to adjudicate issues of custody -- Rebecca took possession of eleven-year-old Douglas Jr. This she accomplished by traveling to Douglas' schoolroom with Ted and Ted's daughter Wendy. Under the pretense of using a bathroom pass, Douglas left school and returned with Rebecca to North Carolina. Rebecca also sought to take custody of nine-year-old Paul. Before leaving for North Carolina, however, she learned from her counsel, Larry Thomas Black, of the October 28 order of the New Jersey Appellate Division. Black instructed Rebecca to return to North Carolina with Douglas Jr. but not to take custody of Paul.
Douglas immediately obtained an order from Judge Toy directing Rebecca to return Douglas Jr. to New Jersey. Notwithstanding this order and the October 28 order of the New Jersey court, Douglas' sister, Elise DiRuggiero, telephoned Rebecca on November 8 and stated that she would take possession of Paul and send him to North Carolina as well. Paul arrived in Charlotte later that day.
On December 6, in conformance with the order of the Appellate Division, Judge Toy held that New Jersey had jurisdiction over custody and visitation matters under the Uniform Child Custody Jurisdiction Act. Rebecca did not attend the hearing on this question. Judge Toy's December 6 order awarded custody to Douglas, concluding
that the State of New Jersey is the home state of the infants born of the marriage and has been the home state of said children since June 28, 1982, and accordingly [that] any judgments on the issue of ...