Dykes v. Hosemann

Decision Date11 October 1984
Docket NumberNo. 83-3347,83-3347
Citation743 F.2d 1488
PartiesDiana Christine DYKES, et al., Plaintiffs-Appellants, v. A.J. HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger Francis Dykes, Sr., etc., and Roger Francis Dykes, Jr., etc., Kenneth W. McIntosh, etc., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

J. Calvin Jenkins, Jr., William K. Meyer, Francis B. Burch, Baltimore, Md., for plaintiff-appellant.

Douglas E. Whitney, District Counsel, Dept. of H & R Serv., Orlando, Fla., Haas, Boehm & Brown, P.A., Daytona Beach, Fla., James A. Edwards, Orlando, Fla., Gerald B. Curington, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL, Circuit Judge, and THORNBERRY *, Senior Circuit Judge.

THORNBERRY, Senior Circuit Judge:

In this Sec. 1983 case, appellant Diana Christine Dykes ("Diana") alleges in essence that the appellees acted to deprive her of her constitutional right to raise her child without due process of law. The district court dismissed the suits against two of the appellees and granted the other three appellees' motions for summary judgment. We reverse and remand to the district court for further proceedings.

I. Facts

Diana Dykes and Roger Francis "Buzzy" Dykes, Jr. ("Buzzy") began experiencing marital difficulties in 1977. In November 1977, Buzzy took the couple's only child, three-year-old Aaron Matthew Dykes ("Aaron"), the other appellant, from their Pennsylvania home to the Florida home of Buzzy's father and stepmother, Judge Roger F. Dykes ("Judge Dykes") and Alpine Dykes. The circumstances of this incident are in dispute.

What happened next is not altogether clear either. The appellants contend that Buzzy and Judge Dykes formulated a plan to obtain a colorable court order awarding custody of Aaron to Buzzy. According to the appellants, Judge Dykes, who is a Brevard County, Florida Circuit Court judge, telephoned Judge Anthony Hosemann, Jr., ("Judge Hosemann"), another Brevard County Circuit Court judge then assigned to the Juvenile Court, for advice. Judge Hosemann suggested that Buzzy come to him with a "dependency" petition, and referred Judge Dykes to the Florida Department of Health and Rehabilitative Services ("HRS"), the state social service agency in charge of dependent and delinquent children.

On the evening of November 21, Judge Dykes and Buzzy went to an HRS office and requested assistance in filing a dependency petition. The agency official on duty there, Kendrick Lofback, explained that the Juvenile Court's authority to award custody was restricted to dependent or delinquent children, and Aaron did not qualify: 1

I told them that I wouldn't be able to help them, you know, that what we had to offer wasn't relevant to their situation, that they needed to get a lawyer and have something done through Circuit Court.

Lofback Deposition at 14.

According to Lofback, Judge Dykes persisted in the request, and Lofback called his supervisor, Thomas Weinberg, at home, to discuss the matter. Weinberg and Lofback finally agreed to go along with the petition, as long as it was not officially sponsored by HRS. Weinberg concedes that he might have told Lofback to help with the petition because Judge Dykes was a judge.

The next morning Weinberg presented a petition on behalf of Buzzy to Judge Hosemann, alleging as a basis for seeking custody the "real danger" that Diana might try to "abduct" Aaron. Buzzy had signed the petition and Weinberg had notarized it, although Weinberg admits that he did not administer an oath to Buzzy. 2 Buzzy waited outside Judge Hosemann's chambers while Weinberg presented the petition. Judge Hosemann signed the order finding Aaron to be a "dependent child" and awarded custody to Buzzy without any receipt of evidence. 3 Judge Hosemann admits that he had no basis for awarding custody of Aaron to Buzzy other than the fact that his father was a judge and the fact that the petition was presented by an HRS official.

No summons was ever directed to Diana as the statute required, 4 nor was Diana ever informed prior to the November 22 proceeding that a custody order would be sought. Buzzy did call Diana after he had obtained the order and inform her that he had a court order preventing Aaron's removal from Florida. Diana did not believe him because she had consulted an attorney who had told her that a court could not award custody or prevent a child's removal from a state unless a divorce action had been commenced.

Shortly after the dependency proceeding, Buzzy, Diana, and Aaron got back together briefly. They closed up their Pennsylvania apartment, returned to Florida, and moved in with Judge Dykes and his second wife, Alpine. They soon moved again, this time in with Buzzy's mother, Judge Dykes' ex-wife Marilu.

On approximately January 23, 1978, Diana traveled with Aaron from Florida to her parents' home in Maryland. The circumstances of this move are in dispute.

After Diana left Florida, the Dykes family retained an attorney, Kenneth McIntosh, to help secure Aaron's return to Florida. A meeting was held between Buzzy, Judge Dykes, Judge Hosemann, Weinberg, and another HRS employee in Judge Hosemann's chambers on January 23, 1978. The group allegedly formulated a plan to bring Aaron back to Florida.

The next day, in accordance with the plan, Buzzy filed a petition for dissolution of marriage in Brevard County Circuit Court. The dissolution case was assigned to Judge Muldrew, another judge on the Brevard County Circuit Court bench. Judge Muldrew issued three orders ex parte: one granting temporary custody of Aaron to Buzzy and two Requests for Assistance to the Maryland juvenile authorities. Judge Hosemann also issued an ex parte order for Aaron's return and requesting the assistance of Maryland authorities. All four orders were based upon and referred to Judge Hosemann's original November 22, 1977 custody order. Each judge ordered Diana to appear in a different court on February 13, 1978 at 10:30 a.m.

On January 30, armed with the Florida orders, Buzzy flew to Maryland and proceeded to the Maryland Circuit Court, where he obtained a custody order requiring Diana to surrender Aaron. That night, accompanied by a Baltimore County Deputy sheriff, Buzzy went to Diana's parents' home, picked up Aaron, and returned to Florida. This was the first time that Diana received formal notice of the November 1977 custody adjudicated by Judge Hosemann. 5

In February 1978, Diana flew to Florida to be with Aaron and to appear at the custody hearing before Judge Muldrew. On February 22, 1978, Judge Muldrew ordered HRS to do a social investigation of both parents' suitability as custodians; the study was to be completed within 60 days. The report, which made no custody recommendation, was finally completed almost nine months later, only after Diana's counsel had filed a contempt motion against HRS based on the delay. During all this time, Buzzy had custody of Aaron.

On August 15, 1978, Judge Muldrew issued a final judgment of dissolution of marriage. On February 22, 1979, he granted a permanent custody of Aaron to Buzzy. One of the primary reasons cited by Judge Muldrew for his decision was the fact that Buzzy had been the custodial parent during the past year.

Subsequently, Diana sought post-judgment relief, including the right to take post-trial discovery, on the grounds of judicial impropriety and undue influence in the custody proceedings. All these motions were denied. After her state appeals were denied, she filed this Sec. 1983 action.

In Diana's original complaint, both she and her son Aaron were named as plaintiffs. The four-count complaint alleged deprivation of the plaintiffs' constitutional rights in violation of 42 U.S.C. Secs. 1983 and 1985 by appellees Judge Hosemann, Judge Dykes, Buzzy Dykes, Thomas Weinberg, Kenneth McIntosh, and Alpine Dykes. Specifically, she claimed that the appellees, individually, and as part of a conspiracy, deprived her of custody of Aaron in violation of her procedural and substantive due process rights and her right to equal protection under the Fifth and Fourteenth Amendments. Chief Judge George C. Young dismissed this original complaint for failure to comply with Federal Civil Rule of Procedure 8(a). The plaintiffs then filed an amended complaint against all previously named defendants except Alpine Dykes.

The district court dismissed the Sec. 1985 actions for lack of an allegation of class-based animus. The appellants do not appeal this decision. The district court also dismissed Aaron as a party plaintiff on the grounds that he had not suffered any damages. The claim against Judge Hosemann was dismissed on the grounds of judicial immunity, and the claim against McIntosh was dismissed for lack of state action and insufficient allegations. The trial court also granted motions for summary judgment filed by Judge Dykes, Buzzy, and Weinberg. Diana and Aaron appeal all these orders. 6

II. Section 1983 Analysis

At the outset, we address the basis for the appellants' rather novel claim under 42 U.S.C. Sec. 1983.

Section 1983 provides in pertinent part:

Sec. 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Two primary issues in a Sec. 1983 action are (1) whether the defendants violated the plaintiffs' constitutional rights, and (2) whether such violation was under color...

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