*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Appellant Deborah Wigington appeals the United States District Court of

the Eastern District of Oklahoma's dismissal of her complaint for lack of

jurisdiction. We affirm.

I.

This action arises out of the ongoing dispute between Ms. Wigington and

her former husband, Patrick McCarthy, surrounding custody 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 would be "Joint Managing

Conservators," but gave Mr. McCarthy "primary possession" of Michael along

with the exclusive right to determine Michael's residence and domicile. During

Ms. Wigington's 1995 summer visitation with Michael in Oklahoma, rather than

returning Michael to Mr. McCarthy as Texas court ordered, Ms. Wigington

retained Michael and filed an application for custody 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 for Ms. Wigington's arrest. In

February 1996, Oklahoma's Bryan County District Court awarded custody to Ms.

Wigington and gave Mr. McCarthy visitation. In July 1996, Mr. McCarthy took

Michael to Texas and obtained an order there granting him sole custody of

Michael. Mr. McCarthy also appealed the custody decision reached in
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Oklahoma's Bryan County District Court to the Oklahoma Court of Appeals.

Attempting to invoke the federal district court's diversity jurisdiction

pursuant to 28 U.S.C. § 1332 (1994), Ms. Wigington brought this action alleging

Mr. McCarthy illegally removed Michael from Oklahoma 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 $50,000;

a declaratory judgment establishing Oklahoma as the proper jurisdictional forum

for the custody dispute; equitable relief in the form of a district court order

mandating Michael's return to Oklahoma; and an order stating the Oklahoma

custody decision was entitled to full faith and credit 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 her 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 jurisdiction; 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 amended such 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. 1997).

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II.

While not specifically stated in the motion to dismiss 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 pursuant 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 carved out a "domestic relations"

exception to diversity jurisdiction, an exception which 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 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."); Barber v. Barber, 62 U.S.

(21 How.) 582, 584 (1858) ("We disclaim altogether any jurisdiction in the courts
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of the United States upon the subject of divorce, or for the allowance of

alimony."). More recently, the Supreme Court reaffirmed the propriety of the

domestic relations exception holding the exception exists as a matter of statutory

construction; Congress "'adopt[ed] that interpretation' 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 jurisdiction is based on

several policy considerations: the states have a strong interest in domestic

relations matters; the states have developed an expertise 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 federal 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 exception to federal diversity

jurisdiction does not apply in this case because she is not seeking an order for
2

 We are doubtful whether this statute would apply to Mr. McCarthy due to

his status as "a party to a child custody proceeding." Okla. Stat. Ann. tit. 43

§ 111.2 reads in pertinent part:

Any person who is not a party to a child custody proceeding,

and who intentionally removes, causes the removal of, assists in the

removal of, or detains any child under eighteen (18) years of age

with intent to deny another person's right to custody of the child or

visitation under an existing court order shall be liable in an action at

law.

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child custody, but is instead only requesting the federal courts to determine

whether Mr. McCarthy "committed a tort when he abducted [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," even assuming the Oklahoma

statute under which Ms. Wigington brings her claim applies to Mr. McCarthy,2

this dispute cannot be so easily characterized as a claim sounding in tort.

Ankenbrandt, 504 U.S. at 704. To determine whether Mr. McCarthy has engaged

in illegal "child stealing" under Okla. Stat. Ann. tit. 43 § 111.2 would necessarily

require the district court to make determinations regarding conflicting custody

decrees and the parties' respective custody and visitation rights. These are the

type of questions the federal courts are singularly unqualified to answer. Further,

Ms. Wigington does not only seek damages, but also seeks an order demanding

Michael's return to her custody. Notwithstanding Ms. Wigington's attempt to
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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 door of the federal courts to

issues of child custody -- issues that are better left to the state courts' expertise.

III.

Ms. Wigington also argues the district court should have issued an order

declaring which state's custody order is proper. In her complaint, Ms. Wigington

sought a declaratory judgment establishing Oklahoma as 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 Prevention

Act of 1980, 28 U.S.C. § 1738A (1994), did not furnish a "cause of action in

federal court to determine which of two conflicting 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 for truly intractable jurisdictional
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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 language the Court was

referring to jurisdiction available in the Supreme Court pursuant to 28 U.S.C.

§ 1257(a) (1994), which gives the Court jurisdiction 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 general 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 intractable jurisdictional

deadlock[]." Id. Between the time Ms. Wigington filed her brief before 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 Jurisdiction Act and the Parental

Kidnaping Prevention Act. Okla. Stat. tit. 43 §§ 501-527 (1991); 28 U.S.C.

§ 1738A (1994). Also, the Supreme Court of Oklahoma has since denied Ms.
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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