United States Court of Appeals 

For the First Circuit 

No. 16-1053 

DAWN E. IRISH, 

Plaintiff, Appellee, 

v. 

CRAIG S. IRISH, 

Defendant, Appellant, 

PEBBLE NUCLEAR, INC., f/k/a Nuclear Logistics, Inc.; 

ARON SEIKEN, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge] 

Before 

Torruella, Lynch, and Lipez, 

Circuit Judges. 

Robert J. O'Regan, with whom Laura R. Studen, Elizabeth G. 

Crowley, Andrea L. Martin, and Burns & Levinson LLP were on brief, 

for appellant. 

 Sean T. Carnathan, with whom O'Connor, Carnathan and Mack 

LLC, Michael Gottfried, and Duane Morris LLP were on brief, for 

appellee. 
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November 14, 2016 
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LYNCH, Circuit Judge. This appeal comes to us from the 

district court's award of damages to Dawn Irish arising out of her 

2010 divorce in Massachusetts from Craig Irish and the Separation 

Agreement filed in their divorce proceeding. After the divorce, 

Dawn brought suit in federal court, rather than state court, 

arguing that Craig did not fully disclose his assets or deal in 

good faith during the negotiation of their Separation Agreement. 

The federal court exercised jurisdiction over those claims. 

We do not reach Craig's challenges to the merits of the 

district court's decision because we hold that the district court 

lacked subject matter jurisdiction pursuant to the domestic 

relations exception to federal diversity jurisdiction. 

Accordingly, we vacate the judgment and remand for dismissal of 

the action, with prejudice as to federal jurisdiction and without 

prejudice as to any state court action Dawn might bring. 

I. 

 We derive the following facts from Dawn's allegations in 

federal court. Dawn and Craig Irish wed on October 3, 1992. 

During their marriage, Craig worked at Nuclear Logistics, Inc. 

("NLI"), eventually serving as an officer and acquiring a minority 

ownership stake in the company, while Dawn primarily maintained 

the marital home. On February 4, 2009, Craig filed for divorce. 

 Craig and Dawn, each represented by counsel, thereafter 

negotiated the terms of a Separation Agreement, which, inter alia, 
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provided for alimony and divided their marital assets. The 

agreement divided all marital assets equally, with the exception 

of Craig's ownership stake in NLI. At the parties' final predivorce conference, Dawn produced a draft agreement under which 

she would receive 20% of Craig's total interest in the company. 

But at Craig's urging, Dawn agreed to amend the relevant provision 

to give Dawn 24 shares of NLI instead, which was 20% of the 120 

shares Craig represented he owned. Dawn later attested that she 

consented to this revision because Craig "had represented many 

times that he would not get any more from a sale [of NLI] than his 

6% equity entitled him to." 

 In the same provision dividing the shares, Craig 

promised that he would do "nothing to deprive [Dawn] of the 

benefits intended by this agreement, including . . . entering into 

any agreement intended to diminish [her] share of any compensation 

paid for [his] interest in [NLI]." In addition, three different 

provisions referenced Craig's "Financial Statement," which was 

submitted to the Middlesex Probate and Family Court along with the 

Separation Agreement, and contained the following clause: "I 

certify under the penalties of perjury that the information stated 

on this Financial Statement . . . is complete, true, and accurate." 

 On January 21, 2010 -- the same day that the Irishes 

filed their Separation Agreement -- the probate court entered a 

judgment of divorce nisi. Under Massachusetts law, when parties 
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asserting an irretrievable breakdown in their marriage file a 

separation agreement in their divorce proceeding, the state 

probate court must determine whether it approves of that agreement, 

and that "agreement either shall be incorporated and merged into 

[the divorce] judgment or by agreement of the parties, it shall be 

incorporated and not merged, but shall survive and remain as an 

independent contract." Mass. Gen. Laws ch. 208, § 1A; see also 

id. § 1B. In its judgment, the probate court found that the 

Irishes' agreement was "fair and reasonable," and "ordered that 

the parties shall comply with [its] terms." Additionally, and in 

line with parallel language in the agreement itself, the probate 

court declared that the agreement was "incorporated and not merged 

in" the divorce judgment and that it would "survive and have 

independent legal significance." 

 Roughly two years after the divorce became final, NLI 

was acquired for $80,000,000, plus $20,000,000 in potential earnout compensation. Despite having disclosed only a 6% ownership 

stake during negotiations about the Separation Agreement with 

Dawn, Craig received a payment of $21,600,000 from the sale of 

NLI. 

 On November 15, 2012, Dawn chose to file a complaint in 

federal district court in Massachusetts based on diversity 

jurisdiction, alleging various contract, tort, and fraud claims 

against Craig and two other parties not relevant to this appeal. 
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The primary basis for Dawn's suit against Craig was her claimed 

entitlement to 20% of the $21,600,000 payment. Pointing to emails 

between Craig and his accountant that support her contention, Dawn 

insisted that Craig concealed a pre-divorce "side deal," which 

granted him "phantom equity" well beyond the 6% interest he 

purported to hold in shares. Accordingly, she sought compensation 

equal to 20% of his actual profits from the sale, rather than 20% 

of his 120 shares. Craig, through his pleadings, denied the 

existence of a side deal. He characterized the $21,600,000 payment 

as a "bonus" unrelated to any "interest or expectancy due . . . at 

the time of the divorce." Dawn also claimed entitlement to 50% of 

$53,719.47 in uncashed checks that she alleged Craig had failed to 

disclose during negotiations, pursuant to the equal division of 

non-NLI assets in the Separation Agreement. 

 On January 22, 2014, the court entertained Craig's 

motion to dismiss for lack of subject matter jurisdiction based on 

the domestic relations exception to federal diversity 

jurisdiction. From the bench, the court granted Craig's motion as 

to the claims sounding in tort and fraud, reasoning that they dealt 

with "the formation of the divorce decree," and that to decide 

them would therefore "necessarily involve[] a revision of that 

decree."1 However, the court denied Craig's motion as to the 

 1 Dawn does not appeal the district court's dismissal of 

her tort and fraud claims, and we need not address the propriety 
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contract claims, reasoning that they dealt with the Separation 

Agreement, which was "to be performed over time, [separate from] 

the [divorce] decree [that] can stand as it is." 

 Thus, even though Dawn and Craig agreed that the probate 

court would have jurisdiction to try all of the claims, the federal 

court dismissed the tort and fraud claims but not the contract 

claims. Instead, the court entered an order "remand[ing]" the 

contract claims to the probate court so that the entire case could 

be tried together, despite the fact that the case had not come 

from the probate court. The court explained that if the claims 

were "not in fact adjudicated" in the probate court, either party 

could move to reopen the federal case "upon the conclusion of such 

proceedings as there may be in the" probate court. 

On May 30, 2014, Dawn moved to have the contract claims 

set for trial in the federal district court. In her motion, she 

stated that the probate court had been "unwilling to recognize the 

remand order as valid, [as] the matter did not originate" there, 

but she attached no document or order from that court. She also 

alleged that if she wished to proceed in a state probate court, 

she would need to "file a new action and start over." At oral 

argument for this appeal, Dawn's counsel conceded that Dawn never 

attempted to file a complaint or other paper in the probate court. 

 

of that decision. 
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Dawn's counsel further stated that Dawn preferred to have the 

contract claims promptly resolved, even at the expense of her tort 

and fraud claims, and that was why she had returned to federal 

court. 

The district court granted Dawn's motion to reopen the 

case on June 2, 2014, and two days later, Craig filed a motion for 

reconsideration. Craig noted that "it [was] not clear what 

exactly, if anything, [Dawn had] been doing in the Probate Court 

in [the preceding] five months," but she had not initiated a "new 

action," and the district court should not sanction her "whimsical 

forum shopping." The district court denied Craig's motion the 

following day. In light of the court's decision to exercise 

jurisdiction, the parties agreed to a case-stated hearing on the 

issue of liability. 

Following that hearing on the merits, the court 

determined that Craig had in fact concealed equity in NLI from 

Dawn during the divorce. From this the court concluded that Craig 

was in breach of two terms of the Separation Agreement, as well as 

the implied covenant of good faith and fair dealing. Specifically, 

the court found that Craig had (1) breached the promise in his 

Financial Statement -- which the court deemed a part of the 

agreement -- to fully disclose his assets; (2) breached the promise 

in the agreement itself to do nothing to diminish Dawn's share of 

his interest in NLI; and (3) acted in bad faith by structuring and 
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representing his interest in NLI as he did. The court also 

declared Craig liable in contract for concealing uncashed checks. 

In a footnote to its June 2015 merits opinion, the court 

explained its rationale for asserting jurisdiction over the 

contract claims. According to the court, because the assets at 

issue were not disclosed "and thus [were] not litigated in the 

original divorce proceeding," "no judgment the Court could make 

with regard to these assets would 'alter a divorce decree' in such 

a way that would bring the matter within the domestic relations 

exception." 

After a bench trial on the issue of damages, the court 

awarded Dawn (1) $3,840,000, representing 20% of the $21,600,000 

that Craig had earned from the NLI sale, minus the share that Dawn 

had already received; (2) $26,859.74, representing 50% of the 

$53,719.47 that Craig had concealed in uncashed checks; and (3) 

pre-judgment interest on both sums. 

Craig appeals, raising several challenges to the 

district court's findings and jurisdiction. Because we agree that 

the domestic relations exception precluded federal jurisdiction, 

we reach only that issue. 

II. 

 A district court's "conclusion regarding the existence 

vel non of subject matter jurisdiction is a question of law subject 

to de novo review." Skwira v. United States, 344 F.3d 64, 72 (1st 
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Cir. 2003). Because the domestic relations exception pertains to 

subject matter jurisdiction, parties cannot waive challenges based 

on it. Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir. 2001). 

 The domestic relations exception divests federal courts 

of jurisdiction over "a narrow range of [cases implicating] 

domestic relations issues" that would otherwise meet the 

requirements for federal diversity jurisdiction under 28 U.S.C. 

§ 1332(a). Marshall v. Marshall, 547 U.S. 293, 307 (2006) (quoting 

Ankenbrandt v. Richards, 504 U.S. 689, 701 (1992)). Formally, it 

is the product of judicial construction of Congress's intent in 

enacting the diversity jurisdiction statute. Ankenbrandt, 504 

U.S. at 700-01. One commentator suggests that the Supreme Court 

has anchored the exception in congressional acquiescence to 

federal court decisions and the policy considerations underlying 

them. See Richard H. Fallon et al., Hart and Wechsler's The 

Federal Courts and The Federal System 1331 (4th ed. 1996). Chief 

among those policy considerations is the desire "to keep federal 

courts from meddling in a realm that is peculiarly delicate, that 

is governed by state law and institutions (e.g., family courts), 

and in which inter-court conflicts in policy or decrees should be 

kept to an absolute minimum." Dunn, 238 F.3d at 41. This desire 

is in line with the traditional reluctance of federal courts to 

sanction federal interference with matters thought to be 

distinctively local. See Andrews v. Andrews, 188 U.S. 14, 32 
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(1903) ("[I]t is certain that the Constitution . . . confers no 

power whatever upon the government of the United States to regulate 

marriage in the States or its dissolution . . . ."), abrogated on 

other grounds by Sherrer v. Sherrer, 334 U.S. 343, 353 (1948). 

 That said, we have explained that, "[i]n general, 

lawsuits affecting domestic relations, however substantially, are 

not within the exception unless the claim at issue is one to 

obtain, alter or end a divorce, alimony or child custody decree." 

Dunn, 238 F.3d at 41 (emphasis added). This is so because both 

Ankenbrandt and Marshall stress that the exception's circumscribed 

reach extends "not to the subject of domestic relations, but to 

particular [familial] status-related functions that fall within 

state power and competence." 13E Wright & Miller, Federal Practice 

and Procedure § 3609.1 (3d ed.) (emphasis added). 

 In that vein, this circuit has been clear that "the 

allocation of property incident to a divorce [is a] longstanding 

local function[]" of the type best reserved for "state resolution." 

DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997) (citing 

Ankenbrandt, 504 U.S. at 704, 706); see also Gonzalez Canevero v. 

Rexach, 793 F.2d 417, 417 (1st Cir. 1986) (per curiam) (construing 

a former wife's suit, seeking damages equal to her alleged half 

interest in a corporation controlled by her former husband, as "a 

request to obtain a distribution of [marital] property" and 

affirming its dismissal as "a domestic relations dispute, not 
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properly encompassed within [federal] diversity jurisdiction"), 

abrogated on other grounds by Mooney v. Mooney, 471 F.3d 246, 248 

(1st Cir. 2006). 

 Indeed, cognizant of the fact that property-distribution 

and alimony arrangements necessarily accompany a divorce, exist in 

inextricable relation to each other, and jointly declare rights 

and obligations arising from marital status under state law, other 

circuits have also recognized that the domestic relations 

exception covers attempts to determine or modify not only alimony 

awards but also the division of marital property pursuant to a 

divorce. See, e.g., McCavey v. Barnett, 629 F. App'x 865, 867 

(11th Cir. 2015) (per curiam) (unpublished opinion); Wallace v. 

Wallace, 736 F.3d 764, 766 (8th Cir. 2013); McLaughlin v. Cotner, 

193 F.3d 410, 413 (6th Cir. 1999), cert. denied, 529 U.S. 1008 

(2000). In our view, there is not more published law on this 

subject because few claims to divide marital property are ever 

filed in federal court. This reflects an understanding that the 

federal forum is inappropriate and reinforces the exception's 

policy rationale: state courts are experts at dividing marital 

property, entering the necessary decrees, and handling the 

sensitive conflicts that follow. See Ankenbrandt, 504 U.S. at 

704. This logic extends to the subject matter of the case before 

us -- a dispute over property arising from a separation agreement 
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that ordered alimony, divided marital assets, and was incorporated 

into a probate court's divorce decree. 

III. 

 The district court based its assertion of jurisdiction 

on the notion that, because the assets at issue had never been 

divided by the state probate court, no federal adjudication as to 

them could alter an existing domestic relations decree. Our 

contrary view is that in effectively classifying the assets as 

marital and allocating them in the first instance, the district 

court altered an existing domestic relations decree pertaining to 

divorce and alimony, by amending it and adding new terms to it, as 

well as by determining the meaning of that decree, which had been 

entered by the state probate court. Thus, the district court 

committed error by not dismissing Dawn's particular contract 

claims, which she had improperly brought in federal court, and 

then compounded that error by provisionally "remanding" the claims 

to a state probate court in which they did not originate instead 

of dismissing them for lack of jurisdiction. The court then erred 

once more by granting Dawn's motion to reopen the adjudication of 

those claims in federal court. State courts are perfectly 

competent to address the issues raised by Dawn's claims, and 

federal courts have no business "allocating property that [should 

be] in the custody of a state court, or interfering with" a 
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distribution already made by a state court. See 13E Wright & 

Miller, supra, § 3609.1 (3d ed.). 

 Dawn contends that the district court did not perform a 

domestic relations function, and she relies heavily, but 

mistakenly, on Dunn, 238 F.3d 38, and Mooney, 471 F.3d 246. In 

the former case, this court considered tort claims, brought by a 

father against the ex-wife of his incapacitated son, alleging that 

she had mismanaged the son's care and finances. Dunn, 238 F.3d at 

39-40. This court held the domestic relations exception 

inapplicable although, in theory, the conduct giving rise to those 

claims for damages could have also formed the basis of a charge in 

the ex-spouses' earlier divorce proceeding, which would have 

affected the level of alimony awarded to the son. Id. at 41. 

Notwithstanding the possible connection to a divorce decree, this 

court recognized that the plaintiff was not asking the court to 

grant him alimony or to disturb his earlier award, but rather to 

independently compensate him for a discrete injury. Id. Here, in 

contrast, the claims are not so independent, as the plaintiff is 

asking the federal court to disturb the earlier award by granting 

her a larger share of the marital assets. 

 Ultimately, Dunn held that the circumstances counseled 

the federal court to abstain under Burford v. Sun Oil Co., 319 

U.S. 315 (1943), and stay the federal case as to the tort claims. 
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238 F.3d at 42-43. We thus see no conflict between Dunn and our 

conclusion. 

 We reject Dawn's argument that her action is permissible 

in federal court not as one to obtain a division of marital 

property, but as one merely to enforce the division envisioned in 

her existing agreement with Craig. First, Dawn's self-serving 

characterization of her action does not resolve the jurisdictional 

issue. We look to the reality of what is going on. The domestic 

relations exception "governs claims over [domestic relations 

decrees] even where they are cloaked in the 'trappings' of another 

type of claim." Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st 

Cir. 2003) (citation omitted); see also Sutter v. Pitts, 639 F.2d 

842, 844 (1st Cir. 1981) ("Although [plaintiff] clothed her 

complaint in the garb of a civil rights action, . . . her claim 

boil[ed] down to a demand for [child] custody . . . 'best left to 

the states.'" (citation omitted)). It is an "uncontroversial 

proposition that a plaintiff may not artfully cast a suit seeking 

to [create or] modify . . . a [domestic relations] decree as a 

state-law contract or tort claim in order to access the federal 

courts." Chevalier v. Estate of Barnhart, 803 F.3d 789, 795–96 

(6th Cir. 2015). And "[i]t is incumbent upon the . . . court to 

sift through the claims . . . to determine the true character of 

the dispute to be adjudicated." Firestone v. Cleveland Tr. Co., 

654 F.2d 1212, 1216 (6th Cir. 1981). 
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 Second, while it is true -- as we noted in Mooney -- 

that state law, depending on the nature of the claims in the postdivorce suit, may provide for a further action in the probate 

court, see, e.g., Carpenter v. Carpenter, 901 N.E.2d 694, 699-700 

(Mass. App. Ct. 2009), or an independent action in superior court, 

see, e.g., Reed v. Luther, No. MICV201101210, 2011 WL 6975979, at 

*3 (Mass. Super. Ct. Nov. 28, 2011), that fact does not decide the 

question of whether there is federal jurisdiction, which is a 

matter of federal law, see Dunn, 238 F.3d at 42. 

 In any event, Dawn's action is clearly distinct from the 

model independent "enforcement" action conceived of in Mooney -- 

a suit to enforce compliance with a separation agreement's terms 

ordering alimony -- and the converse action actually before the 

Mooney court -- a suit to have the agreement deemed unenforceable 

due to defects at contract formation. See 471 F.3d at 247. 

 Dawn does not seek to compel a payment actually due under 

her agreement. And she claims she does not seek rescission, even 

though the basis of her charge is also a defect at contract 

formation.2 Disjointedly, she alleges she was induced to enter a 

 2 Mooney also pointed out a 1985 opinion of the 

Massachusetts Supreme Judicial Court, Saltmarsh v. Saltmarsh, 480 

N.E.2d 618 (Mass. 1985), which stressed that a party seeking 

rescission of a separation agreement, on the grounds that her 

"husband had made various misstatements to her on which she had 

relied in agreeing to" it, should do so in the original divorce 

court rather than assert that claim by way of an independent postdivorce action. See id. at 620. Dawn's claims are strikingly 
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deal for which she would not have bargained, but styles her 

requested remedy as the benefit of what she bargained for. Yet, 

since the agreement is silent as to the proper division of the 

assets at issue, rather than effectuate the parties' manifest 

intent, the federal court is asked to decide upon an equitable 

distribution of marital property in the first instance. 

 As this court explained in Dunn, a single series of acts, 

such as fraud, can give rise to many different kinds of suits, 

including one for "civil tort [damages], [one for] divorce[,] and 

surely [one for] the allocation of property incident to a divorce." 

238 F.3d at 41. While certain types of contract disputes would 

not fall under the domestic relations exception, the claims on 

appeal in this case do. Unlike the tort suit in Dunn, which had 

domestic relations overtones but asked the court merely to 

adjudicate "breach of fiduciary duty[,] negligence and waste" 

claims well within a federal court's competence, id., Dawn's suit 

actually asks the court to perform a domestic relations function 

reserved for state courts. Specifically, though her complaint is 

drafted to sound in contract law (a request for damages for 

breached disclosure and good-faith obligations), Dawn's suit calls 

upon the federal court to determine whether certain assets were 

 

similar to those described in Saltmarsh, which further reinforces 

our conclusion. She does not brief whether Saltmarsh would 

preclude her independent action as a matter of state law. 
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acquired and held by Craig during the marriage and then to decide 

what share of them should have been apportioned to Dawn upon the 

parties' separation. The resulting "damages" award operates as a 

sub silentio assignment of part of the Irishes' marital estate, on 

top of the preexisting arrangement approved by the probate court.3 

See Mass. Gen. Laws ch. 208, § 1A. 

IV. 

In concluding that the district court lacked subject 

matter jurisdiction pursuant to the domestic relations exception 

-- without considering any of Craig's other grounds for appeal -- 

we make no appraisal of the merits of Dawn's claims. We simply 

hold that a federal court was an improper forum for them. 

The judgment of the district court is vacated, and the 

case is remanded with instructions to dismiss the federal suit 

with prejudice for want of jurisdiction. The dismissal is without 

prejudice as to the assertion of similar claims in an appropriate 

state court. 

So ordered. Each party to bear its own costs. 

 3 While not the basis of our jurisdictional holding, the 

structure of the award that the district court ultimately granted 

to Dawn confirms our concerns. In splitting assets 80-20 and 50-

50, the court did not calculate the sum of Dawn's damages from 

breached disclosure and good-faith obligations so much as declare 

what it believed to be an equitable division of those assets.