Bergstrom v. Bergstrom

Decision Date12 October 1979
Docket NumberNo. A1-79-112.,A1-79-112.
Citation478 F. Supp. 434
PartiesIda BERGSTROM, a minor child, by her guardian Ad Litem, Cameron L. Clemens, Plaintiff, v. Astrid BERGSTROM, Alan Bergstrom, and any and all authorized representatives as may be designated by them, Defendants.
CourtU.S. District Court — District of South Dakota

Irvin B. Nodland, Bismarck, N. D., for plaintiff.

Daniel James Chapman, Bismarck, N. D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

Astrid S. Bergstrom was granted a legal separation from bed and board from Alan H. Bergstrom in the Superior Court for the District of Columbia, Family Division, on February 15, 1978, followed by a decree of divorce issued on February 1, 1979. In its findings of fact, conclusions of law and order, the Superior Court awarded custody of the couple's then seven year old daughter, Ida Marie, to her mother, Astrid, who currently resides in the Kingdom of Norway. Following five post-trial motions by Astrid and two such motions by Alan, the parties agreed to submit their respective positions to the Superior Court under compulsory arbitration, and thereby reached a Consent Agreement which was signed by both parties on January 29, 1979, and incorporated by Order of the Superior Court that same day. That order directed that both Alan and Astrid were to dismiss, with prejudice, their various cross-appeals that were pending in the District of Columbia Court of Appeals and among other things, that:

"Neither party will lodge any further appeals of any type, nor bring any further action based on this case with the exception of any matters involving a change of circumstances necessitating a review of custody."

On August 23, 1978, prior to the signing of the Consent Agreement in Washington, D. C., Alan, as Ida's Guardian Ad Litem, commenced an action in the District Court for the Fourth Judicial District of North Dakota before The Honorable Gerald G. Glaser, asking, in essence, that the court assume jurisdiction over Ida for purposes of all child custody determinations and visitation rights. On September 18, 1978, in a memorandum opinion and order, the District Court found that the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act, Chapter 14-14, North Dakota Century Code, had not been satisfied and that the:

". . . best interests of Ida dictated that the initial Superior Court decree awarding custody to Astrid should remain in effect pending final resolution of the question of custody,. .."

With that the Court dismissed the action and subsequently entered an addendum to its memorandum opinion and order that required Alan to return Ida to:

". . . the custody of Astrid or of the mother's authorized representative within ten days . . .."

After applying for and being denied an ex parte order staying the execution of the District Court's orders, Alan then petitioned the Supreme Court of North Dakota for a stay of the orders of the District Court pending appeal to that Supreme Court.

On October 16, 1978, the Supreme Court of North Dakota being unable to find that the District Court had abused its discretion, denied the petition to stay pending appeal. Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D.1978).

Ida Marie Bergstrom, by her Guardian Ad Litem, Cameron L. Clemens, instituted her own action in this Court on October 20, 1978, requesting an order:

". . . prohibiting the removal of Ida from the United States of America against her wishes by any person whatsoever."

In that action Ida asserted that she was being denied the privileges and immunities due all citizens of the United States by being forced to leave the United States and reside with Astrid in Norway. Ida's request for a Temporary Restraining Order was denied because of the then pending appeal in the District of Columbia Court of Appeals.

Ida then returned to Norway for the upcoming school year as required by the original custody order of the Superior Court. Upon returning to the United States to live with Alan for the summer months in North Dakota, Ida instituted this action asking that Astrid Bergstrom be restrained from carrying out the directive of the Superior Court requiring that Ida be returned to Norway in August of 1979.

In Orders issued the 15th and 16th days of August, 1979, this Court added Alan Bergstrom as a party defendant and restrained any persons having custody or control of Ida from returning her to Norway for a period of ten days. In addition, it was ordered that Ida be evaluated by a psychologist or psychiatrist selected by the Court to determine the true preferences of Ida absent the influence of either her father or mother. In support of the decision to restrain the removal of Ida from the United States this Court found that immediate and irreparable injury would result to Ida Bergstrom if she was required to return to Norway under circumstances where she may be denied the privileges accorded other citizens of the United States, and that there was a reasonable probability that Ida would prevail on the merits of the action. Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323 (8th Cir. 1973). These proscriptions were extended to October 4, 1979, so that a hearing could be held on October 1, 1979. Following that hearing, the order was again extended to October 14, 1979, to afford the Court sufficient time to resolve the issues raised at the October 1st hearing.

It is asserted that jurisdiction exists over this action pursuant to 28 U.S.C. § 1332(a), the diversity statute; 28 U.S.C. § 1331(a), the statute affording the United States District Courts original jurisdiction over controversies arising under the Constitution, laws or treaties of the United States; and 42 U.S.C. § 1981, dealing with violation of civil rights.

One fact is immediately apparent. This Court is not the only available forum for the redress of the issues presented. Obviously, the Superior Court for the District of Columbia, Family Division, retains continuing jurisdiction over the parties to modify its orders upon a showing of changed circumstances. Why then should this Court assert "original jurisdiction" over a matter which at first blush appears to be nothing more than a continuation of the custody dispute begun by Alan and Astrid Bergstrom in September of 1977. The answer lies in the realization that a person who was afforded no voice in the Superior Court's determination has now come before this Court raising issues which are strictly constitutional in dimension, and are only tangentially related to the domestic relations of Alan and Astrid Bergstrom.

Title 28 U.S.C. § 1332(a) provides that the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds $10,000 and is between:

". . . citizens of a State and Citizens or subjects of a foreign state;"

or between:

". . . citizens of different States."

Although a very well researched argument has been presented asserting that defendant Astrid Bergstrom has, by virtue of certain treaties between the United States and Norway, lost her naturalized United States citizenship, the fact remains that Alan Bergstrom has been added as a party to this action and his status as resident of the same state as Ida, i. e., North Dakota, destroys diversity and denies the court jurisdiction based upon that statute.

Nor can jurisdiction be found under 42 U.S.C. § 1981, in that application of that section is limited to instances of racial discrimination. Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286; Gay Lib v. University of Missouri, 416 F.Supp. 1350 (D.C.Mo.1976), reversed on other grounds, 558 F.2d 848, cert. denied, Ratchford v. Gay Lib, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 789, rehearing denied, 435 U.S. 981, 98 S.Ct. 1632, 56 L.Ed.2d 74. Plaintiff has not alleged that she has been discriminated against because of her race and therefore has not stated any claim for relief arising under Section 1981.

Plaintiff further asserts that jurisdiction exists pursuant to 28 U.S.C. § 1331(a), which provides:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . . ."

In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Hedberg v. State Farm Mutual Automobile Insurance Co., 350 F.2d 924 (8th Cir. 1965); 1 Moore, Federal Practice ¶¶ 0.95, 0.96 (2d ed. 1975); C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3708 (1976). Here, that object is the right of a citizen of the United States to remain in this country. I find the value of that right exceeds the minimum requirement.

Plaintiff asserts that her cause of action arises under the Equal Protection and Privileges and Immunities clauses of the Fourteenth Amendment to the Constitution. It is well settled that the commands of the Fourteenth Amendment are addressed only to the State or to those acting under color of its authority. See, e. g., Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). These holdings raise the issue of whether the individual private defendants to this action, in carrying out the dictates of the custody order of the Superior Court, dated February 15, 1978, have somehow employed the authority of a "state."

In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), the Supreme Court of the United States provided the answer. It held the ...

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