Cole v. Cole

• Decision Date: 09 October 1980
• Docket Number: No. 79-1332,79-1332
• Citation: 633 F.2d 1083
• Parties: James D. COLE, Appellant, v. Mary Franklin Carter COLE, Dale Padgett, J. H. Padgett, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1083

633 F.2d 1083

James D. COLE, Appellant, v. Mary Franklin Carter COLE, Dale Padgett, J. H. Padgett, Appellees.

No. 79-1332.

United States Court of Appeals Fourth Circuit.

Submitted Feb. 8, 1980.

Decided Oct. 9, 1980.

Frank D. Cherry, Jr., James J. Wall, Cherry & Wall, Wilmington, N. C., on brief, for appellant.

Joseph C. Olschner, Roger A. Moore, Jacksonville, N. C., F. E. Wallace, Jr., Wallace, Langley, Barwick & Landis, Kinston, N. C., on brief, for appellees.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and HAWKINS ^*, District Judge.

MURNAGHAN, Circuit Judge:

Plaintiff's suit was terminated in the district court partly by a grant of summary judgment, partly by a ruling that plaintiff had failed to state a claim on which relief could be granted, and partly by a ruling that some of plaintiff's claims fell within the domestic-relations exception to federal diversity jurisdiction. We affirm in part and reverse in part.

I.

On November 16, 1977, James D. Cole, a resident of Georgia, brought suit for compensatory and punitive damages against Mary Franklin Carter Cole (his former wife), against Dale Padgett (a deputy sheriff in the Sheriff's Department of Onslow County, North Carolina), and against J. H. Padgett (a policeman with the town of Holly Ridge, North Carolina). All defendants are residents of North Carolina. ¹ In addition to invoking diversity jurisdiction, plaintiff suggested that some of the Padgetts' acts under color of state law had violated 42 U.S.C. § 1983 (1976).

Plaintiff's allegations may usefully be subdivided into four general groups:

"Count 1" ²-Plaintiff charged Mary Cole with malicious prosecution and abuse of process. The factual underpinnings of Count 1 consisted of allegedly numerous and knowingly false criminal charges initiated for purposes of harassment by the defendant, Mary Cole, against the plaintiff during the time that they were still married. ³ The criminal charges plaintiff claims were preferred against him included:

(a) secretly installing a live electric wire or wires in Mary Cole's ⁴ house, with intent to shock anyone who entered;

(b) using profane and indecent language in telephone calls, involving Mary Cole and others;

(c) assaulting Mary Cole;

(d) abandonment and nonsupport of Mary Cole.

"Count 2"-Plaintiff alleged that Mary Cole and Dale Padgett had conspired to burn or to cause to be burned on November 30, 1974, a dwelling house owned and occupied by the plaintiff. He further charged that, prior to the fire, Mary Cole had caused the fire insurance on the dwelling to be transferred from plaintiff's name to her name and that she be designated as beneficiary. The designation of beneficiary change assertedly was done without notification to or approval by the plaintiff, who claimed that he did not discover the change until he attempted to collect the proceeds due for the loss of his house and was told that his request for payment was denied because the proceeds had already been paid to Mary Cole. Also, plaintiff alleged that prior to the fire Mary Cole and her co-conspirators had removed from the house several thousand dollars worth of personal property belonging to the plaintiff.

In support of Count 2, plaintiff filed an affidavit in which he swore that, prior to the burning of the house, Mary Cole had threatened to destroy everything that the plaintiff had; that on the day of the fire, prior to it, he had seen Mary Cole in the immediate vicinity of his home; and that after the fire had begun, he saw Dale Padgett in the vicinity of the house. Plaintiff further swore that the "fire was set by someone," that plaintiff had not set the fire himself, and that, on the day of the fire shortly before it began, Mary Cole had tried to run plaintiff's truck off the road while plaintiff was driving it.

Mary Cole filed an affidavit in which she swore that plaintiff had told her several times that he would burn his house down before he would give it to any woman through a divorce or separation agreement; that with the protection of the Onslow County Sheriff's Department she had retrieved some of her personal property from the house between October 18, 1974, and November 14, 1975, but that she had not returned to the house after November 15 that she did not cause, or conspire with anyone to cause, the fire which burned down the house; that on the evening of November 30, 1974, when the house burned, she was at her father's house in Sneads Ferry, North Carolina. Several other persons provided affidavits in which they swore that they had seen neither Mary Cole nor Dale Padgett near plaintiff's house during the time immediately before or immediately after the fire and that, while the house was burning, plaintiff had been seen standing in the rain leaning against a tree looking very intoxicated.

"Count 3"-Plaintiff alleged that although he had adequately prepaid the premium for his automobile liability insurance, Mary Cole had contacted the insurance company and requested it to cancel coverage. The company then cancelled the insurance without immediately notifying the plaintiff. Plaintiff further alleges that, before he received notice of the cancellation, Mary Cole and Dale Padgett had conspired to cause plaintiff's arrest for operating a motor vehicle without meeting the requirements of North Carolina's financial responsibility statute. Allegedly, pursuant to the asserted conspiracy, Dale Padgett stopped plaintiff's motor vehicle and attempted to arrest plaintiff for operating it without liability insurance. When plaintiff, however, was able to produce what appeared to be a valid automobile liability insurance policy card which indicated on its face that the liability insurance was still in force, Dale Padgett did not proceed to arrest the plaintiff, but he did verbally harass and abuse plaintiff. In his affidavit, plaintiff swore that the encounter took place on approximately November 23, 1974; that Dale Padgett had told the plaintiff that Mary Cole had said to Dale Padgett that the plaintiff did not have liability insurance because she had had it cancelled; and that after Dale Padgett saw the liability insurance card, he told plaintiff that "he was going to get the Plaintiff one way or the other," that he "had been laying for the Plaintiff," and that he would shoot the plaintiff.

"Count 4"-Plaintiff alleged that on June 21, 1976, Dale Padgett and J. H. Padgett had stopped plaintiff's motor vehicle without cause and had proceeded to harass and abuse the plaintiff. The alleged harassment and abuse included unprovoked assault and battery resulting in physical injury to the plaintiff.

In support of that allegation, plaintiff swore in his affidavit that he had been stopped around 9:30 p. m. while safely and properly driving through Holly Ridge, North Carolina. According to the affidavit, the two defendants were both in an unmarked green Sheriff's Department car when they flagged him over and asked to see his driver's license and vehicle registration. Plaintiff contends that, notwithstanding his compliance with the request, they attempted physically to extract him from the vehicle, drew a gun on him, and physically beat him with a blackjack. They released plaintiff only after having received instructions over the radio to turn him loose. Plaintiff then drove a few miles down the road, reported the incident to the Onslow County Sheriff from a pay phone, and proceeded directly to a hospital where he received treatment for his injuries, which he described as a dislocated shoulder and abrasions. An emergency room bill accompanying the affidavit showed that plaintiff had been admitted to the hospital at 10:25 p. m. At the bottom of the bill was written: "dx. Abrasion (L) forearm."

Affidavits submitted by the defendants stated that, during the afternoon of November 21, 1976, plaintiff had appeared at a gasoline station in a very intoxicated condition; that, when a member of the gasoline station staff had spoken well of Dale Padgett, plaintiff had raised a pipe wrench as if to strike the individual; that plaintiff's drunken condition and the assault had been reported to Dale Padgett; and that when plaintiff drove past the gas station a half an hour later, Dale Padgett followed him in a marked Sheriff's Department car to stop him. Affiants who stated that they had observed the afternoon encounter either from across the street or from a block or two away swore that plaintiff's vehicle was stopped only for a matter of 10 minutes or so; that J. H. Padgett arrived to assist Dale Padgett after a few minutes; and that there was no observed physical contact between the defendants and plaintiff.

Plaintiff's affidavits denied the alleged encounter at the gas station.

Defendants, who had timely requested a jury trial on all issues, moved that summary judgment be granted in their favor as to some counts and that the case be dismissed as to all others. Over plaintiff's objections, the district court, in a one-paragraph opinion, adopted a magistrate's "Proposed Findings of Fact," "Proposed Conclusions of Law," and "Proposed Order."

The court thereby ruled that Counts 1, 2, and 3 concerned matters of domestic relations and thus were not within the jurisdiction of the federal courts. Accordingly, Count 1 (malicious prosecution and abuse of process) and Count 2 (arson, conspiracy, conversion) were dismissed for want of subject matter jurisdiction.

The court also indicated that if it "chose" to exercise jurisdiction, it would grant summary judgment as to Count 2 because affidavits filed by the defendants had established that they were nowhere in the vicinity of the plaintiff's house at the time it burned.

Notwithstanding the court's adoption of the statement elsewhere in the magistrate's opinion that there was no subject matter jurisdiction over Count 3 (stopping plaintiff's truck for lack of insurance), the court adopted the magistrate's recommendation that Count 3 be...