McDougald v. Jenson

• Decision Date: 21 April 1986
• Docket Number: No. 84-3808,84-3808
• Citation: 786 F.2d 1465
• Parties: Gary McDOUGALD, Plaintiff-Appellee, Cross-Appellant, v. Vivian L. JENSON, Defendant-Appellant, Cross-Appellee, Clarence Ehli, Defendant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1465

786 F.2d 1465

Gary McDOUGALD, Plaintiff-Appellee, Cross-Appellant, v. Vivian L. JENSON, Defendant-Appellant, Cross-Appellee, Clarence Ehli, Defendant, Cross-Appellee.

No. 84-3808.

United States Court of Appeals, Eleventh Circuit.

April 21, 1986.

Douglas C. Kearney, Brice Mankoff & Barron, Dallas, Tex., for Jenson.

Edward S. Stafman, Tallahassee, Fla., for McDougald.

Douglas C. Kearney, Tallahassee, Fla., for Ehli.

Appeals from the United States District Court for the Northern District of Florida.

Before HILL and CLARK, Circuit Judges, and HOBBS ^*, Chief District Judge.

HILL, Circuit Judge:

This case arises out of the entry of conflicting child custody decrees by the Florida and Washington state courts. In 1980 Congress enacted the Parental Kidnapping Prevention Act (hereinafter "the PKPA"), P.L. 96-611, 94 Stat. 3566, codified at 28 U.S.C. Sec. 1738A (1982), in an attempt to provide at least a limited federal response to the serious social and legal problems engendered by the availability and entry of conflicting child custody orders by the courts of different states. See 28 U.S.C. Sec. 1738A note (1982). By setting forth uniform jurisdictional standards applicable to all states in child custody matters, the PKPA seeks both to reduce the likelihood that a jurisdictional conflict between states will lead to the entry of inconsistent decrees and to resolve those conflicts that do arise. Under the PKPA, only one state at a time may assert jurisdiction to issue or modify a child custody decree, and a custody order issued in accordance with the jurisdictional requirements of the PKPA is enforceable anywhere in the United States. In the PKPA however, Congress did not expressly provide a federal forum for the resolution of the interstate jurisdictional disputes to which it was addressed. In this case we must determine whether, despite the absence of express authorization in the PKPA, a private party may prosecute an action in federal district court to resolve an interstate conflict implicating the jurisdictional requirements set forth in that legislation. The district court in this case held that a parent could successfully maintain an action in federal district court to obtain a declaratory judgment that would determine which of two conflicting state court custody orders was issued in accordance with the jurisdictional prerequisites of the PKPA. We agree.

FACTS

On June 1, 1979, the Circuit Court of Calhoun County, Florida entered a divorce decree dissolving the marriage of appellant Vivian Jenson (then Vivian McDougald) (hereinafter referred to as "the mother") and appellee Gary McDougald (hereinafter referred to as "the father"). The divorce decree provided that the couple's son, Jerimy, who was then three years old, would live with each parent for alternating six month periods for the next three and one-half years. Once Jerimy reached school age, his mother was to have custody of him during the school year, with the father receiving summer visitation rights. In accordance with the custody provisions of the decree, Jerimy lived with his father from June 23, 1979 through December 23, 1979, and then from June 23, 1980 through late December of that year. Jerimy and his father lived in Blountstown, Calhoun County, Florida through all of the first six month period and most of the second one. Some time in November of 1980, the father and Jerimy then moved to Dothan, Alabama, a town located approximately 70 miles from Blountstown and about 20 miles from the Florida state line. Jerimy returned to his mother in Washington at the end of his second six month stay with his father.

On or about February 26, 1981, the father filed a petition for modification of the original custody decree in the Calhoun County Circuit Court. The Florida court set a hearing for May 15, 1981, and the modification petition and a notice of hearing were served on the mother in Washington. Soon after she was served with the Florida petition and notice, the mother filed a petition for modification in the Superior Court of Pierce County, Washington. The Washington court immediately entered a temporary restraining order and initiated communications with the Florida court, resulting in a stay of the Washington proceedings and a continuance of the Florida hearing. ¹ A hearing was eventually held in Blountstown, Florida on August 14, 1981, before the same judge who had entered the 1979 divorce and custody decree.

Both parents appeared personally before the court in Florida and testified. At the conclusion of the hearing, the Florida judge ruled from the bench that primary custody should be awarded to the mother, with the father enjoying summer and holiday visitation rights. Before the court's order was reduced to writing and entered, however, the father filed a motion for rehearing, and the matter was set for further hearing on October 9, 1981. At that hearing, the mother's Florida attorney was permitted to withdraw, and the mother was directed to secure new counsel before the next hearing. The next hearing was held on December 11, 1981, but the mother did not attend, nor was she represented by counsel. On January 5, 1982, the Florida court issued a written Order of Modification, in which it reversed its earlier ruling from the bench and awarded primary custody of Jerimy to the father, with the mother receiving summer and holiday visitation rights.

After the Florida court's October hearing the mother renewed her efforts to secure a modification of the original Florida custody decree in Washington. On November 21, 1981, the mother filed a memorandum regarding jurisdiction in the Washington court. After the December hearing in Florida, but before the Florida court had issued its written order, the Washington court contacted the Florida court, contending that Washington had the better claim to jurisdiction over the case and noting that a hearing was set for January 20, 1982 on that and other issues. The Florida court responded with a copy of its written order of January 5 and a letter setting forth its view of the case. The father filed an objection to the Washington court's assertion of jurisdiction and was represented by Washington counsel in the Washington proceedings.

The Washington court held a hearing and, on May 20, 1982, ruled that it had jurisdiction over the matter. The court set a custody hearing and ordered that Jerimy remain in the custody of his mother during the pendency of the Washington proceedings. The Washington court subsequently awarded primary custody of Jerimy to his mother, with four week summer visitation rights to the father. Pursuant to that arrangement, the Washington court permitted Apparently relying on the Florida custody order, the father did not return Jerimy to his mother at the end of the summer. Relying on the contrary Washington court orders, the mother and her father (appellant Clarence Ehli) retrieved Jerimy from Florida on April 14, 1983 and took him back to Washington. Arrest warrants were issued for the mother and grandfather, who were charged with abducting Jerimy with the intent to remove him from the jurisdiction of the Florida courts.

the father to take Jerimy to Florida in July of 1982.

In July of 1983 the Washington court granted the father an order to show cause why the Washington court should not restore the custody and visitation provisions of the original 1979 Florida divorce decree. On October 28, 1983 the Washington court entered an order essentially restoring the parties to the position they were in before the father sought the modification he was eventually granted in Florida. The mother was awarded primary custody of Jerimy, with the father enjoying summer visitation rights. On January 6, 1984, the father moved to vacate the Washington orders on the basis of the supremacy and full faith and credit clauses of the United States Constitution, as well as on jurisdictional grounds. That motion was denied on February 10, 1984. ²

On February 23, 1984, the father filed this action in federal district court. The father's amended complaint stated four separate claims. Named as defendants were the mother, the grandfather, and a Washington state court judge who was involved in the proceedings in that state. In Count I, the father named as defendants the mother and the Washington judge and sought damages and other relief pursuant to 42 U.S.C. Sec. 1983 (1982). Naming the mother as defendant, Count II sought enforcement of the Florida state court order of modification on the basis of constitutional principles of full faith and credit, alleging diversity as the basis for jurisdiction. Count III sought damages in tort from the mother and the grandfather for the alleged kidnapping of the child. Naming the Washington judge and the mother as defendants, Count IV sought damages as well as declaratory and injunctive relief pursuant to the provisions of the PKPA that are codified at 28 U.S.C. Sec. 1738A (1982), alleging both federal question and diversity jurisdiction.

On the father's motion for summary judgment, the district court granted the Washington state court judge's motion to dismiss the father's claims against him in their entirety for lack of personal jurisdiction. McDougald v. Jenson, 596 F.Supp. at 684. The court dismissed Count I of the amended complaint, the father's section 1983 claim against the mother, for failure to state a claim on which relief could be granted. Id. The court dismissed Count II, seeking enforcement of the Florida decree, for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim on which relief could be granted. Id. at 685. Dismissing Count III, the court found that the father's allegations of "child-snatching" did not constitute an actionable tort under Florida law, and that the court lacked diversity jurisdiction over such a claim if one existed under state law. Id. On Count IV, however, the court granted...