NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 25, 2011*

Decided October 26, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 11-1464

MICHAEL O’GRADY,

Plaintiff-Appellant,

v.

SYNTHIA Y. O’GRADY and DANIEL A. KLINT,

Defendants-Appellees.

Appeal from the United 

States District Court for the 

Western District of Wisconsin.

No. 10-cv-222-bbc

Barbara B. Crabb, Judge.

Order

Michael and Synthia O’Grady had four children before they divorced in January 

1997. A state court in Wisconsin awarded principal custody to Synthia but entitled Michael to custody for prescribed periods. Michael contends that beginning in 1999 Synthia sometimes failed to turn the children over to him when required to do so. He contends in this suit under the diversity jurisdiction that her violation of the decree caused 

him emotional distress. All of the children now are adults, so ongoing custody is not at 

issue; the only potential relief is damages. The district judge concluded that the domestic-relations exception to the diversity jurisdiction, see Ankenbrandt v. Richards, 504 U.S. 

689 (1992), applies to events after July 2006 and that Wisconsin’s statute of limitations 

 

* After examining the briefs and the record, we have concluded that oral argument is unnecessary. 

See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 11-1464 Page 2

blocks the remainder of Michael’s claims. The suit thus was dismissed in part for lack of 

subject-matter jurisdiction, and the defendants received summary judgment on the remainder. Factual details do not matter to either issue, and we omit them to simplify this 

decision.

Ankenbrandt holds that federal courts do not have jurisdiction to grant divorces, provide for alimony, or determine child custody, but that suits for money damages are not 

outside the scope of 28 U.S.C. §1332 just because they relate to one of these topics. We 

anticipated Ankenbrandt by holding in Lloyd v. Loeffler, 694 F.2d 489 (7th Cir. 1982), that 

federal courts may award damages for Wisconsin’s tort of interference with the custody 

of a child—if who is entitled to custody and when has been determined by the state. 

This led the district court to hold that it had subject-matter jurisdiction to resolve Michael’s claim that Synthia had committed torts by flouting the state court’s 1997 childcustody decree, as modified in 2004.

The district judge reached a contrary conclusion for events after mid-2006 (of which 

only one, in 2009, is at issue in this suit). In March 2006 Synthia asked the state judge to 

modify the child-custody decree. The judge asked for a response, including a draft custody plan, from Michael; he did not submit one. The judge then wrote Synthia’s lawyer 

that, because Michael had not submitted a proposal, “your client can rely on your vision 

of the placement situation.” Synthia did just that when, in 2009, she did not comply 

with one of Michael’s demands for custody of the only child who had not reached 

adulthood. Michael wants damages because, he contends, Synthia’s decision is incompatible with the 1997 child-custody decree and therefore is tortious. The district judge 

concluded, however, that only a state court can determine whether the 1997 decree had 

been modified in 2006. Michael contests that decision on appeal, but his entire position 

rests on the proposition that the lack of a formal order modifying the decree in 2006 

means that there was no change. We agree with the district court that Michael’s failure 

to cooperate with the state court in 2006, and the letter the judge sent to Synthia’s lawyer, marked some change of the legal position, and that it would interfere with the childcustody process for a federal court to determine just what that change was and whether 

Synthia was in the right in 2009. See Allen v. Allen, 48 F.3d 259, 261–62 (7th Cir. 1995); 

Jones v. Brennan, 465 F.3d 304, 307 (7th Cir. 2006); Struck v. Cook County Public Guardian, 

508 F.3d 858, 859–60 (7th Cir. 2007). This aspect of the current litigation therefore was 

properly dismissed by the district court under Fed. R. Civ. P. 12(b)(1).

Questions concerning Synthia’s actions before mid-2006 do not require the federal 

court to determine any disputed issue about child custody. But Wisconsin’s statute of 

limitations for intentional torts was two years, see Wis. Stat. §893.57, and this suit was 

not filed until April 2010, more than four years after the last acts squarely governed by 

the 1997 decree. (Section 893.57 was amended in 2009 to increase the time to three years, 

but the amendment applies only to claims that accrue after February 2010 and therefore 

does not affect this litigation.)
No. 11-1464 Page 3

Michael characterizes Synthia’s acts as a “continuing violation” open to litigation 

any time within two years after the final act. We need not decide whether Wisconsin’s 

courts would apply this doctrine to sequential violations of a child-custody decree, because the final act that can be litigated in federal court took place before 2006, and suit 

was not filed for another four years. If Michael had sued in 2006 or earlier, then it 

would be necessary to decide how far back the litigation could reach. Given the suit’s 

actual filing date and the jurisdictional limits, however, no continuing-violation theory 

can bring within its scope any act before the state judge’s 2006 letter.

Michael’s arguments about discovery and other matters are not pertinent to either

subject-matter jurisdiction or the statute of limitations and need not be discussed.

AFFIRMED