Rae v. Rae

Filing 33

MEMORANDUM DECISION and Order denying 23 Plaintiff's Motion Seeking a Grant of Relief from Judgment to Rule 60(b) ; granting 24 Defendant's Motion to Dismiss. Each party shall bear its own fees and costs.The Clerk of Court is directed to close this case. Signed by Judge Dale A. Kimball on 2/28/2015. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ALLISON RAE,
Plaintiff,
vs.

MEMORANDUM DECISION
AND ORDER

JOHNATHAN ANDREW RAE,
Case No. 2:14CV704 DAK
Defendant.

This matter is before the court on Defendant Johnathan Andrew Rae’s Motion to
Dismiss and on Plaintiff Allison Rae’s Motion Seeking a Grant of Relief from Judgment Pursuant
to Rule 60(b).1 A hearing on the motions was held on January 21, 2015. At the hearing,
Plaintiff was represented by James K. Ord III, and Defendant was represented by Jon M.
Hogelin. Before the hearing, the court carefully considered the memoranda and other
materials submitted by the parties. Since taking the matter under advisement, the court has
further considered the law and facts relating to these motions. Now being fully advised, the
court renders the following Memorandum Decision and Order.
According to the Complaint, Defendant filed a divorce action in a Kansas court on
January 15, 2013, and Plaintiff, who was allegedly not properly served, filed a divorce action in
Utah on February 15, 2013. On June 14, 2013, the Kansas court entered a Decree of Divorce.
Plaintiff tried to invalidate the Kansas Decree but failed. The Utah case is still ongoing. On
September 29, 2014, Plaintiff filed the instant lawsuit.
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Docket Nos. 23 & 24.

In this lawsuit, Plaintiff essentially seeks relief from the Decree of Divorce issued by the
Kansas court, arguing that the court’s jurisdiction was obtained “under fraud and false
pretenses perpetrated on that court by Mr. Rae and his attorney.” She asks this court to
declare that the Kansas Default Decree of Divorce is void for lack of jurisdiction and that it
violated her due process rights. She also requests that criminal charges be filed against Mr.
Rae and his divorce attorney.
On October 7, 2014, soon after Plaintiff filed her Amended Complaint and “Emergency
Motion to Remove [Kansas and Utah Divorce] Cases to Federal Court, this court issued an
Order denying the motion and explaining that this court had no authority to “remove” cases
from state courts.2 In the Order, this court also explained that “this court has no jurisdiction
over matters involving domestic relations,” citing Ex Parte Burrus, 136 U.S. 586, 593-94 (1980)
(“[t]he whole subject of the 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”) and Barber v. Barber, 62
U.S. 582, 584 (1858) (“[w]e disclaim altogether any jurisdiction in the courts of the United
States upon the subject of divorce, or for the allowance of alimony”). The Order stated that
“[i]t is now well established that federal courts do not have diversity jurisdiction to grant a
divorce or annulment, determine support payments, or award custody of a child.” See e.g.,
Vaughan v. Smithson, 883 F.2d 63 (10th Cir. 1989). Therefore, “this court could not exercise
jurisdiction over Plaintiff’s divorce cases in any event.”

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Docket No. 21.
2

Plaintiff then filed a Second Amended Complaint,3 which she called a “First Amended
Complaint And Request to Remove Case from Kansas State Court and Request for Declaratory
Judgment and Request for Injunctive Relief.”4 Two weeks later, she filed the instant motion for
relief from the Kansas Decree of Divorce.
Soon thereafter, Defendant filed the instant Motion to Dismiss, arguing that Plaintiff’s
Complaint is not appropriately brought before this court because Plaintiff’s request for
removal is untimely, there is lacking subject matter jurisdiction, an attempt to forum shop, and
a failure to include necessary parties, such as the State of Kansas, which Plaintiff alleges has
violated her constitutional rights. Therefore, Defendant asks this court to dismiss the
Amended Complaint with prejudice and award Defendant attorney’s fees based upon the
improper filing of the Complaint. Alternatively, Defendant asks that the court “remand” this
case.5
Having considered the parties’ memoranda and oral argument, the court grants
Defendant’s Motion to Dismiss and denies Plaintiff’s Motion “Seeking a Grant of Relief from
Judgment Pursuant to Rule 60(b). This court does not have jurisdiction to declare void the
Kansas Divorce Decree - nor can it reach out and “remove” a case from the Kansas court or the

3

This amended Complaint was filed without leave of court or stipulation of the
Defendant, but at this point, the court will deem it to be properly filed.
4

Docket No. 22.

5

The court cannot remand a case such as this one, where no case has actually been
removed, and thus, there is no court to which the case could be “remanded.” Plaintiff has
merely requested that this court remove two different state court cases, which is not a legally
recognized procedure.
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Utah court. The Younger abstention doctrine6 is applicable here: “Federal courts should not
interfere with ongoing state court proceedings ‘by granting equitable relief such as injunctions
of important state proceedings or declaratory judgments regarding constitutional issues in
those proceedings’ when the state forum provides an adequate avenue for relief.” Braverman
v. New Mexico, 2011 WL 6013587 (D.N.M. October 19, 2011) (citing Weitzel v. Div. of
Occupational & Prof’l Licensing, 240 F.3d 871, 875 (10th Cir. 2001).
Moreover, the Tenth Circuit has recognized that, “the matrimonial exception to
diversity jurisdiction, as articulated in Barber v. Barber, 62 U.S. 582, 584 (1859), remains valid
and precludes federal courts from exercising jurisdiction over cases involving divorces, alimony,
or child custody.” Brown v. District of Columbia, 1997 WL 235605 (10th Cir. May 8, 1997) (citing
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) and Williams v. Lambert, 46 F.3d 1275, 1283
(2d Cir. 1995)). The Tenth Circuit went on to say that, “[m]oreover, it is well established that
federal courts lack subject matter jurisdiction to review a state court judgment, even if the
state judgment is challenged as unconstitutional.” Id. (citing District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 486 (1983)).
In this case, Plaintiff has presented no authority to suggest that these binding legal
principles do not apply in this case or that this court otherwise has jurisdiction over this action.
Therefore, the action must be dismissed.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss

6

See Younger v. Harris, 401 U.S. 37 (1971).
4

{Docket No. 24] is GRANTED, and Plaintiff’s Motion Seeking a Grant of Relief from Judgment
Pursuant to Rule 60(b) [Docket No 23] is DENIED. Each party shall bear its own fees and costs.
The Clerk of Court is directed to close this case.
DATED this 28th day of February, 2015.
BY THE COURT:

Dale A. Kimball
United States District Judge

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