Addington v. Addington
Filing
17
OPINION AND ORDER OF DISMISSAL granting 4 Motion to Dismiss for Failure to State a Claim; denying 5 Motion for Sanctions; mooting 14 Motion to Dismiss; striking 9 Amended Complaint. Case terminated on March 12, 2013.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIAM CURTIS ADDINGTON,
Plaintiff,
VS.
TERESITA D. ADDINGTON a/k/a
TERESITA D. CANTU,
Defendant.
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§
§
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§
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CIVIL ACTION H-12-1090
OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced cause, in
essence alleging that Defendant Teresita D. Addington is wrongfully
claiming the federal income tax dependent exemption deduction,
presumably under 26 U.S.C. § 152(e)(1), for two minor children, are
Defendant’s motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6)(instrument #4) and motion
for sanctions (#5), and Defendant Christina Brooke Tarrer’s motion
to dismiss (#14).
This case was filed on April 11, 2012.
On October 12, 2012,
Plaintiff filed an Amended Complaint (#9) without leave of Court
adding as named defendants Maria Elena Cantu (Defendant’s mother),
Christina Brook Tarrer (the children’s former nanny), and the
United States of America.
There is no evidence in the record that
Plaintiff ever served Maria Elena Cantu or the United States, and
neither has made an appearance, nor has Plaintiff filed a motion
for default. Defendant Christina Brooke Tarrer who was served, was
voluntarily dismissed without prejudice pursuant to her motion
(#14) and Plaintiff William Curtis Addington’s stipulation (#15) on
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January 3, 2013 (#16).
is MOOT.
Therefore Tarrer’s motion to dismiss (#14)
Moreover, the Court strikes the amended Complaint for
failure to obtain leave of Court to file it and for failure to
serve the other two new Defendants, as well as its lack of
jurisdiction over this matter, as explained below.
Defendant Teresita D. Addington’s motion to dismiss and motion
for sanctions address the Original Complaint.
Standard of Review
“When a motion to dismiss for lack of jurisdiction ‘is filed
in conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before addressing
any attack on the merits.”
Crenshaw-Logal v. City of Abilene,
Texas, No. 11-10264, 2011 WL 3363872, *1 (5th Cir. Aug. 4, 2011),
quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001);
see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
(5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3).
757, 762
If a complaint
could be dismissed for both lack of jurisdiction and for failure to
state a claim, “the court should dismiss only on the jurisdictional
ground under [Rule] 12(b)(1), without reaching the question of
failure to state a claim under [Rule] 12(b)(6).”
Crenshaw-Logal,
2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).
The reasons behind this practice are to
preclude courts from issuing advisory opinions and barring courts
without jurisdiction “‘from prematurely dismissing a case with
prejudice.’”.
Id., citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at 161.
Rule 12(b)(1) allows a party to move for dismissal of an
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action
for
lack
of
subject
matter
jurisdiction.
The
party
asserting that subject matter exists, here the plaintiff, must bear
the burden of proof for a 12(b)(1) motion.
161.
(1)
Ramming, 281 F.3d at
In reviewing a motion under 12(b)(1) the court may consider
the
complaint
alone;
(2)
the
complaint
supplemented
by
undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of
disputed facts.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981).
Federal courts “‘must consider jurisdiction sua sponte if not
raised by the parties.’”
Arena v. Graybar Elec. Co., Inc., 669
F.3d 214, 223 (5th Cir. 2012), citing Howery v. Allstate Ins. Co.,
243 F.3d 912, 919 (5th Cir. 2001).
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
pursuant
When a district court reviews a motion to dismiss
to
Fed.
R.
Civ.
P.
12(b)(6),
it
must
construe
the
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
requires
more
‘grounds’
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
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of action will not do . . . .”
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v. Twombly, 127
(2007)(citations
omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Federal
Practice
Id. at 1965, citing 5 C. Wright & A. Miller,
and
Procedure
§
1216,
pp.
235-236
(3d
ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”).
“Twombly jettisoned the minimum
notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . .
(1957)[“a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief”], and instead required that a complaint allege enough facts
to state a claim that is plausible on its face.”
St. Germain v.
Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts to state a claim to relief that is plausible on its face.’”),
citing Twombly, 127 S. Ct. at 1974).
“‘A claim has facial
plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.’”
Montoya v. FedEx Ground Package System,
Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal,
129 S. Ct. 1937, 1940 (2009).
Dismissal is appropriate when the
plaintiff fails to allege “‘enough facts to state a claim to relief
that is plausible on its face’” and therefore fails to “‘raise a
right to relief above the speculative level.’”
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Montoya, 614 F.3d
at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v.
Iqbal, 129 S. Ct. at 1940, the Supreme Court emphasized that “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”
Relevant Law
Section 151 of the Internal Revenue Code allows a tax payer to
claim exemptions for dependent children.
Section
152(c)
individual
who
allows
a
is
dependent.”
a
deduction
for
26 U.S.C. § 151(c).
exemption
Section
152(a)
for
“each
defines
a
“dependent” to include a “qualifying child,” i.e., one who must (1)
bear a specified relationship to the taxpayer (e.g., must be the
taxpayer’s child), (2) have the same principal place of abode as
the taxpayer for more than one-half of such taxable year, (3) must
meet certain age requirements, and (4) must not have provided over
one-half of his support for the taxable year at issue.
Id. §
151(c) and § 152(a).
There are special rules applicable to divorced or separated
parents about which parent may claim the dependency exemption
deduction for a child.
Section 152(e)(1) provides that generally
the custodial parent shall be entitled to the dependent children
deduction.
Section 152(e) provides an exception to § 152(e)(1) by
permitting the non-custodial parent to claim the exemption if “the
custodial parent signs a written declaration [Form 8332] . . . that
such custodial parent will not claim such child as a dependent” and
“the noncustodial parent attaches such written declaration to the
noncustodial
parent’s
return
for
the
taxable
year.”
152(e)(2)(A),(B).
Original Complaint’s Key Allegations
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Id.
§
The complaint asserts that this Court has federal question
jurisdiction under 26 U.S.C. §§ 6001-6116 and 6401-6432.
Plaintiff was married to Defendant, with whom he had two
children, both still minors.
On June 25, 2009 Plaintiff filed for
divorce in the 312th Judicial District Court, Harris County, Texas,
Cause No. 2009-40260.1
On August 29, 2009 he was appointed
temporary sole custodian of the two children, while Defendant was
allowed limited access to and possession of the minors with no
overnight visits.
Defendant was not ordered to pay child support.
The children have lived continuously with Plaintiff, who is the
only parent providing financial and other support.
On July 29,
2011 the family court modified its August 29, 2009 order to grant
Defendant, as the non-custodial parent, standard visitation every
other week and visitation for certain holidays.
Plaintiff states
that Defendant has not paid child support as ordered by the judge
presiding over the divorce proceedings and has consistently failed
to visit the children.
The gravamen of Plaintiff’s complaint is that from 2009 to
2011 Defendant has claimed the minor children as her dependents on
her federal income tax, as well as other child tax credits, and
wrongfully received the tax refunds. At no time during this period
have the children resided with Defendant as she is prohibited from
having them reside with her as the non-custodial parent, nor did
she provide any financial or other support for the children.
She
has not executed and delivered IRS form 8332 to Defendant releasing
1
The record is not clear whether the divorce is final at this
point.
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his claim for exemption for the minor children as custodial
parent.2
2011,
Plaintiff filed his tax returns for years 2009 through
rightfully
claiming
his
minor
children
as
qualified
dependents.
Defendant’s Motion to Dismiss (#4)
Plaintiff argues that Title 26 of the United States Code
relates to matters for which the Internal Revenue Service (“IRS”)
maintains jurisdiction and only the Secretary of the Treasury can
bring suit under it.
She maintains Plaintiff lacks standing as a
private individual to bring actions on behalf of the agency.
Moreover, Plaintiff conclusorily claims that Plaintiff fails
to state a plausible claim under Rule 12(b)(6)for wrongful claiming
of dependents on federal tax returns.
2
Plaintiff seems confused here.
As explained in Duby v.
Commissioner of Internal Revenue, No. 6765-02, T.C. Memo 2002-33,
2003 WL 301788, *2 (U.S. Tax Ct. Feb. 13, 2003), citing Miller v.
Commissioner, 114 T.C. 184, 190, 2000 WL 309121 (U.S. Tax Ct.
2000),
The “noncustodial parent” may claim the child as a
dependent if any one of the following statutory
exceptions is satisfied:
(1) Pursuant to section
152(e)(2), the custodial parent signs a written
declaration that such custodial parent will not claim
such child as a dependent, and the noncustodial parent
attaches such written declaration to the noncustodial
parent’s return for the taxable year; (2) pursuant to
section 152(e)(3) there is a multiple support agreement
between the parties as provided in section 152(c); or (3)
pursuant to section 152(e)(4), there is a qualified pre1985 instrument providing that the noncustodial parent
shall be entitled to any deduction allowable under
section 151 for such child.
Sec. 152(e).
The
declaration required under section 152(e)(2) must be made
either on a completed Form 8332 or a statement conforming
to the substance of Form 8332.
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Court’s Decision
The Court concludes that as a matter of law it lacks subject
matter jurisdiction over this case.
The Internal Revenue Code defines who is entitled to a federal
income tax exemption for dependent children.
In the Interest of
J.G.Z., 963 S.W. 2d 144, 150 (Tex. App.--Fort Worth 1997, no pet.);
In the Interest of C.N.S. 955 S.W. 2d 448, 449 (Tex. App.--Fort
Worth 1997, no pet.); Kittelson v. Kittelson, No. 05-00-01063-CV,
2001 WL 687745, *1 (Tex. App.--Dallas June 20, 2001).
Although
federal law preempts state law in the determination of who is
entitled to the child dependancy exemption deduction from federal
income taxes,3 however, state law applies in the context of a state
court’s determination of child support in the dissolution of a
marriage or separation.
“Family relations are a traditional area of state concern.
Moore v. Sims, 442 U.S. 415, 435 (1979).
“The whole subject of
domestic relations of husband and wife, parent and child, belongs
to the laws of the states, and not to the laws of the United
States.”
Ex
parte
Burrus,
136
U.S,
586,
593-94
(1890).
Traditionally federal courts have left the issues of domestic
relations to the state courts.
Estate of Merkel v. Pollard, 353
Fed. Appx. 88, 92 (5th Cir. Nov. 16, 2009), citing Elk Grove Unified
Sch. Dist. v. Newdow, 542 U.S. 1, 13 (2004).
interstate conflict here.
Moreover there is no
The Fifth Circuit has recognized that
3
See In re J.G.Z., 963 S.W. 2d 144 (Tex. App.--Texarkana
1998, no writ); In the Interest of C.C.N.S., 955 S.W. 2d 448 (Tex.
App.--Fort Worth 1997, no writ); Lystad v. Lystad, 916 S.W. 2d 617
(Tex. App.--Fort Worth 1996, no writ).
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Texas has a significant interest in its divorce law.
DuBroff, 833 F.3d 557, 562 (5th Cir. 1987).
Dubroff v.
Federal courts defer
to state courts in two ways to avoid adjudication of domestic
issues.
Id.
First, under the domestic relations exception,
federal courts sitting in diversity jurisdiction, are deemed to
lack jurisdiction to “‘issue divorce, alimony, and child custody
decrees.’”
(1992).
Id., citing Ankenbrandt v, Richards, 504 U.S. 689, 703
Alternatively, as is the case here, because there is no
diversity jurisdiction, where the domestic relations exception
technically does not fit, abstention under Burford v. Sun Oil Co.,
319 U.S. 315 (1943) is employed “‘when a case presents ‘difficult
issues of state law bearing on policy problems of substantial
public import, whose importance transcends the result in the case
then at bar.’”
Id., citing Ankenbrandt at 705-06, citing Colorado
River Water Conservation District v. United States, 424 U.S. 800,
814 (1976).
“‘Such might well be the case if a federal suit were
filed prior to effectuation of a divorce, alimony, or child custody
decree, and the suit depended on a determination of the status of
the parties.’”
Id., citing Ankenbrandt, at 706.
While it is not
clear whether Plaintiff and Defendant’s divorce and child custody
proceedings have reached final judgment, “timely and adequate
state-court review” of ongoing child support matters and future
need for any modification are subject to the state court’s review.
In DuBroff, 833 F.3d at 562 (divorce), and Begum v. Miner, No. 9920027,
213
Fed.
Appx.
639
2000
WL
554953,
*3
n.6
(5th
Cir.
2000)(adoption), the Fifth Circuit found Burford abstention in
family law matters appropriate.
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Merkel, 354 Fed. Appx. at 94.
Texas has established a comprehensive system of family courts with
experience and expertise for judicial review, which federal courts
lack.
Id. at 95.
The
state
trial
court
in
a
divorce
proceeding
has
the
responsibility for allocating child support obligations between
spouses,
which
necessarily
dependency exemption.
involves
the
federal
income
tax
The state court judge has the authority to
determine, establish, adjust, and modify the dollar amounts of
child support to be paid by one parent to the other.
While he must
recognize and follow the federal law regarding the right to claim
the dependent child tax exemption, he may also consider the tax
consequences when he decides on other child support obligations of
each parent.
This Court does not have the documents from the state court
divorce proceedings and does not know what happened in them or
whether the divorce is final.
Plaintiff needs to apply to that
court for a determination whether he is the custodial parent, and
if the state court determines that he is, enforce his right through
that court, and its appellate system, and the Internal Revenue
Service.
If, on the other hand, he has followed the appropriate
path to allow Defendant to take the exemption and now wishes to
withdraw his permission, he should follow appropriate procedures.
Regardless, this Court finds it lacks subject matter jurisdiction
to address this child support dispute.
For the reasons indicated above, the Court
ORDERS that Christina Tarrer’s motion to dismiss is MOOT. The
Court further
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ORDERS that the Amended Complaint (#9) is STRICKEN.
In
addition the Court
ORDERS that this case is DISMISSED without prejudice pursuant
to Federal Rule of Civil Procedure 12(b)(1). Finally, because both
parties appear somewhat confused about the law, the Court
ORDERS that Defendant’s motion for sanctions (#5) is DENIED.
SIGNED at Houston, Texas, this
12th
day of
March , 2013.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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