Blackwell v. Blackwell

Filing 5

OPINION AND ORDER by Chief Judge Claire V Eagan that this case is remanded to the Tulsa County District Court. ; remanding case (terminates case) ; finding as moot 2 Motion for Leave to Proceed in Forma Pauperis (Re: 1 Notice of Removal ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

SHERRI D. BLACKWELL,
Plaintiff,
v.
MALCOLM M. BLACKWELL,
Defendant.

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Case No. 11-CV-0477-CVE-TLW

OPINION AND ORDER
On August 2, 2011, Malcolm M. Blackwell filed a notice of removal (Dkt. # 1) attempting
to remove his divorce proceedings from Tulsa County District Court to this Court. He alleges that
the state court violated his federal constitutional rights by issuing a divorce without his consent and
by holding him in contempt of court.1 It appears that Malcolm Blackwell is challenging the validity
of a divorce decree that has already been issued by the state court and that he is asking this Court
to set aside the divorce decree. He is also requesting leave to proceed in forma pauperis in this
Court. Dkt. # 2. Malcolm Blackwell is proceeding pro se and, consistent with Supreme Court and
Tenth Circuit precedent, the Court will construe his pro se pleadings liberally. Haines v. Kerner,
404 U.S. 519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).

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Malcolm Blackwell argues that the State of Oklahoma violated his First Amendment right
to free exercise of religion by granting a divorce, because he did not consent to the divorce
and “my wife and I toke [sic] an oath before god for better or worst so help us god.” Dkt.
# 1, at 4.

On May 31, 2011, the state court issued a divorce decree dissolving the parties’ marriage and
awarding sole custody of their child to Sherri D. Blackwell.2 Malcolm Blackwell refused to sign
the divorce decree. Dkt. # 1-1, at 28. On the same day, the state court held Malcolm Blackwell in
contempt for non-compliance with the state court’s orders and sentenced him to four months
imprisonment. Dkt. # 1-1, at 18. However, the term of imprisonment would not be imposed if
Malcolm Blackwell cooperated with his ex-wife in the sale of their former marital residence, and
he was ordered to appear before the state court on July 28, 2011 to verify that he had complied with
the state court’s order in regard to the sale of the marital residence. Id. at 18-19. After repeatedly
giving notice to Malcolm Blackwell, the state court waived the requirement of his signature on the
divorce decree and approved the decree as fully executed on July 1, 2011. Id. at 28. According to
the docket sheet in the divorce proceedings, Malcolm Blackwell did not appear for his contempt
hearing on July 28, 2011 and a bench warrant was issued for his arrest. Instead of complying with
the state court’s orders in the divorce proceeding, he is attempting to remove his divorce proceeding
to federal court and lists 15 “counts” in his notice of removal identifying alleged violations of the
United States Constitution.3 Dkt. # 1, at 1-6.
Federal courts are courts of limited jurisdiction, and there is a presumption against the
exercise of federal jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005);
Penteco Corp. Ltd. Partnership--1985A v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir.

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Malcolm Blackwell was not eligible for child custody or unsupervised visitation due to his
history of domestic violence. Dkt.. # 1-1, at 21.

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There is nothing in the record to suggest that these “counts” were raised before the state
court in a pleading. A notice of removal is not a substitute for a pleading and Malcolm
Blackwell has cited no authority suggesting that a case becomes removable merely because
a party asserts federal claims or defenses in a notice of removal.
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1991). The party invoking federal jurisdiction has the burden to allege jurisdictional facts
demonstrating the presence of federal subject matter jurisdiction. McNutt v. General Motors
Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 182 (1936) (“It is incumbent upon the plaintiff
properly to allege the jurisdictional facts, according to the nature of the case.”); Montoya v. Chao,
296 F.3d 952, 955 (10th Cir. 2002) (“The burden of establishing subject-matter jurisdiction is on the
party asserting jurisdiction.”). The Court has an obligation to consider whether subject matter
jurisdiction exists, even if the parties have not raised the issue. The Tenth Circuit has stated that
“[f]ederal courts ‘have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party,’ and thus a court may sua sponte raise the
question of whether there is subject matter jurisdiction ‘at any stage in the litigation.’” 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006).
The Court lacks jurisdiction over this case, because this case falls squarely within the
domestic relations exception to federal jurisdiction. “It is well-established that federal courts lack
jurisdiction over ‘the whole subject of the domestic relations of husband and wife . . .’” Hunt v.
Lamb, 427 F.3d 725 (10th Cir. 2005). Family relations are traditionally a matter of state law and
federal courts do not have jurisdiction to resolve substantive family law issues. United States v.
Bigford, 365 F.3d 859 (10th Cir. 2004). The Supreme Court has stated that the domestic relations
exception applies only to cases “involving the issuance of a divorce, alimony, or child custody
decree” and a federal court has jurisdiction over tort claims incidentally involving family law issues.
Ankenbrandt v. Richards, 504 U.S. 689, 704 (10th Cir. 1992). A federal court also has jurisdiction
to hear broader constitutional claims concerning the validity of a state statute on a matter of family
law, but the federal court may not become involved in the actual divorce or child custody

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proceedings. Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1112 (10th Cir. 2000). The Court has
reviewed the notice of removal and documents from the state court proceeding, and it is clear that
this is an ordinary divorce case in which Sherri Blackwell sought a divorce from Malcolm
Blackwell. Malcolm Blackwell is challenging the validity of the divorce decree and certain
procedural aspects of his divorce proceedings, but these types of claims are not exempt from the
domestic relations exception to federal jurisdiction. Although Malcolm Blackwell was held in
contempt by the state court, this contempt citation was issued for his failure to comply with court
orders in the divorce proceedings and he has not shown that the contempt proceedings were separate
from the divorce proceedings.
Even if the case did not fall within the domestic relations exception, the Court has found no
independent basis for subject matter jurisdiction over this case and removal of the case was
improper. The notice of removal does not identify any basis for this Court to exercise jurisdiction
over this case. Dkt. # 1, at 1-6. Based on state court records attached to the notice of removal, it
is apparent that both parties are citizens of Oklahoma and the Court could not exercise diversity
jurisdiction over the case. 28 U.S.C. § 1332. This is a divorce case arising under state law and
federal question jurisdiction does not exist merely because Malcolm Blackwell asserted defenses
based on federal law. See Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1220 (10th Cir. 2011)
(“that the defendant possesses a federal defense is not sufficient to invoke federal question
jurisdiction”). Thus, the Court does not have jurisdiction to hear this case under 28 U.S.C. § 1331.
The Court also notes that a divorce decree is final state court judgment, and this Court may not hear
claims directly challenging the validity of a state court judgment. See Read v. Klein, 1 Fed. Appx.
866 (10th Cir. Jan. 9, 2001) (divorce decree is a final state court judgment and any direct challenge

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to the validity of a divorce decree must be pursued in the Oklahoma appellate courts).4 The Court
finds no basis to exercise subject matter jurisdiction over this case, and it was improperly removed
to this Court.
IT IS THEREFORE ORDERED that this case is remanded to the Tulsa County District
Court.
IT IS FURTHER ORDERED that Malcolm Blackwell’s Motion for Leave to Proceed In
Forma Pauperis and Support Affidavit (Dkt. # 2) is moot.
DATED this 16th day of August, 2011.

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Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1: 10th Cir. R. 32.1.
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