Bowman v. Cortellessa et al

Filing 6

MEMORANDUM OPINION AND ORDER: It is ORDERED that Plaintiff V. Janet Bowman's 5 Motion to Reconsider the February 21, 2012, dismissal of this action, is DENIED. Signed by Judge Joseph M. Hood on February 29, 2012. (AWD) cc: Plaintiff via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
V. JANET BOWMAN,
Plaintiff,
vs.
ROBERT E. CORTELLESSA,et al.,
Defendants.

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Civil Action No. 12-47-JMH
MEMORANDUM OPINION & ORDER

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V. Janet Bowman, the pro se plaintiff, has filed a motion, R.
5], seeking reconsideration of the February 21, 2012 dismissal of
her Complaint. As explained below, the motion will be denied.
BACKGROUND
On February 16, 2012, Bowman filed this action against her
former spouse, Robert E. Cortellessa, and Robert S. Silverthorn,
the attorney who represented Bowman in her 1984 divorce proceeding,
Cortellessa v. Cortellessa, Woodford Circuit Court Case No. 84-CI191. Bowman alleged that:(1) the Woodford Circuit Court did not
award her the appropriate amount of marital assets, specifically,
Cortellessa’s federal military retirement benefit; (2) Cortellessa
provided the Woodford Circuit Court with false and/or perjured
information about his years of creditable service toward his
military retirement; and (3) Robert S. Silverthorn, her attorney in
the divorce proceeding, failed to properly ascertain the value of
Cortellessa’s military retirement benefit and ensure that she

received one-half of that benefit.
denied

her

rightful

share

of

Bowman alleged that being

Cortellessa’s

federal

military

retirement benefit has created a financial hardship on her, and at
the end of her Complaint, she asked for “. . .honesty & to be
allowed to proceed.” [R. 8, p. 8].
On February 21, 2012, the Court dismissed Bowman’s Complaint
pursuant to the Rooker-Feldman doctrine,1 under which federal
courts lack of subject matter jurisdiction to challenge the outcome
of state court proceedings. [R. 3 & 4].
Bowman’s

Complaint

was

essentially

an

The Court determined that
effort

to

collaterally

circumvent, or alter, the marital property division ordered in the
state court divorce proceeding.
Bowman now seeks reconsideration of the dismissal.

She again

alleges that her former spouse falsified and/or hid information
about his federal military retirement benefit during the divorce
proceeding; that because the Woodford Circuit Court neither decided
the value of, nor divided, her former spouse’s federal military
benefit, the doctrine of res judicata does not bar her claims in
this action; and that pursuant to the Uniformed Services Former
Spouses' Protection Act (“USFSPA”), 10 U.S.C. § 1408, this Court
has jurisdiction to award her one-half of Cortellessa’s federal
military retirement benefit, and should do so.

1

See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 486, 103 S.Ct. 1303(1983), and Rooker v. Fid. Trust Co.,
263 U.S. 413, 416, 44 S.Ct. 149 (1923).
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As to the latter claim, Bowman relies on the October 6, 2009,
letter from the Defense Finance and Accounting Service to Senator
Mitch McConell, which states the UFSPA does not automatically
provide a division of retired pay to a former spouse; that Bowman
was not awarded a portion of Cortellessa’s military pay in the
divorce decree; and that the United States Army was unable to issue
any payments to Bowman under the USFSPA.

See Letter, R. 1-1, p. 2.

DISCUSSION
The Court will not reconsider the dismissal of Bowman’s
Complaint.

A district court may alter a judgment pursuant to Rule

59(e) if it was premised upon a clear misunderstanding of the
controlling law or the issues presented by the parties, or where
after

entry

of

the

previously-unavailable

and

judgment
material

the

parties

evidence

intervening change in the controlling law.

or

discover

there

is

an

Owner-Op. Indep.

Drivers Ass’n v. Arctic Express, 288 F. Supp. 2d 895, 900 (S. D.
Ohio 2003); Braxton v. Scott, 905 F. Supp. 455 (N.D. Ohio 1995).
In her Complaint, Bowman alleged that the Woodford Circuit
Court failed to consider and divide Cortellessa’s military benefit,
and she asked this Court “to proceed.” Clearly, Bowman was seeking
federal review of her state court divorce decree, and was asking
this Court to “proceed” to fashion a different, and more favorable,
property division than that ordered in the divorce decree.
In

dismissing

Bowman’s

Complaint,
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the

Court

did

not

misunderstand the law or the issues presented; Bowman has not
presented previously unavailable evidence; and no intervening
change in the law has ensued since February 21, 2012.

As

explained in the Order, the Rooker-Feldman doctrine prevents a
litigant, unhappy about the result in a state court domestic
relations/divorce proceeding (such as Plaintiff Bowman), from
altering or overturning that result by filing a subsequent civil
action in federal court to obtain a more favorable outcome on some
or all of the issues adversely decided in the state court divorce
proceeding.

Evans v. Franklin County Court of Common Pleas, Div.

of Domestic Relations, 66 F. App’x 586, 587(6th Cir. 2003).
The Rooker-Feldman doctrine precludes the possibility of a
federal court reaching an outcome that essentially overturns, or is
inconsistent with, a decision of a state domestic relations court,
even if the state court result was inaccurate or unfair.

Carlock

v. Williams, 182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22,
1999)(Table); Danforth v. Celebrezze, 76 F. App'x 615, 617 (6th
Cir. 2003) (holding that the plaintiff's civil rights action was
essentially a pretense to obtain federal review of the procedures
and rulings in a state court domestic relations case).
Bowman continues to argue, incorrectly, that this Court has
authority to divide her former spouse’s federal military retirement
benefit because: (a) the Woodford Circuit Court failed to divide
that marital asset, and (b) a federal statute permits a former

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spouse to receive a portion of the benefit upon the retirement of
service member.

Bowman’s argument ignores the “domestic relations

exception” to federal jurisdiction, under which federal courts have
no jurisdiction over domestic relations matters.

Ankenbrandt v.

Richards, 504 U.S. 689, 703 (1992); Steele v. Steele, No. 3:10-CV40-KSF, 2011 WL 2413400, at *2 (E.D. Ky., June 10, 2011).
Further, the USFSPA does not grant jurisdiction to federal
courts

to

divide

federal

military

retirement

benefits;

as

discussed, federal courts have no jurisdiction to decide domestic
relations matters such as child support, property division, and
alimony.

The USFSPA permits States to treat military retirement

pay as either the property of the military member or as the
property of both the member and his spouse, Cox v. Cox, 479 U.S.
970 (1986), and establishes a statutory procedure by which a state
court can order a military branch to pay a portion of a member’s
retirement pay to a former spouse, as part of a divorce proceeding.
Bowman next incorrectly contends that her claims are not
barred by the doctrine of res judicata.

When a court of competent

jurisdiction has entered final judgment on the merits in an action,
the parties to the suit and their privies are bound by that
decision. Cromwell v. County of Sac, 94 U.S. 351, 352 (1877); see
also Brown v. Felsen, 442 U.S. 127, 131(1979).

Furthermore, res

judicata

issues

bars

not

only

the

re-litigation

of

actually

litigated in the prior action, but also issues “which could have
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been raised with respect to that claim.”

Westwood Chemical Co.,

Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981); see also Brown,
442 U.S. at 131.
Res judicata requires “an identity of the causes of action
that is, an identity of the facts creating the right of action and
of

the

evidence

necessary

to

Chemical Co., 656 F.2d at 1227.
in this case.

sustain

each

action.”

Westwood

Those requirements are satisfied

Bowman could or should have asserted her marital

rights in Cortellessa’s federal military retirement benefit, and
pursued collection of her portion, if any, under the USFSPA, during
the 1984 divorce proceeding.2

Regardless of whether Cortellessa’s

military retirement benefit was actually considered, litigated or
divided during the divorce proceeding, res judicata bars Bowman
from relitigating that issue, or any other aspect of the property
division decided in the 1984 divorce decree, in this action.
Finally, Bowman claims that during the divorce proceeding,
Silverthorn failed to recover her marital interest in Cortellessa’s
federal military retirement benefit. Because Bowman alleged no
basis for federal jurisdiction over her claims against Silverthorn,
the Court lacks subject matter jurisdiction over those claims. See

2

If, as Bowman alleges, Cortellessa intentionally
misrepresented or withheld any material facts about his military
retirement benefit to the Woodford Circuit Court, she should have
asked the Woodford Circuit Court to address the issue immediately
upon discovery of the alleged fraud. If unsuccessful there, Bowman
should have appealed the issue to the Kentucky Court of Appeals.
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28 U.S.C. § 1915(e)(2)(B)(i); FED. R. CIV. P. 12(h)(3). “[T]he
remedy for negligence by a party's lawyer is generally a legal
malpractice suit or an ineffective assistance of counsel claim, not
forcing the opposing party to defend against a stale claim.”
Whalen v. Randle, 37 F. App’x. 113, 120 (6th Cir. 2002).

Bowman’s

construed legal malpractice claim against Silverthorn is likely
barred

by

Kentucky’s

one-year

statute

of

limitations

for

professional negligence, see KY. REV. STAT. ANN. § 413.245, but such
a claim would lie in state court, not federal court.
Even if the Court broadly considered Bowman’s claims against
Silverthorn under 42 U.S.C. § 1983, those claims would still fail.
In order to prevail under that statute, a plaintiff must allege
that a defendant was acting under “color of state law” when he
violated his or her federal constitutional rights.

42 U.S.C. §

1983; Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120
(1992). Further, a private party is deemed a “state actor” only if
he or she exercised powers traditionally reserved exclusively to
the state.
Here,

Chapman v. Higbee, 319 F.3d 825, 833 (6th Cir. 2003).

Bowman

does

not

allege

that

Silverthorn,

her

private

attorney, was engaged in “state action” when he represented her in
the divorce proceeding.

At best, Bowman alleges only a claim of

legal malpractice against Silverthorn based on his alleged failure
to properly represent her interests during the divorce proceeding.
Silverthorn’s alleged negligence or legal malpractice does not

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qualify as “state action,” so Bowman can not assert a federal claim
against him under § 1983.
CONCLUSION
Accordingly, IT IS ORDERED that Plaintiff V. Janet Bowman’s
motion to reconsider the February 21, 2012, dismissal of this
action, [R. 5], is DENIED.
This the 29th day of February, 2012.

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