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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANDREW A. SAPP,

Plaintiff,

vs. Case No. 4:10cv420-RH/WCS

STATE OF FLORIDA 

DISBURSEMENT UNIT,

Defendant.

 /

ORDER and REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, initiated this case in the Middle District of Florida on

September 23, 2010. Doc. 1. It has been transferred to this Court. Plaintiff submitted a

motion seeking leave to proceed in forma pauperis. Doc. 2. Good cause having been

shown, the motion is granted. The Clerk of Court shall file the complaint without

requiring payment of the filing fee. 

Plaintiff's complaint has been reviewed. Doc. 1. Plaintiff lives in Philadelphia

and Defendant is the State of Florida "Disbursement Unit" Tallahassee, Florida. Doc. 1. 

Plaintiff asserts in the complaint this case is brought pursuant to the Court's Diversity of

Citizenship jurisdiction. Id., at 2. However, Plaintiff asserts that Defendant has violated
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his "civil and human rights" and claims he has been injured in the manner in which

funds have been taken from his account. Doc.1. 

The following facts are inferred, but are not entirely clear from Plaintiff's

allegations. It would appear that at some unknown date, Plaintiff was ordered to pay

child support. Most likely Plaintiff failed to pay some of that child support, and an arrest

warrant was issued by the State of Florida. The date is unknown. Plaintiff moved out of

the State of Florida at some unknown time. Plaintiff asserts that he cannot afford to

make the payments as ordered. Plaintiff claims if he opens any type of bank account,

the State of Florida finds his account and takes his money. Plaintiff contends that he

"will object to any report and recommendation . . . that does not adopt and incorporates

[sic] some type of relief . . . ." Id. Defendant is the State of Florida "Disbursement Unit." 

Doc. 1.

The Eleventh Amendment bars suit in federal court against an "arm of the state"

unless such immunity is waived by the state or has been abrogated by Congress.

Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). Neither situation has occurred. 

Plaintiff's claim for relief against the State of Florida, or any agency thereof, is barred by

the Eleventh Amendment. 

Moreover, federal courts have "traditionally refrained from exercising authority

over matters broadly described as 'domestic relations.' " U.S. v. Kegel, 916 F. Supp.

1233, 1235 (M.D. Fla., 1996), citing Barber v. Barber,

1

 62 U.S. (21 How.) 582, 584, 16

L. Ed. 226 (1858); Simms v. Simms, 175 U.S. 162, 20 S. Ct. 58, 44 L. Ed. 115 (1898). 

1

 In Barber, the wife (who lived in New York) filed a federal suit in Wisconsin

against her husband, who lived in Wisconsin, seeking to enforce a New York state court

decree concerning alimony. 62 U.S. at 584.

Case No. 4:10cv420-RH/WCS
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The authority for invoking the "domestic relations" exception originally stemmed from

Barber v. Barber, 21 How. 582, 16 L. Ed. 226 (1859) in which the Supreme Court

stated, albeit in dicta, "that the federal courts have no jurisdiction over suits for divorce

or the allowance of alimony." Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206,

2209, 119 L. Ed. 2d 468 (1992), explaining Barber, 21 How. 582. Although the

Constitution itself did not exclude domestic relations cases from federal court

jurisdiction, the exception exists nonetheless as a matter of statutory construction. 

Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 2213. The exception rests on

the statutory requirements for diversity jurisdiction. See De la Rama v. De la Rama,

201 U.S. 303, 307, 26 S. Ct. 485, 486, 50 L. Ed. 765 (1906), quoted in Ankenbrandt,

112 S. Ct. at 2211 (finding that a "husband and wife cannot usually be citizens of

different States, so long as the marriage relation continues (a rule which has been

somewhat relaxed in recent cases), and for the further reason that a suit for divorce in

itself involves no pecuniary value.").

Even though Barber "did not intend to strip the federal courts of authority to hear

cases arising from the domestic relations of persons unless they seek the granting or

modification of a divorce or alimony decree," the Supreme Court has "expanded the

domestic relations exception to include decrees in child custody cases." Ankenbrandt,

112 S. Ct. at 2214; In re Burrus, 136 U.S. 586, 594, 10 S. Ct. 850, 853, 34 L. Ed. 500

(1890). In Burrus, the issue was a child-custody dispute in which the father sought to

have the child removed from her grandparents care and given to him. When the

grandfather refused to give up the child, he was arrested and taken to jail. The

grandfather sought habeas relief and claimed he was illegally imprisoned because the

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father was wrongfully given custody. The Supreme Court held that "[t]he whole subject

of the domestic relations of husband and wife, parent and child, belongs to the laws of

the States and not to the laws of the United States." Burrus, 136 U.S. at 593-594. 

The Ankenbrandt Court reaffirmed these earlier cases by concluding:

. . . that the domestic relations exception, as articulated by this Court since

Barber, divests the federal courts of power to issue divorce, alimony, and

child custody decrees. Given the long passage of time without any

expression of congressional dissatisfaction, we have no trouble today

reaffirming the validity of the exception as it pertains to divorce and

alimony decrees and child custody orders.

Ankenbrandt, 112 S. Ct. at 2215. 

Even prior to Ankenbrandt, courts have ruled that the federal courts lack subject

matter jurisdiction in domestic relations cases. For example, in Solomon v. Solomon,

516 F.2d 1018 (1975), Pennsylvania residents executed a marital separation agreement

which provided for monthly alimony payments by the husband to the wife. The wife

eventually filed a complaint in a federal district court alleging diversity of citizenship and

complaining that the husband had defaulted on payments due under the separation

agreement. The wife sought monetary damages for the husband's failure to make the

monthly support payments and enforcement of the agreement. The husband admitted

he had not made the payments as due under the agreement, but asserted as an

affirmative defense that the wife had breached the agreement by not allowing him

visitation privileges rights he was due under the Agreement. On appeal, the Circuit

Court affirmed the dismissal and concluded that the district court lacked subject matter

jurisdiction over the complaint of the wife because of the long-standing domestic

relations exception to federal court jurisdiction. 516 F.2d at 1026.

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These types of cases no longer rest on the non-diversity of the parties (although

it is presumed for present purposes that in this case there is diversity), but on the

understanding that state courts have historically decided these cases and have

developed expertise in the matter and an interest in overseeing future issues that may

arise. See, e.g., Stevens v. Sley, 407 F.Supp. 140, 144 (D.C. Pa. 1976). This is a

matter for the state court to decide. 

Although Plaintiff is pursuing relief against an agency of the State of Florida, it

does not save this case from the domestic relations bar.2 It is evident that Plaintiff's

claims fit securely within the "domestic relations exception," even though Plaintiff is

naming parties other than his ex-wife as Defendants. What Plaintiff seeks as relief is an

injunctive order to stop child support payments or reduce the amount of those payments

consistent with his ability to pay. Such an order would contravene an order from a

Florida court which, apparently, established the child support award. This Court lacks

subject matter jurisdiction to modify or terminate such an order. If Plaintiff is entitled to

any such relief, it must come from the state court which issued the order. 

2

 It does not appear from Plaintiff's allegations that there are conflicting court

orders from two different states, both of whom have asserted jurisdiction to render

contrary custody determinations. If that were the case, Plaintiff might have an avenue

of redress in this Court. See Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir. 1985)

(finding that "where courts of two different states assert jurisdiction over a custody

determination, federal district court intervention is proper and in fact necessary to

enforce compliance with § 1738A."). In other words, the "domestic relations exception"

does not apply where the complaint otherwise makes out a substantial case for federal

question jurisdiction. Flood v. Braaten, 727 F.2d 303, 307 (3d Cir. 1984). See also

McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986).

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ORDER

Accordingly, it is ORDERED that Plaintiff's in forma pauperis motion, doc. 2, is

GRANTED and the Clerk of Court shall file this action without requiring payment of the

filing fee for this civil case.

REPORT AND RECOMMENDATION 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED for lack of subject matter jurisdiction and for failure to

state a claim upon which relief may be granted.

IN CHAMBERS at Tallahassee, Florida, on October 4, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv420-RH/WCS