          United States Court of Appeals
                     For the First Circuit

No. 16-1053

                         DAWN E. IRISH,

                      Plaintiff, Appellee,

                               v.

                         CRAIG S. IRISH,

                      Defendant, Appellant,

      PEBBLE NUCLEAR, INC., f/k/a Nuclear Logistics, Inc.;
                          ARON SEIKEN,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Lipez,
                         Circuit Judges.


     Robert J. O'Regan, with whom Laura R. Studen, Elizabeth G.
Crowley, Andrea L. Martin, and Burns & Levinson LLP were on brief,
for appellant.
     Sean T. Carnathan, with whom O'Connor, Carnathan and Mack
LLC, Michael Gottfried, and Duane Morris LLP were on brief, for
appellee.
November 14, 2016




      - 2 -
            LYNCH, Circuit Judge.    This appeal comes to us from the

district court's award of damages to Dawn Irish arising out of her

2010 divorce in Massachusetts from Craig Irish and the Separation

Agreement filed in their divorce proceeding.          After the divorce,

Dawn brought suit in federal court, rather than state court,

arguing that Craig did not fully disclose his assets or deal in

good faith during the negotiation of their Separation Agreement.

The federal court exercised jurisdiction over those claims.

            We do not reach Craig's challenges to the merits of the

district court's decision because we hold that the district court

lacked   subject   matter   jurisdiction   pursuant    to   the   domestic

relations     exception     to   federal    diversity       jurisdiction.

Accordingly, we vacate the judgment and remand for dismissal of

the action, with prejudice as to federal jurisdiction and without

prejudice as to any state court action Dawn might bring.

                                    I.

            We derive the following facts from Dawn's allegations in

federal court.      Dawn and Craig Irish wed on October 3, 1992.

During their marriage, Craig worked at Nuclear Logistics, Inc.

("NLI"), eventually serving as an officer and acquiring a minority

ownership stake in the company, while Dawn primarily maintained

the marital home.    On February 4, 2009, Craig filed for divorce.

            Craig and Dawn, each represented by counsel, thereafter

negotiated the terms of a Separation Agreement, which, inter alia,
                                 - 3 -
provided for alimony and divided their marital assets.                       The

agreement divided all marital assets equally, with the exception

of Craig's ownership stake in NLI.               At the parties' final pre-

divorce conference, Dawn produced a draft agreement under which

she would receive 20% of Craig's total interest in the company.

But at Craig's urging, Dawn agreed to amend the relevant provision

to give Dawn 24 shares of NLI instead, which was 20% of the 120

shares Craig represented he owned.             Dawn later attested that she

consented to this revision because Craig "had represented many

times that he would not get any more from a sale [of NLI] than his

6% equity entitled him to."

             In   the   same    provision      dividing   the   shares,   Craig

promised that he would do "nothing to deprive [Dawn] of the

benefits intended by this agreement, including . . . entering into

any agreement intended to diminish [her] share of any compensation

paid for [his] interest in [NLI]."             In addition, three different

provisions referenced Craig's "Financial Statement," which was

submitted to the Middlesex Probate and Family Court along with the

Separation    Agreement,       and   contained   the   following   clause:   "I

certify under the penalties of perjury that the information stated

on this Financial Statement . . . is complete, true, and accurate."

             On January 21, 2010 -- the same day that the Irishes

filed their Separation Agreement -- the probate court entered a

judgment of divorce nisi.            Under Massachusetts law, when parties
                                       - 4 -
asserting an irretrievable breakdown in their marriage file a

separation    agreement   in   their   divorce   proceeding,     the   state

probate court must determine whether it approves of that agreement,

and that "agreement either shall be incorporated and merged into

[the divorce] judgment or by agreement of the parties, it shall be

incorporated and not merged, but shall survive and remain as an

independent contract."       Mass. Gen. Laws ch. 208, § 1A; see also

id. § 1B.      In its judgment, the probate court found that the

Irishes' agreement was "fair and reasonable," and "ordered that

the parties shall comply with [its] terms."         Additionally, and in

line with parallel language in the agreement itself, the probate

court declared that the agreement was "incorporated and not merged

in" the divorce judgment and that it would "survive and have

independent legal significance."

             Roughly two years after the divorce became final, NLI

was acquired for $80,000,000, plus $20,000,000 in potential earn-

out compensation.     Despite having disclosed only a 6% ownership

stake during negotiations about the Separation Agreement with

Dawn, Craig received a payment of $21,600,000 from the sale of

NLI.

             On November 15, 2012, Dawn chose to file a complaint in

federal   district   court     in   Massachusetts   based   on   diversity

jurisdiction, alleging various contract, tort, and fraud claims

against Craig and two other parties not relevant to this appeal.
                                    - 5 -
The primary basis for Dawn's suit against Craig was her claimed

entitlement to 20% of the $21,600,000 payment.            Pointing to emails

between Craig and his accountant that support her contention, Dawn

insisted that Craig concealed a pre-divorce "side deal," which

granted him "phantom equity" well beyond the 6% interest he

purported to hold in shares.         Accordingly, she sought compensation

equal to 20% of his actual profits from the sale, rather than 20%

of his 120 shares.           Craig, through his pleadings, denied the

existence of a side deal. He characterized the $21,600,000 payment

as a "bonus" unrelated to any "interest or expectancy due . . . at

the time of the divorce."          Dawn also claimed entitlement to 50% of

$53,719.47 in uncashed checks that she alleged Craig had failed to

disclose during negotiations, pursuant to the equal division of

non-NLI assets in the Separation Agreement.

              On   January   22,   2014,   the   court   entertained   Craig's

motion to dismiss for lack of subject matter jurisdiction based on

the       domestic     relations     exception     to    federal   diversity

jurisdiction.        From the bench, the court granted Craig's motion as

to the claims sounding in tort and fraud, reasoning that they dealt

with "the formation of the divorce decree," and that to decide

them would therefore "necessarily involve[] a revision of that

decree."1      However, the court denied Craig's motion as to the


      1   Dawn does not appeal the district court's dismissal of
her tort and fraud claims, and we need not address the propriety
                              - 6 -
contract claims, reasoning that they dealt with the Separation

Agreement, which was "to be performed over time, [separate from]

the [divorce] decree [that] can stand as it is."

          Thus, even though Dawn and Craig agreed that the probate

court would have jurisdiction to try all of the claims, the federal

court dismissed the tort and fraud claims but not the contract

claims.   Instead, the court entered an order "remand[ing]" the

contract claims to the probate court so that the entire case could

be tried together, despite the fact that the case had not come

from the probate court.   The court explained that if the claims

were "not in fact adjudicated" in the probate court, either party

could move to reopen the federal case "upon the conclusion of such

proceedings as there may be in the" probate court.

          On May 30, 2014, Dawn moved to have the contract claims

set for trial in the federal district court.    In her motion, she

stated that the probate court had been "unwilling to recognize the

remand order as valid, [as] the matter did not originate" there,

but she attached no document or order from that court.    She also

alleged that if she wished to proceed in a state probate court,

she would need to "file a new action and start over."      At oral

argument for this appeal, Dawn's counsel conceded that Dawn never

attempted to file a complaint or other paper in the probate court.



of that decision.
                              - 7 -
Dawn's counsel further stated that Dawn preferred to have the

contract claims promptly resolved, even at the expense of her tort

and fraud claims, and that was why she had returned to federal

court.

          The district court granted Dawn's motion to reopen the

case on June 2, 2014, and two days later, Craig filed a motion for

reconsideration.      Craig noted that "it [was] not clear what

exactly, if anything, [Dawn had] been doing in the Probate Court

in [the preceding] five months," but she had not initiated a "new

action," and the district court should not sanction her "whimsical

forum shopping."    The district court denied Craig's motion the

following day.     In light of the court's decision to exercise

jurisdiction, the parties agreed to a case-stated hearing on the

issue of liability.

          Following    that    hearing    on   the   merits,   the   court

determined that Craig had in fact concealed equity in NLI from

Dawn during the divorce.      From this the court concluded that Craig

was in breach of two terms of the Separation Agreement, as well as

the implied covenant of good faith and fair dealing. Specifically,

the court found that Craig had (1) breached the promise in his

Financial Statement -- which the court deemed a part of the

agreement -- to fully disclose his assets; (2) breached the promise

in the agreement itself to do nothing to diminish Dawn's share of

his interest in NLI; and (3) acted in bad faith by structuring and
                                  - 8 -
representing his interest in NLI as he did.                  The court also

declared Craig liable in contract for concealing uncashed checks.

            In a footnote to its June 2015 merits opinion, the court

explained   its     rationale   for    asserting   jurisdiction       over   the

contract claims.      According to the court, because the assets at

issue were not disclosed "and thus [were] not litigated in the

original divorce proceeding," "no judgment the Court could make

with regard to these assets would 'alter a divorce decree' in such

a way that would bring the matter within the domestic relations

exception."

            After a bench trial on the issue of damages, the court

awarded Dawn (1) $3,840,000, representing 20% of the $21,600,000

that Craig had earned from the NLI sale, minus the share that Dawn

had already received; (2) $26,859.74, representing 50% of the

$53,719.47 that Craig had concealed in uncashed checks; and (3)

pre-judgment interest on both sums.

            Craig    appeals,   raising       several    challenges    to    the

district court's findings and jurisdiction.             Because we agree that

the domestic relations exception precluded federal jurisdiction,

we reach only that issue.

                                       II.

            A district court's "conclusion regarding the existence

vel non of subject matter jurisdiction is a question of law subject

to de novo review."     Skwira v. United States, 344 F.3d 64, 72 (1st
                                      - 9 -
Cir. 2003).       Because the domestic relations exception pertains to

subject matter jurisdiction, parties cannot waive challenges based

on it.    Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir. 2001).

            The domestic relations exception divests federal courts

of    jurisdiction    over    "a   narrow   range    of   [cases   implicating]

domestic    relations        issues"    that    would     otherwise    meet     the

requirements for federal diversity jurisdiction under 28 U.S.C.

§ 1332(a). Marshall v. Marshall, 547 U.S. 293, 307 (2006) (quoting

Ankenbrandt v. Richards, 504 U.S. 689, 701 (1992)).                Formally, it

is the product of judicial construction of Congress's intent in

enacting the diversity jurisdiction statute.                  Ankenbrandt, 504

U.S. at 700-01.       One commentator suggests that the Supreme Court

has    anchored    the   exception     in   congressional     acquiescence       to

federal court decisions and the policy considerations underlying

them.     See Richard H. Fallon et al., Hart and Wechsler's The

Federal Courts and The Federal System 1331 (4th ed. 1996).                    Chief

among those policy considerations is the desire "to keep federal

courts from meddling in a realm that is peculiarly delicate, that

is governed by state law and institutions (e.g., family courts),

and in which inter-court conflicts in policy or decrees should be

kept to an absolute minimum."           Dunn, 238 F.3d at 41.         This desire

is in line with the traditional reluctance of federal courts to

sanction    federal      interference       with    matters    thought    to     be

distinctively local.          See Andrews v. Andrews, 188 U.S. 14, 32
                                       - 10 -
(1903) ("[I]t is certain that the Constitution . . . confers no

power whatever upon the government of the United States to regulate

marriage in the States or its dissolution . . . ."), abrogated on

other grounds by Sherrer v. Sherrer, 334 U.S. 343, 353 (1948).

           That   said,     we   have   explained   that,    "[i]n   general,

lawsuits affecting domestic relations, however substantially, are

not within the exception unless the claim at issue is one to

obtain, alter or end a divorce, alimony or child custody decree."

Dunn, 238 F.3d at 41 (emphasis added).           This is so because both

Ankenbrandt and Marshall stress that the exception's circumscribed

reach extends "not to the subject of domestic relations, but to

particular [familial] status-related functions that fall within

state power and competence." 13E Wright & Miller, Federal Practice

and Procedure § 3609.1 (3d ed.) (emphasis added).

           In that vein, this circuit has been clear that "the

allocation of property incident to a divorce [is a] longstanding

local function[]" of the type best reserved for "state resolution."

DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997) (citing

Ankenbrandt, 504 U.S. at 704, 706); see also Gonzalez Canevero v.

Rexach, 793 F.2d 417, 417 (1st Cir. 1986) (per curiam) (construing

a former wife's suit, seeking damages equal to her alleged half

interest in a corporation controlled by her former husband, as "a

request   to   obtain   a   distribution    of   [marital]    property"   and

affirming its dismissal as "a domestic relations dispute, not
                                   - 11 -
properly encompassed within [federal] diversity jurisdiction"),

abrogated on other grounds by Mooney v. Mooney, 471 F.3d 246, 248

(1st Cir. 2006).

            Indeed, cognizant of the fact that property-distribution

and alimony arrangements necessarily accompany a divorce, exist in

inextricable relation to each other, and jointly declare rights

and obligations arising from marital status under state law, other

circuits    have   also    recognized   that    the     domestic   relations

exception covers attempts to determine or modify not only alimony

awards but also the division of marital property pursuant to a

divorce.    See, e.g., McCavey v. Barnett, 629 F. App'x 865, 867

(11th Cir. 2015) (per curiam) (unpublished opinion); Wallace v.

Wallace, 736 F.3d 764, 766 (8th Cir. 2013); McLaughlin v. Cotner,

193 F.3d 410, 413 (6th Cir. 1999), cert. denied, 529 U.S. 1008

(2000).     In our view, there is not more published law on this

subject because few claims to divide marital property are ever

filed in federal court.         This reflects an understanding that the

federal forum is inappropriate and reinforces the exception's

policy rationale: state courts are experts at dividing marital

property,    entering     the   necessary    decrees,    and   handling   the

sensitive conflicts that follow.            See Ankenbrandt, 504 U.S. at

704.   This logic extends to the subject matter of the case before

us -- a dispute over property arising from a separation agreement


                                   - 12 -
that ordered alimony, divided marital assets, and was incorporated

into a probate court's divorce decree.

                                     III.

            The district court based its assertion of jurisdiction

on the notion that, because the assets at issue had never been

divided by the state probate court, no federal adjudication as to

them could alter an existing domestic relations decree.                    Our

contrary view is that in effectively classifying the assets as

marital and allocating them in the first instance, the district

court altered an existing domestic relations decree pertaining to

divorce and alimony, by amending it and adding new terms to it, as

well as by determining the meaning of that decree, which had been

entered by the state probate court.              Thus, the district court

committed   error     by   not   dismissing   Dawn's   particular     contract

claims, which she had improperly brought in federal court, and

then compounded that error by provisionally "remanding" the claims

to a state probate court in which they did not originate instead

of dismissing them for lack of jurisdiction.           The court then erred

once more by granting Dawn's motion to reopen the adjudication of

those   claims   in   federal     court.      State   courts   are   perfectly

competent to address the issues raised by Dawn's claims, and

federal courts have no business "allocating property that [should

be] in the custody of a state court, or interfering with" a


                                    - 13 -
distribution already made by a state court.               See 13E Wright &

Miller, supra, § 3609.1 (3d ed.).

           Dawn contends that the district court did not perform a

domestic   relations        function,     and   she   relies   heavily,     but

mistakenly, on Dunn, 238 F.3d 38, and Mooney, 471 F.3d 246.                  In

the former case, this court considered tort claims, brought by a

father against the ex-wife of his incapacitated son, alleging that

she had mismanaged the son's care and finances.           Dunn, 238 F.3d at

39-40.     This     court    held   the    domestic    relations     exception

inapplicable although, in theory, the conduct giving rise to those

claims for damages could have also formed the basis of a charge in

the   ex-spouses'    earlier    divorce    proceeding,    which    would   have

affected the level of alimony awarded to the son.                  Id. at 41.

Notwithstanding the possible connection to a divorce decree, this

court recognized that the plaintiff was not asking the court to

grant him alimony or to disturb his earlier award, but rather to

independently compensate him for a discrete injury.            Id.    Here, in

contrast, the claims are not so independent, as the plaintiff is

asking the federal court to disturb the earlier award by granting

her a larger share of the marital assets.

           Ultimately, Dunn held that the circumstances counseled

the federal court to abstain under Burford v. Sun Oil Co., 319

U.S. 315 (1943), and stay the federal case as to the tort claims.


                                    - 14 -
238 F.3d at 42-43.         We thus see no conflict between Dunn and our

conclusion.

             We reject Dawn's argument that her action is permissible

in federal court not as one to obtain a division of marital

property, but as one merely to enforce the division envisioned in

her existing agreement with Craig.              First, Dawn's self-serving

characterization of her action does not resolve the jurisdictional

issue.   We look to the reality of what is going on.            The domestic

relations    exception      "governs   claims    over   [domestic   relations

decrees] even where they are cloaked in the 'trappings' of another

type of claim."     Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st

Cir. 2003) (citation omitted); see also Sutter v. Pitts, 639 F.2d

842,   844   (1st   Cir.    1981)   ("Although    [plaintiff]   clothed   her

complaint in the garb of a civil rights action, . . . her claim

boil[ed] down to a demand for [child] custody . . . 'best left to

the states.'" (citation omitted)).              It is an "uncontroversial

proposition that a plaintiff may not artfully cast a suit seeking

to [create or] modify . . . a [domestic relations] decree as a

state-law contract or tort claim in order to access the federal

courts."     Chevalier v. Estate of Barnhart, 803 F.3d 789, 795–96

(6th Cir. 2015).      And "[i]t is incumbent upon the . . . court to

sift through the claims . . . to determine the true character of

the dispute to be adjudicated."          Firestone v. Cleveland Tr. Co.,

654 F.2d 1212, 1216 (6th Cir. 1981).
                                    - 15 -
          Second, while it is true -- as we noted in Mooney --

that state law, depending on the nature of the claims in the post-

divorce suit, may provide for a further action in the probate

court, see, e.g., Carpenter v. Carpenter, 901 N.E.2d 694, 699-700

(Mass. App. Ct. 2009), or an independent action in superior court,

see, e.g., Reed v. Luther, No. MICV201101210, 2011 WL 6975979, at

*3 (Mass. Super. Ct. Nov. 28, 2011), that fact does not decide the

question of whether there is federal jurisdiction, which is a

matter of federal law, see Dunn, 238 F.3d at 42.

          In any event, Dawn's action is clearly distinct from the

model independent "enforcement" action conceived of in Mooney --

a suit to enforce compliance with a separation agreement's terms

ordering alimony -- and the converse action actually before the

Mooney court -- a suit to have the agreement deemed unenforceable

due to defects at contract formation.   See 471 F.3d at 247.

          Dawn does not seek to compel a payment actually due under

her agreement.   And she claims she does not seek rescission, even

though the basis of her charge is also a defect at contract

formation.2   Disjointedly, she alleges she was induced to enter a


     2    Mooney also pointed out a 1985 opinion of the
Massachusetts Supreme Judicial Court, Saltmarsh v. Saltmarsh, 480
N.E.2d 618 (Mass. 1985), which stressed that a party seeking
rescission of a separation agreement, on the grounds that her
"husband had made various misstatements to her on which she had
relied in agreeing to" it, should do so in the original divorce
court rather than assert that claim by way of an independent post-
divorce action.   See id. at 620.    Dawn's claims are strikingly
                              - 16 -
deal for which she would not have bargained, but styles her

requested remedy as the benefit of what she bargained for.          Yet,

since the agreement is silent as to the proper division of the

assets at issue, rather than effectuate the parties' manifest

intent, the federal court is asked to decide upon an equitable

distribution of marital property in the first instance.

           As this court explained in Dunn, a single series of acts,

such as fraud, can give rise to many different kinds of suits,

including one for "civil tort [damages], [one for] divorce[,] and

surely [one for] the allocation of property incident to a divorce."

238 F.3d at 41.    While certain types of contract disputes would

not fall under the domestic relations exception, the claims on

appeal in this case do.    Unlike the tort suit in Dunn, which had

domestic   relations   overtones   but   asked   the   court   merely   to

adjudicate "breach of fiduciary duty[,] negligence and waste"

claims well within a federal court's competence, id., Dawn's suit

actually asks the court to perform a domestic relations function

reserved for state courts.    Specifically, though her complaint is

drafted to sound in contract law (a request for damages for

breached disclosure and good-faith obligations), Dawn's suit calls

upon the federal court to determine whether certain assets were



similar to those described in Saltmarsh, which further reinforces
our conclusion.    She does not brief whether Saltmarsh would
preclude her independent action as a matter of state law.
                               - 17 -
acquired and held by Craig during the marriage and then to decide

what share of them should have been apportioned to Dawn upon the

parties' separation.    The resulting "damages" award operates as a

sub silentio assignment of part of the Irishes' marital estate, on

top of the preexisting arrangement approved by the probate court.3

See Mass. Gen. Laws ch. 208, § 1A.

                                 IV.

          In concluding that the district court lacked subject

matter jurisdiction pursuant to the domestic relations exception

-- without considering any of Craig's other grounds for appeal --

we make no appraisal of the merits of Dawn's claims.     We simply

hold that a federal court was an improper forum for them.

          The judgment of the district court is vacated, and the

case is remanded with instructions to dismiss the federal suit

with prejudice for want of jurisdiction.   The dismissal is without

prejudice as to the assertion of similar claims in an appropriate

state court.

          So ordered.    Each party to bear its own costs.




     3    While not the basis of our jurisdictional holding, the
structure of the award that the district court ultimately granted
to Dawn confirms our concerns. In splitting assets 80-20 and 50-
50, the court did not calculate the sum of Dawn's damages from
breached disclosure and good-faith obligations so much as declare
what it believed to be an equitable division of those assets.
                               - 18 -
