Thompson v. Thompson, 84-5890

Citation798 F.2d 1547
Decision Date10 September 1986
Docket NumberNo. 84-5890,84-5890
PartiesDavid A. THOMPSON, Plaintiff-Appellant, v. Susan A. THOMPSON, aka Susan A. Clay, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Stuart W. Knight, Tustin, Cal., for plaintiff-appellant.

Nancy E. Zeltzer, Ruston & Nance, Inc., Tustin, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, ALARCON, Circuit Judge, and SOLOMON, * District Judge.

PER CURIAM:

This appeal raises an issue of first impression in this circuit: whether parents subject to conflicting state child custody decrees may seek relief in federal court to determine which decree is valid and enforceable under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. Sec. 1738A (1982) [hereinafter PKPA or section 1738A].

I

In 1979, Susan Clay Thompson (Susan) commenced proceedings in the California Superior Court for dissolution of her marriage to David A. Thompson (David) and determination of custody of their minor child Matthew. In the fall of 1979 the California court awarded the Thompsons joint custody of Matthew. In November of 1980, one or both parties initiated additional proceedings in the California court 1 which culminated in entry of the following judgment on December 4, 1980:

Present order of custody remains in effect until petitioner moves to Louisiana then custody shall be sole with her without prejudice. 2

The court also ordered the court investigator to conduct an investigation into custody issues, to be concluded by April of 1981. On December 12, 1980, Susan and Matthew moved to Louisiana with the court's permission.

On March 24, 1981, Susan filed a petition in Louisiana state court for the filing and enforcement of the California custody decree, for judgment of custody, and for modification of David's visitation privileges based upon allegations of child abuse and mistreatment. The Louisiana court granted Susan's petition by order dated April 7, 1981, awarding sole custody of Matthew to Susan.

On June 15, 1981, following its review of the court investigator's report, the California court awarded sole custody of Matthew to David, and "retain[ed] jurisdiction until Petitioner's [Susan's] death, remarriage or further order of the court." On August 12, 1983, David filed a complaint for declaratory and injunctive relief in the District Court for the Central District of California. He sought an order declaring the Louisiana decree invalid, and the 1981 California decree valid, and requiring that all custody disputes be determined by the appropriate California state court until California issues a permanent custody decree. He also sought an injunction against enforcement of the Louisiana decree. The district court granted Susan's motion to dismiss the complaint for lack of subject matter and personal jurisdiction. David appeals.

II

The district court pointed to a lack of personal jurisdiction over Susan as a ground for its dismissal of David's complaint. Lack of personal jurisdiction would prevent us from considering the merits of David's claims. See Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978); Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir.1980).

In Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir.1977), we summarized the circumstances in which personal jurisdiction will properly lie:

If ... the [nonresident] defendant's activities are not so pervasive as to subject him to general jurisdiction, the issue whether jurisdiction will lie turns on an evaluation of the nature and quality of the defendant's contacts in relation to the cause of action. In our circuit, we use the following approach in making this evaluation: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable.

See also Varsic v. United States District Court, 607 F.2d 245, 249 (9th Cir.1979).

The nature and quality of Susan's activities in California persuade us that the requisite minimum contacts are present. First, Susan purposefully availed herself of the privilege of conducting her activities in California when she invoked the benefits and protections afforded by California law by initiating an action for dissolution and child custody. Second, David's action for enforcement of section 1738A is directly related to Susan's original California custody action.

Finally, we think that the exercise of jurisdiction in the Central District is reasonable in the circumstances of this case. California was Susan's marital domicile prior to the dissolution of her marriage; Matthew was born in California and resided there; Susan initiated dissolution and custody proceedings in California; the dissolution was a California judgment; and the custody order which permitted Susan to relocate to Louisiana and which Susan sought to modify in Louisiana was made by the California court. See Bergan v. Bergan, 114 Cal.App.3d 567, 570-71, 170 Cal. Rptr. 751 (1981).

III

The district court erred in dismissing David's complaint for lack of subject matter jurisdiction. David's complaint alleges a violation of a federal statute, 28 U.S.C. Sec. 1738A. Federal question jurisdiction exists unless the cause of action alleged is patently without merit, see Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 98 S.Ct. 2620, 2628-29, 57 L.Ed.2d 595 (1978), or the allegation is clearly immaterial and made solely for the purpose of obtaining jurisdiction. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 279, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). The court must assume jurisdiction to decide whether the complaint states a cause of action on which relief can be granted. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Because jurisdiction is not defeated by the possibility that the complaint might fail to state a claim upon which recovery can be had, the failure to state a valid claim is not the equivalent of a lack of subject matter jurisdiction, and calls for a judgment on the merits rather than for a dismissal for lack of jurisdiction. Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069, 1072 (9th Cir.), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 94 (1983).

IV

As a threshold matter, we must determine whether the PKPA applies to this case. Susan contends the PKPA did not become effective until July 1, 1981, and consequently does not control the Louisiana custody proceedings initiated on March 24, 1981 which culminated in the court's judgment on April 7, 1981.

The PKPA was enacted as a part of Pub.L. No. 96-611, which provides: "The amendments made by this Act shall take effect on, and apply to services furnished on or after, July 1, 1981." Pub.L. No. 96-611, Parental Kidnapping Prevention Act Sec. 2, 94 Stat. 3566, 3567 (1980). Although at first glance this provision seems dispositive, our analysis of the statute as a whole persuades us otherwise. Sections 1 through 5 and section 11 of Pub.L. No. 96-611 contain technical amendments to the Social Security Act which are unrelated to the PKPA. Moreover, the placement of the PKPA's short title indicates that the PKPA was intended as a separate and distinct Act. The short title of the PKPA appears midway through Pub.L. No. 96-611 (immediately preceding section 6 of the statute). The location of the short title in the body of an Act is usually as near to the beginning of the Act as possible. 1A Sands, Sutherland Statutory Construction, Sec. 20.11 (4th rev. ed. 1985) [hereinafter Sutherland ]. Therefore, the fact that the PKPA's short title appears after section 2, the provision containing the effective date for Pub.L. No. 96-611, indicates that the PKPA was intended as a separate act not subject to the section 2 effective date.

The inapplicability of the July 1, 1981 effective date to the PKPA becomes clearer when the manner of the PKPA's passage is considered. The PKPA, a bill contemplated by Congress for several years, was finally passed by the Senate when its chief sponsor, Senator Malcolm Wallop, on the floor of the Senate added the PKPA as a rider to a bill on pneumococcal vaccines. See 126 Cong.Rec. 33928-29 (1980). The July 1, 1981 effective date, referring to "services furnished," was part of the vaccine bill, not part of the PKPA.

Finally, although by its terms Pub.L. No. 96-611 did not become effective until July 1, 1981, the statute was enacted on December 28, 1980. Section 10 of the Act (a part of the PKPA) requires the Attorney General to report to Congress 120 days after its enactment on the steps taken to comply with Congress' expressed intent that 18 U.S.C. Sec. 1073 (1982) (prohibiting flight to avoid prosecution) apply to cases involving parental kidnapping and interstate or international flight. This provision plainly contemplates an effective date of December 28, 1980 for the PKPA; were we to hold that the PKPA did not become effective until July 1, 1981, we would ignore the Congressional reporting requirement imposed upon the Attorney General. Where a statute may be given a reasonable interpretation consistent with its language and legislative purpose, we need not give it a literal application which would lead to absurd results. Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940); 2A Sutherland, supra, Sec. 54.06 (4th rev. ed. 1984). We conclude section 1738A became effective upon its enactment date, December 28, 1980, 3 and...

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