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Creekbaum v. Creekbaum

United States District Court, N.D. Alabama, Southern Division

August 23, 2018

LEIGH RUMBLEY CREEKBAUM, Plaintiff,
v.
STEPHEN TRAVIS CREEKBAUM, Defendant.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE

         On June 12, 2018, Plaintiff Leigh Rumbley Creekbaum initiated this action against Defendant Stephen Travis Creekbaum seeking an order permitting Plaintiff to obtain a passport for their minor child, G.K. Creekbaum, on her own or, alternatively, an order directing Defendant to execute any documents necessary for Plaintiff to obtain a passport for G.K. Creekbaum. (Doc. 1). Plaintiff also seeks monetary damages for her lost opportunities to travel internationally with her child and parents. (Id.). Defendant moves to dismiss the action under the Colorado River and/or Younger doctrines, contending that litigating this issue concerning child custody in federal court would be an unnecessary and significant waste of the Court's time and resources. (Doc. 9). Plaintiff has filed a response in opposition to Defendant's motion to dismiss and a motion to strike. (Doc. 16). Defendant then filed a response to Plaintiff's motion to strike and a reply brief addressing Plaintiff's response in opposition to the motion to dismiss. (Doc. 18). The motions are ripe for review. For the reasons that follow, Plaintiff's motion to strike (doc. 16) is DENIED, and Defendant's motion to dismiss (doc. 9) is GRANTED.

         Plaintiff's motion to strike (doc. 16) is DENIED because all of the subject documents are state court records from the underlying litigation. Plaintiff contends that the exhibits attached to the motion to dismiss are “extrinsic” and “not central to Plaintiff's claim” thus inappropriate for a motion to dismiss. (Doc. 16 at 3-4). In ruling on a motion to dismiss based on an abstention doctrine, as here, the court “may consider the various filings in the underlying state court litigation.” Belevich v. Thomas, No. 2:17-cv-01193-AKK, 2018 WL 1244493, at *1-2 n.1 (N.D. Ala. Mar. 9, 2018). The documents attached to Defendant's motion are court filings associated with the pending state litigation (see doc. 9-1) and are therefore appropriate for consideration with this motion.

         I. Background

         Plaintiff and Defendant were divorced on July 22, 2016, pursuant to a final judgment of divorce. (Doc. 1 at ¶ 5; see www.alacourt.com; No. 58-DR-16-900314.00). As part of the divorce decree, Plaintiff and Defendant were awarded joint legal and physical custody of their minor child, G.K. Creekbaum. (Id.). Plaintiff wishes to travel with the child internationally (id. at ¶ 5), but Defendant will not consent to the issuance of the minor child's passport (id. at ¶ 8). Plaintiff avers that due to Defendant's refusal to consent to the issuance of a passport for the minor child, Plaintiff and G.K. Creekbaum have lost the opportunity to travel internationally. (Id. at ¶ 9).

         Based on the state court documents attached to the motion to dismiss, Defendant contends Plaintiff's boyfriend, who is with the minor child during Plaintiff's custodial periods, routinely takes Plaintiff and the minor child on his private plane to one of his residences in other states (doc. 9-1 at 7), and that he appears to be their sole source for potential international travel. Defendant further alleges in state court documents that upon the return from a domestic trip in May 2017, G.K. Creekbaum told Defendant that Plaintiff's boyfriend had hit him and that the police had visited in the middle of the night during his stay. (Id.). In the state court proceedings, Defendant has moved for the minor child to have no contact with Plaintiff's boyfriend. (Id.). Defendant also submits state court documents alleging that Plaintiff permitted contact between her boyfriend and the minor child that violated the court's order. (Id. at 10-12). Finally, Defendant has also moved in state court to modify the custody arrangement, requesting sole custody of the minor child. (Doc. 9-1 at 4). These matters have not been resolved. According to publicly available records, the state court has set a final trial date for custody redetermination for December 29, 2018. (www. alacourt.com, No. 58-DR-16-900314.01).

         II. Analysis

         The Code of Federal Regulations outlines the requirements and circumstances related to obtaining a passport for a minor. See 22 C.F.R. § 51.28. Generally, both parents must provide consent to the issuance of a passport to a minor if they share joint custody of the minor. See 22 C.F.R. §§ 51.28(a)(2) and 51.28(a)(3)(ii)(G). However, a single parent may apply for a minor's passport if “[a] notarized written statement or affidavit from the non-applying parent or legal guardian” is provided. 22 C.F.R. § 51.28 (a)(3)(i). Additionally, a passport may be issued without both parents' consent when “[a]n order of a court of competent jurisdiction grant[s] sole legal custody to the applying parent” or specifically authorizes the issuance of a passport “regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian.” 22 C.F.R § 51.28(a)(3)(ii)(E). Thus, under the current custody arrangement, absent an order from a court of competent jurisdiction, both Plaintiff and Defendant must provide consent to obtain a passport for G.K. Creekbaum. Defendant asserts that, due to issues raised during the ongoing domestic litigation in state court, he has refused to provide consent. Plaintiff asks this Court to issue an order authorizing the issuance of a passport or directing Defendant to sign the necessary paperwork. (Doc. 1 & 16).

         A. Application of the Colorado River Doctrine

         Defendant argues this Court should abstain from exercising its jurisdiction and dismiss this action under the Colorado River doctrine.[2] (Doc. 9 at 3-7). Generally, federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given to them.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). However, the Colorado River doctrine creates an “extraordinary and narrow exception” where a district court may decline to exercise or postpone the exercise of its jurisdiction. Id. at 813. Although “abstention from the exercise of federal jurisdiction is the exception, not the rule[, ] a federal court may appropriately dismiss an action pending in state court in the interest of “wise judicial administration.” Colorado River, 424 U.S. at 813, 817. For example, “federal courts generally dismiss cases involving . . . child custody . . . child support, and enforcement of separation or divorce decrees still subject to state court modification.” Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1998) (per curiam).

         1. Parallel Lawsuits with Substantially Similar Parties and Issues

         The application of the Colorado River doctrine is appropriate when “a parallel lawsuit is proceeding in one or more state courts.” Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d 1320, 1327 (11th Cir. 2004). To be considered “parallel” for this purpose, the state and federal cases at issue should “contain substantially similar parties and issues.” Acosta v. James A. Gustino, P.A., 478 Fed.Appx. 620, 622 (11th Cir. 2012). There is no clear test for deciding whether the cases contain “substantially similar parties and issues.” Id. As Defendant points out, “[t]he state and federal cases need not share identical . . . issues to be considered parallel for purposes of Colorado River abstention.” Sini v. CitiBank, N.A., 990 F.Supp.2d 1370, 1376 (S.D. Fla. 2014). The Eleventh Circuit has discussed this possibility of the state and federal cases being parallel even if some claims made in one court are not made in the other. See Ambrosia Coal, 368 F.3d at 1331.

         Plaintiff admits the parties in both the state court and this action are the same; however, she spends much of her argument contending the passport claim is a completely separate issue from the child custody issues being litigated in state court. (Doc. 16 at 6). Specifically, she contends the state court action involves custody issues and a request for a restraining order, while this action involves “a federal question regarding the issuance of a passport.” (Id.). Defendant maintains (doc. 18 at 3, 6-7), and the court agrees, that child custody and related issues are at the root of the passport issue and are not distinct in any meaningful way. As Defendant puts it, the passport issue is one discrete issue under the umbrella of child custody. If this case were to proceed to the merits in this Court, the court would be required to address all the reasons why Defendant has not consented to the issuance of a passport. These are the same reasons that the child custody issue has been reopened and is being litigated in state court. This Court attempting to determine whether to issue a passport to the minor child against Defendant's wishes is essentially a domestic custody hearing or trial, which is already taking place in state court.

         Furthermore, the parties are currently under a custody review wherein Defendant seeks sole legal and physical custody, which would render this action moot. Thus, finding the parties are identical in both actions and that the issue of child custody is central to both the state case and the federal ...


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