Caroline Chevalier v. Estate of Kimberly Barnhart

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0240p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CAROLINE CHEVALIER,
Plaintiff-Appellant,
v.
ESTATE OF KIMBERLY BARNHART ,
Defendant-Appellee.
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No. 14-3146
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:13-cv-00609—James L. Graham, District Judge.
Decided and Filed: October 1, 2015
Before: KEITH, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David W. Orlandini, Gary C. Safir, DAVIS & YOUNG, Westerville, Ohio, for
Appellant. M. Shawn Dingus, PLYMALE & DINGUS, LLC, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Caroline Chevalier and
Defendant-Appellee Kimberly Barnhart1 met, fell in love, and were married. Throughout the
course of their marriage, Chevalier made a series of loans to Barnhart, which Barnhart never
repaid. Chevalier filed this lawsuit in the United States District Court for the Southern District
1While this appeal was pending, Barnhart died. Since Barnhart’s death, Chevalier has substituted
the Estate of Kimberly Barnhart as the real party in interest. For the sake of readability, we will refer to the
defendant-appellee as Barnhart throughout the opinion.
>

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of Ohio, alleging contract and tort claims in order to recover her loans. Chevalier alleges that the
district court had subject-matter jurisdiction to adjudicate her claims pursuant to 28 U.S.C.
§ 1332(a) (2012) because she is “a citizen[] or subject[] of a foreign state,” Canada, and Barnhart
is a citizen of Ohio, see id. § 1332(a)(2), and Chevalier’s claims for damages exceed $75,000.
See R. 2 at 1, 10 (Compl. ¶¶ 1–2) (Page ID #2, 11). But there is a wrinkle: the so-called
domestic-relations exception to federal diversity jurisdiction deprives federal courts of
jurisdiction to adjudicate “only cases involving the issuance of a divorce, alimony, or child
custody decree.” Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). On Barnhart’s motion,
the district court concluded that Chevalier’s lawsuit required dividing “the parties’ property[,
which] involves ‘delicate issues of domestic relations’ appropriately left to the Canadian court,”
and dismissed the suit pursuant to Federal Rule of Civil Procedure 12(b)(1). R. 11 at 12 (D. Ct.
Op. & Order) (Page ID #77) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13
(2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1387 (2014)).
Chevalier appeals the district court’s dismissal of her state-law claims, arguing that the
domestic-relations exception is inapplicable. While this appeal was pending, Barnhart died.
(Notice of Death of Appellee). Barnhart’s death raised the specter of another potential
impediment to federal jurisdiction: the probate exception. See Marshall v. Marshall, 547 U.S.
293, 311–12 (2006) (“[T]he probate exception reserves to state probate courts the probate or
annulment of a will and the administration of a decedent’s estate; it also precludes federal courts
from endeavoring to dispose of property that is in the custody of a state probate court.”).
For the reasons set forth in this opinion, we hold that neither the domestic-relations
exception nor the probate exception prevents the federal courts from resolving Chevalier’s
claims. Accordingly, we REVERSE the district court’s dismissal for lack of subject-matter
jurisdiction, VACATE the entry of judgment, and REMAND the case for further proceedings.

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I. FACTS AND PROCEDURAL HISTORY
In July 2007, Chevalier and Barnhart wed in Ontario, Canada, where Chevalier is a
citizen, and where the government permitted them to marry.2 R. 2 at 1 (Compl. ¶¶ 1–2) (Page ID
#2); R. 4 at 1 (Answer ¶¶ 1–2) (Page ID #13); R. 7-1 at 4 (Appl. for Divorce) (Page ID #36).
After approximately three years of marriage, Chevalier’s and Barnhart’s relationship soured, and
the couple separated. R. 7-1 at 4 (Appl. for Divorce) (Page ID #36).
Chevalier claims that she made a series of loans between 2007 and 2010 to Barnhart
totaling approximately $122,708: $70,000 for mortgage payments, property taxes,
insurance, utilities, and construction payments for Barnhart’s house in Logan, Ohio; $23,700 for
credit-card debt; $19,008 for a car; and $10,000 for legal fees. R. 2 at 2–3 (Compl. ¶¶ 6–16)
(Page ID #3–4). According to Chevalier, each transfer of funds was a loan conditioned upon
repayment. See id. (Compl. ¶ 18). Between 2010 and 2011, Barnhart made a series of payments
to Chevalier in the amount of $3,000 as partial payment of her debt. Id. at 4 (Compl. ¶ 13) (Page
ID #4). In April 2011, Barnhart gave Chevalier a check in the amount of $4,000 as a partial
payment on her loans, but issued a stop-payment order shortly thereafter. Id. (Compl. ¶¶ 14–15).
Eventually, apparently fed up with the slow rate of repayment, Chevalier filed this lawsuit in the
United States District Court for the Southern District of Ohio, seeking approximately $119,708
in compensatory damages, $500,000 in punitive damages, interest, costs, and attorney fees for
breach of contract (Count I), default on loans (Count II), unjust enrichment (Count III), and fraud
(Count IV). Id. at 3–10 (Compl. ¶¶ 1–55) (Page ID #4–11). She also requests that the court
impose a constructive lien on Barnhart’s house in Logan, Ohio (Count V), and foreclose on the
property (Count VI). Id. at 8–9 (¶¶ 56–67) (Page ID #9–10).
On August 20, 2013, shortly before filing the answer to Chevalier’s complaint, Barnhart
filed for divorce in Windsor, Ontario, seeking spousal support and an equalization of net family
properties. R. 7-1 at 2–3, 5 (Appl. for Divorce) (Page ID #34–35, 37). On August 23, 2013,
Barnhart answered the federal complaint, denying all allegations and asserting numerous
affirmative defenses, including lack of subject-matter jurisdiction. R. 4 at 1–5 (Answer ¶¶ 5–24)
2At the time of Chevalier’s and Barnhart’s wedding, the State of Ohio refused to solemnize their union.
While this appeal was pending, the United States Supreme Court held that state bans on same-sex marriage are
unconstitutional. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

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(Page ID #13–18). Shortly thereafter, on September 30, 2013, Barnhart moved to dismiss the
federal complaint pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction under the
domestic-relations exception to federal diversity jurisdiction. R. 7 at 1–7 (Def.’s Mot. to
Dismiss) (Page ID #26–32). In Barnhart’s district-court reply brief, she clarified that she was
also seeking abstention and urged the district court to stay the federal proceedings until the
Ontario Superior Court resolved the application for divorce. R. 10 at 6–7 (Def.’s Rep. to Pl.’s
Mem. in Opposition to Mot. to Dismiss) (Page ID #63–64).
On January 15, 2014, the district court dismissed the complaint on the grounds that the
court lacked subject-matter jurisdiction under the domestic-relations exception to federal
diversity jurisdiction. R. 11 at 12 (D. Ct. Op. & Order) (Page ID #77). The district court
acknowledged that Chevalier had “framed her complaint in terms of contract and tort claims”—
rather than a request for a divorce or alimony decree—but that, nevertheless, the domestic-
relations exception barred her claims because she sought “the functional equivalent of a divorce
proceeding[] insofar as [Chevalier] has, in effect, asked this court to determine her marital
property rights and obligations with respect to the monies referred to in the complaint.” Id. at 10
(Page ID #75). In particular, the district court concluded that the Superior Court of Justice in
Ontario would consider Chevalier’s claim of right to the money at issue in her tort and contract
claims when determining Barnhart’s right to spousal support and equalization of net family
properties. Id. at 11 (Page ID #76). The district court also expressed concern that the federal
proceedings might subject the parties to “incompatible federal [American] and Canadian
decrees.” Id. Finally, the district court noted concern that Ohio’s then-existing ban on same-sex
marriages would affect the outcome of the federal proceedings. Id. at 11–12 (Page ID #76–77)
(citing OHIO CONST . art. XV, § 11; OHIO REV. CODE § 3101.01(C) (2014)). The district court
never addressed Barnhart’s request that the court abstain from adjudicating this case. See id. at
1–12.
Chevalier filed this timely appeal. On September 2, 2014, while this appeal was pending,
Barnhart died. We stayed the appellate proceedings. Chevalier filed a motion to substitute the
Estate of Kimberly Barnhart as the party in interest and lift the stay. On October 30, 2014, the
Superior Court of Justice in Windsor, Ontario, dismissed the parties’ divorce proceedings

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without terminating the marriage or disposing of the parties’ assets or property. Appellant’s
Notice of Canadian Ct.’s Dismissal of Divorce Proceedings at 2–3; Appellant’s Mem. in Resp. to
Ct.’s Briefing Ltr. at 7. Before we ruled on Chevalier’s motion to substitute Barnhart’s estate as
the real party in interest, proceedings began in the Probate Court of Hocking County, Ohio, to
administer Barnhart’s estate. On February 9, 2015, the Probate Court appointed Karla S.
Mayberry as the administrator of Barnhart’s estate. Appellant’s Supplemental Notice of Probate
Court’s Order at 2. We subsequently granted Chevalier’s motion for substitution of parties.
These developments caused us to consider whether the probate exception to federal
jurisdiction might prevent adjudication of Chevalier’s state-law claims in federal court, and we
ordered the parties to address the issue in supplemental briefs. We now turn to answer the
question: should the domestic-relations or probate exceptions limit the federal courts’ subject-
matter jurisdiction in this case?
II. ANALYSIS
We review de novo a district court’s dismissal of a complaint for lack of subject-matter
jurisdiction. Wisecarver v. Moore, 489 F.3d 747, 749 (6th Cir. 2007). The plaintiff has the
burden of proving that the federal court has subject-matter jurisdiction. Id. “[F]ederal courts
have an independent obligation to ensure that they do not exceed the scope of their jurisdiction,
and therefore they must raise and decide jurisdictional questions that the parties either overlook
or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
A. The Domestic-Relations Exception to Federal Diversity Jurisdiction
“[T]he domestic-relations exception [to federal diversity jurisdiction] encompasses only
cases involving the issuance of a divorce, alimony, or child custody decree.” Ankenbrandt,
504 U.S. at 704. It is not “compelled by the text of the Constitution or federal statute,” but rather
is a “judicially created doctrine[] stemming in large measure from misty understandings of
English legal history.” Marshall, 547 U.S. at 299. Despite the domestic-relations exception’s
questionable roots, the Supreme Court concluded in Ankenbrandt that the domestic-relations
exception to federal diversity jurisdiction endures to this day as a matter of statutory
interpretation. See Ankenbrandt, 504 U.S. at 700. In addition, there are sound policy reasons to

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leave the issuance of divorce, alimony, and child-custody decrees to the state courts: “Issuance
of decrees of this type not infrequently involves retention of jurisdiction by the court and
deployment of social workers to monitor compliance,” and “state courts are more eminently
suited to work of this type than are federal courts, which lack the close association with state and
local government organizations dedicated to handling issues that arise out of conflicts over
divorce, alimony, and child custody decrees.” Id. at 703–04. In addition, state courts have
“judicial expertise” in the area of “issu[ing] these types of decrees because of the special
proficiency developed by state tribunals over the past century and a half in handling issues that
arise in the granting of such decrees.” Id. at 704 (citing Lloyd v. Loeffler, 694 F.2d 489, 492
(7th Cir. 1982)).3
Although the Court retained the domestic-relations exception to federal diversity
jurisdiction, the Court expressed concern that “the lower federal courts ha[d] applied [the
domestic-relations exception] in a variety of circumstances . . . [that] go well beyond the
circumscribed situations” where it applies. Id. at 701 (internal citation omitted). The Court
made clear that the domestic-relations exception extended no further than “cases involving the
issuance of a divorce, alimony, or child custody decree.” Id. at 704. And the Court specifically
held that the Court of Appeals had erred by invoking the domestic-relations exception to prevent
federal adjudication of a claim that “in no way seeks such a decree,” but rather “alleges that [the
defendants] committed torts against . . . [the plaintiff’s] children by [one of the defendants].” Id.
Since Ankenbrandt, the Court has reemphasized “that the [domestic-relations] exception
covers only ‘a narrow range of domestic relations issues,’” Marshall, 547 U.S. at 307 (quoting
Ankenbrandt, 504 U.S. at 701), and that federal courts “‘have no more right to decline the
3In Lloyd, the Seventh Circuit noted that federal courts are not competent to handle divorce proceedings for
the following reasons:
The typical divorce decree provides for alimony payable in installments until the wife remarries,
and if there are children it will provide for custody, visitation rights, and child support payments
as well. These remedies—alimony, custody, visitation, and child support—often entail continuing
judicial supervision of a volatile family situation. The federal courts are not well suited to this
task. They are not local institutions, they do not have staffs of social workers, and there is too
little commonality between family law adjudication and the normal responsibilities of federal
judges to give them the experience they would need to be able to resolve domestic disputes with
skill and sensitivity.
694 F.2d at 492.

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exercise of jurisdiction which is given, than to usurp that which is not given,’” id. at 298–99
(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)). The message from
Ankenbrandt and Marshall is clear: the domestic-relations exception is narrow, and lower
federal courts may not broaden its application.
We have had few occasions to address the scope of the domestic-relations exception
since Ankenbrandt. In the first post-Ankenbrandt case in this circuit, the plaintiff “sought a final
declaratory judgment, pursuant to 28 U.S.C. § 2201, that the Arizona state court judgment” was
invalid under federal law and the United States Constitution. See Catz v. Chalker, 142 F.3d 279,
289 (6th Cir. 1998), overruled on other grounds by Coles v. Granville, 448 F.3d 853, 859 n.1
(6th Cir. 2006). On appeal, we considered the impact of Ankenbrandt and concluded that the
domestic-relations exception does not apply unless “a plaintiff positively sues in federal court for
divorce, alimony, or child custody,” id. at 292, thereby rejecting the contention that the
domestic-relations exception applies to “every case touching and concerning the issuance of a
divorce, the award of alimony, or a child custody decree,” id. at 292 n.14. See also Drewes v.
Ilnicki, 863 F.2d 469, 471–72 (6th Cir. 1988) (“The federal courts may not refuse jurisdiction
merely because the parties were at one time in a marital relationship and the motive for the tort
may spring from that source.”). Because the plaintiff had not “positively sue[d] in federal court
for divorce, alimony, or child custody,” we held that the district court had erred by “refusing to
assume jurisdiction.” Catz, 142 F.3d at 292.
Since Catz, our cases have clarified that the domestic-relations exception deprives federal
courts of diversity jurisdiction if the plaintiff seeks to modify or interpret the terms of an existing
divorce, alimony, or child-custody decree. In McLaughlin v. Cotner, we held that the domestic-
relations exception deprived the federal courts of jurisdiction to adjudicate a breach-of-contract
claim arising from the alleged breach of a divorce decree. The divorce decree incorporated a
separation agreement that required the sale of real estate. 193 F.3d 410, 414 (6th Cir. 1999).
The basis for the alleged breach of contract was “a separation agreement that was incorporated in
the divorce decree,” and it was important that the divorce decree—not “the law of contract or
torts”—was the source of the obligations that the plaintiff sought to enforce. Id. In other words,
McLaughlin stands for the uncontroversial proposition that a plaintiff may not artfully cast a suit

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seeking to modify or interpret the terms of a divorce, alimony, or child-custody decree as a state-
law contract or tort claim in order to access the federal courts. See id. at 414–15 (“Plaintiff’s
argument that the present case is a straightforward breach of contract case and that an action for
damages lies under Ohio law is disingenuous, as the separation agreement was entered into in
order to determine the rights and obligations concerning marital property upon separation and
divorce.”); see also Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1216 (6th Cir. 1981) (“It is
incumbent upon the district court to sift through the claims of the complaint to determine the true
character of the dispute to be adjudicated.”); cf. Mikulski v. Centerior Energy Corp., 501 F.3d
555, 561 (6th Cir. 2007) (en banc) (“Under the artful-pleading doctrine, a federal court will have
jurisdiction if a plaintiff has carefully drafted the complaint so as to avoid naming a federal
statute as the basis for the claim, and the claim is in fact based on a federal statute.” (citing
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 22 (1983))).4
Our sibling circuits have also limited the domestic-relations exception to suits seeking to
obtain or modify a divorce, alimony, or child-custody decree. See, e.g., Matusow v. Trans-
County Title Agency, LLC, 545 F.3d 241, 246 (3d Cir. 2008) (reasoning that a “modification of a
divorce decree is analogous to the issuance of a divorce decree,” and therefore subject to the
domestic-relations exception to federal diversity jurisdiction); Norton v. McOsker, 407 F.3d 501,
505 (1st Cir. 2005) (“Even if the Rhode Island Family Court did have jurisdiction, the domestic
4In various unpublished cases, we have continued to limit the domestic-relations exception to “cases
involving the issuance of a divorce, alimony, or child custody decree,” Ankenbrandt, 504 U.S. at 704, and
cases seeking to modify or interpret a divorce, alimony, or child custody decree. See, e.g., Abdallah v. Abdallah,
No. 98-1551, 1999 WL 331631, at *1 (6th Cir. May 13, 1999) (holding that the domestic-relations exception barred
federal adjudication of a state-law fraud action because the plaintiff “essentially” sought “a modification of the
process in the divorce decree relating to distribution”); Chambers v. Michigan, 473 F. App’x 477, 478–79 (6th Cir.
2012) (holding that the domestic-relations exception prevented the plaintiff from challenging in federal court the
constitutionality of the state-court judge’s “decision to consider certain assets and property” when calculating the
plaintiff’s husband’s income for the purposes of determining alimony payments because the plaintiff “ultimately
want[ed] this [c]ourt to enjoin the state court from using property . . . to determine the amount of alimony owed”).
Admittedly, this court has not always been consistent. For example, in United States v. MacPhail, 149 F.
App’x 449, 455 (6th Cir. 2005), which the district court relied on, this court held that the district court could not
exercise supplemental jurisdiction over cross-claims that had a “family law character.” Because MacPhail is
unpublished, however, it is binding on only the parties and not on this court. Crump v. Lafler, 657 F.3d 393, 405
(6th Cir. 2011) (“Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent
panels ….”).
Moreover, MacPhail did not address whether the cross-claims were subject to the domestic-relations
exception to diversity jurisdiction, but rather held that the district court should not have exercised discretionary
supplemental jurisdiction over cross-claims presenting questions of state domestic-relations law.

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relations exception . . . would not apply[] because [the plaintiff] did not bring any claim related
to a divorce, alimony, or a child custody decree.”); Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir.
2001) (“[L]awsuits affecting domestic relations, however substantially, are not within the
[domestic-relations] exception unless the claim at issue is one to obtain, alter or end a divorce,
alimony or child custody decree.”); Lloyd, 694 F.2d at 493 (holding that the domestic-relations
exception to federal diversity jurisdiction does not prevent federal courts from adjudicating a tort
action when the plaintiffs do “not contest the validity of the [state] custody decree,” because “the
tort issues . . . [were] not entangled with issues that only state courts are competent to resolve.”).
Thus, the domestic-relations exception to federal diversity jurisdiction does not deprive federal
courts of jurisdiction to adjudicate a claim that meets the requirements of 28 U.S.C. § 1332
unless “a plaintiff positively sues in federal court for divorce, alimony, or child custody,” Catz,
142 F.3d at 292, or seeks to modify or interpret an existing divorce, alimony, or child-custody
decree.
When analyzing the applicability of the domestic-relations exception, we must focus on
the remedy that the plaintiff seeks: Does the plaintiff seek an issuance or modification or
enforcement of a divorce, alimony, or child-custody decree? See Catz, 142 F.3d at 292; Cf.
Mercer v. Bank of New York Mellon, N.A., 609 F. App’x 677, 679–80 (2d Cir. 2015) (holding
that under the probate exception to federal diversity jurisdiction a court “must examine the
substance of the relief that Plaintiffs are seeking, and not the labels that they have used”). If the
plaintiff is seeking to dissolve the marriage and resolve all matters concerning property and
children, then the case falls within the domestic-relations exception. See BLACK’ S LAW
DICTIONARY 498 (10th ed. 2014) (defining “divorce decree”). If the plaintiff asks a federal court
to calculate and order payment of an allowance for maintenance of a spouse during divorce
proceedings or after a divorce is finalized, then the plaintiff seeks alimony and a federal court
may not take jurisdiction over the matter. See id. at 89 (defining “alimony”). And if the plaintiff
requests that a federal court determine who should have care for and control a child, then that
request is outside the jurisdiction of the federal courts. See id. 292, 467 (defining “custody” and
“custody decree”). Each of these remedies, which are typically attendant to the dissolution of a
marriage, “entail continuing judicial supervision of a volatile family situation,” and federal
courts are poorly equipped to handle that task. Lloyd, 694 F.2d at 492; see also Ankenbrandt,

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504 U.S. at 703–04 (“Issuance of decrees of this type not infrequently involves retention of
jurisdiction by the court and deployment of social workers to monitor compliance.”). In sum,
“both Ankenbrandt and Marshall consistently conclude that the exception relates not to the
subject of domestic relations, but to particular status-related functions that fall within state power
and competence.” 13E CHARLES ALAN WRIGHT , ARTHUR R. M ILLER, EDWARD H. COOPER, ET
AL ., FEDERAL PRACTICE AND PROCEDURE § 3609.1 (3d ed. 2008) (emphasis added).
The domestic-relations exception to federal diversity jurisdiction does not apply when the
parties do not ask the federal court to perform these status-related functions—issuing a divorce,
alimony, or child-custody decree—even if the matter involves married or once-married parties.
“[F]ederal courts [are] as equally equipped [as state courts] to deal with complaints alleging the
commission of torts” and breach of contract. Marshall, 547 U.S. at 308 (citing Ankenbrandt,
504 U.S. at 704).
We now turn to whether Chevalier seeks the issuance or modification of a divorce,
alimony, or child-custody decree. In doing so, we focus on the remedy Chevalier seeks.
Although Chevalier does not explicitly request dissolution of her marriage or calculation of
alimony, the district court concluded that Chevalier has asked that the federal courts perform the
“functional equivalent of divorce proceedings” because the court must “determine her marital
property rights and obligations with respect to the monies referred to in the complaint.” R. 11 at
10 (D. Ct. Op. & Order) (Page ID #75). In other words, the district court concluded that
Chevalier was seeking an order regarding the “allocation of marital property and the award of
alimony,” which “would involve the same factual and legal issues” that were “before the
Superior Court of Justice, Windsor, Ontario as part of the pending divorce proceedings,” and
therefore Chevalier’s claims fall within the ambit of the domestic-relations exception to federal
diversity jurisdiction. Id. at 10–11 (Page ID #75–76).
We disagree. Chevalier does not request that the federal courts nullify her marriage.
See R. 2 at 10 (Compl.) (Page ID #11). She does not seek an order that Barnhart regularly pay
her an allowance, i.e., alimony. Id. Nor does Chevalier seek to modify an existing divorce or
alimony decree; indeed, none exists. Rather, Chevalier requests that the federal court adjudicate
whether she is entitled to repayment for past-due loans and a legal interest in Barnhart’s Ohio

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property. See id. at 3–9 (Compl. ¶¶ 17–67) (Page ID #4–10). Because none of the claims or
remedies requires a federal court to dissolve the marriage, award alimony, monitor Chevalier’s
need for maintenance and support, or enforce Barnhart’s compliance with a related court order,
Chevalier’s claims are not subject to the domestic-relations exception to federal diversity
jurisdiction. See Ankenbrandt, 504 U.S. at 703–04.
Finally, we acknowledge that our approach is slightly different from that of the Eighth
Circuit. In Wallace v. Wallace, the Eighth Circuit held that a person who claimed that his ex-
wife committed identity theft could not litigate his claim in federal court because a Missouri
family court had already “consider[ed] ‘the conduct of the parties during the marriage’” and
“labeled the debt ‘marital’” before dividing the debt between the two ex-spouses. 736 F.3d 764,
767 (8th Cir. 2013) (quoting Mo. Rev. Stat. § 452.330.1(4)). The Eighth Circuit concluded that
any determination that the plaintiff’s ex-wife had committed identity theft would “modify the
state court’s marital distribution” because “a Missouri state court bound by [Missouri Revised
Statute] § 452.330.1(4) [had] consider[ed] ‘the conduct of the parties during the marriage’”
because of the similarities between the evidence presented in the two proceedings. Id. (internal
alterations omitted).
We do not adopt the Eighth Circuit’s approach to determining whether the domestic-
relations exception to federal diversity jurisdiction applies. In concluding that the plaintiff’s
state identity-theft damages remedy in federal court “would modify the state court’s marital
distribution, the Eighth Circuit relied on the statutorily required considerations that a divorce
court must consider before dividing property and awarding alimony.” Id. (“These [identity-theft]
remedies would essentially require that the federal court remove the label ‘marital debt’ and
reallocate the debt division the state court has already ‘deem[ed] just after considering’ the
conduct at issue here.” (quoting Mo. Rev. Stat. § 452.330.1) (alterations in original)). When a
court distributes marital property, it does so in accordance with the parties’ “rights and
obligations [that] aris[e] from [their] marital status,”—i.e., in accordance with state family law—
and not the law of torts or contracts. McLaughlin, 193 F.3d at 414 (emphasis added). Although
the distribution of marital property under state law may require that courts consider the spouses’
conduct—conduct that may or may not constitute tortious conduct—that does not affect the

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federal courts’ subject-matter jurisdiction. Stated simply, state law does not determine the scope
of our jurisdiction. See Marshall, 547 U.S. at 314 (holding that Texas’s probate statute does not
affect whether the probate exception to federal jurisdiction applies to a case). Moreover, in
situations like Wallace, other doctrines, such as res judicata or collateral estoppel, may prevent
federal plaintiffs from relitigating issues raised in a prior divorce proceeding, “but these are
defenses rather than jurisdictional obstacles.” Jones v. Brennan, 465 F.3d 304, 305–06 (7th Cir.
2006) (holding that a suit for compensatory and punitive damages against various probate judges
for conspiracy to deprive the plaintiff of property during the probate proceedings was not barred
by the probate exception or Rooker-Feldman abstention doctrine). We therefore believe that the
Eighth Circuit’s approach extends the domestic-relations exception “well beyond the
circumscribed situations” described by the Supreme Court in Ankenbrandt: “the issuance of a
divorce, alimony, or child custody decree.” 504 U.S. at 704.
Our opinion today also departs from the Seventh Circuit’s opinion in Friedlander v.
Friedlander, 149 F.3d 739 (7th Cir. 1998). In that case, the court noted that the domestic
relations exception “has a core and a penumbra.” Id. at 740. The core consists of cases “in
which the plaintiff is seeking in federal district court under the diversity jurisdiction one or more
of the distinctive forms of relief associated with the domestic relations jurisdiction: the granting
of a divorce or an annulment, an award of child custody, a decree of alimony or child support.”
Id. By contrast, the penumbra “consists of ancillary proceedings . . . that state law would require
be litigated as a tail to the original domestic relations proceeding.” Id. The court acknowledged
that supposed dicta in Ankenbrandt “cast[s] doubt on the existence of the penumbra,” but
concluded that issues of the penumbra were not before the Court. Id. However, that is not how
we read Ankenbrandt, and we are reluctant to broaden the exception beyond what the Supreme
Court has advised.
The district court here noted an additional “policy reason[]” for its conclusion that the
federal courts do not have subject-matter jurisdiction to adjudicate Chevalier’s claims: “the
danger . . . that federal adjudication of this action would increase the risk of incompatible federal
and Canadian decrees.” R. 11 at 11 (D. Ct. Op. & Order) (Page ID #76). But when Chevalier
filed her complaint in federal court, no such risk was present; Barnhart filed for divorce in

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Canada after Chevalier filed this federal lawsuit. Nor does that risk exist now; the Superior
Court of Justice in Ontario dismissed Chevalier’s and Barnhart’s divorce proceedings upon
notice of Barnhart’s death. In any event, whether Barnhart initiated divorce proceedings before
or after Chevalier filed her federal civil suit does not affect whether the federal court has subject-
matter jurisdiction to adjudicate Chevalier’s claims because our subject-matter jurisdiction is
based on the remedy Chevalier seeks, not whether Chevalier filed her suit before or after
Barnhart brought suit.
B. The Probate Exception
The “‘probate exception,’ kin to the domestic relations exception, to otherwise proper
federal jurisdiction[] . . . has [also] been linked to language contained in the Judiciary Act of
1789.”5 Marshall, 547 U.S. at 308 (internal citations omitted). Like the domestic-relations
exception, the probate exception is based on questionable interpretations of the division of labor
between the English courts. See Marshall, 547 U.S. at 316 (Stevens, J., concurring in part and
concurring in the judgment) (“The Court is content to . . . accept as foundation for the probate
exception Markham’s bald assertion that the English High Court of Chancery’s jurisdiction did
not ‘extend to probate matters’ in 1789. I would not accept that premise. . . . [T]he most
comprehensive article on the subject has persuasively demonstrated that Markham’s assertion is
‘an exercise in mythography.’” (citing John F. Winkler, The Probate Jurisdiction of the Federal
Courts, 14 PROB. L. J. 77, 126 (1997) (internal citation omitted)).
Despite the probate exception’s questionable origins, it also endures. In Markham v.
Allen, 326 U.S. 490, 494 (1946), the Supreme Court stated that “a federal court may not exercise
its jurisdiction to disturb or affect the possession of property in the custody of a state court . . . .”
Id. The Court clarified, however,
that federal courts of equity have jurisdiction to entertain suits “in favor of
creditors, legatees and heirs” and other claimants against a decedent’s estate “to
establish their claims” so long as the federal court does not interfere with the
probate proceedings or assume general jurisdiction of the probate or control of the
property in the custody of the state court.
5The Seventh Circuit has remarked that the domestic-relations and probate exceptions “are materially
identical. The fact that they are two rather than one reflects nothing more profound than the legal professions’
delight in multiplying entities.” Struck v. Cook Cnty. Pub. Guardian, 508 F.3d 858, 859 (7th Cir. 2007).

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Id. (quoting Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43 (1909)).
Applying this framework, the Court considered whether the petitioner who “sought a judgment
in [federal court] ordering defendant executor to pay over the entire net estate to the petitioner
upon an allowance of the executor’s final account,” id. at 495, was subject to the probate
exception when the will had been “admitted to probate” and “the estate [was] being administered
in the Superior Court of California,” id. at 492. The Court concluded that the remedy the
petitioner sought was “not an exercise of probate jurisdiction or an interference with property in
the possession or custody of a state court” because “[t]he effect of the judgment . . . [would
leave] undisturbed the orderly administration of decedent’s estate in the state probate court.”
Id. at 495.
After Markham, “[l]ower federal courts . . . puzzled over the meaning of the words
‘interfere with the probate proceedings,’ and some . . . read those words to block federal
jurisdiction over a range of matters well beyond probate of a will or administration of a
decedent’s estate.” Marshall, 547 U.S. at 311 (quoting Markham, 326 U.S. at 494).
In Marshall, the Supreme Court reined in expansive application of the probate exception and
clarified that “the ‘interference’ language in Markham [is] essentially a reiteration of the general
principle that, when one court is exercising in rem jurisdiction over a res, a second court will not
assume in rem jurisdiction over the same res.” Id.6
Thus, the probate exception reserves to the state probate courts the probate or
annulment of a will and the administration of a decedent’s estate; it also precludes
federal courts from endeavoring to dispose of property that is in the custody of a
state probate court. But it does not bar federal courts from adjudicating matters
outside those confines and otherwise within federal jurisdiction.
Id. at 311–12. In Marshall, the relief that the plaintiff sought was “an in personam judgment
against [the defendant]”—for a “widely recognized tort” (tortious interference with an expected
gift)—“not the probate or annulment of a will.” Id. at 312. “Nor [did the plaintiff] seek to reach
a res in the custody of a state court.” Id. Nor did any “‘sound policy considerations’ militate in
favor of extending the probate exception . . . .” Id.
6The Court specifically noted that this court’s treatment of the probate exception in Lepard v. NBD Bank,
Div. of Bank One, 384 F.3d 232, 234–37 (6th Cir. 2004), extended the probate exception “well beyond probate of a
will or administration of a decedent’s estate.” Marshall, 547 U.S. at 311. We therefore conclude that our
application of the probate exception in Lepard was overly broad, and that Marshall has superseded Lepard.

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In addition, the Court addressed whether a Texas provision that “reserve[d] to its probate
courts the exclusive right to adjudicate a transitory tort” deprived the federal courts of
jurisdiction to adjudicate the tort claim. Id. at 313–14. There was no dispute that “Texas law
govern[ed] the substantive elements of [the plaintiff’s] tortious interference claim.” Id. at 313
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). But the Court firmly rejected the
proposition that a federal court’s subject-matter jurisdiction is dependent upon state law:
“Jurisdiction is determined ‘by the law of the court’s creation and cannot be defeated by the
extraterritorial operation of a state statute, even though it created the right of action.’” Id. at 314
(quoting Tennessee Coal, Iron & R.R. Co. v. George, 233 U.S. 354, 360 (1914)) (internal
alterations omitted). We therefore look to only federal law to determine whether the probate
exception to federal diversity jurisdiction applies.
Since Marshall, we and our sibling circuits have agreed that the probate exception is
narrowly limited to three circumstances: (1) if the plaintiff “seek[s] to probate . . . a will”; (2) if
the plaintiff “seek[s] to . . . annul a will”; and (3) if the plaintiff “seek[s] to reach the res over
which the state court had custody.” Wisecarver, 489 F.3d at 750; see also Lee Graham Shopping
Ctr., LLC v. Estate of Kirsch, 777 F.3d 678, 681 (4th Cir. 2015) (“[The probate exception]
applies only if a case actually requires a federal court to perform one of the acts specifically
enumerated in Marshall: to probate a will, to annul a will, to administer a decedent’s estate; or
to dispose of property in the custody of a state probate court. A case does not fall under the
probate exception if it merely impacts a state court’s performance of one of these tasks.”); Curtis
v. Brunsting, 704 F.3d 406, 409 (5th Cir. 2013) (“Marshall requires a two-step inquiry into
(1) whether the property in dispute is estate property within the custody of the probate court and
(2) whether the plaintiff’s claims would require the federal court to assume in rem jurisdiction
over that property.”); Three Keyes Ltd. v. SR Util. Holding Co., 540 F.3d 220, 227 (3d Cir. 2008)
(“It is clear after Marshall that unless a federal court is endeavoring to (1) probate or annul a
will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in
the custody of the probate court, the probate exception does not apply.”).
Chevalier does not request that the federal courts probate or annul a will, or administer
Barnhart’s estate, and so the question we must answer is whether Chevalier “seek[s] to reach the

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res over which the state court had custody.” Wisecarver, 489 F.3d at 750. First, we must
identify whether Chevalier’s causes of action are in personam or in rem actions. An in personam
action is “[a]n action brought against a person rather than property,” and the judgment
“is binding on the judgment-debtor and can be enforced against all the property of the judgment-
debtor.” BLACK’ S L AW DICTIONARY , supra, 36. An in rem action is “[a]n action determining the
title to property and the rights of the parties, not merely among themselves, but also against all
persons at any time claiming an interest in that property,” or “[a]n action in which the named
defendant is real or personal property.” Id. In other words, in rem actions “are fights over a
property or a person in the court’s control.” Struck v. Cook Cnty. Pub. Guardian, 508 F.3d 858,
860 (7th Cir. 2007). The property within the control of the court is the res. Id. Next, our task is
to determine whether Chevalier has asked a federal court to “elbow its way into” an ongoing
“fight[] over a property or a person in [another] court’s control.” Id.
Here, Chevalier has asserted six claims. Her first four claims—for breach of contract,
default, unjust enrichment, and fraud—are in personam actions. See, e.g., 71 AM. J UR. 2 D
SPECIFIC PERFORMANCE § 196 (2d ed. 2015) (“[A]n action for specific performance of a contract,
even though it relates to real property, is in personam insofar as it is sought to compel
performance by the defendant . . . .”). For her fifth claim, Chevalier seeks the imposition of a
constructive lien on Barnhart’s house in Ohio. R. 2 at 8 (Compl. ¶¶ 56–62). Under Ohio law,7
A constructive trust is . . . an appropriate remedy against unjust
enrichment. This type of trust is usually invoked when property has been
acquired by fraud. However, a constructive trust may also be imposed where it is
against the principles of equity that the property be retained by a certain person
even though the property was acquired without fraud.
Ferguson v. Owens, 459 N.E.2d 1293, 1295 (Ohio 1984). A judgment imposing a constructive
trust over a specified property is an in personam action under Ohio law, and the court need not
have in rem jurisdiction to enter the judgment. Groza-Vance v. Vance, 834 N.E.2d 15, 25–26
(Ohio Ct. App. 2005); see also Ingersoll v. Coram, 211 U.S. 335, 359 (1908) (“One object of the
bill . . . was to declare and foreclose a lien upon property within the district, . . . and we do not
think that jurisdiction thus established [in federal court] and supported was taken away by the
7Although Chevalier does not specifically cite Ohio law in her complaint, we assume that Ohio law is the
law we must apply under Erie R.R. Co., 304 U.S. at 78, because the property in dispute is in Ohio.

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mere fact that the settlement of the estate of Davis was pending in the Probate Court of Suffolk
County.”); Parker v. Handy (In re Handy), 624 F.3d 19, 22 (1st Cir. 2010) (holding that, under
Maine law, “[c]onstructive trusts are not substantive rights that confer a cause of action; they are
remedial devices employed by courts once liability is found and where equity requires,” and
therefore do not transform a case seeking that remedy into a cause of action in rem) (citing Yavuz
v. 61 MM, Ltd., 576 F.3d 1166, 1176 (10th Cir. 2009); Mayo v. Hartford Life Ins. Co., 354 F.3d
400, 409 (5th Cir. 2004)). Thus, Chevalier’s claim seeking to impose a constructive trust is not
an in rem action, and so her fifth claim is not barred by the probate exception.
Chevalier’s sixth claim seeking foreclosure, however, requires that a court assume quasi
in rem jurisdiction of the property at issue. Huntington Mortg. Co. v. Shanker, 634 N.E.2d 641,
648 (Ohio Ct. App. 1993); 59A C.J.S. M ORTGAGES § 874 (2015); ); BLACK’ S LAW DICTIONARY,
supra (defining quasi in rem action as action “involving or determining the rights of a person
having an interest in property located within the court’s jurisdiction”). At the time Chevalier
filed this suit in federal court, no probate court was exercising in rem jurisdiction over Barnhart’s
home; however, after Barnhart died, the Probate Court of Hocking County assumed in rem
jurisdiction over Barnhart’s home because the home is part of her estate. As a general rule, when
diversity provides the basis for federal jurisdiction, “‘the jurisdiction of the court depends upon
the state of things at the time of the action brought.’” Grupo Dataflux v. Atlas Global Grp., L.P.,
541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)).
The time-of-filing rule “measures all challenges to subject-matter jurisdiction premised upon
diversity of citizenship against the state of facts that existed at the time of filing.” Id. at 571.
The rule applies “regardless of the costs it imposes.” Id. We have not found any case addressing
whether to assess the applicability of the probate exception at the time of filing, or whether
events that occur after filing and service of the federal complaint can strip the federal court of
subject-matter jurisdiction. The Supreme Court has addressed similar circumstances in two
contexts that are closely related to the probate exception: prior-exclusive-jurisdiction doctrine
and forfeiture.
Pursuant to the doctrine of prior exclusive jurisdiction, “[i]f two suits are in rem or quasi
in rem, so that the court must have possession or some control over the property in order to grant

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the relief sought, the jurisdiction of one court must yield to that of the other.” Cartwright v.
Garner, 751 F.3d 752, 761 (6th Cir. 2014); see also Chapman v. Deutsche Bank Nat’l Trust Co.,
651 F.3d 1039, 1043 (9th Cir. 2011). The prior-exclusive-jurisdiction doctrine is similar—if not
identical to—the probate exception. Indeed, when describing how the prior-exclusive-
jurisdiction doctrine operates, courts have used the language of Marshall: “‘when one court is
exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over
the same res.’” Chapman, 651 F.3d at 1043 (quoting Marshall, 547 U.S. at 311) (citing Princess
Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466–67 (1939)). The rule provides “that the
court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the
exclusion of the other.” Princess Lida, 305 U.S. at 466. In rem jurisdiction attaches when a
complaint is filed, process issued, and process duly served. Farmers’ Loan & Trust Co. v. Lake
St. Elevated R.R. Co., 177 U.S. 51, 61 (1900). A defendant cannot “defeat jurisdiction thus
acquired.” Id.; see also Sexton v. NDEX W., LLC, 713 F.3d 533, 537 (9th Cir. 2013)
(“The doctrine of prior exclusive jurisdiction applies to a federal court’s jurisdiction over
property only if a state court has previously exercised jurisdiction over that same property and
retains that jurisdiction in a separate, concurrent proceeding.”). Thus, courts assess whether the
doctrine of prior exclusive jurisdiction applies at the time of filing, and not at any time thereafter.
Case law addressing the federal courts’ subject-matter jurisdiction in forfeiture actions is
also instructive because forfeiture is also an in rem action. In Republic National Bank of Miami
v. United States, the Supreme Court addressed whether the federal courts lose subject-matter
jurisdiction to adjudicate a forfeiture action if the property in dispute has been removed from the
court’s judicial district. 506 U.S. 80, 83–84 (1992). The Court held: “Stasis is not a general
prerequisite to the maintenance of jurisdiction,” and therefore “in an in rem forfeiture action, the
Court of Appeals is not divested of jurisdiction by the prevailing party’s transfer of the res from
the district.” Id. at 88–89. The only exception that the Court noted is “where the release of the
property would render the judgment ‘useless’ because ‘the thing could neither be delivered to the
libellants, nor restored to the claimants.’” Id. at 85 (quoting United States v. The Little Charles,
26 F. Cas. 979, 982 (No. 15,612) (CC Va. 1818) (Marshall, C.J.)). Therefore, in the context of a
forfeiture action, an event that occurs after the complaint is filed does not divest a court of
subject-matter jurisdiction over the property.

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With these principles in mind, we now hold that the probate exception does not divest a
federal court of subject-matter jurisdiction unless a probate court is already exercising in rem
jurisdiction over the property at the time that the plaintiff files her complaint in federal court.
Accordingly, the probate exception does not divest the federal courts of subject-matter
jurisdiction to adjudicate Chevalier’s foreclosure action because, at the time she filed the federal
complaint, the property that she seeks to foreclose was not “in the custody of a state probate
court.” Marshall, 547 U.S. at 311. Once jurisdiction vested in the federal courts, Barnhart’s
subsequent death and the admission of her estate to state probate court did not divest the federal
court of subject-matter jurisdiction.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s dismissal for lack of
subject-matter jurisdiction, VACATE the judgment, and REMAND this case for further
proceedings consistent with this opinion.

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