Lynne E. Solomon, Parent and Natural Guardian of Patricia Solomon v. John F. Solomon, Jr

Wetherill, Norristown, O’Hey Horsey, & Lynne E. Solomon (“plaintiff”) and Pa., appellee. for Solomon, John F. Jr. (“defendant”) were DUSEN, Before VAN GIBBONS and married on August 1958. Three chil- HUNTER, Judges. Circuit dren were born of this union. Marital difficulties arose and consequently, OPINION OF THE COURT 22, 1968, November husband and wife signed a separation agreement providing, DUSEN, Judge. VAN Circuit alia, inter the wife have custody appeal is from the district court’s This children, the that' the husband pay a grant summary judgment in favor of stipulated weekly amount for child sup- defendant-appellee. The district court port, and subject to certain restric- that — plaintiff’s diversity suit ruled that tions —the granted husband be visitation upon a non-support, based in contract rights. Paragraph 2(g) of agreement in Penn- executed provided part: sylvania, could not be maintained “ (cid:127) n (cid:127) courts under circumstances event par holding ties cannot premised resolve of this record. the issue of Hus poli- band’s the federal courts’ traditional future upon rights visitation between themselves, in “domestic re- they intervention cy hereby agree to sub mit any dispute cases. We conclude that the dis- lations” for resolution in the Court authority in court acted within its Common trict Pleas Montgom ery County, holding that this case could not be main- Pennsylvania. par Both will, We ties herewith agree in federal court. how- tained to submit volun ever, tarily to entry the district court’s reverse of said Court summary granting such an order proceedings.” (Emphasis added.) with to enter and remand directions litigation.’ the time of unreasonable not has of the United States

1. The Court Supreme Youngdahl Contracting v. C. E. Co. recognized forum-selec Central validity recently A.2d Inc., 122, 133, 418 Pa. negotiated Co., & contracts. clauses in fairly tion . . Co., Off-Shore M/S Bremen Zapata 1907, 1914, 32 L.Ed.2d 92 S.Ct. 1, 12, “We need not consider whether this di- (1972), said: where the Court case we are bound versity to apply rule, for both federal and Pennsylvania was made in an state choice of that forum “The increasingly courts have arm’s-length negotiation and recent rec- years by experienced ognized the same which the Su- principle absent some businessmen, sophisticated countervailing it has now compelling preme reason becoming recog- It is more adopted. en- widely be honored parties should nized that for reasons of business or conve- the courts.” forced bargained Contracting nience the have may parties Co. v. Casu Maryland In Central litigation arising 1966), all out of their ac- 344-45 complex 367 F.2d Co., alty under contract shall be drawn tivity into court said: long nothing So as there Penn- there reviewed the earlier “The unreasonable in such a there is no provision the mod- decisions and announced sylvania viewing judi- an affront to basis as in Pennsylvania. rule which is prevail ern cial which must be stricken down. power, while that, rule is modern and correct ‘The On the it should be contrary, respected not contract prevent parties private asserting of the intention of responsible expression its a court long so as there is no change nevertheless, parties proof venue, rules of will its one of the provisions put parties and which venue is proper in which disadvantage an unreasonable thereby should decline proceed has justice. subvert the interests freely cause when parties with the litigation “The Pennsylvania rule, agreed therefore, shall be conducted repre- and we sents the correct accept where principle, such another forum Moreover, parties agreed Para- granted specified rights was a mechanism for the resolu- graph required post 17 to was disputes: she $5,000.00 of other condition that bond the children from court’s remove paragraph respect “Except express ap without written disputes, Agreement, all 2(g) of The bond final proval the court. interpreta- differences, questions 13, 1969, after defend ly posted on June construction, disa- tion, questions of contempt petitioned had for a cita ant which problems and greements other against plaintiff. While the case tion this out of any in manner arise the pending, plaintiff and children was the separation of Agreement in to violation of the Florida moved J. to Victor be referred parties shall on Subsequently, Novem court’s order.3 L. Roberts, Esquire, and William 10, 1969, was in plaintiff declared ber If Jr., Esquire, for decision. O’Hey, the was contempt, judgment on bond the they shall refer they agree cannot for plain a bench warrant granted, and agreeable to person to a third arrest, outstanding, remains which tiff’s decision, shall include which them for (1) issued.4 The above-mentioned was costs incurred. of the allocation 19, 1969, May state order recited “ mother, Lynne E. . . the parties that . agree “The to by abide the 13, Solomon, April stated Court on decision thus reached . . . .”2 jurisdic 1969, that she submitted separation Montgomery was Coun tranquility of' Courts ” 14, 1969, (37a), (2) Pennsylvania defend- . . ty, On March . and short-lived. corpus 10, 1969, action state court order re brought a habeas November ant “ Com- County Lynne . E. Court cited that . . Solomon Montgomery the his visitation the Pleas, contending having hearing that stated at initial on mon hearing 13, 8, 1969, A infringed. again August and on June had been rights 1969, 11, 3, plaintiff 1969, 1969, and April again August and on that on was held jurisdiction of by would abide the herself she submitted By County County, Pennsylvania Court. Montgomery Montgomery ” 1969, 19, (40a).5 defendant . . Defendant con- May court order NOW, November, day this brings “AND 10th apply us to This and here. 1969, Lynne having E. provision Solomon been or- question the ac- whether that 19, by May under date of only dered the Court brought in the courts be tion must father, grant rights County 1969 to visitation to is unreasonable. New York Solomon, Jr., and, having F. failed to John face it there is no unreason- “On so, having do been provision.” ordered the Court ableness 11, August 1969 not to remove the chil- sitting Pennsylvania on district courts Federal dren from the of the Court with- Pennsylvania find con that would have held Court, out the written consent of the sent be a basis See AAM to Order, deliberately having Transmissions, Hagen she that violated Inc. v. Automatic CO Lynne having been 1142, (E.D.Pa.1968); E. Solomon notified barth, F.Supp. proceedings be Nascone, 967, these held Spatz 978-81 1969, Rule and Order dated October (W.D.Pa.1973). upon specifically in which was served her Pennsylva- 2. The was executed in accordance with Order of the Court domiciled, nia, parties Order, were both then where under the terms and, Paragraph pursuant con- Lynne contempt to was to be is E. Solomon declared Pennsyl- strued in accordance with the laws of issued bench warrant directed Judgment granted vania. and executed. on bond dated June 1969.” sought 3. Plaintiff hau earlier revision of the language makes clear The above rights. petition visitation This was dismissed held facts 6, 1969, following plaintiffs on October obligation grant visitation move to Florida. of, independent rights to husband was not with, appeal directly was from these orders. 4. No taken was the financial but connected provision on in the bond order state court November This entered. (39a 40a): language, alia inter contains this — Montgomery County Court of Com after No- non-payment cedes granted The district court mon Pleas. he did so contends but vember summary judgment the motion for materially had plaintiff after only lacked ground breached adjudicate involving a cause of action rights. his denying appeal relations.”8 This fol “domestic plaintiff secured residence After lowed. Florida, a divorce de defendant obtained II. August and remarried.6 cree the children moved from plaintiff Traditionally, Newark, Delaware. On De Florida great suit, evinced 13, 1973, reluctance filed cember entertain involving cases citizenship, relations. upon based This premised is not doctrine explicit court for the Eastern the federal statutory language limiting seeking money jurisdic the Pennsylvania, District of authority tional of federal non-support, specific en courts. damages In deed, jurisdictional the agreement, separation the statute forcement of utilized by plaintiff to bring grants suit equitable original relief.7 This appropriate jurisdiction to by plaintiff in her federal district instituted courts “in suit was all civil actions”9 parent jurisdic where there is capacity as representative diversity tional amount children and in of guardian of the citizens natural hip.10. Rather, right. Defendant submitted al U.S.C. 1332. § own the her jurisdictional exception for summary judg ternative motions domestic re dismissal, judicially carved, lations has been ment, stay proceedings of begin or ning litigation extending with and through of in pending resolution a se- the di- indicate when relations’ and thus is a matter which does not domestic The record 6. n importantly, traditionally by there is granted. More left the federal courts has been was vorce purview de- the divorce that of the state courts.” whatsoever no evidence separa- any portion incorporated of cree diversity original speci- 9. The statute of 1789 grounded agreement. Plaintiff’s suit “all suits of a civil nature at fied common law arrangement. upon contractual equity 24, September Act in . . . .” previ- plaintiff had 1789, 11, noted 73, It should 1 Stat. § 78. Various commenta- 7. nonsupport proceedings in ously that, two explained initially, instituted tors have refusal County Montgomery of Common Court grounded federal was to exercise 1970, 5, first, while March filed part upon that, The Pleas. at least the rationale since Florida, residing was dismissed plaintiff was historically relations cases were contempt of court. plaintiff was courts, they because in ecclesiastical heard did not 3, 1972, second, after December filed compass provision. The come within of this Delaware, continued was See, Wright, Courts, moved g., e. Federal 2d ed. 25§ plaintiff purged generally time as until such p. phraseology (28 84. This was maintained contempt. decisions demon- These 41(1), 1948, ed.) herself § U.S.C. until when Con- suggestion contrary dis- of the gress revised Title 28 of the United strate — senting opinion States the state court Code, phrase and the “all civil actions” was —-that support and visitation prepared 25, 646, to treat Act of June substituted. c. wholly distinguishable. Both ac- actions The Stat. 930. Revisor’s Notes to 28 U.S.C. Reciprocal upon Uniform suggest were based purpose tions the sole § of the Support 62 P.S. 2043.1 § Act. produce conformity Enforcement amendment was to decide seq. are not called We language et of Rule 2 of the Federal Rules of 2043.4, suits, under 62 P.S. in these legislative history whether The Civil Procedure. by imposable imposed support “duty way suggests 1948 amendment in no agreement, separation change law” consisted particular by was motivated a desire to Pennsylvania law and obligation under jurisdictional expand scope or contract agreement, Plain- or both. independent of the Spindel Spindel, the federal courts. dis- appeal the March free to (E.D.N.Y.1968). tiff was missal, at 801 contempt, finding as well as jurisdiction- 10. There is no as to either appellate courts. citizenship al amount or in this Specifically, court concluded the district case. “ present ‘involves (48a): . . ríes of dicta have no decisions of the United Supreme over child custody States suits. emphasized: Court. Barber, (21 How.) In Barber v. 62 U.S. subject “The whole of the domestic re- (1859), 16 L.Ed. 226 the Court enter- wife, lations of husband parent tained a suit filed in federal child, belongs to the laws of the by residing wife Wisconsin New states, and not to the laws of husband, York her who lived in (Emphasis added.) United States.” sought Her suit Wisconsin. to enforce a 593-94, 10 S.Ct. at 853. the New York state decree Simms, Simms granted her and alimo- (1899), 44 L.Ed. 115 the Court Although ny. ruling the district appeal heard an from a divorce decree jurisdiction, properly court had exercised alimony award which had been af- the Court commented: Supreme firmed the territorial first “Our remark is—and we wish it juris- of Arizona. It concluded that remembered —that this is to be not a dietionally restrictive dictum of Barber asking suit the court for the allowance applicable was not alimony. That has been done territorial courts or to the United States competent Supreme appellate Court’s court Wisconsin was asked to inter- only those courts. statutory prevent fere to being decree from upon appeals restriction from the territo- defeated fraud. Supreme rial Courts to the United States any juris- altogether disclaim “We Supreme Court was that the matter the in the courts of United $5,000.00. diction exceed In holding divorce, subject of or upon the award, alimony States that the but not the di- alimony or as an decree, allowance of the for requirement, vorce met that the vinculo, or to to divorce incident Court remarked: and board.” bed “It therefore be assumed as indu- at 584. 62 U.S. bitable that the Circuit Courts of the jurisdiction, United States have no ei- Daniel Taney and Justices Justice Chief divorce, of ther suits for or of claims unplacated by Campbell remained and alimony, for whether made in a suit dissented, arguing and that caveat this divorce, original proceed- absolutely ju- courts had no the ing equity, before a decree for such subjects the of divorce over risdiction alimony in a state court. Within the alimony. Union, States of the the subject whole Burrus, re 586, In 136 U.S. of the domestic S.Ct. relations of husband (1890), 34 L.Ed. 500 wife, involved parent child, a dis- belongs pute custody over child in which the State, the laws of the and not to the father applied child’s had in the federal laws the United In States. re Bur- court of rus, Nebraska for a writ 586, 593, 136 U.S. [10 corpus to habeas recover the child from 34 L.Ed. 503].” grandparents. of her the care The dis- 20 S.Ct. at 60. granted and, trict court the writ when grandfather relinquish the refused to the jurisdiction exception The territorial child, contempt him for cited and com- prohibition the broad jail. grandfather mitted him to The pe- suits in federal relations arose directly Supreme titioned Court again in De La Rama v. De Rama, La writ of corpus, contending for a habeas 201 U.S. 26 S.Ct. 50 L.Ed. 765 illegally imprisoned that he was because Supreme the Court the district court had assuming erred in Philippine Islands of the reversed di- jurisdiction custody father’s case. alimony vorce decree and and allowance Supreme agreed, Court explaining granted awards the trial court. Cit- state courts of Ohio. The Simms, concluded that Ohio state the Court ing granted appeal:11 temporary alimony trial court to hear the jurisdiction had objection ju relator’s that it lacked rule long-established has been “It petition His prohi risdiction. for writ of States United was denied Supreme bition Court subject jurisdiction no Ohio, and the Supreme United States ali- divorce, the allowance or for granted certiorari to consider Court rela original proceeding as an mony, either that, argument III, tor’s under Article aof divorce or an incident chancery, Constitution,12 Section Su by reason both separation, had preme original wife cannot the husband fact Explaining earlier domestic relations states citizens of different usually be noting parties’ cases and suit con- marriage relation long as so in a for divorce federal district court had some- has been (a rule which tinues earlier, Justice been dismissed Holmes’ cases), in recent relaxed what affirming courts, opinion, the Ohio rea for di- a suit reason further soned: pecuniary involves no in itself vorce quoted “The words from the Consti- value. tution do not of themselves and with- above stated general rule “But out more exclude application has the State. . . The statutes do courts, ap- or of territorial purport to exclude the State court over jurisdiction of pellate Courts from except where courts.” those they grant to the Courts of the 307-08, at 486. 26 S.Ct. United States. they Therefore do not Supreme Court of present affect the case if it be true as reversed Islands was Philippine has unquestioned been for three-quar- Peckham, Holmes, White Justices ters a century the Courts of jurisdictional dissenting Day the United States have no question. over divorce. If when the Constitu- tion was pri- adopted the court reaffirmed the A unanimous common under- standing rela- was in domestic the macy of state domestic rela- tions of husband non-diversity setting in parent and wife in a and suits tions and child were 280 U.S. matters Popovici Agler, v. reserved to rel. the Ohio ex States, there (1930). is difficulty 74 489 no L.Ed. in con- 50 S.Ct. struing Roumania, the had instrument Relator, accordingly Vice-Consul and not much in later dealing who with a resident of Ohio the stat- married alimony utes.” divorce and for sued him Simms, proceeded the to con- Court Unlike 11. value whatever unless the facts connected alimony as the decree as well the divorce with sider the allowance right or refusal of such explained: open appellate award. were to review in the court. Although appeal part an Simms, from a of a “While, the decree in v. Simms as indicated bring up part not appealed does the not alimony, although an in one sense for decree from, yet, decree, if the whole divorce, must be re- distinct for is a to the suit incident appeal, viewed order to decide n money, the such for a sum of final appeal brings up an the appeal entire record. good ground . . therefore is stronger The case is even appeal decree, yet, where the part the the where from is from (Citations taken the (as whole decree.” in this appeal from the whole decree omitted.) decree, part case), the or even 201 at 26 U.S. S.Ct. at 487. alimony separation the or the denial upon depends evi- property conjugal III, pertinent Article Section reads 12. upon right to a di- bears dence part: question vorce, determine we cannot Ambassadors, affecting sufficiency “In all Cases passing of the other without public refusing authorizing di- . . testimony Ministers Consuls supreme original Court shall have Jurisdic- appeal for alimo- from the decree An vorce. right tion.” property be of ny or other' 1024 purged herself of plaintiff 383-84, time at 50 at

280 U.S. S.Ct. 155. such contempt.15 understanding these Nor Our do we accept plaintiff’s us to conclude that contention that a requires divorce cases decree without properly refused to exer more removes this court case from the arena jurisdiction over the instant case. of domestic permits cise relations and the in Supreme import Court’s lan tervention of federal courts to adjudicate cases is that the federal issues unaffected guage in these that decree.16 At jurisdiction parties’ the core of both do not have domes contentions parent-child where except necessary relationship. suits tic relations The di prior state vorce decree effectuation this case did not sever 13 that involving relationship. the same matters judgments There is no evidence incorporated lies dint of the either or where the terms of separation and review of territorial participation merged with it. The cannot be cate state case bar courts have not ren courts.14 any judgment dered exception. support In pay into either narrow gorized which requires ments jurisdiction in this our fact, assumption of invocation of jurisdiction to assure would, recog efficacy. its as the district In Al case Richter, banese v. precisely opposite 161 nized, effect F.2d (3d 689 1947), Cir. we derogate would undermine disclaimed since contempt citation the suit state court’s of an illegitimate both child against putative and its decision to con his father support her action until and education.17 generally That case tinue made clear g., v. e. Cain See, Barber, the dismissal supra. v. of the action Barber Manary (merger (E.D.La.1970) King, since the proper after plaintiff, the decree of decree). sought divorce into divorce, to overturn portions (Article IV, Clause and Credit settlement property Faith into incorporated The Full that de ' Constitution) requires cree. Section courts of decrees relations the domestic 17. We cannot agree with dissenting opin- recognition in other given proper state ion that Albanese case has been “over- 402, 72 342 U.S. Leib, Sutton states. ruled" Carr v. 263 F.2d Wisecup, (1952); Williams L.Ed. 398, 96 1959), which did not cite or discuss 1092, 89 226, 65 S.Ct. Carolina, North single involving stated re- principle (1945); Carolina, v. North Williams L.Ed. peatedly by Court of Supreme the United L.Ed. 207, 87 287, 63 S.Ct. (1859), States since Barber v. Barber, supra said Williams the second the courts of the United States have no “ . . . of 65 S.Ct.: at 1098 U.S., over domestic relations matters. regula- . [the] . system [the] concerning The issue the limitation of federal left has been relations tion of in domestic relations matters was au- given national not the States raised of the briefs filed in this ” n . thority. in court the Carr case. Also the Carr decision ; Simms Rama, La not an supra v. De was en banc La Rama decision. De Furthermore, in 1972, thirteen Simms, years supra. after, dissent’s v. in- Carr had terpretation, overruled Albanese, Al- not appeal did 15. We that plaintiff reiterate banese was cited with this approval court. courts of in the state decisions of these either Magaziner In v. Montemuro, 468 F.2d 782, 787 Pennsylvania. (3d 1972), Cir. language: the court used this agree 16. We cannot language with in Ri any it has been “Traditionally, of fed- policy (E.D.N.Y. Richie, 592, 186 594 v. F.Supp. chie jurisdic- eral courts to avoid assumption 1960), and Manary Manary, F.Supp. litigation. tion in this species ‘The whole (N.D.Cal.1957), which implies subject of the domestic relations of husband do divorce decree facto terminates ipso that a belongs wife, parent child, to the grants jurisdiction to fed mestic relations laws of the states and not to the laws arising issue mari any eral United States.’ In re Burrus, 136 U.S. 586, In our the district view, tal relationship. 593-594, 853, 34 L.Ed. 500 in Richie was assertion court’s Indeed, this court has held explicitly the fact plaintiff’s warranted amply there is no federal in diversity sought to recover a valid state action involving relations case a child. Washington an earlier based upon (3d Albanese v. Richter, 161 F.2d 688 Cir. granted incor decree, Texas, divorce 1947).” agreement. Conversely, a separation porated the fact “Mr. Justice Holmes . classification of a . contin- suit 383-384, in domestic at as one relations does ued 50 S.Ct. at not de [280 U.S.] pend upon existence, 155: impliedly continuation, marriage of a relations Therefore, they do not affect hip.18 case if it true as present be has been unquestioned three-quarters of a holding In that the domestic relations century that the Courts the Unit- applies us, doctrine case before we ed States have no suggest do not mean that a separation divorce. If when the Constitution agreement may never litigated adopted the was common under- by parties federal courts between whom standing was that the domestic rela- there is citizenship. In a par- tions of husband and wife and different custody which the ent and child were matters reserved involved, no child was in which there States, there difficulty is no pending was neither state court action construing the instrument accord- nor an litigate in the state ingly, and not much dealing courts, and in which there was no threat the statutes. that a feuding couple play disposition “We have no question system off other, we conclusion, whether the history might well assume But all not, right Spindel cf. v. Spin dangers

the above are involved in the del, supra, at 802 — 803. present case and lead us to the conclu- a century elapsed More than has since sion that the domestic relations doctrine Barber dictum without intima apply. Burrus, should In re supra. Congressional tion of dissatisfaction. exception relations The domestic beyond the realm of It reasonable powers of jurisdictional that, days belief of congested these historically en- represents dockets, Congress would wish the fed It is true upon us. limitation grained regain eral courts to seek to territory, upon which it rationale unjust if the cession even of 1859 was conceptions shifted from premised has may ified. Whatever Article III of ancient powers ecclesi- regarding permit, accept we thus courts, supra, the see note non- astical interpreta Barber dictum as correct couples, married and the diversity of Congressional grant. tion of divorce, monetary value of a see lack of Rama, supra, to the modern view LaDe that, holding possible “The with one historically have decid- state courts exception, federal was not developed matters and have ed these by the dictum in Barber v. barred Bar- expertise in these a well-known both ber, (21 supra, How.) strong disposing interest cases necessarily does not L.Ed. entail a Wright, Handbook them. See C. of. the district conclusion (2d Federal Courts ed. Law of adjudicated this Nizer, should action. Phillips, Benjamin, 1970). would be difficult to think Rosenstiel, of a & Ballon 490 F.2d Krim jurisdic- invocation of federal 1973), Friendly where Judge used justified was less language pages after here; indeed, Barber, anyone supra, challenged v. than Barber from quoting example why produce an to above at wording page set forth abolished jurisdiction should be or se- opinion: this of separation property agreements Relations, 18. While Clark, generally Domestic see spouses normally will provide between be treated as to that p. refuse 521. We at 16.1 contracts, generally recog- ruling enforceable is incentive, slight, the effect however agreements nized that these purposes will not en- incongruous of with the is of which they encourage See, g., if agreement. forced separation divorce. e. on a limitations Miller, (1925). Miller v. 284 Pa. 131 A. 236 III. hardly have verely curtailed illustration. an so dramatic conceived ruling Our plaintiff cannot resort all, deci- of important Most to the federal judiciary is upon bottomed a difficult of exploration requires sion the domestic relations doctrine. ap- Its which, law York New plication field in this believe, we pro- excep- to proximity its because duces a result consistent with the federal actions, federal matrimonial tion appellate court cases. In addition, re- ordinarily unfa- than more are judges view of the terms particular of this sepa- miliar.” agreement, ration without the necessity interpreting legal their supplied.) ramifications, (Emphasis and the plaintiff declarations to the Judge Friendly opinion, concluding his courts, state buttresses the district court page 521: at comment this made conclusion that the federal courts have inadvert- here has decision “If our jurisdictional no authority to decide the York matri- in New a seam ently rent merits of this case. York the New law, trust we monial repair some speedily will The suit plaintiff’s basis of was not of our injury case. other contract is contention that defendant making.” separation their violated doctrine judge-made Concededly, this Defendant, pay support. his failure But until critics.19 its without is not turn, he concedes terminated or the Su Congress as either time such argues legally but he was payments or emas fit to amend sees Court preme justified doing plaintiff’s so because we are bound exception, this culate rights represented of his visitation denial Supreme Court’s precedent material of contract an earlier breach au of federal weight and the language agreement, which voided entire in the broad area of it to apply thority relating cluding support. the terms application Its relations. stated, Simply defendant’s contractual li sanctity state preserves this contingent ability a determina against protects judgments whether he tion of was denied a contrac piecemeal liti complicated confusing and and, so, right if whether that denial tual repeatedly Although gation. separation material breach was a she “submitted open court stated agreement.21 That re determination court, as of the” state jurisdiction quires as to consideration above, page she seeks to noted rights par area where —an nullify rulings its the federal agreed, paragraph 2(g) under ties action. this agreement, to submit jurisdiction and decision of the Mont justified in con- court was gomery County of Common Court it lacked cluding that Pleas.22 case. g., g., Hernstadt, Hernstadt v. 373 F.2d See, e. v. 20. Spindel, F.Supp. e. See, Spindel 19. 1967) (custody generally and visita (E.D.N.Y.1968). Vestal & 316, 317-18 rights); Blank, Blank v. 320 F.Supp. Limitations Diversity Foster, Implied (divorce (W.D.Pa.1971) remanded action 41 Minn.L.Rev. Courts, Federal Jurisdiction court); Linscott, v. state Linscott however, noteworthy, (S.D. 1951) (proper 804-05 Iowa created or en- the Supreme when agreement). the two narrow settlement exceptions ty even forced in domestic re- federal rule Court, liability of defendant’s majority The question en- cases, lations is, of contract under justices payments from who stiff opposition countered that of course, entirely separate there believed Penn- under for support payments liability his De La Rama these cases. law. Barber, sylvania v. su- Barber Rama, supra; LaDe when the Court occurred Unanimity pra. generally, 22. The authorities con- that, explain ex rel. Popovici Ohio refused agreements tractual to limit Agler, supra.

1027 hands, laches, IV. and a material unclean agreement which excuses breach of 12(h)(3) of the Feder Under Rule performance. Defendant defendant’s (28 U.S.C.), of Civil Procedure al Rules for, counterclaim, among a also asserts subject matter should lack of judg- things, an indebtedness on a other adjudicated by a motion to raised and be ment, a breach of article 4 of the dismiss, summary judg a motion for not agreement respect to securities Brush, See, 143 g., e. Jones v. ment. held for of the chil- funds benefit 733, (9th 1944); Safeguard F.2d 735 relief, By way dren. the counterclaim Mutual Insurance Co. Commonwealth seeks, among things (1) other a declara- 939, Pennsylvania, 946 performance defendant’s be ex- tion that (E.D.Pa.1974). Accordingly, the district cused; (2) accounting an for securities summary judgment court’s order of of the and funds held for benefit favor of defendant will reversed and children; (3) payment enforcement on case will be remanded with instruc (4) any judgment; a set-off sums dismissing tions to enter agreement by reason of due under subject juris want of matter action for breach, (5) plaintiff’s specific en- ap Costs will be taxed diction. provisions forcement of the visitation pellants. pleads agreement. The answer af- juris- firmatively that “The Court lacks GIBBONS, Judge (dissenting): Circuit matter,” subject but diction This contract action. why state this is so. An answer does not Solomon, a Delaware The resi- its puts in issue all to the counterclaim dent, guardian capacities; as sues two allegations. material infants, on her own behalf. of three claim, principally which seeks mon- Her defendant summary moved jurisdictional amount re- ey, judgment, meets and alternatively for a dis- quirement alleg- pursuant of 28 12(b), U.S.C. missal to Rule § Fed.R. defendant, Pennsylvania es that Civ.P. because subject the court lacked resident, jurisdiction. defaulted on installments due The Rule 56 motion ground plaintiff, under a written dated No- was on the provi- vember 1968. The defendant’s an- reason of her default under agree- admits the execution of the sions of the agree- swer November default, ment, ment, pleads alleged contempt denies the cer- and her of an including court, affirmative defenses Montgomery County tain order of the litigation pendency over the same con- was barred unclean hands from ob- troversy taining in the Court of Common Pleas enforcement of the property and Montgomery County, Pennsylvania, money provisions agreement. deprive arbitration them not allow clauses deprive court of effective to are not courts jurisdiction. Contracting Central Co. v. C. have un- it would otherwise Co., Youngdahl 418 Pa. 209 A.2d 810 E. & repre- justice-promoting, provision is less the Mixer, Smith, Pa.Super. (1965); Inc. v. dispute compromise has after the fair sents arisen, (1974). Though 323 A.2d 794 we need to the convenience is tailored clause, enforceability of this not consider held, parties. we have In this compelled to state that there is no we feel had not have courts par- in the record before us that evidence 2(g) paragraph effective or not Whether attempt utilized this mechanism in an ties ques- jurisdiction is a deprive other support payments. their resolve on not reach. we need tion which Contracts, generally 6A Corbin on Paragraph 17 of the (1951, Supp.1962); 1433 and 1445 Re- §§ disputes, than those other that all mandated (ALI), §§ statement of Contracts rights, to be re- relating were 1954, 1965, 1972-73); (1932, Supps.1948, procedure. arbitration-like solved Contracts, (1938 Revised Williston Ed., serve clause would arbitration Whether Vantage Supp.1972). See also Furbee v. circumstances deprive us of Inc., Press, U.S.App.D.C. 464 F.2d question which we need case is of this do It is clear decide. from Norris- miles distant ground the claimed lack of sub- than 50 air town, only for give shall Pennsylvania, she jurisdiction in defendant’s

ject matter month’s advance pendency at least two based Husband motion was and, in the same notice of litigation Montgomery County in the written resolve parties cannot entries attached as court. The docket event future visita- sug- of Husband’s Exhibit B to defendant’s affidavit the issue themselves, they gest rights court action is no between state any dispute for agree to submit longer pending, plaintiff’s attorney hereby urged in the Court of Common so his brief the district court. resolution County, Pennsyl- event, Montgomery any pendency of a state In Pleas agree deprive parties herewith would not Both proceeding vania. voluntarily court of Stanton submit (1877); any proceedings.” Embrey, 23 L.Ed. 983 such of said Court Moore, 16a). 1A J. Federal Practice 0.221 (Appendix 1974). ed. papers suggest that The defendant’s corpus proceeding of his motion was instituted summary habeas filed an selection of judgment, the defendant affida- to this pursuant however, not, plead They' attached the do vit which November clause. bars relief corpus as an exhibit. affi- the habeas judicata estoppel davit that defendant or res averred commenced on a collateral proceeding the counterclaim corpus a state habeas The answer to basis. Montgomery adequately Pleas of not plaintiff Court of Common asserts that required by due County, Pennsylvania process in 1969 to counter with served alleged record does not by process breach of the of law and the plaintiff. conclusively the plaintiff The defendant accused establish that she was. precipitating pro- the state clear on the face of No What is ceeding by denying him his visitation however, agreement, vember rights by threatening to move to custody dealing article with deny another state order to him these visitation, juris in which the selection rights. copies He attached of the docket appears, quoted clause above diction Montgomery County case, entries in the from the balance of entirely severable alleged plaintiff is in contempt agreement. only re of the order of that court. Plaintiff Pleas of ferred to the Court Common answering filed an affidavit in which she County possible Montgomery is the mod alleged that at all times while she was ification of the defendant’s living Pennsylvania out of defendant in the event the wife moves more rights was advised that he could visit the chil- Norristown, fifty air miles from than plaintiff’s agree- dren ment, residence. The provides Pennsylvania.1 Article affidavit, Exhibit A to the stipu- by any court of confession plaintiff lates that custody has the United or else within States record may children and that defendant visit any delinquency, deficiency or where for them at her provides: residence. It also any payments arrearage in called for ex promptly notify agreement, “Wife shall and it contains no Hus- any change respect payments band of press exception address of her with disputes residence while over visita Children withheld because and, custody provides are in her in order that “all dis tion. Article rights differences, may questions interpre Husband’s of visitation putes, ineffective, construction, practically tation, be rendered disa questions agrees except Wife that in the problems” event she and other greements dealing paragraph 2(g), cause Children’s residence to be more those Newark, Delaware, 1. The record does not where establish the air mile Norristown, distance children now between reside. hus- the to aid designed obviously so are by be arbitrated custody provision, shall duty to legal his discharging in band An am- arbitrators. obvious designated Mallinger v. children. support his the dual is created existence biguity 890 A.2d Pa.Super. Mallinger, 197 a clause and confession arbitration of an of Aspects Comment, Selected (1961); which, by virtue of judgment clause of Pennsylvania, Relations Domestic of clause in article 27 choice law the Vill.L.Rev. the resolved in accordance with

must recognized The as the trial court that perfect- it is Pennsylvania. But laws were framed the affidavits issues provisions, not that these ly clear summary un- either on the 2(g), govern the defendant’s paragraph the theory or because hands clean Thus, obligations. monetary cannot be pendency of the state court action would said, majority suggests, although as the majority opinion The proper. not be decide, paragraph 2(g) that not does same conclusion. But the reaches the an ouster of works on court went to decide on a district court. actually ground urged by never either de merits the consider If we party: that asserted defense fendant’s “While we agree do not with either agreement, materially breached has assertions, defendant’s we do feel that clear the arti document makes present case ‘involves domes and the one dealing with visitation cle tic relations’ and thus is a matter independent are dealing support which has been traditionally left is dependent.- Thus defense the federal purview to the Moore v. defendant. unavailable ” the state court. . . Solomon (Phila. Moore, County Pa.D. & C.2d Solomon, 373 F.Supp. (E.D. called 1965) the court Ct. Pa.1974). agreement similar interpret an The majority opinion accepts propo- had de us. The defendant before sition with qualification the sole payments making support faulted there should have been a dismissal she had ground on wife his want of subject matter rath- covenant a non-molestation breached er than a summary judgment. Thus the agreement as the agreement. Just majority holding is that the assertion in payment on us does not condition before simple diversity contract action of a visitation, agreement in Moore con probably groundless defense based on a conditioning language payment tained clearly part severable a complex held non-molestation. agreement enough is to deprive the di- independent. covenants were versity court of subject jurisdic- matter aas result of dependence to find refused tion because the suit “involves domestic recital, quite plate a recital simi a boiler majority relations.” opinion says: agreement.2 More the one our lar to stated, “Simply defendant’s contractu- likely over, extremely liability al contingent upon a deter- hold, mination of whether he was denied a law, cove the breach and, right contractual so, if whether rights is not a granting nant that denial was a material breach of arrearages when action for defense the separation agreement. That de- provisions of the THEREFORE, Moore, 2. The recital consideration read: “NOW “ promises premises and of mutual therefore, ‘Now in consideration hereto, contained, parties each herein promises and of the mutual covenants and hereby, legally cove- intending bound to be hereto, undertakings parties and in- (Appendix at agrees as follows:” nants and tending legally hereby, par- to be bound 13a). mutually promise agree’.” ties 38 D. & at 17. C.2d The recital involved in the judice case sub reads: requires termination a consideration of holdings misstatements of ancient and of rights as to visitation ill-considered dicta. I think that —an parties agreed, area where the under myth exception of a judicial broad paragraph 2(g) power of the respect United States with agreement, jurisdic- to submit to the questions of “domestic relations” was tion and decision of the Montgomery exposed completely finally by Judge County Court of Common Pleas.” opinion Spindel Weinstein’s Spindel, (footnote omitted) (E.D.N.Y.1968). If that sufficient, historical review was not stated, Simply majority misreads the Judge Friendly’s opinion Phillips, Niz pleadings and the contract. parties er, Benjamin, Krim & Ballon v. Rosen inserted a choice of forum clause in stiel, 1973) 490 F.2d 509 should paragraph 2(g) which on its face deals have nailed the lid on the coffin. But single with a narrow issue. The defend- majority opinion proposes give to attempting ant is to defeat juris- currency new hoary heresy. Spindel to a by importing diction into this suit a mat- Spindel, supra, v. holds that there is di ter which on agreement the face of the versity a seeking suit entirely is severable from the financial damages because the defendant dispute. fraudu lently induced the marry to him There is nothing “domestic” about the fraudulently and then procured a Mexi dispute. financial What ap- defendant Judge can discussed, divorce. Weinstein pears to be primarily interested in is in I suggest effectively explained, the rewriting agreement so as to use the sources of arising confusion from misap provision severable respect with to visi- plication of dicta in cases such as Barber tation as a defense to the suit for the Barber, v. (21 How.) 582, 62 U.S. support payments which an affidavit (1859), Burrus, L.Ed. 226 and In re concedes he has withheld since 1969. 10 S.Ct. 34 L.Ed. 500 only district court needs to look at (1890). He concluded that there was no the face of the to conclude adjudications bar to by the federal article is is, If it severable. there courts of" the status persons, even adjudication will be no of visitation formerly married or persons. married rights, with respect plaintiff’s claim, Phillips, Nizer, Benjamin, Krim & Ballon only but a requiring the hus- Rosenstiel, v. supra, holds that there is pay, subject band to appropriate diversity jurisdiction to a entertain suit If, set-off. as seems highly unlikely, the by a New York law firm to"recover at court concludes that paragraph 2(g) is torneys fees purportedly by authorized severable, not it still will not be called' New York law as necessaries for defend adjudicate rights. ing a wife in an annulment suit merely will decide that the choice of fo- Judge husband. Friendly discusses the rum clause is enforceable and dismiss the group same of cases and reaches the complaint on the merits on ground. same conclusion Judge as did Weinstein Thus the “domestic relations” issue is in Spindel Spindel. v. suggests He phantasm. this case a anything if there is at all to the rule point, diversity jurisdiction But more to the there is no that does not ex well-established domestic ex- tend to domestic relations relations matters it nar ception subject to our matter rows down to possibility, though not confidently as is announced so certainty, diversity that a may purpose majority. grant Rather there is a a collection of divorce.3 No useful jurisdiction to hear a did have proposition may of Ohio that a 3. The despite involving divorce, Judge Friendly explains, consul grant divorce not may dealing with provisions the Judicial Code Popovici be traced to Ohio ex rel. consuls. See in suits Agler, 50 S.Ct. L.Ed. 489 Agler Popovici as a (1929). suggesting appears §§ U.S.C. Dictum so in that unexcep- interpretation statutory is holding but the is no more than that The essential basis of such an agree- argu- by repeating served would be ment is the existence of a lawful mar- Friendly and by Judges set forth ments riage and its purpose is to discharge these two well-researched Weinstein obligations which that status imposes. Judges opinions. well-reasoned If the ‘wife’ has concealed an say it as well as undis- Friendly and Weinstein prior solved marriage there is no duty make clear that it They said. need be her and there the law that be- well be has never been simply an unwillingness to entrust present or her between cause the custody of the children husband and wife and involves former administration of funds nonjusticiable sup- their status marital port. Indeed it is hard to also Vestal conceive court. federal district anything calculated Di- more radically Foster, Implied Limitations & affect negotiation of a Federal versity Jurisdiction than the discovery Courts, 29—31 41 Minn.L.Rev. spouse that the other has holding in Bar- knowingly only add I will committed bigamy. Therefore, Barber, compels the conclu- supra, ber v. concealment of an diversity subject mat- undissolved prior is there sion that marriage provide case, since jurisdiction in this clearest ter legal basis for provi- the financial invalidation enforced a court there separation agreement.” 263 separation decree. F.2d at a sions of 159. matrimo- no there Any doubt dispute subject diversity Carr v. Wisecup just to exception was status nial about as re- “domestic” dispute this circuit a for ever jurisdiction matter be, could and the holding in Carr opinion Hastie’s Judge solved would have 1959). to be (3d Cir. overruled 157 if we accept F.2d Wisecup, majority’s position. resi- here, In this case, as circuit In there is no a matrimonial executed exception divorce status contemplating dents to diversity jurisdiction. for con- providing hus- by the payments monthly tinuing Besides the matrimonial status cases for support and her for wife to the band there is another group of cases which are children. minor two their support of sometimes cited for the proposition that Pennsyl- here, moved wife, as the federal may not adjudicate citizen- diversity of creating vania, thus questions relating subjects to touching to court the district sued ship. She relations, including child a recovered custody. enforce The case most frequently cited hus- former appeal On judgment. proposition court the district contended band courts are subject without juris- offer permitted have been should he diction to decide child custody cases, and part opposition evidence, only Supreme opinion cited, so him awarded, unknown since Burrus, is In re amount 593-9, U.S. because bigamous marriage was S.Ct. L.Ed. 500 But Bur- marriage. prior undissolved plaintiff’s rus stands for no proposition, such remanded. reversed This occasional reference to it second- wrote: Judge ary authorities, Hastie cases, and even for that proposition, displays a husband, propensity in con- for re- “Thus, have we liance on headnotes. The headnote divorce, writ- agreeing templation er the October term 1889 summa- entrusted shall be children his rized the case thus: that he their mother custody of monthly to- sums pay substantial “A District Court of the United will States authority wards in law to issue a writ support of that household. has no Congress tional. ju- could have made federal court had the Ohio the fact that not. But did any risdiction presence exclusive nothing to which about the jurisdiction us tells party. a consul was a The case holds that of federal district or absence $2,000 value, matter exceeds we corpus habeas to restore an infant statute, of no provision know no custody father, of its when un- law, authority intended be con- lawfully detained grand-par- its ferred the district court of the ents.” 136 cognizance United States to take of a The headnote would have been more kind, ground case of this either on the reporter less if the accurate had added: citizenship, ground or on other but a Circuit Court have.” in this found case.” An understanding requires Burrus at 854. appreciation that in 1889 the old district quotation, If there is dicta in the it is did not in diver- could, that an old circuit court dicta still, sity. That as it diversity adjudicate custody a child had been since in the old vested question arose in ease Burrus, circuit courts. case involv- equity. in law or in ing diversity citizenship between fa- ther, grandparents, a district court equity” brings , This me to the “law or judge issued a writ corpus of habeas di- qualification, heavily emphasized in recting grandparents to surrender and case the literature law. much custody of the father’s child. The Spindel Spindel, grandparents defied the writ and the (E.D.N.Y.1968). This limitation was grandfather was committed the custo- statutory, purely since Judici dy of the United States Marshal for con- ary gave Act of 1789 the circuit courts tempt. appellate In the exercise of its “of all suits of a civil nature Court, Supreme in an law in while equity,” at common Arti original corpus habeas proceeding, or- III, unquali 2 of cle the constitution § grandfather’s dered the release because judicial fiedly power extends the jurisdic- the district court did not have “—to United States Controversies to issue the writ of corpus. habeas citizens different between States.” arguments Two were made for district now found in 28 The § court One was based on the the “law U.S.C. 1332 has removed § statute, corpus habeas but that statute equity” qualification by adopting the then, now, did not and does not refer to actions,” language “all civil which would by parties private detentions unless the appear diversity subject to make detention violates some federal law. jurisdiction as as the broad text The other was that the All Writs Stat- III, article 2. At one time Chief § ute, 14 of § the Judiciary Act of Taney attempted, concurring Justice in a gave the power district court to a issue theory opinion, to construct a corpus writ habeas juris- in aid of its equity” language “law in the clause difficulty diction. The in Burrus was III, 2 referring to federal of article § that the district yet court did not have jurisdiction modified the whole question diversity cases and Ravenel, (17 v. Fontain section. question. there was no federal Thus the (1854).4 How.) 15 L.Ed. 80 This court held district court lacked constitutionally excluded dis Taney, would jurisdiction to issue the writ. But it courts, according to trict said: any jurisdiction that was the exercise “Whatever, by the law courts therefore, exercised common may be to held difficulty the chancellor in 1789. powers be the or of the circuit analysis ignores kind, his it necessary cases of this where cit- III, punctuation of Article 2. izenship text and exists between the contest- ants, Certainly nothing there is in either the gives which the present diversity all stat matters constitution parties, between such adjudi- suggesting incapacity ute an both law and equity, where the Pennsylvania dispute.

4. a will a The case involved construction not domestic relations A.L.R. L.Ed. custody. A fortio- child issue of an cate adjudicated. 1366.” can be ri, child Taney’s erroneous F.2d Moreover, on even ju- would be III there article reading of things Three can said about Alba- child visitation adjudicate risdiction Richter, First, v. nese it has been supra. a case a defense part of rights as Carr v. Wisecup overruled sub silentio alleged an involving equity inor law the extent for any stands contract. breach exception. broad “domestic relations” Second, distinguishable from our often critic brings us to the then This what case because was involved was an unanalytical case wholly ized5 attempt Jersey qua- to enforce in New Richter, F.2d 688 v. Albanese si-penal apply statute New York or diversity suit 1947). That was Jersey quasi-penal New statute to a non- in aside an set child illegitimate post- resident. Albanese v. Richter is a allegedly his signed by mother strument totally disregards which Erie rights, and enforce his in fraud obligation of a court to make Jersey New statutes New York analysis. an Erie The case should have sup fathers to require putative which whether Jersey turned on a New forum illegitimate off their and educate port quasi-penal enforce the provisions Guy Judge the district spring. apply of the New York statute or law at common out that pointed L. Fake provisions quasi-penal its forum obliga no was under father putative for the state’s statute benefit of non- illegitimate Al child. support an Third, tion to resident. both circuit court Richter, banese opinion and the district court opinion are statutory obliga Since (D.N.J.1946). thoroughly indefensible. Of the authori- been would have not one tion was opinion ties relied on the circuit court chancery common law enforced Ravenel, supra, Fontain v. decided a concluded, relying England, he will construction in Fontain faulty thesis Taney’s application over the doc- cy pres merits; Burrus, supra, In re trine juris Ravenel, supra, that there held, correctly, that old district court New York or New to enforce diction jurisdiction; diversity lacked and Wil- appeal this statutory duties. On Jersey Carolina, 226, liams v. North analysis, lack Its court affirmed. 1092, (1945) 89 L.Ed. para following thereof, consists case on certiorari from state court graph: nothing adjudicated whatsoever about The citizenship “Mere opinion merely district court relied on amount, them jurisdictional in and of reading Taney error in article III error, give juris 2, tell, selves, which so far as I can are sufficient § majority Supreme Court has courts. U.S.C.A. to federal diction espoused. ever courts, interpreted by 41(1), as Magaziner v. Montemu dictum to in consistently not has been held 782, ro, 1972) 468 F.2d ex involving primarily suits domes clude approval Richter, of Albanese v. pressing Ravenel, Fontain v. relations. tic than the persuasive is no more supra, 369, 1854, 58 U.S. 17 How. 369, 15 controlling precedent case. 1890, Burrus, 80; and see In re L.Ed. be, is, certainly Carr v. should Circuit 10 S.Ct. 136 U.S. Richter, Wisecup, supra, not Albanese v. North Caro and Williams L.Ed. I reverse remand supra. 233, 237, hearing. 65 a lina, Note, Courts, 1, 29, (1956); 41 Minn.L.Rev. Foster, Implied See, g., Limita- Vestel & e. n. 13 54 Iowa L.Rev. Diversity Federal Jurisdiction tions

Case Details

Case Name: Lynne E. Solomon, Parent and Natural Guardian of Patricia Solomon v. John F. Solomon, Jr

Court Name: Court of Appeals for the Third Circuit

Date Published: May 2, 1975

Citation: 516 F.2d 1018

Docket Number: 74-1512

Court Abbreviation: 3rd Cir.