Leininger v. Leininger

• Decision Date: 08 April 1983
• Docket Number: No. 81-4313,81-4313
• Citation: 705 F.2d 727
• Parties: Dale J. LEININGER, Plaintiff-Appellee, v. Sue Ann LEININGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 727

705 F.2d 727

Dale J. LEININGER, Plaintiff-Appellee, v. Sue Ann LEININGER, Defendant-Appellant.

No. 81-4313.

United States Court of Appeals, Fifth Circuit.

April 8, 1983.

Rehearing Denied May 5, 1983.

James A. Phyfer, Robert B. Hamilton, Jackson, Miss., for defendant-appellant.

John T. Armstrong, Jr., Hazlehurst, Miss., John E. Hughes, III, Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER^*, District Judge.

PER CURIAM:

Appellant Sue Ann Steiner married appellee Dale Leininger in 1964 in Ohio, where they resided together until 1968, when they moved to Mississippi. They returned to Ohio in February of 1972 and lived there together until December of that year, when the parties separated. Leininger returned to Mississippi, where he has resided since. Steiner remained in Ohio with their two children.

In early 1973 appellant Steiner filed for a divorce from appellee Leininger in the Common Pleas Court of Fulton County, Ohio. On July 11, 1974, that court rendered a divorce judgment, which, inter alia, also granted Steiner a personal alimony judgment against Leininger in the amount of $105,000.00. In December, 1975, Steiner, without filing any suit in Mississippi to have the Ohio money judgment recognized there, caused the judgment to be enrolled in Simpson County, Mississippi, where Leininger lived, and caused execution to be issued thereon. Leininger then filed a Bill of Complaint against Steiner in the Chancery Court of Simpson County, Mississippi, to cancel the enrollment of the Ohio judgment and to enjoin its execution, and for damages for its wrongful enrollment, on the dual ground that the judgment had not been made the judgment of a Mississippi court and that it was a nullity because the Ohio state court lacked personal jurisdiction over him.

Steiner filed a cross bill to have a "resulting trust" declared with respect to certain real estate in Mississippi. Nineteen months after suit was brought in state court, Steiner removed the action to federal court, where it was referred to a magistrate for trial. The magistrate, after a bench trial, recommended a judgment in Leininger's favor. The district judge overruled Steiner's objections to the magistrate's report, adopted the "Report and Recommendation" of the magistrate, granted judgment in favor of Leininger on the main demand, and dismissed Steiner's cross bill.

Appellant Steiner contends that the district court erred in declaring the Ohio judgment null and void and in dismissing her claim that a "resulting trust" was created in her favor, giving her partial ownership of the Mississippi real estate.

PROPRIETY OF REMOVAL

The propriety of the removal of this suit to federal court nineteen months after filing of the state court suit was questioned for the first time by this court sua sponte at oral argument. We address that issue first.

A defendant may remove to federal court any civil action brought in state court if the federal court would have had original jurisdiction. 28 U.S.C. Sec. 1441(a). Here federal jurisdiction is grounded on diversity of citizenship. 28 U.S.C. Sec. 1332.

There is diversity between the parties, and the required jurisdictional amount is present. In actions seeking declaratory or injunctive relief the amount in controversy is measured by the value of the object of the litigation. Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th Cir.1980). To put it another way, the amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extent of the injury to be prevented. Texas Acorn v. Texas Area 5 Health Systems Agency, Inc., 559 F.2d 1019 (5th Cir.1977).

The object of the main demand by Leininger is to nullify the $105,000.00 Ohio state court judgment and enjoin its enforcement. The value of the right to be protected or the extent of the injury sought to be prevented was the amount of the judgment; that amount was well in excess of the required jurisdictional amount. Thus this case was one which could have been brought in the district court under diversity jurisdiction and therefore could be removed.

That, however, does not end the inquiry into the propriety of removal. 28 U.S.C. Sec. 1446 provides in pertinent part:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, ...

It is undisputed that the suit was not timely removed. But the time limitation for removal is not jurisdictional; it is merely modal and formal and may be waived. Harris v. Edward Hyman Co., 664 F.2d 943 (5th Cir.1981), London v. United States Fire Insurance Co., 531 F.2d 257 (5th Cir.1976), Weeks v. The Fidelity and Casualty Company of New York, 218 F.2d 503 (5th Cir.1955). At no time has either party moved to remand, and neither party accepted this court's invitation at oral argument to urge remand. Thus the parties have waived the time limitation for removal, and remand to the state court would be improper.

THE OHIO ALIMONY JUDGMENT

Apparently based only upon the fact that Leininger was never served personally with process in Ohio and that he made no appearance in the Ohio proceeding, the district court concluded that the Ohio court lacked personal jurisdiction over Leininger and that the alimony judgment is null. The district court also held that the Ohio judgment could not be enrolled and executed in Mississippi until it was recognized by and made the judgment of a Mississippi court.

We agree with the district court's conclusion that until appellant files suit in Mississippi to have the Ohio judgment recognized there and obtains a judgment making the Ohio judgment the judgment of a Mississippi court, the Ohio judgment should be stricken from the Mississippi judgment roll and its execution in Mississippi should be enjoined. We disagree, however, that the district court should have nullified the Ohio judgment.

The Ohio state court made an express finding in its judgment that it had personal jurisdiction over Leininger under Ohio law, based upon service of the summons and complaint by certified mail. The Ohio judgment, which includes this jurisdictional Neither here nor in the district court did the parties adequately address the issue of the validity of the Ohio alimony judgment. Indeed, only the Ohio judgment (not the rest of that record) is part of the record here. Thus it is not surprising that the district court did not consider the various factors involved in the question of whether the exercise of personal jurisdiction by the Ohio state court violated the Due Process Clause of the Fourteenth Amendment. See Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). While the record is reasonably complete with respect thereto, we decline to adjudicate as to the validity of the Ohio judgment until the parties have an opportunity to develop all of the facts which may impact the due process issue and until the district court rules thereon. We remand for that purpose.

                finding and the alimony award based upon it, is presumptively entitled to full faith and credit in Mississippi.  "[S]uch jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself."   Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938)
                

THE "RESULTING TRUST"

In this diversity case, we apply Mississippi law. "If one buys land in the name of another and pays the consideration therefor, the land will be held by the grantee in trust for the benefit of him who advances the purchase money; and if there has been only a partial advance of the purchase money a trust will result pro tanto. The foundation of the trust in such cases is that the property really belongs to him whose funds have paid for it." Bush v. Bush, 134 Miss. 523, 99 So. 151 at 152 (1924).

The total purchase price for the farm land in dispute and for certain cattle and equipment conveyed at the same time was $100,000, of which $29,500 was paid in cash. The balance of $70,500 was by promissory note secured by a deed of trust on the land. Leininger was the sole grantee in the warranty deed and he alone executed the promissory note and the deed of trust.

Steiner contends that all of the cash portion of the purchase price belonged one-half to her and one-half to Leininger and that she paid one-half of the consideration for the purchase. Therefore, to paraphrase the Mississippi Supreme Court in Bush, she bought one-half of the land in the name of another (appellee Leininger), a trust resulted pro-tanto, and one-half of the land is held by the grantee (Leininger) in trust for her (Steiner).

Mindful that in resolving a difficult question of state law we must accord deference to the judgment of our Mississippi trial judge, O'Toole v. New York Life Ins. Co., 671 F.2d 913 (5th Cir.1982), we nevertheless conclude that, on the facts as found by the district court, a trust resulted in appellant's favor. Accordingly, we reverse on this issue also and remand for further proceedings consistent herewith.

Unusual though it may be, neither party takes issue with the findings of fact by the district court. Thus we are not involved with the clearly erroneous standard as we would be were we reversing on the basis of a factual review. See Fed.R.Civ.Pro. 52(a); United States v. United States Gypsum Company, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 764 (1948); Wright v. Western Electric Company, 664 F.2d 959 (5th Cir.1981).

We quote at length from the facts as found by the magistrate and adopted by the court.

"Plaintiff Leininger and defendant Steiner were married in Ohio in 1964. (Defendant subsequently married ...