Fernos-Lopez v. Figarella Lopez

• Decision Date: 07 May 1991
• Docket Number: FERNOS-LOPE,P,No. 90-1714,90-1714
• Citation: 929 F.2d 20
• Parties: Gonzaloetitioner, Appellant, v. Eloisa FIGARELLA LOPEZ, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 20

929 F.2d 20

Gonzalo FERNOS-LOPEZ, Petitioner, Appellant, v. Eloisa FIGARELLA LOPEZ, Respondent, Appellee.

No. 90-1714.

United States Court of Appeals, First Circuit.

Submitted Nov. 30, 1990.

Decided March 27, 1991.

Rehearing Denied May 7, 1991.

Gonzalo Fernos-Lopez, on brief, pro se.

Luis Garcia-Carrasquillo, San Juan, P.R., on brief, for respondent, appellee.

Before BREYER, Chief Judge, CAMPBELL and SELYA, Circuit Judges.

PER CURIAM.

Gonzalo Fernos-Lopez ("petitioner"), having been adjudged in civil contempt and imprisoned by the superior court of Puerto Rico for failure to pay alimony as ordered, appeals pro se from a judgment dismissing his petition for a writ of habeas corpus. The district court disposed of the petition summarily for lack of jurisdiction. As no certificate of probable cause was granted, we treat the instant appeal as an application for same. While we disagree with the rationale invoked by the district court, we agree for other reasons that jurisdiction was lacking below. We therefore deny the application for a certificate of probable cause.

I.

In 1959, following seventeen years of marriage, petitioner was divorced from Eloisa Figarella-Lopez. Custody of their children was granted to Figarella, and their sizeable estate was equally divided; no alimony was awarded. Twenty-seven years later, in February 1986, Figarella filed for alimony in superior court. She obtained an award the following year of $125 per month. On April 7, 1989, apparently after finding that petitioner had fraudulently concealed assets, the superior court increased the award to $580 per month, retroactive to February 1986. Petitioner, disputing the determination of fraud and claiming indigency, failed to make the alimony payments as ordered, and in March 1990 Figarella moved for his arrest and imprisonment. After conducting several hearings in April and May, the superior court on May 7, 1990 ordered petitioner to make an initial $10,000 payment and to agree to a schedule of payments for the balance. The court added that, should petitioner fail to do so by May 31, 1990, it would order his arrest and imprisonment "without further summons or hearing" upon the request of Figarella. Petitioner again failed to comply. An order for petitioner's arrest was accordingly issued "on an uncertain date between May 31, 1990, and June 12, 1990" (Petitioner's brief, at 5), but was then suspended on June 12 pending a hearing scheduled for June 29. On that date, petitioner was in fact arrested and incarcerated for civil contempt. Yet his prison stay proved to be short-lived; he contracted pneumonia while in custody and was released on July 13, 1990, with Figarella's express acquiescence. Petitioner argues that the prospect of his being reincarcerated remains a viable one, however, as he continues to lack the resources to comply with the order, and as Figarella has promised to renew her request for his imprisonment should the alimony payments not be forthcoming.

Petitioner fervidly challenged each of the superior court rulings. Among other steps, he sought review of each of the orders in the Puerto Rico Supreme Court, without success. He also sought to appeal the 1989 order to the United States Supreme Court, which denied certiorari on March 19, 1990. On June 7, 1990, some three weeks before his incarceration, he filed the instant petition for habeas corpus, naming Figarella as respondent. As grounds for invoking habeas jurisdiction he argued (1) that the Puerto Rico alimony statute violated the 13th and 14th amendments by creating an imprescriptible, lifelong right to alimony, see 31 L.P.R.A. Sec. 385; Suria v. Fernandez Negron, 101 P.R.Dec. 316 (1973); and (2) that the proceedings in superior court denied him due process, particularly by depriving him of the opportunity to present evidence in opposition to the alimony request. On June 25, 1990, the district court summarily granted respondent's motion to dismiss for lack of jurisdiction, and judgment entered on June 28, the day before petitioner was incarcerated. Petitioner moved for a more detailed explication of the court's rationale; the court responded on July 3 that the grounds were set out in respondent's motion to dismiss. Finally, on June 29, upon being taken into custody, petitioner filed a second petition for habeas corpus, requesting his release pending the court's ruling on his motion for further explication; the court dismissed this petition on July 3, 1990, also for lack of jurisdiction. This appeal followed.

II.

Neither of the grounds cited by respondent in her motion, and relied on by the district court, provides a basis for the dismissal here. Respondent first suggested that the same arguments advanced in the instant habeas petition had been rejected by the United States Supreme Court when it denied certiorari on March 19, 1990. The Court's denial of a writ of certiorari, of course, "imports no expression of opinion upon the merits of the case." United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923); accord, e.g., Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 1067, 103 L.Ed.2d 334 (1989).

More to the point, respondent argued that the district court lacked (or should abstain from exercising) jurisdiction because of the "domestic relations exception" to federal court jurisdiction. Ever since the pronouncement in Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859), "disclaim[ing] altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony," federal courts have declined to adjudicate actions for divorce, alimony, child support, child custody, and other "domestic relations" matters. See, e.g., Gonzalez Canevero v. Rexach, 793 F.2d 417, 418 (1st Cir.1986) (per curiam); Sutter v. Pitts, 639 F.2d 842, 843-44 (1st Cir.1981); Armstrong v. Armstrong, 508 F.2d 348, 349-50 (1st Cir.1974). Among the considerations underlying this exception are the strong state interest in domestic relations, the relative expertise of state courts, their ability to provide ongoing supervision, the availability there of professional support services, and the undesirability of potentially incompatible federal and state decrees in this area. See, e.g., Ingram v. Hayes, 866 F.2d 368, 369-70 (11th Cir.1988) (per curiam); DiRuggiero v. Rodgers, 743 F.2d 1009, 1019-1020 (3d Cir.1984); 13B Wright & Miller, Federal Practice and Procedure Sec. 3609, at 461 (1984). The domestic relations exception, however, is typically described as an "exception to diversity jurisdiction," Sutter, 639 F.2d at 843, and some courts have explicitly restricted it to diversity cases. See, e.g., Ingram, 866 F.2d at 370-72 (discussing cases); Agg v. Flanagan, 855 F.2d 336, 339 (6th Cir.1988); Flood v. Braaten, 727 F.2d 303, 308 (3d Cir.1984) ("as a jurisdictional bar, the domestic relations exception does not apply to cases arising under the Constitution or laws of the United States"). Other courts have deemed the exception applicable when federal-question jurisdiction exists, but then only when the federal court would become "deeply involve[d] in adjudicating domestic matters," Thompson v. Thompson, 798 F.2d 1547, 1558 (9th Cir.1986), aff'd, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988), or "enmeshed in factual disputes." Hernstadt v. Hernstadt, 373 F.2d 316, 318 (2d Cir.1967). See Ingram, 866 F.2d at 371-72. Cf. Friends of Children, Inc. v. Matava, 766 F.2d 35, 36-37 (1st Cir.1985) (abstention in Sec. 1983 action warranted in part because "family law" issues involved).

However construed, the domestic relations exception is plainly inapplicable here. This is not a diversity case. And addressing the merits of petitioner's claims would not require delving into the parties' domestic affairs, or otherwise implicate the prudential concerns noted above. His attack on the validity of the alimony statute is akin to other constitutional challenges entertained by federal courts in the domestic relations context. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (due process challenge to court fees imposed on indigents seeking to file for divorce); Agg, 855 F.2d at 339 (due process challenge to state method for determining and enforcing child support). And as petitioner notes, his challenge to the fairness of the court proceedings resulting in his incarceration is a procedural claim having scant connection to the substance of the underlying alimony dispute. See, e.g., Ingram, 866 F.2d at 372; Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir.1985). We therefore conclude that the domestic relations exception poses no jurisdictional bar.

A related restriction exists with respect to a federal court's habeas jurisdiction. To the extent that the district court meant to invoke it (even though not mentioned by respondent), we add that such restriction is likewise inapplicable. In Lehman v. Lycoming County Children's Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), the Court held that habeas jurisdiction was lacking to entertain a collateral attack on a state decree awarding custody of petitioner's natural children to foster parents. Accord, e.g., Hemon v. Office of Public Guardian, 878 F.2d 13 (1st Cir.1989) (per curiam) (challenge to guardianship of adult); Sylvander v. New England Home For Little Wanderers, 584 F.2d 1103 (1st Cir.1978) (challenge to child custody ruling). While some of the same concerns underlying the domestic relations exception support this limitation on habeas jurisdiction as well, see, e.g., id. at 1112 (noting "long history of state predominance and federal deferral in family law matters"), the two are quite distinct. See Flood, 727 F.2d at 308 n. 18 (domestic relations exception "is entirely different from [issue] resolved in Lehman "). In Lehman, the Court simply declined to extend to child custody orders the "in custody" requirement in 28 U.S.C....