Collins v. Collins

• Decision Date: 29 June 1984
• Docket Number: Civ. A. No. C82-2460A.
• Citation: 597 F. Supp. 33
• Parties: Charles Clifton COLLINS, Plaintiff, v. Vicki Lynn COLLINS, Defendant.
• Court: U.S. District Court — Northern District of Georgia

597 F. Supp. 33

Charles Clifton COLLINS, Plaintiff, v. Vicki Lynn COLLINS, Defendant.

Civ. A. No. C82-2460A.

United States District Court, N.D. Georgia, Atlanta Division.

June 29, 1984.

Mary Ann B. Oakley, Oakley & Bonner, Atlanta, Ga., D. Lynn Russell, Ann J. Herrera, Decatur, Ga., for plaintiff.

E. Penn Nicholson, David C. Newman, Dodd, Driver, Connell & Hughes, Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This action is before the court on plaintiff's motion to substitute counsel, plaintiff's motion for consolidation, and plaintiff's motion for summary judgment. Plaintiff's motion to substitute counsel is not in compliance with Local Rule 71.7 and is therefore DENIED without prejudice. Because the court has concluded, for reasons which will appear below, that his action should be dismissed for failure to state a claim, plaintiff's motion for consolidation and defendant's motion for summary judgment are MOOT.

I. FACTS.

This action began as a divorce proceeding in the Superior Court of Clayton County with all the bitterness which so often characterizes such proceedings. After a jury returned a verdict against him but before a final judgment was entered, Mr. Collins filed a motion for reconsideration or in the alternative a motion for a new trial. While that motion was pending Judge Miller, the presiding judge was diagnosed as having terminal cancer. Nevertheless, a hearing was held on Mr. Collins' motions in January 1982. On March 15, 1982, after learning that the judge had decided to rule in Mrs. Collins' favor, Mr. Collins filed a motion to recuse on the grounds that there had been improper attempts to influence the judge through ex parte communications and that the judge was incompetent to continue in the case.

The motion to recuse was assigned to Judge Ison. A hearing was held at which Mrs. Collins presented affidavits concerning the ability of Judge Miller to continue hearing the case. Evidence was also presented on the issue of whether Mrs. Collins had improperly attempted to influence Judge Miller. Mr. Collins had subpoenaed various witnesses to testify as to Judge Miller's health, but Judge Ison had granted an unopposed motion to quash the subpoenas.¹ Judge Ison then denied the motion to recuse, finding that Judge Miller was fully competent to continue in the case and that the ex parte communications challenged by Mr. Collins were harmless and did not involve either Mrs. Collins or her attorney.

Immediately following the denial of the motion to recuse, Judge Miller entered his findings of fact, conclusions of law, and final order denying the motion for new trial and motion for reconsideration and awarding custody of the minor child to Mrs. Collins. Judge Miller died soon thereafter.

Subsequent to the entry of these judgments Mr. Collins sought a grant of an application for discretionary review from the Supreme Court of Georgia pursuant to Ga.Code Ann. § 6-701.1(a)(2) in order to review various orders issued by the trial court. Among the orders which Mr. Collins sought to appeal were the final custody order, as amended and re-entered, the order denying defendant's motion for new trial and extraordinary motion for new trial, and the order denying defendant's motion to recuse Judge Miller. On May 19, 1982 the Supreme Court denied the application for discretionary review. Subsequently, the remaining issues of child support, alimony and property division were tried before a jury which rendered a verdict which was reduced to a final judgment on June 16, 1982. Mr. Collins filed a separate application for appellate review of the final judgment and preceding orders, and the court's award of attorney's fees. On September 2, 1982 the Supreme Court denied the second application for appellate review.

Totally dissatisfied with the results obtained in the Georgia courts, Mr. Collins then filed the present action in this court seeking relief under 42 U.S.C. § 1983. Plaintiff's complaint, as amended, asserted that the Georgia discretionary appeal statute, Ga.Code Ann. § 6-701.1(a)(2), violated the equal protection clause of the Constitution. Plaintiff asked this court to declare that statute unconstitutional and enjoin the Supreme Court of Georgia from enforcing it. In essence, he asked this court to order the Supreme Court of Georgia to hear his appeal. Plaintiff's equal protection claim was dismissed by order dated June 30, 1983.

Plaintiff's complaint also asserted that the defendants had acted under color of state law to deprive him of his property without due process. Plaintiff alleged that a conspiracy existed between Judge Miller and Mrs. Collins in order to thwart the recusal hearing to permit Judge Miller to remain on the bench, during the pendency of this action despite a clear inability to serve. Plaintiff alleged that three actions, either directly or indirectly, individually or in conjunction, acted to deprive him of due process. They are: "(a) The denial of the right to subpoena witnesses and present them at the hearing on the motion to recuse ... (b) the trial by an incompetent judge, and a trial of a judge acting without authority under Georgia law ...; and (c) the denial of the right granted by State law to have the motion to recuse transcribed by a court reporter for subsequent review by the appellate courts...." In the June 30, 1983 order the court dismissed that part of plaintiff's due process claim which asserted that the denial of plaintiff's right to have the hearing on the motion to recuse transcribed by a court reporter was a denial of due process. Therefore, plaintiff's only remaining federal claims² are that he was deprived of his constitutional rights by a conspiracy between Judge Miller and defendant Collins to thwart the recusal hearing, and that Judge Ison's order quashing the subpoenas deprived him of due process.

II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

In her motion for summary judgment defendant argues that plaintiff's remaining claims are barred by the doctrine of res judicata because they either were or should have been adjudicated in the Georgia courts. Plaintiff has responded to defendant's motion by vigorously arguing that issues of fact remain concerning the competence of Judge Miller and whether the motion to recuse was improperly decided based on perjured affidavits and the absence of the witnesses whom plaintiff had subpoenaed. Neither side has raised or otherwise addressed the more fundamental issue of whether this court has jurisdiction in this case. Because this court must examine whether subject matter jurisdiction exists on its own motion if necessary, the court shall examine the question sua sponte.

Although plaintiff's complaint is couched as a suit brought under 42 U.S.C. § 1983 to enjoin violations of plaintiff's constitutional rights, when boiled down to its essential elements it is no more than a suit to set aside a judgment on the grounds that the judgment was obtained by fraud. Plaintiff asks this court to enjoin Mrs. Collins "from seeking any further attachments or process to enforce any of said judgments and that this Court further declare that said judgments are void and unenforceable as violative of the due process rights of this Plaintiff." Plaintiff argues that Judge Miller was incompetent to render the judgments in the divorce case. Since Judge Miller's competence was adjudicated by Judge Ison in denying the motion to recuse, Mr. Collins argues that the denial of the motion to recuse was improper and based upon perjured affidavits and an inadequate record. It follows therefore that the first hurdle the court must overcome is whether it has the power to review the denial of the motion to recuse. If this court has no such power, then the court cannot inquire into whether or not the recusal was proper or whether or not Judge Miller was competent to render a judgment.³

The question then becomes: Can a federal district court enjoin enforcement of a state court judgment that has been obtained by fraud and which therefore deprives the plaintiff of property without due process of law? The starting point in the court's analysis is Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), in which the Court held that federal district courts have no jurisdiction to "entertain a proceeding to reverse or modify the judgment (of a state court) for (constitutional) errors.... To do so would be an exercise of appellate jurisdiction. The jurisdiction of the district courts is strictly original." Id. at 416, 44 S.Ct. at 150. Rooker was relied upon by the Fifth Circuit in Warriner v. Fink, 307 F.2d 933 (5th Cir.1962), cert. denied, 372 U.S. 943, 83 S.Ct. 937, 9 L.Ed.2d 969 (1963). In that case the plaintiff argued that a foreclosure on her property had been obtained by fraud. She had appealed the foreclosure to the Supreme Court of Florida. However, evidence in the record supported plaintiff's contention that defendant had made fraudulent representations to the Supreme Court of Florida which dismissed her appeal in reliance on such representations. Plaintiff then filed her action in the district court seeking to enjoin the defendants from enforcing the final decree of foreclosure and attacking that decree as void. Plaintiff argued that federal jurisdiction was based upon the first, fifth and fourteenth amendments of the Constitution, as well as on the due process and equal protection clauses. However, the court of appeals found that the district court had no jurisdiction to enjoin the enforcement of or to set aside or hold null and void the decree of foreclosure:

The plaintiff has appeared and argued the case very creditably in her own behalf and has impressed the Court with her sincerity. It is for that reason and to enable her the more easily to petition for review of our judgment in the Supreme Court of the United States, if she so desires, that we have set forth the facts alleged in the complaint in such

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