Surface v. Burke

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01736-CNS-KAS
RAYMOND TODD SURFACE,
Plaintiff,
v.
KELLY ANN BURKE,
Defendant.
_____________________________________________________________________
RECOMMEDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Dismiss [#7], which
seeks dismissal under Fed. R. Civ. P. 12(b)(1) or, alternatively, under Fed. R. Civ. P.
12(b)(6). Plaintiff, who proceeds as a pro se litigant,1 filed a Response [#10] in opposition
to the Motion [#7], and Defendant filed a Reply [#11]. The Motion [#7] has been referred
to the undersigned. See Memorandum [#9]. The Court has reviewed the briefs, the entire
case file, and the applicable law. For the reasons stated below, the Court RECOMMENDS
that the Motion [#7] be GRANTED and that Plaintiff’s claim be DISMISSED WITHOUT
PREJUDICE.
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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I. Background
Plaintiff and Defendant are the biological parents of C.R.S.,2 a minor child who
was born on March 8, 2021. See Compl. [#1] at 1. In the summer of 2021, after C.R.S.
was born, the parties separated and, initially, they evenly split parenting time. Id. at 2, ¶
2. However, later that summer, Defendant “claimed that being away from her infant
daughter was too emotionally stressful” and the parties made a “temporary” agreement
that Defendant would have more “nights with [C.R.S.] in her infancy.” Id., ¶ 3. In October
2021, the parties “were working on a parenting plan” with counsel retained by Defendant.
Id., ¶ 3. However, when Plaintiff “refused to execute the statutory parenting plan,”
Defendant filed Case No. 21DR30902 in the District Court for the City and County of
Denver, Colorado (the “state court case”). Id. at 3, ¶ 5; id. at 7.
Plaintiff alleges that since 2021, he has “been with [C.R.S.] 14% of the time while
the [Defendant] has had [C.R.S.] the other 86% of the time.” Id. at 6. He contends that he
“never agreed nor has been willing to accept less than a 50/50 parenting split with
[Defendant].” Id. at 4. He asserts that his “access to [C.R.S.] has been unjustly limited,
strained, and stressful due to the unilateral actions of [Defendant], which were sanctioned
by the State lower court.” Id. at 5-6. Among other things, he claims that Defendant “kept
[C.R.S.] away from [him] for 5 weeks, under [erroneous] allegations” and that “[t]he state
venue is unfit.” Id. at 6. He seeks “the restoration of parenting right of [C.R.S.]” as well as
a “$500 penalty for everyday [Plaintiff] has less than 50% parenting time with [C.R.S.]” as
2 Plaintiff identifies the minor child by her full name, but then throughout his Complaint [#1] refers
to her as “the living girl” and “biological property”. See Compl. [#1] at 2-4, ¶¶ 1-15. Pursuant to
Fed. R. Civ. P. 5.2(a)(3), unless the Court orders otherwise, filings that contain “the name of an
individual known to be a minor” may include only “the minor’s initials”. In this Recommendation,
the Court uses her initials.
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well as attorney fees relating to case No. 21DR30902 if the Court determines that
Defendant’s actions were “baseless, frivolous and ultimately willful”. Id. at 8.3
II. Standard of Review
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). Because federal courts are
tribunals of limited jurisdiction, the Court must establish a statutory basis to exercise
jurisdiction. Fed. R. Civ. P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
The Court may only exercise jurisdiction “in the presence rather than the absence of
statutory authority.” Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (quoting
Wyeth Lab’ys v. U.S. Dist. Court, 851 F.2d 321, 324 (10th Cir. 1988)). “The party invoking
federal jurisdiction has the burden to establish that it is proper, and there is a presumption
3 The Court notes that the Complaint [#1] sets forth no clear basis for federal court jurisdiction. In
the “Parties” section, Plaintiff alleges that both he and Defendant are domiciled in Colorado, so
there is no diversity jurisdiction. See Compl. [#1] at 1. In his “Jurisdiction” section, Plaintiff asserts
that “[t]his is a common law claim between people and rights to their biological property.” Id. at 2.
However, both property rights and domestic relations are creatures of state law, not federal law.
See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (reaffirming that “[t]he whole subject of
the domestic relations of husband and wife, parent and child, belongs to the laws of the states
and not to the laws of the United States”) (quoting Ex parte Burrus, 136 U.S. 586, 593-94 (1890));
Ewers v. Bd. of Cnty. Comm’rs, 874 F.2d 736, 738 (10th Cir. 1989) (“State law does determine
the existence of property rights.”). Plaintiff does not invoke any federal statute or constitutional
provision in his statement of facts, cause of action, or prayer for relief, nor does he assert that any
statute or constitutional provision has been violated, so federal question jurisdiction does not
appear to exist. Nonetheless, because the Court finds that it lacks subject matter jurisdiction by
operation of the domestic relations exception, it need not decide whether Plaintiff sufficiently
stated a basis for federal court jurisdiction in the first place.
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against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th
Cir. 2014) (internal quotation marks omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen
Enters., II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially
attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2)
go beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs.,
Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). “When resolving a facial attack on
the allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff, 65 F.4th at 507 (citing Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995)). “When the moving party attacks the factual basis for subject matter
jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed jurisdictional
facts.’” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272,
1275 (10th Cir. 1997)). “Reference to evidence outside the pleadings does not convert
the motion to dismiss into a motion for summary judgment[.]” SK Fin. SA, 126 F.3d at
1275. “In such instances, a court has discretion to consider affidavits and other
documents to resolve the jurisdictional question.” Graff, 65 F.4th at 507 (citing Holt, 46
F.3d at 1003).
III. Analysis
Plaintiff’s 	allegations 	arise 	from 	his 	and 	Defendant’s 	child 	custody 	dispute
regarding C.R.S. and the related ongoing state court case, 21DR30902. See Compl. [#1]
at 5-8 (“Cause of Action” section); id. at 7 (alleging that a state court judge is “presiding
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over the parenting case . . . and has not ruled on the case 12 months d[e]spite hearing
closing arguments one year ago”). Defendant argues that the Court lacks subject matter
jurisdiction 	over 	Plaintiff’s 	claims 	under 	the 	domestic-relations 	exception 	and 	the
Younger4 abstention doctrine. See Motion [#7] at 1, 7.
Domestic Relations Exception
The domestic relations exception is a judicially created exception to federal
jurisdiction. It “divests the federal courts of power to issue divorce, alimony, and child
custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); see also Ex parte
Burrus, 136 U.S. 586, 593-94 (1890) (“The whole subject of the domestic relations of
husband and wife, parent and child, belongs to the laws of the states and not to the laws
of the United States.”). However, the doctrine is narrow: it “encompasses only cases
involving the issuance of a divorce, alimony, or child custody decree” and does not
preclude federal courts from hearing, for example, tort claims alleging abuse or requests
to enforce a valid state court divorce decree. Ankenbrandt, 504 U.S. at 704 (holding that
the exception did not bar claims that the respondents “committed torts against [minor
children]”); Leathers v. Leathers, 856 F.3d 729, 756 (10th Cir. 2017) (holding that the
exception did not preclude a federal district court from “enforc[ing] [a] divorce decree
according to its terms” and awarding the ex-wife mineral rights in property).
Stated simply, “a federal court cannot ‘reopen, reissue, correct, or modify’ an order
in a domestic relations case.” Alfaro v. Arapahoe County, 766 F. App’x 657, 659 (10th
Cir. 2019) (quoting Leathers, 856 F.3d at 756). This is true even where the plaintiff
attempts to disguise the dispute as, for example, a breach of contract. Cf. Wyttenbach v.
4 The doctrine is named for the case Younger v. Harris, 401 U.S. 37 (1971).
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Parrish, 496 F. App’x 796, 797 (10th Cir. 2012) (affirming dismissal of father’s claim that
mother breached the terms of a child custody order issued by a Texas state court) (citing
McLaughlin v. Cotner, 193 F.3d 410, 413 (6th Cir. 1999)).
Some courts have limited the domestic relations exception to cases arising under
diversity jurisdiction. See 13B CHARLES A. WRIGHT, A RTHUR R. MILLER & E DWARD H.
COOPER, FEDERAL P RACTICE & P ROCEDURE § 3609 n.4 (3d ed., June 2024 update); see
also 	Johnson 	v. 	Rodrigues 	(Orozco), 	226 F.3d 	1103, 	1111 	n.4 	(10th 	Cir. 	2000)
(commenting on circuit split and declining to decide the issue). However, more recent
Tenth Circuit case law has either directly or indirectly applied the exception to cases
invoking federal question jurisdiction. See, e.g., Alfaro, 766 F. App’x at 659-61 (affirming
district court finding that domestic-relations exception barred plaintiff’s constitutional
claims challenging state court divorce and custody orders); Wyttenbach, 496 F. App’x at
797 (discussing the “long-entrenched if judge-made ‘domestic relations exception’ to the
congressional statutes granting jurisdiction to the federal courts”) (emphasis added); Hunt
v. Lamb, 427 F.3d 725, 726-27 (10th Cir. 2005) (holding that a child custody case was
not removable because, under the domestic relations exception, it could not have
originally been filed in federal court even though the plaintiff alleged constitutional
violations). In particular, the Tenth Circuit’s decision in Alfaro required an implicit finding
that the domestic relations exception can bar federal constitutional claims, not only state
law diversity claims. Alfaro, 766 F. App’x at 660.
Here, Plaintiff has not set forth the basis for federal jurisdiction over his claim, but
to the extent it arises in diversity, the domestic relations exception plainly applies. Cf.
Vaughan v. Smithson, 883 F.2d 63, 64 (10th Cir. 1989) (discussing “the judicially carved
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domestic relations exception to the diversity jurisdiction”). To the extent his claim arises
under federal law, the Court follows Alfaro and other cases in concluding that, “[a]lthough
the domestic relations exception is generally considered an exception to diversity
jurisdiction, it may also be applied in federal question cases.” Watson v. State, No. 15-
9930-JAR-JPO, 2016 WL 1359868, at *4 & n.23 (D. Kan. Apr. 6, 2016) (collecting cases);
see also Winters v. Kan. Dep’t of Soc. & Rehab. Servs., No. 10-2181-JAR-DJW, 2011
WL 166708, at *5 & n.24 (D. Kan. Jan. 19, 2011) (stating the same), aff’d 441 F. App’x
611, 612 (10th Cir. 2011). Either way, the domestic relations exception squarely fits this
case. Plaintiff essentially seeks a child custody decree awarding him and Defendant equal
time with C.R.S., in addition to penalties for Defendant’s alleged noncompliance with a
previously agreed-upon custody plan—but this is “the same type of determination made
in state court domestic relations actions.” Vaughan, 883 F.2d at 65; see also Compl. [#1]
at 8 (prayer for relief). This Court lacks jurisdiction to grant the relief Plaintiff seeks.
The Court is not persuaded by Plaintiff’s framing of this dispute as a breach of the
“agreement in principle” that he and Defendant had reached in late 2021 governing
custody of C.R.S. Compl. [#1] at 8; see also Landrith v. Gariglietti, 505 F. App’x 701, 703
(10th Cir. 2012) (stating that “attempts to ‘disguise the true nature of’ a domestic relations
action in order to secure a federal forum” will not avoid application of the domestic
relations exception) (citing McLaughlin, 193 F.3d at 413); Wyttenbach, 496 F. App’x at
797 (rejecting the plaintiff’s attempt to frame his claims, which would have required the
court to evaluate child custody arrangements and determine mother’s compliance, as
sounding in contract). Colorado state courts are better suited than this Court to make child
custody determinations and Plaintiff alleges that a state court is currently presiding over
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that very issue. Compl. [#1] at 7-8; cf. Vaughan, 883 F.2d at 65 (“State courts, with their
relative expertness in domestic relations matters, are better suited for this task.”). The
Court finds that Plaintiff’s claims are barred by the domestic relations exception to federal
jurisdiction.
Accordingly, the Court recommends that Plaintiff’s claims be dismissed without
prejudice for lack of subject matter jurisdiction. See, e.g., Eagar v. Drake, 829 F. App’x
878, 885 (10th Cir. 2020) (“Dismissals for lack of jurisdiction [are] without prejudice
because the court, having determined that it lacks jurisdiction over the action, is incapable
of reaching a disposition on the merits of the underlying claims.”) (quoting Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)) (alterations in original).5
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#7] be GRANTED.
IT 	IS 	FURTHER 	RECOMMENDED 	that 	Plaintiff’s 	claims 	be 	DISMISSED
WITHOUT PREJUDICE for lack of subject matter jurisdiction under the domestic relations
exception.
5 Defendant also raised the Younger abstention doctrine. See Motion [#7] at 7. Even if the
doctrine applies, it could not dispose of Plaintiff’s entire claim because his requested remedies
include monetary relief and, under Younger, claims for monetary damages must be stayed rather
than dismissed. See Compl. [#1] at 8 (seeking “$500 penalty for every day [Plaintiff] has less than
50% parenting time”); cf., e.g., Chapman v. Barcus, 372 F. App’x 899, 902 (10th Cir. 2010)
(applying Younger abstention and remanding to the district court with instructions “to stay
proceedings on [the plaintiff’s] damages claims and dismiss without prejudice his remaining
claims”); Bryant v. Mclean, No. 23-cv-00997-NYW-KAS, 2024 WL 1195326, at *10 (D. Colo. Mar.
20, 2024) (stating that, under Younger, “[c]ourts in this District thus elect to stay proceedings on
federal claims for money damages pending the resolution of the state court case”), appeal
dismissed, No. 24-1123, 2024 WL 3963962 (10th Cir. May 10, 2024). Therefore, the Court
declines to decide Younger abstention in the alternative.
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IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: December 4, 2024 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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