Vitale v. Brock ( 1993 )

July 22, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1475
JOSEPH B. VITALE,
Plaintiff, Appellant,
v.
THE HONORABLE DAVID A. BROCK, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Joseph B. Vitale on brief pro se.
Jeffrey R. Howard, Attorney General, and Susan S. Geiger, Senior
Assistant Attorney General, on brief for appellees.
Per Curiam. Plaintiff appeals from the summary
dismissal of his action. In essence, he wishes to relitigate
in federal court challenges to a state court alimony award.
We affirm the dismissal.
I.
Plaintiff filed his federal court action against
state court judges, a state court marital master, his former
wife, and the wife's attorney. Later, he sought to add his
own attorney. There was no diversity jurisdiction as all
parties were citizens of New Hampshire. Plaintiff, divorced
in 1983, complained of a 1989 alimony award requiring him to
pay his former wife $525 every month. He stated he was
totally disabled, his sole income being from veteran's
disability and social security disability benefits. He had
moved in state court in 1992 to terminate the 1989 alimony
order on two grounds: 1) that the Uniformed Services Former
Spouses Protection Act, 10 U.S.C. 1408, prohibited
consideration of veteran disability compensation in computing
an alimony award and 2) that state law in effect at the time
of divorce (1983) prohibited an award of alimony after the
passage of three years. The state superior court had
rejected both arguments, the New Hampshire Supreme Court had
summarily declined his appeal, and the United States Supreme
Court had denied certiorari, plaintiff recounted. Plaintiff
sought to litigate these same two challenges to the alimony
award in federal court, and he also contended that the New
Hampshire Supreme Court had denied him due process by
summarily rejecting his appeal without first ordering and
reviewing a transcript.
II.
Plaintiff's action was properly dismissed.
Plaintiff may not relitigate in federal court the challenges
to the alimony award plaintiff presented to the state court.
Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 81
(1984) ("a federal court must give to a state court judgment
the same preclusive effect as would be given that judgment
under the law of the State in which the judgment was
rendered"); Eastern Marine Construction Corp. v. First
Southern Leasing, Ltd., 129 N.H. 270, 525 A.2d 709 (1987);
Bricker v. Crane, 118 N.H. 249, 253, 387 A.2d 321, 323 (1978)
(party may not contest in a subsequent proceeding any
question actually litigated and determined against him in a
prior suit).
As for plaintiff's contention that the New
Hampshire Supreme Court denied him due process by summarily
rejecting his appeal, the attack on the state court's order
is not cognizable in a lower federal court. Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923) (lower federal court
lacks jurisdiction over claim that state court judgment
violated the Constitution); Lancellotti v. Fay, 909 F.2d 15,
-3-
17 (1st Cir. 1990). To the extent, if any, plaintiff is
attempting to attack the constitutionality of New Hampshire
Supreme Court Rule 7 which permits the state supreme court to
"decline to accept an appeal" in its "discretion," as the
district court explained, plaintiff has no constitutional
right to an appeal, Lindsey v. Normet, 405 U.S. 56, 77
(1972), and a state court is not required to review a
transcript before deciding whether to accept or reject a
discretionary civil appeal.
Affirmed.
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