Catz v. Chalker

• Citation: 142 F.3d 279
• Decision Date: 16 April 1998
• Docket Number: Nos. 96-3114,I,96-5776,TIAA-CRE,s. 96-3114
• Parties: Robert S. CATZ (96-3114/5776); Shawn D. Catz and Jason A. Catz (96-5776), Plaintiffs-Appellants, v. Susan R. CHALKER (96-3114/5776); Leonard I. Karp and Annette Everlove (96-3114); Fidelity Investments, Inc., Waterhouse Securities, andnc. (96-5776), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 279

142 F.3d 279

41 Fed.R.Serv.3d 58

Robert S. CATZ (96-3114/5776); Shawn D. Catz and Jason A Catz (96-5776), Plaintiffs-Appellants, v. Susan R. CHALKER (96-3114/5776); Leonard I. Karp and Annette Everlove (96-3114); Fidelity Investments Inc., Waterhouse Securities, and TIAA-CREF, Inc. (96-5776) Defendants-Appellees.

Nos. 96-3114, 96-5776.

United States Court of Appeals Sixth Circuit.

Argued July 31, 1997.

Decided April 16, 1998.

Robert S. Catz (argued and briefed), Nashville, TN, Michael D. Mosher (argued), Michael D. Mosher & Associates, Paris, TX, for Plaintiff-Appellant Robert S. Catz in No. 96-3114.

Charles R. Ray (briefed), Nashville, TN, Robert S. Catz (argued), Nashville, TN, for Plaintiffs-Appellants Shawn D. Catz and Jason A. Catz in No. 96-5776.

Charles R. Ray (briefed), Nashville, TN, Michael D. Mosher (argued), Michael D. Mosher & Associates, Paris, TX, for Plaintiff-Appellant Robert S. Catz in No. 96-5776.

Charles W. McElroy (argued and briefed), Boult, Cummings, Conners & Berry, Nashville, TN, Mark B. Cohn and Jeffrey A. Huth (briefed), McCarthy, Lebit, Crystal & Haiman, Cleveland, OH, for Defendant-Appellee Susan R. Chalker in No. 96-3114.

Byron R. Trauger (briefed), Gregory Mitchell (briefed), Doramus & Trauger, Nashville, TN, for Defendant-Appellee Fidelity Investments in No. 96-3114.

Mark B. Cohn (briefed), McCarthy, Lebit, Crystal & Haiman, Cleveland, OH, for Defendants-Appellees Waterhouse Securities, Teachers Insurance and Annuity Association of America, College Retirement Equity fund, Ohio State Teachers Retirement System in No. 96-3114.

Charles W. McElroy (argued and briefed), Boult, Cummings, Conners & Berry, Nashville, TN, Mark B. Cohn (briefed), McCarthy, Lebit, Crystal & Haiman, Cleveland, OH, for Defendant-Appellee Annette Everlove in No. 96-3114.

L. Beth Evans, Waller, Lansden, Dortch & Davis, Nashville, TN, Charles W. McElroy (argued and briefed), Boult, Cummings, Conners & Berry, Nashville, TN, Jeffrey A. Huth and Mark B. Cohen (briefed), McCarthy, Lebit, Crystal & Haiman, Cleveland, OH, for Defendant-Appellee in No. 96-5776.

Byron R. Trauger, Gregory Mitchell (briefed), Doramus & Trauger, Nashville, TN, for Defendant-Appellee Fidelity Investments, Inc. in No. 96-5776.

Before: MERRITT, WELLFORD, and BOGGS, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which MERRITT, J., joined. WELLFORD, J. (pp. 295-96), delivered a separate concurring opinion.

OPINION

BOGGS, Circuit Judge.

This is a very complicated case, both procedurally and factually. The parties have contested it through at least five trial courts and three appellate courts, with vigor and venom. To assist the reader, I will preface the formal recitation of the facts with an over-simplified summary.

Robert Catz and Susan Chalker are (formerly) young lawyers (formerly) in love. They were married in 1980 in Washington, D.C. In 1989, Catz procured a divorce in Ohio. Chalker says she never knew about the divorce and was never served, though there is some evidence that she filed tax returns as a single person thereafter. In 1994, the couple moved to Arizona together. In late 1994, Chalker filed for divorce in Arizona. Now, it is Catz who says he did not timely learn of the divorce action and was not properly served. Ultimately, the Arizona court granted Chalker a divorce in March 1995. The direct question of the dueling decrees, however, is not before us.

Chalker got the Arizona courts to make a number of financial rulings very favorable to her: Catz's assets were frozen, all his financial assets were given to her, and Catz was forbidden to file any more papers or cases in several instances. Catz alleges that many of these rulings were procured by a variety of due process violations, including failure to serve him, failure to give him notice of court dates at which his rights were lost, and improper collusion and ex parte contacts between Chalker's lawyers and the Arizona judiciary. Catz could have attacked these actions by a timely appeal of the Arizona divorce action, by pursuing an initial plea of full faith and credit for the Ohio divorce judgment, or by other means. He did not.

The Arizona judgments became final and were not timely appealed. Instead, Catz tried to get into federal court, three or four times, but then let two direct federal actions be dismissed, one with prejudice and one without, and he never appealed these rulings to the Ninth Circuit. Instead, he began independent actions in federal district courts in Ohio and Tennessee, which is where our tale enters the Sixth Circuit. The basic question before us is whether the district courts in Tennessee and Ohio were correct in dismissing Catz's actions seeking declarations that he was deprived of both money and procedural rights, or whether his numerous procedural failures in Arizona have pretermitted any effort, at this late date, to sort out the varying actions and rights earlier adjudicated, in various ways, by the Ohio and Arizona state courts.

For the reasons described below, we affirm in part and reverse in part the judgment of the district court for the Northern District of Ohio, and reverse the judgment of the district court for the Middle District of Tennessee. ¹

I Preliminary Facts

Catz and Chalker, lawyers and former law professors, were married in 1980 and they had one child born of this marriage. On April 10, 1989, while Catz was living in Ohio and Chalker was living in Florida, Catz filed for divorce in Ohio. When Chalker did not answer, Catz was awarded a judgment of divorce by default. Chalker alleges that she was never served with the divorce summons and complaint because Catz sent them to a mailing address in Florida where they would be intercepted by Catz's friend and not delivered to her. She asserts that she did not learn of the Ohio divorce decree until late 1994. Whatever accounted for Chalker's absence, the Ohio court, after determining that the couple had not intermingled their personal property, awarded Catz his personal property located in Ohio and awarded Chalker her personal property then in her possession. (The judgment entry contained no mention of the financial assets now at issue.) The court declined to adjudicate custody of the child.

After the Ohio divorce decree, Catz and Chalker continued to see one another, and, according to Chalker, comported themselves as a married couple by applying as such for insurance and club memberships. Catz, however, alleges that during this period Chalker indicated that she was divorced on tax and student-loan forms. Whatever their marital status, in 1993 they moved to Arizona together.

On November 4, 1994, Chalker filed for divorce in the Pima County, Arizona, Superior Court, and on December 1, moved ex parte for a temporary restraining order barring the transfer of funds, claimed by her as community property, that were invested with entities including (to name those that are parties to the present actions) TIAA/CREF, Waterhouse Securities, and a number of mutual funds in the Fidelity group. In support of the motion, Chalker filed affidavits by herself and by a friend of the couple averring that Catz had vowed to put the assets out of Chalker's reach. The court granted Chalker's motion the same day the affidavits were filed.

Catz claims that he did not receive notice of Chalker's divorce action until December 14, 1994, over five weeks after it was filed and two weeks after the TRO. He then immediately filed an "emergency motion" to dismiss in the same court, on the grounds that the Ohio divorce decree, including its division of property, had to be given full faith and credit. Catz further alleged that the TRO freezing his assets would cause him severe hardship, including the destruction of his business as a concert promoter and bar owner, and render him unable to pay rent and other personal obligations.

The Arizona court initially scheduled a hearing on Catz's motion for December 19, 1994, but then--according to Catz, as a result of collusion between the court's chief judge and Chalker's counsel, a pro tempore judge of the court--continued the hearing until an undetermined date in 1995.

On December 19, Catz filed a notice of removal of the divorce action in the United States District Court for the District of Arizona, alleging federal jurisdiction based on the divorce action's purported collateral attack, on federal equal protection and due process grounds, on the Ohio divorce decree. On January 12, 1995, that federal court remanded the case to state court, reasoning that it was a domestic relations controversy over which it would be inappropriate to exercise federal jurisdiction. (On March 13, 1995, Catz filed a second notice of removal in the district court; the following day, the court remanded and ordered the clerk not to accept further pleadings from Catz without permission of the court.)

Also on December 19, 1994, Catz filed in the district court a § 1983 complaint ("the first Arizona federal action") alleging that Chalker's resonantly-named divorce attorneys, Annette Everlove and Leonard Karp, had deprived him of due process "by invoking the machinery of the State of Arizona to effect an ex parte seizure of his property after they were aware of the possible existence of a prior controlling state court judgment." Catz's complaint also alleged that Chalker and her lawyers had fraudulently concealed the existence of the Ohio divorce decree from the Arizona court. In April 1995, for reasons unexplained, Catz filed a notice of voluntary dismissal of this action.

On December 20, 1994, Catz separately filed, in the same court, an action ("the second Arizona federal action") against Chalker seeking a declaratory judgment that Chalker had been properly served in the Ohio divorce proceeding. This action also included a § 1983 claim against Chalker similar to the one alleged in the first Arizona federal action against Chalker's attorneys. O...