Swain v. McIntosh
Memorandum Opinion and Order denying 8 MOTION to Dismiss for Lack of Jurisdiction . Signed by District Judge Tom S. Lee on 6/7/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
DAVID MILES SWAIN
CIVIL ACTION NO. 3:12CV896TSL-JMR
AMY NICOLE MCINTOSH
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Amy Nicole McIntosh to dismiss for lack of jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiff David Miles Swain has responded to the motion and the
court, having considered the memoranda of authorities, together
with attachments, submitted by the parties, concludes that the
motion is not well taken and should be denied.
The parties to this case, formerly husband and wife, divorced
The original Child Support, Custody and Property
Settlement Agreement entered by the Chancery Court of Madison
County, Mississippi, provided that the parties would share joint
legal and physical custody of their minor son (Gabriel Swain, born
In August 2011, after defendant had moved from
Mississippi to North Carolina, and following extensive litigation
between the parties, an Agreed Order was entered by the Chancery
Court which provided for defendant to have primary custody of the
child and for plaintiff to have visitation according to terms set
forth in the Agreed Order.1
On September 26, 2012, McIntosh filed a Petition for
Modification of Visitation Schedule,
Petition for Contempt and
Other Relief in the Madison County Chancery Court, in which she
alluded to circumstances (including a “shocking [and] disturbing
episode” at a North Carolina airport) which she alleged placed the
child at risk of irreparable harm or damage and necessitated a
change in the visitation schedule.
She further complained that
Swain had failed and refused to comply with the terms of the 2011
Agreed Order by such conduct as maliciously misleading her about
vacation plans so as to thwart her travel plans, willfully and
intentionally refusing to allow regular telephone visitation with
the child, and allowing the child to engage in dangerous
activities without proper supervision.
The Agreed Order sets forth a schedule of visitation by
which the parties alternate visitation during annual Spring
Breaks, Fall Breaks, and Thanksgiving and Christmas holidays.
Swain has visitation for the entire Summer Break each year.
Additional provision is made for a weekend visitation each month.
The costs of transportation, by plane or automobile, are shared
The Agreed Order additionally gives the non-visiting parent
the right to telephone visitation on Mondays, Wednesdays, Fridays
and Sundays at 6:30 p.m., for twenty minutes, and directs that
beyond that, the parties are to cooperate with each other to allow
for liberal telephone visitation with the non-visiting parent at
other dates and times as agreed between the parties. Finally, it
provides for one thirty-minute Skype visitation per month by the
Thereafter, on December 28, 2012, Swain filed the present
action in this court, invoking jurisdiction based on diversity of
citizenship pursuant to 28 U.S.C. § 1332, asserting a number of
tort claims based on allegations that McIntosh has consistently
and continuously engaged in conduct intended to obstruct and make
difficult his visitation periods with the child, such as by
refusing to agree on dates and times for visitation and for
locations for exchange of the child; intentionally changing the
details of scheduled visitation at the last minute; insisting on
visitation terms which were burdensome for plaintiff for the sole
purpose of harassing plaintiff; threatening plaintiff with legal
action if he would not agree to the terms of visitation;
misrepresenting facts relating to visitation periods and
exchanges; following and harassing plaintiff during periods of
visitation; being intentionally late to visitation exchanges and
otherwise making visitation inconvenient for plaintiff; monitoring
plaintiff’s phone visits with the child and preventing the child
from speaking freely with plaintiff; and speaking with the child
in a manner intended to alienate the child from plaintiff.
Swain alleges additionally that McIntosh has made numerous
unfounded complaints about him to law enforcement, as follows:
during his 2012 Spring Break visitation with his son at his home
in Madison, McIntosh made a complaint to the Madison Police
Department relating to the minor child, which resulted in police
officers being dispatched to Swain’s home, only to find no
evidence of wrongdoing; when picking up the child at the North
Carolina airport for summer visitation in June 2012, Swain was
subjected to a lengthy detention by airport security at McIntosh’s
instance but was ultimately allowed to leave with the child;
during the 2012 Christmas visitation exchange in Madison, Georgia,
McIntosh arrived with law enforcement officers, to whom she had
falsely reported that Swain had sent her threatening text
messages; and while following Swain after he left with the child
on this last occasion, McIntosh called the highway patrol to
report plaintiff for driving five miles per hour over the speed
On the basis of these allegations, Swain asserts causes
action for negligent and/or intentional infliction of emotional
distress, negligence and gross negligence, and malicious
prosecution and abuse of process, for which he seeks compensatory
damages of $250,000 and punitive damages of $500,000, along with
an injunction barring plaintiff from “involving law enforcement
officers in the parties’ dealings when no legal right to involve
them exists,” and “from conducting herself ... in a manner
designed to cause Plaintiff emotional distress and adversely
affect his relationship with his minor son.”
McIntosh has moved to dismiss for lack of jurisdiction
pursuant to Rule 12(b)(1).
She does not contend that the
requisites for diversity jurisdiction are lacking, and they are
The parties are citizens of different states and the amount
in controversy, as established by Swain’s damages demand, exceeds
$75,000, so that the court has diversity jurisdiction over the
See 28 U.S.C. § 1332.
Notwithstanding this, McIntonsh
maintains that this court is barred from exercising jurisdiction
in this cause since exclusive jurisdiction over all matters
relating to the custody of the minor child is vested in the
Madison County Chancery Court, which rendered the custody decree.
McIntosh notes that under Mississippi law, “the chancery court of
the proper county shall have jurisdiction to entertain suits for
the custody, care, support and maintenance of minor children and
to hear and determine all such matters,” Miss. Code Ann. §
93-11-65(1); and once such court “has made a child custody
determination [such court] has exclusive, continuing jurisdiction
over the determination,” Miss. Code Ann. § 93-27-202.
principle was recognized by the Mississippi Supreme Court in
Ladner v. Ladner, where the court wrote:
[J]uvenile jurisdiction acquired by a court in divorce
proceedings over the subject of the custody and
maintenance of the child or children of the parties to
the divorce suit is not only continuing, but is also
exclusive and precludes any other court in the same
state ... from thereafter acquiring or exercising
jurisdiction over the same subject. All proceedings
related to the maintenance and custody of such child or
children of the divorced parents must thereafter be
brought in the same court as that in which the original
decree affecting that subject was rendered.
206 So. 2d 620, 624–25 (Miss. 1968), abrogated on another issue by
Bubac v. Boston, 600 So. 2d 951 (Miss. 1992)).
See also Helmert
v. Biffany, 842 So. 2d 1287, 1291 (Miss. 2003) (stating that
“[u]nder Mississippi law, chancery court has continuous and
exclusive jurisdiction over custody proceedings”) (citing Ladner,
206 So. 2d at 624–25; Miss. Const. art. 6, § 159 (stating that
“Chancery Court shall have full jurisdiction of ... (a) all
matters in equity, (b) divorce and alimony, and ... (d) minor’s
McIntosh argues that since plaintiff’s putative
claims herein relate to alleged behavior which occurs during the
exchange of the child for visitation or otherwise in relation to
the court-ordered visitation, it follows that jurisdiction is not
proper in this court as the Chancery Court of Madison County has
exclusive jurisdiction over all contested issues between the
For his part, Swain acknowledges that jurisdiction over
issues of the parties’ respective custody and visitation rights
would lie exclusively in the Madison County Chancery Court; but he
denies that his claims fall within that category and that
therefore, this court may proceed herein without intruding upon
the chancery court’s exclusive jurisdiction.
Indeed, as Swain
notes, in this action, he is not challenging the Chancery Court’s
custody determination or the provisions of the Agreed Order
establishing the parties’ respective visitation rights.
He is not
attempting, directly or indirectly, to modify or set aside the
Agreed Order on custody and visitation.
Defendant’s objection to
jurisdiction on this basis is rejected.
McIntosh argues alternatively, but along the same lines, that
Swain’s complaint, although ostensibly asserting tort claims, is
in effect for contempt of the 2011 Agreed Order, which falls
within the Chancery Court’s exclusive jurisdiction.
acknowledges in his response that under Mississippi law, “[a]n
action for contempt must be brought in the same court which
rendered the original decree and is to be litigated as a matter
ancillary to the original action.”
Tollison v. Tollison, 841 So.
2d 1062, 1064 (Miss. 2003); see also McDonald v. McDonald, 39 So.
3d 868, 885 (Miss. 2010) (“[T]he Mississippi Supreme] Court has
held that contempt matters are ‘ancillary to the original action’
giving the original court ‘continuing jurisdiction over the
subject matter’...”) (quoting Tollison v. Tollison, 841 So. 2d
1062, 1064-65 (Miss. 2003); cf. Dale v. Family Guar. Life Ins.
Co., 205 F. Supp. 2d 620, 622 (S.D. Miss. 2002) (federal court
could not exercise jurisdiction over contempt proceeding involving
state court, since under Mississippi law, “‘[t]he authorities are
legion that the power to punish for contempt rests solely with the
court contemned, and one court cannot punish a contempt against
another court’”) (quoting Culpepper v. Mississippi, 516 So. 2d
485, 487 (Miss. 1987)).
But he insists that contrary to
defendant’s urging, the “true nature” of his claims is not for
contempt of any chancery court order.
That is, he is not asking
this court to enforce an order of the Madison County Chancery
Court or seeking punishment for violation of a provision in an
order from that court.
The court agrees and finds that
jurisdiction is not foreclosed on this basis.
Defendant last seeks dismissal based on the “domestic
relations exception” to diversity jurisdiction, a judiciallycreated exception whereby federal courts decline to adjudicate
domestic relations disputes even though the requirements for
diversity jurisdiction are present.
In Ankenbrandt v. Richards,
the Supreme Court recognized the validity of the domestic
relations exception, but interpreted the exception narrowly, as
“encompass[ing] only cases involving the issuance of a divorce,
alimony, or child custody decree.”
504 U.S. 689, 704, 112 S. Ct.
2206, 119 L. Ed. 2d 468 (1992) (emphasis added); id. at 703, 112
S. Ct. 2206 (stating that “the domestic relations exception
divests the federal courts of power to issue divorce, alimony, and
child custody decrees”); see also Marshall v. Marshall, 547 U.S.
293, 308 126 S. Ct. 1735, 1744-46, 164 L. Ed. 2d 480 (2006)
(reiterating Ankenbrandt’s holding that only “divorce, alimony,
and child custody decrees” remain outside federal jurisdictional
bounds, and its recognition that while state tribunals have
developed special proficiency in handling issues that arise in the
granting of [divorce, alimony, and child custody] decrees,”
federal courts are equally equipped to deal with complaints
alleging the commission of torts) (citing Ankenbrandt, 504 U.S. at
703, 704, 112 S. Ct. 2206); Vulcan Materials Co. v. City of
Tehuacana, 238 F.3d 382, 386, at n.2 (5th Cir. 2001) (“The
exception is a narrow one, generally only prohibiting federal
courts from issuing divorce, alimony, or child custody decrees.”);
Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980) (“[T]he district
courts have no original diversity jurisdiction to grant a divorce,
to award alimony, to determine child custody, or to decree
Consistent with the Court’s directive in Ankenbrandt that the
exception be applied narrowly, the Fifth Circuit has explained
that in determining whether the exception applies,
The decisive factor is not the formal label attached to
the claim (tort, contract, etc.), but the type of
determination that the federal court must make in order
to resolve the case. If the federal court must
determine which parent should receive custody, what
rights the noncustodial parent should have, how much
child support should be paid and under what conditions,
or whether a previous court's determination on these
matters should be modified, then the court should
dismiss the case. On the other hand, if the court need
only decide whether an already-set custody or child
support award has been complied with, or whether the
parties have committed acts that would be actionable
even if everyone involved was unrelated, then the
federal courts should retain the case.
Rykers v. Alford, 832 F.2d 895, 900 (5th Cir. 1987).
The Court in Ankenbrandt identified McIntyre v. McIntyre, 771
F.2d 1316, 1317 (9th Cir. 1985) (opinion of Kennedy, J.), as among
Courts of Appeals cases expressing the better reasoned view of the
domestic relations exception as narrowly confined to suits for
divorce, alimony or child custody decrees.
112 S. Ct. at 2215 n.6.
504 U.S. at 703 n.6,
See McIntyre, 771 F.2d at 1317 (“[T]he
exception to jurisdiction arises in those cases where a federal
court is asked to grant a decree of divorce or annulment, or to
grant custody or fix payments for support.”).
The plaintiff in
McIntyre sued his ex-wife and her mother, sister and brother-inlaw alleging they had secreted his minor daughter to prevent him
from exercising his visitation and parental rights ordered by a
Washington state court.
McIntyre, 771 F.2d at 1317.
court held that given its limited reach, the domestic relations
exception did not preclude a federal court from exercising
diversity jurisdiction over the father’s state law claims for
tortious interference with his custodial rights.
Id. at 1318.
The court reasoned:
In the case at bar, plaintiff seeks monetary damages for
alleged past breaches of visitation rights granted by
the state court. He bases his action on a claim of
intentional tortious interference that does not
implicate questions of spousal or parental status. The
primary issue concerns not the status of parent and
child but rather the injury suffered by plaintiff as a
result of his former wife's alleged interference with
his court-ordered visitation rights and the concomitant
alienation of his daughter's affections. The suit does
not seek to determine status or to enforce a domestic
relations decree in the guise of some other action. The
validity or scope of the state court's domestic
relations judgment is not here in question. The claim
stated falls within neither a status nor a coercive
relief category of domestic relations issues, and the
jurisdictional exception is not applicable.
McIntyre, 771 F.2d at 1318.2
Similarly, in Ervin v. Estopare, No. CV 08–122–M–DWM–JCL,
2009 WL 50169, 4 (D. Mont. Jan. 6, 2009), a plaintiff sued his
former wife in federal court to recover damages for his ex-wife’s
allegedly tortious conduct in interfering with his visitation
rights as established in the divorce decree.
alleged that the defendant had tortiously interfered with his
contact and socialization with the child, had destroyed his
In Goins v. Goins, 777 F.2d 1059 (5th Cir. 1985), a preAnkenbrandt case, the Fifth Circuit affirmed the district court’s
determination that the domestic relations exception precluded
jurisdiction over a similar tort claim for damages against her
former husband and seventeen of his relatives and associates
conspiring to and wrongfully taking and withholding their child
from her lawful custody. Id. at 1062-63. In reaching this
result, the court emphasized that in addition to seeking damages,
the plaintiff sought modification of the state court custody
order. Id. at 1062. This, the court noted, distinguished Goins
from an earlier case, Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir.
1980), in which the court had affirmed a district court's
judgments for a plaintiff who sued her ex-husband and his
relatives for conspiring to take and conceal her children in
violation of a Texas state court custody order and for intentional
infliction of mental anguish. Goins, 777 F.2d at 1068 (“The
Fenslage plaintiff did not ... seek modification of the custody
order.... The only determination for the federal court was
whether the defendant violated the custody order and the damages
resulting from that violation.”)”)(citing Fenslage, 629 F.2d at
relationship with the child, and had caused the plaintiff to
suffer emotional distress.
Ervin, 2009 WL 50169, at 3.
the defendant sought dismissal based on the domestic relations
exception, arguing that her ex-husband’s allegations revealed
“essential[ly] a custody dispute” that had been inappropriately
“transformed” into a tort action, and pointing out that the
parties were already involved in two ongoing state court cases in
which they were litigating their custody and visitation rights.
The court found the husband’s claims fell outside “the
limited scope of the domestic relations exception,” stating,
[The defendant’s] motion is defectively premised on her
mischaracterization of [the plaintiff’s] claims as
asserting custody, visitation, and parenting issues
which [he] seek[s] to litigate through this action.
Properly construed, [his] claims do not seek to litigate
parental, custodial, or visitation rights, to challenge
or modify any existing custodial or visitation decree,
to enforce any decree, or to challenge the validity of
any prior decree. See McIntyre, 771 F.2d at 1318. [The
plaintiff’s] claims instead seek compensation for [the
defendant’s] alleged interference with [his] established
visitation rights, and [his] relationship with [the
child]. [He] alleges [the defendant] has tortiously
interfered with [his] established rights under an
existing custody and visitation decree. Such claims are
sufficient to establish the existence of diversity
jurisdiction. McIntyre, 771 F.2d at 1317–18.
Ervin, 2009 WL 50169, at 4.
See also Drewes v. Ilnicki, 863 F.2d
469, 471 (6th Cir. 1988) (holding that federal court had
jurisdiction over diversity lawsuit alleging that former spouse
committed intentional infliction of emotional distress by
interfering with visitation rights and by interfering with the
plaintiff's employment); Wasserman v. Wasserman, 671 F.2d 832, 835
(4th Cir. 1982) (former wife’s diversity action for torts of child
enticement, intentional infliction of emotional distress and civil
conspiracy based on allegations that ex-husband removed children
from plaintiff’s custody and concealed their location and
prevented them from contacting or returning to plaintiff did not
fall within exception as the plaintiff was seeking a determination
of present or future rights as to custody or visitation, which
matters had already been definitively resolved by the state
Like the claims in McIntyre and Ervin, Swain’s claims in this
case for alleged negligent and/or intentional infliction of
emotional distress, and for negligence and gross negligence in
obstructing his relationship with his minor son, do not fall
within the domestic relations exception.
Swain does not ask this
court to determine custody or visitation rights or to modify the
Chancery Court’s determination on these matters.
Rather, like the
plaintiffs in McIntyre and Ervin, he seeks compensation for his
ex-wife’s alleged interference with and obstruction of his
established visitation rights and relationship with his minor son.
The domestic relations exception does not foreclose this court’s
adjudication of these claims.
In Cole v. Cole, 633 F.2d 1083 (4th Cir. 1980), also cited by
the Court with approval in Ankenbrandt, 504 U.S. at 703 n.6, 112
S. Ct. at 2215 n.6, the Fourth Circuit reversed the district
court’s order which relied on the domestic relations exception to
dismiss a former husband’s claims against his ex-wife for
malicious prosecution and abuse of process, arson and conspiracy
In reversing, the court stressed that the
domestic relations exception does not apply merely because there
are intrafamily aspects to the claims; instead, a court “must
consider the exact nature of the rights asserted or of the
Cole, 633 F.2d at 1088-89.
the nature of the claims at issue led the court to conclude that
the case did not present any true domestic relations claims.
The alleged breaches were not of duties which arose
solely from family relations law: “The duty to abstain from
malicious prosecution, from abuse of process, from arson, and from
conversion does not arise out of or require, in order to give rise
to the duty, a present or prior family relation.”
Id. at 1988.
“[D]eciding this case would not require the court either to adjust
family status or to establish duties under family-relations law or
to determine whether or not such duties had been breached”; “the
claims asserted could have arisen between strangers, and certainly
between people with no marital relationship whatever”; and the
asserted causes of action “do not require the existence of any
rule particularly marital in nature as a substantial ingredient to
give them vitality.”
These same considerations lead the
court to conclude that the domestic relations exception is
inapplicable and does not divest the court of jurisdiction over
Based on all of the foregoing, it is ordered that defendant’s
motion to dismiss is denied.
SO ORDERED this 7th day of June, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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