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April 11, 1968

Eleanor Carson SPINDEL, Plaintiff,
Sheldon M. SPINDEL, Defendant

The opinion of the court was delivered by: WEINSTEIN


 WEINSTEIN, District Judge.

 Plaintiff, a resident of New Mexico, alleges that defendant, a New York resident, fraudulently induced her to marry him and then fraudulently procured a Mexican divorce dissolving their marriage. She seeks $500,000 in compensatory and punitive damages and a declaratory judgment that the Mexican divorce decree is invalid. The jurisdiction of this Court is predicated on the diverse citizenship of the parties. 28 U.S.C. § 1332. The defendant moves to dismiss (1) for lack of jurisdiction on the grounds that the case involves "domestic relations" and that the requisite jurisdictional amount is lacking, and (2) for failure to state a claim upon which relief can be granted. For the reasons indicated below, the motion to dismiss is denied.

 Plaintiff and defendant, then New York residents, married each other in 1965 in Connecticut. She alleges that she spurned marriage proposals from others relying on defendant's representations that he, a man of substantial wealth, would establish a "suitable marital home" for herself and her three children and would support them "in a manner appropriate for the * * * [family] of a man of defendant's wealth and station."

 Plaintiff then learned, she tells us, that defendant married her only for the purpose of gaining economic benefits, primarily income tax advantages. After the marriage, defendant purportedly refused to live with plaintiff and her children or to support them. As a result of defendant's failure to perform, plaintiff left New York and moved to New Mexico to find other means of providing for herself and her children.

 Defendant then, the complaint informs us, embarked upon a campaign to coerce plaintiff into consenting to a Mexican divorce and a disadvantageous settlement. He is alleged to have circulated libelous and scandalous charges about her and, in general, to have "engaged in a course of conduct designed to embarrass and harass her." Bowing to this pressure, on March 26, 1967, plaintiff agreed to a Mexican divorce and executed a power of attorney, furnished to her by her own counsel, authorizing an unknown Mexican lawyer to appear on her behalf in the Mexican courts. In return, defendant gave plaintiff and her attorney a total of $7,000.

 Two days later, on March 28, 1967, after conferring with another lawyer, plaintiff allegedly revoked the power of attorney and immediately informed her former counsel of this action. According to plaintiff, "defendant knew or should have known of such revocation." Nevertheless, subsequent to notice of revocation, on March 31, 1967, defendant appeared before the Civil Court of the Bravos District, State of Chihuahua, Republic of Mexico, and obtained what purports to be a decree of divorce from plaintiff.


 Section 1332 of title 28 of the United States Code grants the district courts jurisdiction in (1) a "civil action," involving (2) a "controversy," (3) exceeding the "value of $10,000," (4) between "citizens of different states." This is a civil action; the subject matter involves fraud and powers of attorney, both of which are "common heads of equity jurisdiction." Terry v. Sharon, 131 U.S. 40, 48, 9 S. Ct. 705, 707, 33 L. Ed. 94 (1889). There is a legal dispute between the parties and the plaintiff seeks more than $10,000. The parties, even if still married, have domiciles in different states and have diverse citizenship. There would thus appear to be basis for the exercise of our diversity jurisdiction.

 Nonetheless, the defendant argues, with considerable force, that the federal courts' lack of subject matter competence - jurisdiction in matrimonial cases - deprives this Court of the power to grant plaintiff any relief. To determine the validity of his contention with respect to the request for a declaration of invalidity of the Mexican divorce, we turn first to a brief review of the Supreme Court cases which are said to stand for the proposition that the defendant advances (IA1, p. 800, infra), and, second, to reasons the Supreme Court precedents are not applicable to the instant case which involves, not a request for a divorce, but a determination of the invalidity of a divorce (IA2, p. 805, infra). We then analyze defendant's suggestion that this Court lacks jurisdiction over plaintiff's tort claim (IB, p. 812, infra). Finally, we consider whether the amount in controversy meets the statutory requirements (IC, p. 812, infra) and whether there is diversity of citizenship (ID, p. 812, infra). Having considered the jurisdictional problems, we will then turn to the question whether, under applicable New York substantive law, plaintiff has stated a claim for declaratory relief (IIA, p. 813, infra) and for damages in tort (IIB, p. 813, infra).

 A. Declaration of Invalidity of Divorce

 1. Supreme Court Cases on Divorce Jurisdiction

 Beginning in 1859, the Supreme Court has repeatedly stated that the federal courts lack divorce jurisdiction. See Barber v. Barber, 62 U.S. (How. 21) 582, 16 L. Ed. 226 (1859); Simms v. Simms, 175 U.S. 162, 20 S. Ct. 58, 44 L. Ed. 115 (1899); De La Rama v. De La Rama, 201 U.S. 303, 26 S. Ct. 485, 50 L. Ed. 765 (1906); State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S. Ct. 154, 74 L. Ed. 489 (1930). See also In re Burrus, 136 U.S. 586, 10 S. Ct. 850, 34 L. Ed. 500 (1890). Nevertheless, the Court has heard appeals in divorce actions from territorial courts (Simms v. Simms, 175 U.S. 162, 20 S. Ct. 58, 44 L. Ed. 115 (1899); De La Rama v. De La Rama, 201 U.S. 303, 26 S. Ct. 485, 50 L. Ed. 765 (1906)) and a similar jurisdiction has been exercised by the Court of Appeals for the District of Columbia. E.g., Bottomley v. Bottomley, 104 U.S.App.D.C. 311, 262 F.2d 23 (1958); Moncure v. Moncure, 51 App.D.C. 292, 278 F. 1005 (1922). See also Glidden Co. v. Zdanok, 370 U.S. 530, 581, n. 54, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962).

 If a federal "constitutional court" (Glidden Co. v. Zdanok, 370 U.S. 530, 534, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962)) is competent to enforce policy on matrimonial status when it is laid down by a territorial legislature or Congress, there appears to be no constitutional compulsion to find lack of competence to apply analogous state substantive law in a diversity case. The Supreme Court's disclaimer of divorce jurisdiction in diversity cases thus seems predicated upon a implied limiting construction of the statute granting Federal District Courts jurisdiction in diversity cases.

 The Constitution provides that all the judicial power exercisable by the sovereign power, the United States, may be granted to the District Courts by Congress. Section 1 of Article III plainly states:

" The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

 The breadth of this power is particularly evident in diversity cases, for the Constitution uses the most all encompassing language to describe this branch of jurisdiction. Section 2 of Article III provides:

"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies to which the United States shall be a Party ; - to Controversies between two or more States; - between a State and Citizens of another State; - between Citizens of different States ; - between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

 Of the three different phrases defining jurisdiction - "Cases, in Law and Equity," "Cases" and "Controversies," the last, and most general in scope, covers diversity jurisdiction. But cf. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 57 S. Ct. 461, 300 U.S. 227, 239, 81 L. Ed. 617 (1937). Thus, under the language of the Constitution, there need only be a controversy for a diversity case to be within the judicial power; neither a case in law or equity nor a case is required.

 Congress, while generous, did not grant to the inferior courts it established all the power it might have granted to hear "Controversies * * * between Citizens of different States." See generally, Warren, New Light on The History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 67-69 (1923). Contra, Vestal and Foster, Implied Limitations on the Diversity Jurisdiction of Federal Courts, 41 Minn.L.Rev. 1 (1956); Wright, Federal Courts 72-73 (1963). The basic Congressional grant was not to decide "Controversies" but, rather, "suits of a civil nature at common law or in equity." See Guaranty Trust Co. of New York v. York, 326 U.S. 99, 104-105, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945); Gordon v. Washington, 295 U.S. 30, 36-37, 55 S. Ct. 584, 79 L. Ed. 1282 (1935). Moreover, there was a requirement that there be a minimum sum in controversy and there was significant limiting language describing required diversity of citizenship. Cf. United Steelworkers of America, A.F.L.-C.I.O. v. R. H. Bouligny, Inc., 382 U.S. 145, 148, 86 S. Ct. 272, 274, 15 L. Ed. 2d 217 (1965) (Congress expanded the diversity jurisdiction in 1875 "by deleting the requirement imposed in 1789 that one of the parties must be a citizen of the forum State"); 28 U.S.C. § 1335 (interpleader). The 1789 statute provided:

"* * * [The] circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and * * * an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State." Act of Sept. 24, 1789, Sec. 11, 1 Stat. 73, 78.

 Although the diversity statute was subsequently amended in 1948 to provide that the diversity jurisdiction shall extend to "all civil actions" (Act of June 25, 1948, Sec. 1, 62 Stat. 930, 28 U.S.C. § 1332), no substantive change in the limitation imposed by the phrase "suits * * * at common law or in equity" was intended. The change was made merely "to conform to Rule 2 of the Federal Rules of Civil Procedure." Revisor's Notes to 28 U.S.C. § 1332. Readoption and repeated amendment of the diversity statute since 1859 may be considered a sign of Congressional concurrence in the Supreme Court's construction excluding competence to grant divorces.

 We turn now to Barber and the cases that followed.

 (a) Barber

 The Supreme Court first touched upon this question in a dictum in the 1859 case of Barber v. Barber, 62 U.S. (How. 21) 582, 16 L. Ed. 226 (1859). The Court held that the District Court of the United States for the district of Wisconsin had jurisdiction in a diversity case to entertain a suit by a wife living in New York against her husband living in Wisconsin to enforce a New York State court decree granting her a separation (divorce a mensa et thoro) and alimony. In a preliminary comment - unnecessary to its decision - the Court wrote:

"Our first remark is - and we wish it to be remembered - that this is not a suit asking the court for the allowance of alimony. That has been done by a court of competent jurisdiction. The court in Wisconsin was asked to interfere to prevent that decree from being defeated by fraud.
" We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board." 62 U.S. (How. 21) at 584.

 No authority was cited for this proposition. These passing remarks constituted the Court's sole reference to the issue.

 Three members of the Court dissented in Barber and their opinion supplied a rationale for the majority's dictum. In the course of maintaining that the district court did not have jurisdiction to enforce the state alimony award, the dissenting justices declared that since English Chancery had had no power over divorce or alimony, neither did the federal courts. They wrote:

"* * * as the jurisdiction of the Chancery in England do not extend to or embrace the subject of divorce and alimony, and as the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England, all power or cognizance with respect to these subjects by the courts of the United States in chancery is equally excluded." 62 U.S. (How. 21) at 605.

 This standard for determining the scope of federal jurisdiction was presumably based on a construction of the phrase "all suits of a civil nature at common law or in equity" as used in the diversity statute. Its emphasis on historical equity jurisdiction subsequently came to be accepted as the principal ground for the doctrine that the federal courts lack divorce jurisdiction. See, e.g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S. Ct. 154, 74 L. Ed. 489 (1930); Maynard v. Hill, 125 U.S. 190, 206, 8 S. Ct. 723, 727, 31 L. Ed. 654 (1888) ("When this country was settled, the power to grant a divorce * * * was exercised by the parliament of England. The ecclesiastical courts * * * were limited to the granting of divorces from bed and board. Naturally, the legislative assemblies of the colonies followed the example of parliament and treated the subject as one within their province."); cf. Fontain v. Ravenel, 58 U.S. (How. 17) 369, 392-393, 15 L. Ed. 80 (1855) (concurrence) ("chancery jurisdiction of the courts of the United States, as granted by the Constitution, extends only to cases over which the court of chancery had jurisdiction, in its judicial character as a court of equity"). See generally 2 Schouler, Marriage, Divorce, Separation and Domestic Relations, p. 1724 (6th ed. 1921) ("When the American colonies adopted the common law they did not adopt the ecclesiastical law relating to divorce, so that no American court has jurisdiction to grant divorce apart from statute, and jurisdiction over divorce is purely statutory").

 It would serve no useful purpose for this Court to inquire into the historical accuracy of this position, either as regards the powers of the English Chancery or the intent of Congress in enacting the diversity statute. Since the Supreme Court has spoken, its constructive view of history constitutes a form of judicial notice that the District Courts accept as true. But cf. Terrell v. Terrell, Tothill, 61, 21 Eng.Rep. 123 (Ch. 1581) (two divorce decrees issued by chancery); 2 Howard, A History of Matrimonial Institutions, 331-349, 368-369, 371, 373 (1904) (colonial courts granted divorces and alimony); Wightman v. Wightman, 4 Johns. Ch. 343 (1820) (court of equity has power to dissolve marriage on certain grounds even in absence of statutory authorization); Ferlat v. Gojon, 1 Hopkins Ch. 478 (1825) (same); Warren, New Light on The History of The Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 50, 59-60 (1923) (Chief Justice Oliver Ellsworth of Connecticut [whose colonial courts had had a regular divorce jurisdiction, see 2 Howard, supra, at 353-60] was the principal draftsman of the Judiciary Act of 1789, including the section dealing with diversity jurisdiction). Compare I Spence, The Equitable Jurisdiction of the Court of Chancery 702 (1850) ("not unlikely that the Court of Chancery, under its clerical chancellors, exercised jurisdiction to decree a divorce a vinculo matrimonii") with Macqueen, Husband and Wife 162 (3d ed. 1885).

 There are several factors which suggest that use of an eighteenth century lexicon, while justified in construing the diversity statute, is not appropriate as a constitutional doctrine. The concept of secular divorce as we know it did not exist in England; marriage was considered to be indissoluble. Church courts would only grant separation decrees (divorce a mensa et thoro). ...

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