Bossom v. Bossom

• Decision Date: 17 December 1976
• Docket Number: D,No. 383,383
• Citation: 551 F.2d 474
• Parties: Joseph BOSSOM, Plaintiff-Appellant, v. Naomi BOSSOM and Stanley E. Kooper, Defendants-Appellees. ocket 76-7316.
• Court: U.S. Court of Appeals — Second Circuit

Page 474

551 F.2d 474

Joseph BOSSOM, Plaintiff-Appellant, v. Naomi BOSSOM and Stanley E. Kooper, Defendants-Appellees.

No. 383, Docket 76-7316.

United States Court of Appeals Second Circuit.

Argued Dec. 7, 1976.

Decided Dec. 17, 1976.

Bernard J. Jaffe, New York City (Gelbwaks & Pollack, New York City, of counsel), for plaintiff-appellant.

Stanley E. Kooper, Brooklyn, for defendants-appellees.

Before KAUFMAN, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

PER CURIAM:

This action by Joseph Bossom, a resident of Maryland, was brought in the District Court for the Eastern District of New York against his former wife, Naomi Bossom, and her attorney, Stanley E. Kooper, both residents of New York. Joseph sought a declaration of invalidity of a stipulation signed by him and Naomi in April 1974 (together with a related escrow agreement wherein Kooper was the escrow agent) which was incorporated into the decree of divorce granted Naomi on July 1, 1974 by the Supreme Court of the State of New York, County of Kings. Joseph attacked, as contrary to the public policy of New York, a provision in the stipulation whereby a default in making the specified payments for child support would work a forfeiture of his rights of visitation and authorize attorney Kooper to deliver out of escrow a deed to Naomi of Joseph's half interest in the marital home; for good measure he contended that the alleged invalidity of this provision tainted the entire stipulation and accordingly asked that the stipulation and the escrow agreement be declared null and void. Before bringing the action in federal court Joseph had moved the state court to resettle its decree so as to merge the stipulation with the judgment of divorce and to provide for a downward modification of the support provisions; the state court denied the motion for merger and when Joseph defaulted in appearing, the request for modification was dismissed. On plaintiff's motion for summary judgment and defendants' cross-motion to dismiss under F.R.Civ.P. 12(b)(1), the district court dismissed the complaint.

The considerations relevant to plaintiff's appeal were canvassed by us in some depth in Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-17 (2 Cir. 1973), see also Kamhi v. Cohen, 512 F.2d 1051 (2 Cir. 1975). Our conclusions, in summary, were that:

The disclaimer in Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859), of "any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony" was alive and well ¹ as a matter of construction of the statute granting diversity jurisdiction of specified "civil actions," 28 U.S.C. § 1332, even if not of the definition of "all Cases, in Law and Equity" in Article III, § 2, of the Constitution, assuming it was ever intended to be the latter;

In a case not coming within the exception relating to matrimonial actions, a federal court may still decline jurisdiction if the action is "on the verge" of the exception, when there is no obstacle to a full and fair determination in the state courts and the interests of justice would be served by allowing the determination to be made by them in view of their great familiarity with matrimonial disputes and the absence of any such expertise by the federal courts.

Despite such decisions as Southard v. Southard, 305 F.2d 730, 731 (2 Cir. 1962), and Harrison v. Harrison, 214 F.2d 571 (4 Cir.), cert. denied, 348...