Ziady v. Curley

• Decision Date: 12 June 1968
• Docket Number: No. 11558.,11558.
• Citation: 396 F.2d 873
• Parties: Alex James ZIADY, Jr., by his next friend, Mary Catherine Reed, Appellant, v. Julia Ziady CURLEY, Individually, Julia Ziady Curley, Trustee for Alex James Ziady, Jr., under the last will and testament of Alex James Ziady; and Julia Ziady Curley, Guardian for Alex James Ziady, Jr., by appointment of the Superior Court of Johnston County, North Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

396 F.2d 873 (1968)

Alex James ZIADY, Jr., by his next friend, Mary Catherine Reed, Appellant, v. Julia Ziady CURLEY, Individually, Julia Ziady Curley, Trustee for Alex James Ziady, Jr., under the last will and testament of Alex James Ziady; and Julia Ziady Curley, Guardian for Alex James Ziady, Jr., by appointment of the Superior Court of Johnston County, North Carolina, Appellees.

No. 11558.

United States Court of Appeals Fourth Circuit.

Argued January 8, 1968.

Decided June 12, 1968.

John V. Hunter, III, Raleigh, N. C., for appellant.

L. Austin Stevens, (E. V. Wilkins, Smithfield, N. C., on brief) for appellees.

Before BOREMAN and WINTER, Circuit Judges, and MERHIGE, District Judge.

WINTER, Circuit Judge:

The infant plaintiff, by his next friend, sued the defendant, individually and as testamentary trustee under the will of the infant plaintiff's deceased father, and also as court-appointed guardian of the property and estate of the infant plaintiff, to surcharge her by reason of her administration of the trust estate, and to effect her removal as trustee and the appointment of a successor trustee. Plaintiff alleged that he was a citizen of New Jersey,¹ and defendant was a citizen of North Carolina. No dispute existed as to the citizenship of the defendant, but the district court dismissed the complaint for lack of diversity of citizenship on the ground that plaintiff, too, was a citizen of North Carolina. We conclude that plaintiff was a citizen of New Jersey, where he resided with his mother and stepfather. We reverse and remand the case for further proceedings.

The facts may be briefly stated. Plaintiff was born and raised in North Carolina, where he resided while the marriage between his parents existed. His parents were divorced in March, 1961. The decree of dissolution of the marriage, inter alia, awarded custody of the infant to his father, a citizen of North Carolina. The decree made no finding as to the fitness of either parent to have custody of the plaintiff. Indeed, we are told in oral argument that custody of the plaintiff's female sibling was awarded to his mother.

On April 17, 1961, plaintiff's mother married Charles Reed, to whom she is still married. On January 31, 1964, plaintiff's father died and his mother assumed custody of him. His mother and stepfather are now domiciled in New Jersey, and plaintiff lives with them.

We must decide, first, by what law the question of plaintiff's domicile is to be determined — that of North Carolina or New Jersey, or the federal common law. We have no doubt that it is to the federal common law to which we should look. The question of domicile can arise, in regard to the diversity clause of Article III, § 2 of the Federal Constitution and under 28 U.S.C. § 1332, only in federal court. The problem is, therefore, one uniquely of federal cognizance and the considerations underlying Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), do not obtain. Cf., Hinderlider v. LaPlata River & Cherry Creek Ditch Co., 304 U. S. 92, 110, 58 S.Ct. 803, 82 L.Ed. 1202 (1938). See also, Friendly, In Praise of Erie — And of the New Federal Common Law 39 N.Y.U.L.Rev. 383 (1964).

With the exception of a doubtful authority of distinguishable application, Lamar v. Micou, 112 U.S. 452, 5 S.Ct. 221, 28 L.Ed. 751 (1884), we have not been referred to, nor have we found, any case which purports to establish the applicable federal common law. The rule stated in Restatement of the Law of Conflict of Laws (1934 Ed.) § 38, and relevant comments, which we think should apply here, is as follows:

"§ 38. POWER OF MOTHER OVER DOMICIL.

Except as stated in §§ 31 emancipated children, 32 children of divorced parent when parent to whom custody is awarded is living, 33 abandoned children and 35 adopted children, if the father dies and no guardian of his minor child\'s person is appointed, the child has the same domicil as that of the mother.

Comment:

a. Upon the death of the father if no legal guardian of his minor child\'s person is appointed, the mother is entitled to the custody of the child.

* * * * * *

d. If the mother remarries, the child\'s domicil follows that of the mother unless she abandons the child, as to which see § 33."

We reach this result from consideration of the major rationale of diversity jurisdiction. The text writers and the cases are in accord that one of the principal purposes of diversity jurisdiction was to give a citizen of one state access to an unbiased court to protect him from parochialism if he was forced into litigation in another state in which he was a stranger and of which his opponent was a citizen. 1 Barron and Holtzoff, Federal Practice and Procedure (Wright's Ed. 1960) § 26; 1 Moore's, Federal Practice ¶ 0.713.-1, and authorities cited therein. The infant plaintiff, for all practical purposes, and for the specific purpose envisioned by the founding fathers, is a stranger to the State of North Carolina. He had not resided there since his father's death, and there is little likelihood that he will resume there a permanent residence prior to his majority. If the element of parochialism were to enter into the disposition of a suit in a North Carolina state court, we think that the infant plaintiff would be considered, de facto, a citizen of New Jersey. For purposes of determining diversity jurisdiction, we hold that the infant plaintiff acquired the domicile of his mother and is a citizen of New Jersey.

A contrary holding would produce strange results. Thus, if we held plaintiff's domicile to be in North Carolina, this would permit plaintiff, if he became a party to a case in New Jersey involving questions solely of state law, and to which a citizen of New Jersey was the other party, to bring the case in, or to remove it to, a federal court (assuming that he could meet the monetary jurisdictional requirement), despite the fact that all of his significant contacts are with New Jersey, and despite the further fact that New Jersey's own interest could be expected to prevent her from discriminating against him. We do not believe that the diversity clause was intended to give persons in plaintiff's situation special access to federal courts when they become involved in a dispute of a purely local nature.²

In attempting to establish the correctness of the decision of the trial judge, defendant relies exclusively on the Lamar case. That case, like the instant one, was a suit to surcharge the guardian of an infant's property for mismanagement of the estate. The principal question was the standard by which the conduct of the guardian in management of the estate was to be measured, and it appeared that the rules of permissible investments varied greatly among the states. Like the case at bar, the infant was in the custody of a widowed and remarried mother.

The court decided that the domicile of the infant was the key to a determination of the law of what state to apply and, on the question of domicile, stated:

"An infant cannot change his own domicile. As infants have the domicile of their father, he may

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