484 F.2d 446 - Milligan v. Milligan — 484 F.2d 446

How this case has been cited

Cited by 27 later decisions — most recently August 1997 · most notably Wilkins v. Rogers (1978), Peltier v. Peltier (1977)

12 federal appellate · 2 district ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *447Paul A. Kyyhkynen, Minneapolis, Minn., for appellee.

¶2Before HEANEY, BRIGHT and ROSS, Circuit Judges.

¶3PER CURIAM.

¶4Thomas W. Milligan was a defendant in a divorce action brought by Laurie Ann Milligan in the Minnesota courts. Mr. Milligan attempted to remove the action to federal court, but after a hearing, the action was remanded to state court. Mr. Milligan appealed to this Court and Mrs. Milligan has filed a motion for summary affirmance of the order of remand pursuant to Rule 8 of the Rules of this Court.1 We grant the motion.

¶5On March 16, 1973, a hearing was held in state court on a motion for temporary relief. Mr. Milligan was ordered to pay temporary child support and attorney’s fees. He was ordered to move from the couple’s home and to give up, temporarily, possession of the family auto. Mrs. Milligan was awarded temporary custody of the children.

¶6On April 12, 1973, Mr. Milligan filed a petition for removal of the action to federal court. The substance of the petition was that the prior state court order was the product of unlawful sex discrimination since both parties stood on an equal footing in all respects, including employment experience, income earned, and ability to care for the children. A hearing was held and the district court found that the action was not subject to removal. The court then ordered the action remanded to state court.

¶7In granting the pending motion, we make the following comments:

a. Removal cannot be maintained in this case under 28 U.S.C. § 1441(a) since the citizenship of the parties is not diverse. Blank v. Blank, 320 F.Supp. 1389, 1390 (W.D.Pa.1971).

b. Removal cannot be maintained in this action under 28 U.S.C. § 1441(b) since divorce actions do not engender a federal question, Blank v. Blank, supra,at 1390-1391 & n. 3, and, removal-cannot be maintained where the defendant sets up a federal law as a defense to a nonfederal claim. C. WRIGHT, LAW OF FEDERAL COURTS § 38 at 131 (1971).

c. Normally orders of remand are not reviewable on appeal, except in civil rights cases. LAW OF FEDERAL COURTS, supra, § 41 at 147. 28 U.S.C. § 1447(d).

d. Removal cannot be maintained in this case under 28 U.S.C. § 1443 because removal must be predicated upon a specific right under a law in terms of racial equality. Commonwealth of Pennsylvania ex rel Gittman v. Gittman, 451 F.2d 155, 156 & n. 3 (3d Cir. 1971).

¶8For the foregoing reasons the motion for summary affirmance is hereby granted.