                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     December 9, 2004

                    _______________________________             Charles R. Fulbruge III
                                                                        Clerk
                              No. 03-10930
                    _______________________________


                   UNITED STATES OF AMERICA, ET AL.,

                                                                Plaintiffs,

                     MARK E. HAMES, JILL M. HAMES,

                                                     Movants - Appellees,

                                     v.

               ROBBIE LESA HAMES, CHARLES WILLIAM HAMES,

                                                 Defendants - Appellants.



            Appeal from the United States District Court
                 for the Northern District of Texas
                         No. 3:01-CR-323-1-R
                          No. 3:01-CR-323-P


Before GARWOOD, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

           In 2001, the appellants, then Texas domiciliaries, were

federally indicted under 18 U.S.C. § 3239 on multiple counts of

medicare fraud, mail fraud, and money laundering. Soon thereafter,

they fled the United States with their three minor children.                 In

2003, the appellants were apprehended in Spain and extradited to

the United States to stand trial in the Northern District of Texas.


     *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Pursuant    to     an    arrangement     made     in   Kansas,    the    appellants

relinquished physical custody of their children to the appellees,

in-laws of the appellants and Kansas domiciliaries.

            On August 4, 2003, the appellees filed an “Application to

Show Cause and Turn Over Order” in the appellants’ federal criminal

action, requesting reimbursement of $44,365 in child care expenses

and $5,000 in attorneys’ fees from an irrevocable Asian Trust

(“Trust”) previously established (in the Cook Islands) by the

appellants for the care of their children.                 On August 20, 2003, the

district court granted relief to the appellees in the amount of

$49,365.     The appellants filed a motion for reconsideration,

contending that the district court lacked jurisdiction over the

appellees’       application.      The    appellees         opposed   the   motion,

asserting    diversity      and   federal       question     jurisdiction.     The

district court denied the appellants’ motion, and they appealed.

            We    have    jurisdiction        over   the   instant    interlocutory

appeal pursuant to the collateral order doctrine.                        Brinar v.

Williamson, 245 F.3d 515, 516-17 (5th Cir. 2001).                     Reviewing de

novo the district court’s determination of its own subject matter

jurisdiction, see Hussain v. Boston Old Colony Ins., 311 F.3d 623,

628 (5th Cir. 2002), we find no basis for federal jurisdiction in

the instant case.

            First, the appellees did not properly commence a civil

action in the district court.          Although the appellees characterize

their application as civil, they failed to file a complaint with

                                          2
the district court as required by FED. R. CIV. P. 3 or to serve

process pursuant to RULE 4.                  The proceeding otherwise paid no

attention      to   the   FEDERAL RULES      OF    CIVIL PROCEDURE.           There    is    no

procedural device whereby a civil child support enforcement action

may be tacked onto a federal criminal prosecution.

               Second, even assuming proper commencement or some kind of

litigation by consent, the appellees’ application is still subject

to dismissal for want of subject matter jurisdiction.                              Diversity

jurisdiction does not exist in this matter because the amount in

controversy never exceeded the statutory threshold.                         See 28 U.S.C.

§ 1332(a)(1).        Although the appellees asserted a jurisdictional

amount of $75,000, they only prayed for $49,365 in relief.                                  The

disparity between the asserted jurisdictional amount and the amount

of    relief    requested       evinces      a    lack      of    good    faith,    and     the

appellees’       speculative        assertion          of        future    child      support

reimbursement amounts in excess of the statutory requirement does

not cure this defect.           Because it “appear[s] to a legal certainty

that the [instant] claim is really for less than the jurisdictional

amount,” dismissal for lack of diversity is justified.                             St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct.

586, 590 (1938).

               Third, there is no federal question jurisdiction here:

the      substantive        basis       of       the   appellees’         application        is

§    151.001(c)     of    the   Texas     Family       Code.        Federal    courts       are

statutorily vested with jurisdiction over actions arising under and

                                             3
based upon the Constitution or laws of the United States, not the

Texas Family Code.        28 U.S.C. § 1331.        That appellees may have

desired a federal court order in an effort to pry money from the

foreign Trust neither converts their application into one arising

under federal law nor renders the United States a necessary party

to   the   proceedings.     The   appellees’       assertion      of   28   U.S.C.

§ 1355(a) is fundamentally misplaced because this is a domestic

relations action for child support, not a recovery or enforcement

action for fine, penalty, or forfeiture authorized by § 1355(a).

            Having found no basis for federal jurisdiction, and

appellees’    arguments    bordering       on   frivolous,   we    reverse    the

district court’s order and remand with instructions to dismiss the

appellees’ application.

            REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.




                                       4
