Gary McDougald Cross-Appellant v. Vivian L. Jenson, Cross-Appellee, Clarence Ehli, Cross-AppelleeGary McDougald Cross-Appellant v. Vivian L. Jenson, Cross-Appellee, Clarence Ehli, Cross-Appellee
Lead Opinion
This case arises out of the entry of conflicting child custody decrees by the Florida and Washington state courts. In 1980 Congress enacted the Parental Kidnapping Prevention Act (hereinafter “the PKPA”), P.L. 96-611, 94 Stat. 3566, codified at
FACTS
On June 1, 1979, the Circuit Court of Calhoun County, Florida entered a divorce decree dissolving the marriage of appellant Vivian Jenson (then Vivian McDougald) (hereinafter referred to as “the mother”) and appellee Gary McDougald (hereinafter referred to as “the father”). The divorce decree provided that the couple’s son, Jeri-my, who was then three years old, would live with each parent for alternating six month periods for the next three and one-half years. Once Jerimy reached school age, his mother was to have custody of him during the school year, with the father receiving summer visitation rights. In accordance with the custody provisions of the decree, Jerimy lived with his father from June 23, 1979 through December 23, 1979, and then from June 23, 1980 through late December of that year. Jerimy and his father lived in Blountstown, Calhoun County, Florida through all of the first six month period and most of the second one. Some time in November of 1980, the father and Jerimy then moved to Dothan, Alabama, a town located approximately 70 miles from Blountstown and about 20 miles from the Florida state line. Jerimy returned to his mother in Washington at the end of his second six month stay with his father.
Both parents appeared personally before the court in Florida and testified. At the conclusion of the hearing, the Florida judge ruled from the bench that primary custody should be awarded to the mother, with the father enjoying summer and holiday visitation rights. Before the court’s order was reduced to writing and entered, however, the father filed a motion for rehearing, and the matter was set for further hearing on October 9, 1981. At that hearing, the mother’s Florida attorney was permitted to withdraw, and the mother was directed to secure new counsel before the next hearing. The next hearing was held on December 11,1981, but the mother did not attend, nor was she represented by counsel. On January 5, 1982, the Florida court issued a written Order of Modification, in which it reversed its earlier ruling from the bench and awarded primary custody of Jerimy to the father, with the mother receiving summer and holiday visitation rights.
After the Florida court’s October hearing the mother renewed her efforts to secure a modification of the original Florida custody decree in Washington. On November 21, 1981, the mother filed a memorandum regarding jurisdiction in the Washington court. After the December hearing in Florida, but before the Florida court had issued its written order, the Washington court contacted the Florida court, contending that Washington had the better claim to jurisdiction over the case and noting that a hearing was set for January 20, 1982 on that and other issues. The Florida court responded with a copy of its written order of January 5 and a letter setting forth its view of the case. The father filed an objection to the Washington court’s assertion of jurisdiction and was represented by Washington counsel in the Washington proceedings.
The Washington court held a hearing and, on May 20, 1982, ruled that it had jurisdiction over the matter. The court set a custody hearing and ordered that Jerimy remain in the custody of his mother during the pendency of the Washington proceedings. The Washington court subsequently awarded primary custody of Jerimy to his mother, with four week summer visitation rights to the father. Pursuant to that arrangement, the Washington court permit
Apparently relying on the Florida custody order, the father did not return Jerimy to his mother at the end of the summer. Relying on the contrary Washington court orders, the mother and her father (appellant Clarence Ehli) retrieved Jerimy from Florida on April 14,1983 and took him back to Washington. Arrest warrants were issued for the mother and grandfather, who were charged with abducting Jerimy with the intent to remove him from the jurisdiction of the Florida courts.
In July of 1983 the Washington court granted the father an' order to show cause why the Washington court should not restore the custody and visitation provisions of the original 1979 Florida divorce decree. On October 28, 1983 the Washington court entered an order essentially restoring the parties to the position they were in before the father sought the modification he was eventually granted in Florida. The mother was awarded primary custody of Jerimy, with the father enjoying summer visitation rights. On January 6, 1984, the father moved to vacate the Washington orders on the basis of the supremacy and full faith and credit clauses of the United States Constitution, as well as on jurisdictional grounds. That motion was denied on February 10, 1984.
On February 23, 1984, the father filed this action in federal district court. The father’s amended complaint stated four separate claims. Named as defendants were the mother, the grandfather, and a Washington state court judge who was involved in the proceedings in that state. In Count I, the father named as defendants the mother and the Washington judge and sought damages and other relief pursuant to
On the father’s motion for summary judgment, the district court granted the Washington state court judge's motion to dismiss the father’s claims against him in their entirety for lack of personal jurisdiction. McDougald v. Jenson,
The mother failed to deliver Jerimy immediately to the father. On Thursday, November 15, the father filed an emergency
The mother delivered Jerimy to the father as ordered and filed a timely notice of appeal from the declaratory judgment and the TRO.
The father filed a timely notice of cross-appeal, challenging the district court’s dismissal of Counts I, II, and III. By agreement of the parties, the appeal against the Washington state court judge has been dismissed. The father has filed a motion to dismiss the mother’s appeal. That motion has been carried with the case and decided on this appeal.
DISCUSSION
We consider the father’s motion to dismiss the mother’s appeal in Part I below.
In Part II, we address the remaining issues presented by the mother’s appeal. In Part III, we resolve the claims raised on the father's cross-appeal.
I. THE FATHER’S MOTION TO DISMISS THE MOTHER’S APPEAL
In support of his motion to dismiss the mother’s appeal in its entirety, the father makes the following three arguments. First, the father argues, a TRO is not appealable, and even if the instant TRO is characterized as an injunction, the appeal therefrom is moot, since the order expired by its terms on November 21, 1984. Further, the father argues, any such preliminary order must be considered to have merged with the final permanent injunction order, so that appeal is proper only from the order of permanent injunction. Second, the father argues, this court lacks jurisdiction over the mother’s claims as they relate to the permanent injunction because she agreed to the terms of the injunction in a signed stipulation, and because she never filed or intended to file a notice of appeal from the permanent injunction. Third, the father argues, the mother’s appeal from the declaratory judgment is moot because even if this court were to reverse that judgment, the permanent injunction, from which no appeal has been or can be taken, would remain in effect granting custody of Jerimy to the father. As a result, the father concludes, any ruling this court made on the declaratory judgment action would be purely advisory.
In response to the father’s first argument above, the mother claims the order labeled a TRO was instead an injunction commanding her to perform an affirmative act and, as such, is appealable. If the order is characterized as a TRO, the mother urges us to exercise our inherent power to review an otherwise unreviewable order under the All Writs Act,
Regarding the permanent injunction, the mother argues that the stipulation she entered into agreeing to the terms of the injunction should not be held to constitute consent to the entry of such an order. Rather, the mother claims she never consented to the entry of the injunction and that she only agreed to the terms of the order to provide a stable environment for Jerimy for the duration of this legal battle. In support of this construction of the stipulation, the mother notes that the stipulation by its terms provided as follows:
The parties hereto agree that this document is entered into without prejudice to the appellate rights of either side and does not constitute a waiver of objection to the propriety of the Court’s Orders herein in any fashion.
The mother argues on this appeal that the permanent injunction must be reversed because it was “fundamental error” for the district court to enter the injunction eight days after the mother’s notice of appeal from the preliminary injunction and declaratory judgment had been filed, which the mother argues had the effect of divesting the district court of further jurisdiction to enter such an order in the case. The mother also argues that where, as here, a prenotice of appeal preliminary injunction has been appealed, the appeal should ■ be deemed taken also from any post-notice permanent injunction that should not have been entered.
In response to the father’s third argument above, the mother argues that her appeal from .the declaratory judgment is not moot even if the permanent injunction is not properly before this court because if we reverse the declaratory judgment, she can subsequently move to set aside the permanent injunction pursuant to
We conclude that the mother’s appeal from the TRO entered in this case, whether denominated a TRO or a preliminary injunction, is not properly before the court. It is well settled in this circuit that a TRO is not ordinarily appealable. Fernandez-Roque v. Smith,
Militating in favor of the appealability of the TRO entered in this case, however, is “a slowly emerging doctrine that temporary restraining order rulings may be appealable as interlocutory injunction orders if the appellant can disprove the general presumption that there is no irreparable harm.” 16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure § 3922, at 37 (1977). Thus it has been suggested that “if the TRO goes beyond simply preserving the opportunity to grant affirmative relief and actually grants affirmative relief, an appeal may be taken.” Id. See Adams v. Vance,
In the context of this case, the consequences of the district court’s order were such that an immediate appeal of the TRO may well have been appropriate. The mother had not yet filed a notice of appeal from the court’s declaratory judgment when the TRO was issued, but an appeal was still available and was taken with her appeal from the TRO. Thus the possibility remained that the district court would be found by this court to lack the legal authority to issue an injunction ordering delivery of Jerimy from his mother in Washington to his father in Florida. Alternatively, the court may have been found to lack subject matter jurisdiction over the case at all. In either event, the district court may have been unable to remedy the obviously severe harm to the mother’s interest occasioned by the physical transfer of Jerimy from Washington, where she retained custody of the child pursuant to a state court judgment apparently enforceable in state court there, to Florida, where the father could enforce a state court decree granting custody to him. In light of the uncertain state of the law concerning the district court’s ability to remedy the effects of its order if it turned out to be in error, an immediate appeal prior to the carrying out of its terms may have been necessary to protect the rights of the mother and therefore appropriate under the circumstances.
Any such appeal from the TRO, however, has since been rendered moot. The mother delivered Jerimy to the father, the TRO expired by its terms, and a permanent injunction was subsequently entered ordering compliance with the Florida decree, as modified consistently with the provisions of
We also cannot exercise our appellate jurisdiction over the permanent injunc
We have previously noted that “it is well settled that an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding intent was effectively to appeal.” Kicklighter v. Nails by Jannee, Inc.,
Finally, we conclude that the mother’s timely appeal from the declaratory judgment entered by the district court is properly before us and that it is not rendered moot by her failure to appeal from the order entering a permanent injunction to replace the TRO. The appeal cannot be considered moot simply because further action will be required on remand before our decision can have any practical effect. It is clear that no impediment to obtaining further relief consistent with our decision will exist on remand, regardless of our decision. See
II. THE MOTHER’S APPEAL
The mother raises a number of claims, several of which are unrelated to the PKPA, in her challenge to the district court’s order on summary judgment granting declaratory judgment in favor of the father on Count IV of his amended complaint. We will consider the issues the mother raises that involve the PKPA, as codified in
A. The Availability of Federal Relief
Raising an issue of first impression in this circuit, the mother argues strenuously on this appeal that the district court lacked subject matter jurisdiction over the father’s claims under
The operative provisions of the PKPA, as codified, impose upon the appropriate state authorities the following obligations:
(a) The appropriate authorities of every State shall enforce according to its terms ... any child custody determination made consistently with the provisions of this section by a court of another State.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.
1. Subject matter jurisdiction over the complaint.
The father sued for and was granted a declaratory judgment in this case. Under the Declaratory Judgment Act,
[By enacting the Declaratory Judgment Act,] Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, “jurisdiction” means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act____ The Declaratory Judgment Act allow[s] relief to be given .by way of recognizing the plaintiff’s right even though no immediate enforcement of it [is] asked. But the requirements of jurisdiction — the limited subject matters which alone Congress has authorized the District Courts to adjudicate — were not impliedly repealed or modified.”
Id. at 671-72,
In Flood v. Braaten,
In Heartfield v. Heartfield,
In this case, the father has alleged the federal question jurisdiction conferred in
Article III, Section 2, of the Constitution extends the judicial power of the federal government to all cases “arising under ... the Laws of the United States.” Such cases are commonly referred to as “federal question” cases. In 1875 Congress conferred upon the federal courts original jurisdiction over federal question cases in language virtually identical to that found in the Constitutional provisions. See
Thus the broad theory of earlier cases construing the constitutional provisions— that a federal question exists if federal law forms an ingredient of the cause of action, whether as part of the plaintiff’s ease or as part of the defense, see Osborn v. Bank of the United States,
It is perhaps for this reason that more courts have chosen to apply the test described by Justice Cardozo in Gully v. First National Bank,
Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit. The tax here in controversy if valid as a tax at all, was imposed under the authority of a statute of Mississippi. The federal law did not attempt to impose it or to confer upon the tax collector authority to sue for it. True, the tax, though assessed through the action of the state, must be consistent with the federal statute consenting, subject to restrictions, that such assessments may be made____ That there is a federal law permitting such taxation does not change the basis of the suit, which is still the statute of the state, though the federal law is evidence to prove the statue valid.
The argument for the respondent proceeds on the assumption that, because permission is at times preliminary to action, the two are to be classed as one. But the assumption will not stand. A suit does not arise under a law renouncing a defense, though the result of the renunciation is an extension of the area of legislative power which will cause the suitor to prevail____ We recur to the*1479 test announced in Puerto Rico v. Russell & Co., [288 U.S. 476 , 483,53 S.Ct. 447 , 449,77 L.Ed. 903 (1933)]: “The federal nature of the right to be established is decisive — not the source of the authority to establish it.” Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far. By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. Louisville & Nashville R. Co. v. Mottley, [211 U.S. 149 ,29 S.Ct. 42 ,53 L.Ed. 126 (1908) ]. With no greater reason can it be said to arise thereunder because permitted thereby.
Gully
If we follow the ascent far enough, countless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by-
Id. at 118,
The Court’s reasoning in Gully, if not the decision itself, raises difficult questions about this case that must be addressed before we may comfortably conclude that the district court’s assertion of federal question jurisdiction was appropriate. Federal law now determines the validity of the state court’s assertion of jurisdiction in a child custody matter, and in that respect it plays an important role in determining the validity of the state court judgment itself. The important question raised by Gully, however, is whether in a coercive action seeking straightforward enforcement of the Florida state court judgment, the federal law on which the father would rely to establish the validity of the state court judgment would be a necessary element in his case in chief, or whether it would necessarily come into his case only in anticipation of the mother’s defense.
To obtain coercive relief against the mother in this case, the father would be suing to enforce a state court judgment resolving matters governed almost exclusively by state law. Further, we have not yet implied a coercive federal cause of action under
The Supreme Court has on various occasions avoided deciding whether the full faith and credit clause of the Constitution or the full faith and credit statute,
In
2. The court’s statutory authority to grant the federal relief obtained.
The mother argues that, even if the district court possessed the subject matter jurisdiction necessary to entertain the father’s complaint, it was not statutorily authorized to grant the- remedy the father obtained. The mother has argued her case in this regard as if the father were asking the court to imply a private cause of action, not otherwise statutorily authorized, to enforce compliance with the provisions of
The Declaratory Judgment Act provides in relevant part as follows:
In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
The father is without question an “interested party,” and this is undoubtedly a “case of actual controversy,” within the meaning of the Declaratory Judgment Act. See Maryland Casualty Co. v. Pacific Coal & Oil Co.,
B. The District Court’s Application of
The district court found the custody order entered by the Florida court to have been entered consistently with the requirements of
The Florida court had jurisdiction over the matter when it entered the original divorce and custody decree in 1979, consistent with the provisions of
Under Florida law, a Florida court retains jurisdiction to modify an original decree if:
It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
*1482 2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
The mother’s principal challenge to the district court’s finding that the provisions of subsection (d) of
The thrust of the mother’s argument on this appeal is not to contest the district
Unfortunately, Congress did not define “residence” for the purposes of
Thus when determining whether a Florida custody modification order has been made consistently with the requirements of
Because everyone must at all times have a domicile somewhere, it is well settled that a domicile, once established, continues until it is superceded by a new one. See, e.g., Warren v. Warren,
The district court recounted the evidence bearing on the father’s domicile after leaving Florida for Alabama in 1980 as follows:
Plaintiff McDougald testified that he left Blountstown, Florida, and moved to an apartment near Dothan, Alabama, in order to be nearer to his place of employment at the Farley Nuclear Plant of Alabama Power Company. Dothan is ap*1484 proximately 20 miles from the Florida line, and McDoúgald testified that, because he was then working extensive overtime at the plant, he rented the apartment to avoid the added strain of driving back and forth while working the additional overtime. After living in the apartment for about nine months, the plaintiff then moved to a mobile home located across the state line in Georgia, a location that is also approximately 20 miles from Florida. This Georgia location was, apparently, also relatively close to his work at the Farley Nuclear Plant. Altogether, plaintiff resided at these two locations out of the state of Florida for approximately one and one-half years.
During the time that plaintiff was living on a daily basis outside the state of Florida, he testified that: he retained his home in Blountstown, Florida; he retained his Florida driver’s license; he remained a Florida registered voter; he retained his church membership in Blountstown; and he regularly returned to Blountstown where his parents lived. He testified that he always intended to return to Blountstown, and considered himself to always be a Florida resident during this period. He is in mid-1984, and has been for about two years, physically residing in Florida.
McDougald v. Jenson,
C. Other Claims Raised by Mother’s Appeal
The mother argues, on the basis of positions taken by the father in the Washington state court litigation, that he is now barred from challenging the validity of that court’s order under
Before we begin our analysis of the mother’s claim preclusion argument, we pause to reject without further analysis the mother’s claim that the father is equitably estopped from challenging the jurisdiction of the Washington courts because of his attempts to minimize the losses he had already suffered there by effectively seeking a reinstatement of the terms of the original 1979 Florida divorce and custody decree. The mother cites no Washington law in support of this claim. Instead she argues broadly that (1) the applicable rules of equity bar a party from appealing that which he has consented to below, see Little. Rock Water Works Co. v. Barret,
We find the mother’s claim preclusion argument more troubling. Although the father contested jurisdiction over the cause of action in Washington from the outset, he did not raise any claim under
The mother argues that the father’s claims under
Under Washington law, it is clear that the mother’s attempt to ascribe res judicata effect to the father’s failure to assert a claim under
The mother also argues that the district court should have dismissed the father’s complaint against her for lack of personal jurisdiction and insufficiency of service of process. The mother has not seriously argued that she lacked the “minimum contacts” with Florida required to bring her before the district court, see International Shoe Co. v. Washington,
The father first attempted service of process by mail pursuant to
The mother also argues that the district court erred when it refused to grant her motion to dismiss or transfer the case for improper venue. The general venue statute provides as follows:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
The father argues that venue was proper in Florida on either of two theories. First, he contends, venue in Florida was surely proper on Counts I and III of the amended complaint, which alleged constitutional and state law torts occurring in Florida. The father then further argues that since venue in Florida was proper as to at least one count of the complaint, it was also proper as to all interrelated counts properly joined. See 1 Moore’s Federal Practice II 0.140[5] (1983). The mother responds that only venue over the claim on which the father prevailed should be evaluated on this appeal, as to do otherwise would invite easy abuse of the venue statute by artful pleading and use of the federal joinder rules. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3808 (1976). Second, the father argues, even if only the claim on which he prevailed is considered, venue was proper in Florida as to that claim. Finding the latter theory sufficient to determine the mother’s claim on this appeal, we need not decide whether venue properly laid in Florida over another of the father’s claims would have sufficed to establish venue there over the remainder of the case.
Though the legislative history ofsection 1391(b) fails to suggest what the draftsmen thought about the question of where a claim arises, 1 Moore’s Federal Practice 110.142[5.-2], at 1423 (2d ed. 1979), when the statute was amended to extend venue to a district “in which the claim arose,” the purpose was to “facilitate the disposition of ... claims by providing ... a more convenient forum to the litigants and witnesses involved.” H.R.Rep. No. 1893, 89th Cong., 2d Sess. 2 (1966). Thus, “where the claim arose” should “be ascertained by advertence to events having operative significance in the case, and a commonsense appraisal of the implications of those events for accessibility to witnesses and records.” Lamont v. Haig,590 F.2d 1124 , 1134 (D.C.Cir.1978). This is not to suggest that only a single district can satisfy the statutory standard with respect to any given claim. Often, the factors deemed determinative might well indicate the suitability of several forums. See, e.g., Commercial Lighting Products, Inc. v. United States District Court,537 F.2d 1078 , 1080 (9th Cir.1976); Tefal, S.A. v. Products International Co.,529 F.2d 495 , 496-97 (3d Cir.1976); Gardner Engineering Corp. v. Page Engineering Co.,484 F.2d 27 , 32-33 (8th Cir.1973). In any case, the court should not oppose the plaintiffs’ choice of venue if the activities that transpired in the district where suit is brought were not insubstantial and the forum is a convenient one balancing the equities and fairness to each party. Lamont v. Haig, supra,590 F.2d at 1134 n. 62; Weil v. New York State Department of Transportation,400 F.Supp. 1364 , 1365 (S.D.N.Y.1975).
Florida Nursing Home Association v. Page,
Under the standard set forth above, it is clear that venue could properly be laid in Florida over the father’s claims under
III. THE FATHER’S CROSS-APPEAL
The father has cross-appealed from the district court’s dismissal of Counts I, II, and III of his amended complaint. We address each of those claims in turn below.
Count I of the father’s complaint sought relief pursuant to
Count II of the father’s amended complaint sought an injunction enforcing the Florida modification order by its terms; federal jurisdiction was premised on diversity of citizenship. The district court correctly concluded that, at least where federal jurisdiction is founded only upon diversity of citizenship, a federal district court may not entertain a suit seeking enforcement of a child custody order by its terms as long as that order remains modifiable in any manner. See Flood v. Braaten,
Finally, the father claims that the district court erred in dismissing Count III of his amended complaint, which alleged diversity jurisdiction and sought damages in tort for the surreptitious removal of Jerimy from Florida by the mother and grandfather. The district court dismissed the claim because the court found that the father’s allegations did not state an actionable tort under Florida law, and because the court found the domestic relations exception to its diversity jurisdiction applicable to bar the suit, if a cause of action were found to exist. The father concedes that no Florida case has recognized the existence of the cause of action he seeks to pursue, but argues that the basis in Florida tort law for such an action is clear, and that we should assume Florida will follow those courts that have allowed tort actions such as the one he seeks to bring. See DiRuggiero v. Rodgers,
Without passing on the applicability of the domestic relations exception to a tort action such as the one the father seeks to bring, we hold that the district court did not err in dismissing Count III of the amended complaint, as we are not persuaded that a Florida court would consider the allegations of Count III to state a claim upon which relief could be granted. In 1945, the Florida legislature abolished “the right of action heretofore existing to recover sums of money as damages for the alienation of affections, criminal conversation, seduction or breach of contract to marry.” Laws 1945, c. 23138, § 1, codified at
CONCLUSION
For the reasons set forth in Part I of the opinion above, the father’s motion to dismiss the mother’s appeal is GRANTED insofar as it challenges our jurisdiction to consider the propriety of any order other than the order of the district court granting declaratory relief in favor of the father on Count IV of the amended complaint and dismissing the remainder of the father’s claims. The mother’s appeal from the TRO entered in this ease is therefore DISMISSED. The father’s motion to dismiss insofar as it concerns the mother’s appeal from the order of the district court granting declaratory relief is DENIED. For the reasons set forth in Parts II and III above the decision of the district court under review is AFFIRMED in its entirety.
Notes
. The parties dispute whether the Washington court, by agreeing to stay its proceedings, relinquished its claim to jurisdiction over the custody dispute. On May 11, 1981, the court commissioner presiding over the Washington proceedings wrote to the circuit judge presiding over the Florida proceedings "to confirm that given your strong argument for retaining jurisdiction of this case, I am willing to stay the Pierce County show cause set for May 14, 1981 until such times as you have had a chance to hear the parties [sic] testimony.” Appellant argues that the Washington court, by staying the proceedings, meant to do only that and did not by implication entirely abandon its claim to jurisdiction over the action still pending there. When the Washington court later attempted to reassert its claim to jurisdiction over the matter, however, the Florida court responded that "after correspondence and two or three telephone calls your commissioner agreed that Florida had original jurisdiction and that since Mr. McDougald was then in Alabama and Mrs. McDougald in Washington that Florida should have jurisdiction.” The federal district court stated in its opinion in this case that "the courts in both Florida and Washington had agreed that Florida would proceed to exercise jurisdiction over the custody matter.” McDougald v. Jenson,
. The Washington court's order denying the father’s motion to vacate was affirmed on appeal to the Washington Court of Appeals in an unpublished opinion on November 21, 1984.
. Before delivering Jerimy to the father on Friday, November 16, appellant presented to this court by telephone an emergency motion to stay the TRO. By direction of the panel hearing the motion, the parties were advised that no action would be taken by the court before the appropriate motion and supporting papers were filed. See Eleventh Circuit Rule 17(b)- Appellant’s telephonic application for stay was therefore denied.
. The Eleventh Circuit has adopted as precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard,
. In particular, we note that the father’s motion, filed and acted upon before the time for taking an appeal from the district court's amended declaratory judgment had run, was supported only by affidavits from the father and his attorney; that it was acted upon without notice to the mother on the same day it was filed; and that the order’s stated duration was only six days.
. The statute provides as follows:
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other state would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
. The court in Heartfield distinguished the situation before it from the facts of Flood v. Braaten,
. It is, of course, no barrier to the application of subsection (d) of
. The statute, in its entirety, reads as follows: 61.1308. JURISDICTION
(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding, or
2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(c) The child is physically present in this state and:
1. The child has been abandoned, or
2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
2. It is in the best interest of the child that a court of this state assume jurisdiction.
(2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination,
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
. As the district court noted, to construe the statute’s residency requirement to refer to actual residence, no matter how transitory or temporary, "would encourage forum shopping for child custody modification, contrary to the obvious intent of
. This circuit has adopted as precedent all decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc.,
. In In re Marriage of Brown,
When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation except if:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.
Restatement (Second) of Judgments § 12 (1982), quoted in In re Marriage of Brown,653 P.2d at 603-04 . This indication in dicta does not alter our conclusion that, as a matter of Washington law, the father’s challenge to the validity of the Washington judgment on the basis of the jurisdictional provisions of section 1738A may be entertained in this action. Where an erroneous assertion of subject matter jurisdiction, if allowed to stand, "would substantially infringe the authority of another tribunal,” an exception to the Second Restatement’s general rule of finality is recognized. See id. The Reporter’s Note and commentary accompanying section 12 of the Second Restatement do not discuss the contemplated application of this exception in any detail, but we are persuaded that the exception would reach the assertion of jurisdiction by the Washington court that is at issue in this case. This view is consistent with the interpretation given the provision in Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L.Rev. 534, 555-57 (1981), which was cited with approval in In re Marriage of Brown,653 P.2d at 603 .
Concurrence Opinion
concurring specially:
The writer of the Court’s opinion has done an able and exhaustive job of dealing with all the mystifying legal concepts that are involved in this complex litigation. The legal issues are necessarily so puzzling and absorbing that the parties and their attorneys can forget that they are dealing with matters as basic as the right of a divorced father and mother to continue a loving and meaningful relationship with their young son. I hope it is not bad judicial form to suggest to the parties that there are better ways to look to the future welfare of their child than a continuation of their expensive, transcontinental legal battles, which have now gone on for nearly seven years.
I concur.