* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEBORAH LYNN WIGINGTON, Plaintiff-Appellant,

v. PATRICK MICHAEL McCARTHY, Defendant-Appellee. No. 96-7134 (D.C. No. CV-96-384) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Appellant Deborah Wigington appeals the United Stat es District Court of the Eastern District of Oklahoma's dismissal of hercomplaint for lack of jurisdiction. We affirm.

I. This action arises out of the ongoing dispute betwe en Ms. Wigington and her former husband, Patrick McCarthy, surrounding c ustody of their son, Michael McCarthy. The parties in this case were divorced in Texas in 1994 after an eightday jury trial. The jury determined the parents wo uld be "Joint Managing Conservators," but gave Mr. McCarthy "primary posse ssion" of Michael along with the exclusive right to determine Michael's res idence and domicile. During Ms. Wigington's 1995 summer visitation with Michael in Oklahoma, rather than returning Michael to Mr. McCarthy as Texas court or dered, Ms. Wigington retained Michael and filed an application for custo dy in Oklahoma's Bryan County District Court. Mr. McCarthy filed for an order of contempt in Texas, and the Texas court issued a contempt order and a warrant f or Ms. Wigington's arrest. In February 1996, Oklahoma's Bryan County District Cou rt awarded custody to Ms. Wigington and gave Mr. McCarthy visitation. In Jul y 1996, Mr. McCarthy took Michael to Texas and obtained an order there granti ng him sole custody of Michael. Mr. McCarthy also appealed the custody de cision reached in-3-

Oklahoma's Bryan County District Court to the Oklah oma Court of Appeals.

Attempting to invoke the federal district court's d iversity jurisdiction pursuant to 28 U.S.C. § 1332 (1994), Ms. Wigington brought this action alleging Mr. McCarthy illegally removed Michael from Oklahom a and took him to Texas in violation of Okla. Stat. Ann. tit. 43, § 111.2 ( West 1990 & Supp. 1997). Ms. Wigington sought, inter alia , the following relief: damages in excess of $50,0 00; a declaratory judgment establishing Oklahoma as the proper jurisdictional forum for the custody dispute; equitable relief in the fo rm of a district court order mandating Michael's return to Oklahoma; and an orde r stating the Oklahoma custody decision was entitled to full faith and cre dit in Texas. Mr. McCarthy filed a motion to dismiss the complaint for lack of jurisdiction. The district court granted the motion and dismissed the complaint for lack of jurisdiction.

On appeal, Ms. Wigington argues the district court erred in dismissing for lack of jurisdiction for two reasons: 1) because h er complaint does not seek a child custody order but instead sounds in tort, the district court erred in applying the domestic relations exception to diversity juris diction; and 2) the district court erred in refusing to consider "the validity of the stalemated custody decisions of the States of Oklahoma and Texas."1 28 U.S.C. § 1332(a) (1994) has since been amendedsuch that to invoke

diversity jurisdiction, a plaintiff must allege the amount in controversy equals at least $75,000. 28 U.S.C.A. § 1332(a) (West Supp. 1 997). -4- II. While not specifically stated in the motion to dism iss or in the district court's order, dismissal of a complaint for lack of jurisdiction is proper pursuant to Fed. R. Civ. P. 12(b)(1); we assume it was pursu ant to this rule the district court dismissed the complaint. Fed. R. Civ. P. 12( b)(1). We review an order granting a motion to dismiss for lack of subject matter jurisdiction de novo

. Painter v. Shalala , 97 F.3d 1351, 1355 (10th Cir. 1996).

While Ms. Wigington properly alleged the requirements for diversity jurisdiction under the version of 28 U.S.C. § 1332( a) in effect at the time she filed her complaint, 1 the mere presence of such allegations does not end our analysis. The federal courts have judicially carve d out a "domestic relations" exception to diversity jurisdiction, an exception w hich originated from early Supreme Court law. Vaughan v. Smithson , 883 F.2d 63, 64 (10th Cir. 1989); see also Ex Parte Burrus , 136 U.S. 586, 593-94 (1890) ("The whole subject o f 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 ."); Barber v. Barber , 62 U.S. (21 How.) 582, 584 (1858) ("We disclaim altogether any jurisdiction in the courts-5-

of the United States upon the subject of divorce, o r for the allowance of alimony."). More recently, the Supreme Court reaff irmed the propriety of the domestic relations exception holding the exception exists as a matter of statutory construction; Congress "'adopt[ed] that interpretat ion' when it reenacted the diversity statute [in 1948]." Ankenbrandt v. Richards , 504 U.S. 689, 701 (1992) (quoting Lorillard v. Pons , 434 U.S. 575, 580 (1978)).

The domestic relations exception to diversity juris diction is based on several policy considerations: the states have a s trong interest in domestic relations matters; the states have developed an exp ertise in settling domestic disputes; such disputes require ongoing supervision , a task better suited to the states; federal determination of domestic disputes increases the chances for conflict between federal and state court decisions; domestic cases would crowd the federal docket while serving no particular fede ral interest. Ankenbrandt , 504 U.S. at 703-04; Vaughan , 883 F.2d at 65. Consequently, federal courts do not have diversity jurisdiction over divorce and alimony decrees and child custody orders. Ankenbrandt , 504 U.S. at 703; Vaughan , 883 F.2d at 64.

Ms. Wigington argues the domestic relations excepti on to federal diversity jurisdiction does not apply in this case because sh e is not seeking an order for2We are doubtful whether this statute would apply to Mr. McCarthy due to

his status as "a party to a child custody proceedin g." Okla. Stat. Ann. tit. 43 § 111.2 reads in pertinent part:

Any person who is not a party to a child custody pr oceeding, and who intentionally removes, causes the removal o f, assists in the removal of, or detains any child under eighteen (18 ) years of age with intent to deny another person's right to custo dy of the child or visitation under an existing court order shall be l iable in an action at law. -6- child custody, but is instead only requesting the f ederal courts to determine whether Mr. McCarthy "committed a tort when he abdu cted [Ms. Wigington's] son." We disagree. While it is true the Court has narrowly construed the domestic relations exception as encompassing "only cases involving the issuance of a divorce, alimony, or child custody decree," ev en assuming the Oklahoma statute under which Ms. Wigington brings her claim applies to Mr. McCarthy, 2 this dispute cannot be so easily characterized as aclaim sounding in tort. Ankenbrandt , 504 U.S. at 704. To determine whether Mr. McCart hy has engaged in illegal "child stealing" under Okla. Stat. Ann. tit. 43 § 111.2 would necessarily require the district court to make determinations r egarding conflicting custody decrees and the parties' respective custody and vis itation rights. These are the type of questions the federal courts are singularlyunqualified to answer. Further, Ms. Wigington does not only seek damages, but also seeks an order demanding Michael's return to her custody. Notwithstanding M s. Wigington's attempt to-7-

characterize her claim as one sounding in tort, the reality remains she is asking the federal courts to determine her and Mr. McCarthy's respective custody rights regarding Michael. We refuse to open the back doorof the federal courts to issues of child custody -- issues that are better l eft to the state courts' expertise.

III. Ms. Wigington also argues the district court shouldhave issued an order declaring which state's custody order is proper. I n her complaint, Ms. Wigington sought a declaratory judgment establishing Oklahomaas the forum with jurisdiction over the custody dispute and an order mandating that Texas give Oklahoma's custody decision full faith and credit. Relying on Thompson v. Thompson , 484 U.S. 174, 175 (1988), the district court held it did not have jurisdiction to issue such an order.

In Thompson , the Supreme court held the Parental Kidnaping Pre vention Act of 1980, 28 U.S.C. § 1738A (1994), did not furn ish a "cause of action in federal court to determine which of two conflictin g state custody decrees is valid." Thompson , 484 U.S. at 187. On appeal, Ms. Wigington argues the Supreme Court left the door of jurisdiction in the federal courts ajar by stating: "ultimate review remains available in this Court fo r truly intractable jurisdictional-8-

deadlocks." Id . Ms. Wigington argues because the present dispute falls within that category, federal jurisdiction exists in this case. Ms. Wigington's argument fails for two reasons.

First, it is clear from the context of the quoted l anguage the Court was referring to jurisdiction available in the Supreme Court pursuant to 28 U.S.C. § 1257(a) (1994), which gives the Court jurisdictio n over "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." Thompson , 484 U.S. at 187. Nothing in Thompson suggests the Supreme Court was attempting to create a loophole in its ge neral statement the Parental Kidnaping Prevention Act did not create a cause of action in federal court to resolve conflicting state child custody orders. Id.

Second, we are no longer faced with a "truly intrac table jurisdictional deadlock[]." Id. Between the time Ms. Wigington filed her brief be fore this court and Mr. McCarthy filed his, the Oklahoma Court of Appeals held the Bryan County District Court exercised jurisdiction over the issue of Michael's custody in violation of the Uniform Child Custody JurisdictionAct and the Parental Kidnaping Prevention Act. Okla. Stat. tit. 43 §§ 5 01-527 (1991); 28 U.S.C. § 1738A (1994). Also, the Supreme Court of Oklahom a has since denied Ms.-9-

Wigington's petition for certiorari. Consequently, the "deadlock" has been resolved, and any exception that may exist to Thompson 's general rule does not apply in this case.

For the foregoing reasons, we AFFIRM the district court's dismissal for lack of jurisdiction.

Entered for the Court

WADE BRORBY United States Circuit Judge