Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 560 -- John W. Reynolds, Judge.
Before PELL, ESCHBACH, and POSNER, Circuit Judges.
POSNER, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff in a diversity suit for tortious inference with the custody of a child. The child, Carol Lloyd, was born in 1978, in Washington, D.C., to Kenneth Lloyd, the plaintiff below and the appellee in this court, and Bonnie Loeffler, now Bonnie McMahan, who was named as a defendant but, for reasons that will appear, is not an appellant. Kenneth and Bonnie have never been married. In 1979 a Maryland state court awarded custody of Carol in a contested proceeding but gave visitation rights to Bonnie who by then was married to Earl McMahan, also a defendant below but not an appellant in this court.
On July 20, 1979, the McMahans, ostensibly in the exercise of Bonnie's summer visitation rights, picked up Carol from Kenneth Lloyd's babysitter in Virginia (where Lloyd lived) to take her to Wisconsin to visit Bonnie's parents, the Loefflers, who were defendants below and are the appellants here. The McMahans were to return Carol to her father in Virginia on August 5, but when they arrived at the Loefflers' house they told the Loefflers they would never return the child to her father -- and they never have. Apart from brief clandestine visits by the McMahans and Carol to the Loefflers' house in November 1979 and April 1980, the whereabouts of the three of them have been and are unknown. Kenneth Lloyd got a contempt judgment against Bonnie, and arrest warrants, from the Maryland state court that had issued the custody decree, and he has spent thousands of dollars on private detectives to locate the McMahans and Carol, but all to no avail.
In June 1980 Kenneth Lloyd brought this suit in a Wisconsin federal district court against the McMahans and the Loefflers. Lloyd is a citizen of Virginia and the Loefflers citizens of Wisconsin, but the domicile of the Mcmahans is uncertain; if it is Virginia, the "complete" diversity of citizenship required for jurisdiction under 28 U.S.C. § 1332, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806), would be lacking. Until their abduction of Carol the McMahans were citizens of Maryland. Lloyd believes they are now living in Wisconsin because the Loefflers have received some correspondence from the McMahans postmarked Milwaukee.
We have found no case involving the question of the domicile for diversity purposes of a fugitive from justice. It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere (cf. Pannill v. Roanoke Times Co., 252 F. 910, 913-35 (W.D. Va. 1918)), the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes. Cf. Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir. 1980). That would be Maryland in this case, and would not destroy diversity. This is a simple rule, and avoids rewarding the fugitive for his elusiveness. But in any event the probability that the McMahans were citizens of Virginia when this suit was filed is too slight to make us worry that there may not in fact be complete diversity.
After a bench trial, the district court found that the McMahans and the Loefflers had committed a tort under the common law of Wisconsin by interfering with Kenneth Lloyd's custody of Carol. The Loefflers' liability was based on conspiracy. Aware at all times of the custody decree and of the fact that the McMahans were in contempt of it, the Loefflers helped the McMahans conceal the child's whereabouts from Kenneth. Among other things they let the McMahans give the Loefflers' address to the federal government, which owed the McMahans (former federal employees) refunds of their retirement contributions; and when the money arrived the Loefflers forwarded it to the McMahans without revealing the McMahans' whereabouts to Kenneth. The Loefflers testified that they tried to persuade the McMahans to return the child to Kenneth, but the district court found their testimony unconvincing and instead credited testimony that Mrs. Loeffler had told a detective: "just tell that son-of-a-bitch that he will never see that child again." Mrs. Loeffler admitted that she thought Kenneth "physically incapable of taking care of this child."
The district court awarded Kenneth $70,000 in compensatory damages for which all the defendants were to be jointly and severally liable and $25,000 in punitive damages for which the McMahans were alone to be liable because of their greater culpability. The judgment provides that the award of punitive damages is to grow by $2,000 every month until Carol is returned to her father's lawful custody. The McMahans entered no appearance in the district court or this court.
Before reaching the merits we must decide whether this suit is within the exception to the diversity jurisdiction for domestic relations matters, including disputes over who should have custody of a child. Recently two circuits have held that tort suits for interference with custody are not within the exception. See Wasserman v. Wasserman, 671 F.2d 832 (4th Cir. 1982); Bennett v. Bennett, 221 U.S. App. D.C. 90, 682 F.2d 1039 (D.C. Cir. 1982). A third has upheld a damage award in such a case without discussing jurisdiction. See Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980). But it is a question of first impression in this circuit, though Daily v. Parker, 152 F.2d 174 (7th Cir. 1945), could be likened to Fenslage. The short but perhaps incomplete answer to the question is that such cases do not involve an actual dispute over custody. The McMahans have not challenged the decree of the Maryland court awarding custody of Carol to Kenneth Lloyd; they have defied it. This answer would be conclusive if the McMahans and the Loefflers were strangers who had kidnapped Carol. But because Bonnie McMahan is Carol's mother and the Loefflers her maternal grandparents the abduction is in a sense a continuation of the custody fight that the Maryland court thought it had resolved when it awarded custody to Kenneth and visitation rights to Bonnie. Cf. 18 U.S.C. § 1201(a) (the exception in the federal kidnapping statute for the kidnapping of a minor by a parent).
The usual account of the domestic relations exception, as of the probate exception discussed recently in Dragan v. Miller, 679 F.2d 712 (7th Cir. 1982), is a historical one. The first judiciary act gave the federal courts diversity jurisdiction of "all suits of a civil nature at common law or in equity," Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78 (simplified in the present diversity statute, but without change of meaning, see Reviser's Note to 28 U.S.C. § 1332 (1976), to "all civil actions," 28 U.S.C. § 1332(a)); and divorce, custody, and related matters were in England the province of the ecclesiastical courts (on which see 3 Blackstone, Commentaries on the Laws of England 87-103 (1768)) rather than of the common law and equity courts. The historical account is unconvincing. See Spindel v. Spindel, 283 F. Supp. 797, 802-03, 806-09 (E.D.N.Y. 1968). It exaggerates the nicety with which the jurisdictional distinctions among the English courts were observed. Applied to this case, it overlooks the extensive custody jurisdiction of the Court of Wards and Liveries, a royal court distinct from the ecclesiastical . See Bell, An Introduction to the History and Records of the Court of Wards & Liveries 112-32 (1953). And it assumes without discussion that the proper referent is English rather than American practice, though if only because there was no ecclesiastical court in America American law and equity courts had a broader jurisdiction in family-law matters than their English counterparts had. Probably the reference to law and equity in the first judiciary act is mainly to English practice rather than to the diverse judicial systems of the colonies and states; but it would be odd if the jurisdiction of England's ecclesiastical courts, theocratic institutions unlikely to be well regarded in America, should have been thought to define the limits of the jurisdiction of the new federal courts.
The historical account would be of little assistance in this case even if it were sound. The tort of wrongful interference with a child's custody did not exist at the time the first judiciary act was passed, and it would strain our historical imagination to the breaking point to try to determine whether, had there been such a tort then in England, it would have been within the exclusivie jurisdiction of the ecclesiastical courts.
However dubious its historical pedigree, the domestic relations exception is too well established to be questioned any longer by a lower court. See e.g., Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-14 (2d Cir. 1973); Solomon v. Solomon, 516 F.2d 1018, 1021-26 (3d Cir. 1975). This is so even though one might question, see Dragan, supra, 679 F.2d at 713, the suggestion in Rosenstiel, supra, 490 F.2d at 514, that a century of congressional silence constitutes legislative adoption of what was originally, and maybe still is today, a purely judge-made exception to the diversity jurisdiction. The boundaries of the exception are uncertain, however; and to fix them we must consider what contemporary function the exception might be thought to serve.
At its core are certain types of case, well illustrated by divorce, that the federal courts are not, as a matter of fact, competent tribunals to handle. The typical divorce decree provides for alimony payable in installments until the wife remarries, and if there are children it will provide for custody, visitation rights, and child support payments as well.These remedies -- alimony, custody, visitation, and child support -- often entail continuing judicial supervision of a volatile family situation. The federal courts are not well suited to this task. They are not local institutions, they do not have staffs of social workers and there is too little commonality between family law adjudication and the normal responsibilities of the federal judges to give them the experience they would need to be able to resolve domestic disputes with skill and sensitivity.
The present case, a tort suit that does not -- not overtly anyway -- seek one of the distinctive remedies provided by family courts, is not within the core of the domestic relations exception as we have described it. But there is also a periphery to be considered.When a case must begin in state court, as a divorce or custody case must, retention of any ancillary litigation in the same court is supported by considerations of judicial economy, and also by considerations of relative expertness since the issues in an ancillary proceeding may be the same as those in cases that are within the core of the domestic relations exception and hence within the exclusive jurisdiction of the state courts. Cf. Dragan, supra, 679 F.2d at 714-15. In this vein, Judge Friendly suggested in ...