United States District Court, M.D. Alabama, Northern Division
TIMOTHY W. TARVER, Plaintiff,
SIBLEY G. REYNOLDS, Defendant.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE.
Timothy Tarver has taken the old schoolhouse adage to heart:
“If at first you don't succeed, try, try
again.” This case started in state court when Timothy
divorced Susan Tarver. In a settlement agreement, Timothy
agreed to give half of his VA disability benefits to Susan.
Judge Sibley G. Reynolds of the Circuit Court of Elmore
County is now holding Timothy to his word. Timothy insists
that Judge Reynolds cannot do that. But the Alabama Court of
Civil Appeals has twice affirmed Judge Reynolds, and the
Supreme Court of Alabama denied certiorari both times.
persistent, Timothy wants to make a federal case out of Judge
Reynolds's orders. He first tried removing the state
action to this court. No dice. Then he filed a new lawsuit
against Susan in this court. Ditto. Now he is suing Judge
Reynolds under 42 U.S.C. § 1983, challenging Judge
Reynolds's judicial decisions. But like Timothy's
other federal cases, this one is due to be dismissed.
JURISDICTION AND VENUE
invokes federal-question subject-matter jurisdiction under 28
U.S.C. § 1331. Judge Reynolds argues that, under the
Rooker-Feldman doctrine, the court lacks
jurisdiction. (The court addresses this issue below.) The
parties do not dispute personal jurisdiction or venue.
STANDARDS OF REVIEW
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the sufficiency of the complaint
against the legal standard set forth in Rule 8: ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief.'” Wilborn v.
Jones, 761 Fed.Appx. 908, 910 (11th Cir. 2019) (per
curiam) (quoting Fed.R.Civ.P. 8(a)(2)). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
motion to dismiss for lack of subject-matter jurisdiction
under Rule 12(b)(1) can be either a facial attack or a
factual attack. Barnett v. Okeechobee Hosp., 283
F.3d 1232, 1237 (11th Cir. 2002). “If the 12(b)(1)
motion represents a facial attack on jurisdiction - that is,
the facts as stated supposedly do not provide cause for
federal jurisdiction - then the facts alleged by the
plaintiff are given the same presumption of truthfulness as
they would receive under a 12(b)(6) motion.”
and Susan Tarver married in 1992. Timothy was in the United
States Air Force throughout much of their marriage, though at
some point he retired. Then in 2010, Timothy petitioned for a
divorce in the Circuit Court of Elmore County, Alabama. (No.
DR-362.00, Doc. # 1.) The case was assigned to Judge Reynolds.
After some preliminary litigation, Timothy and Susan signed a
divorce settlement agreement in May 2012. In that agreement,
Timothy agreed to pay Susan half of his retirement benefits,
including his Veterans Administration (VA) disability
The Husband draws a retirement from the Air Force in the
present amount of $3, 334.00 per month. He as well receives a
veteran's disability in the present amount of $2, 070.00
per month. As represented by the Husband, there are no other
retirement plans. Therefore, the Wife shall receive 50% of
the Air Force retirement and 50% of the disability monies and
50% of the Thrift Savings Benefit Plan. Directly as to the
Air Force retirement, the Wife is awarded 50% of the
Husband's disposable military retired pay.
(No. DR-362.00, Doc. # 131, at ¶ 14.)
2012, Judge Reynolds “incorporated” Timothy and
Susan's settlement agreement into the final divorce
decree “as if set out in full within.” (No.
DR-362.00, Doc. # 141, at ¶ 3.) A month later, Judge
Reynolds once again ordered Timothy to assign half of his
retirement benefits to Susan. In particular, Judge Reynolds
ordered Timothy to pay half of “any amounts [he]
received . . . in lieu of disposable retired pay, including .
. . any amounts waived . . . to receive [VA disability]
benefits.” (No. DR-362.00, Doc. # 156, at ¶ 15.)
Unfortunately, however, years of litigation would rage over
2012 to 2015: The First Contempt
months after the divorce, in October 2012, Susan alleged that
Timothy was not giving her half of his VA disability
benefits. She asked Judge Reynolds to hold Timothy in
contempt based on his failure to pay. (No. DR-362.01, Doc. #
1, at ¶ 2.) In October 2013, Judge Reynolds found that
Timothy had underpaid Susan, so he ordered Timothy to follow
the settlement agreement. (No. DR-361.01, Doc. # 65, at
¶¶ 3, 6.)
responded by arguing that he need not pay Susan any part of
his VA disability benefits. (No. DR-362.01, Doc. # 75, at
¶ 8.) Timothy insisted that those benefits are
“untouchable” as a matter of law. (No. DR-362.01,
Doc. # 90, at 4.) All the while, Susan alleged, Timothy kept
withholding those benefits from her. (No. DR-362.01, Doc. #
78, at ¶ 3.)
February 2014, Judge Reynolds reaffirmed Timothy's
obligations under the settlement agreement, stating that VA
disability benefits were still “due as agreed.”
(No. DR-362.01, Doc. # 92, at ¶ 6.) Timothy appealed.
(No. DR-362.01, Doc. # 99.) But in December 2014, the Alabama
Court of Civil Appeals summarily affirmed. See Tarver v.
Tarver, 194 So.3d 1000 (Ala. Ct. App. 2014). And in
February 2015, the Supreme Court of Alabama denied
certiorari. See Ex parte Tarver, 210 So.3d 1101
(Ala. 2015). So in March 2015, Timothy fell subject to a $10,
201 judgment. (No. DR-362.01, Docs. # 167, 172, 180.)
2015 to 2018: The Second Contempt
November 2015, Susan once again alleged that Timothy refused
to pay her half of his VA disability benefits. And again, she
asked Judge Reynolds to hold Timothy in contempt. (No.
DR-362.02, Doc. # 1, at ¶ 3.) But this time around, it
took two trips to federal court before Judge Reynolds
addressed the merits.
first detour to federal court happened when Timothy removed
Susan's contempt petition to this court in December 2015.
(No. 15-cv-959, Doc. # 1.) But that case was remanded to
state court in March 2016. Because Timothy complained about
the effects of a state-court judgment, the court found that
it had no jurisdiction. Tarver v. Tarver, No.
15-cv-959, 2016 WL 1167245, at *2 (M.D. Ala. Mar. 25, 2016).
Undeterred, Timothy sued Susan in this court in August 2016.
In that action, Timothy sought a declaratory judgment that he
need not pay VA disability benefits to Susan. (No. 16-cv-715,
Doc. # 1.) But just as before, the court found that it lacked
jurisdiction because a state-court judgment caused the
alleged injuries. Tarver v. Tarver, No. 16-cv-715,
2016 WL 7015645, at *3 (M.D. Ala. Nov. 30, 2016), motion
to vacate denied, 2017 WL 5515896 (M.D. Ala. Jan. 12,
2017). Timothy appealed to the Eleventh Circuit, but he
voluntarily dismissed that appeal in April 2017. (No.
16-cv-715, Docs. # 21, 26.)
state court, Timothy moved to dismiss Susan's contempt
petition. He argued that his VA disability benefits were not
assignable and that Judge Reynolds lacked jurisdiction. (No.
DR-362.02, Doc. # 51, at ¶¶ 3, 6.) Judge Reynolds
rejected those arguments in June 2017. (See
DR-362.02, Doc. # 84.) The same month, Judge Reynolds held
Timothy in contempt for failing to pay Susan half of his VA
disability benefits. (No. DR-362.02, Doc. # 86, at ¶ 1.)
He entered a $27, 853 judgment against Timothy and ordered
him to make all future payments. (No. DR-362.02, Doc. # 86,
at ¶¶ 1-2.)
appealed. (No. DR-362.02, Docs. # 92.) But the Alabama Court
of Civil Appeals summarily affirmed in May 2018, and the
Supreme Court of Alabama denied certiorari in ...