GEE, Circuit Judge:
This is a suit between former spouses for damages caused by the breach of a voluntary separation agreement. Following a trial to the court, the district judge ruled that the aggrieved ex-wife, Mabel Crouch, was entitled to receive from her former husband the sum of $45,000. Appealing this judgment, Mr. Crouch raises two issues for our consideration: whether the lower court should have refused to exercise diversity jurisdiction
Federal courts have traditionally refused to exercise diversity jurisdiction in a variety of domestic relations cases, including suits for divorce and alimony, see Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930); Barber v. Barber, 62 U.S. (21 How.), 582, 584, 16 L.Ed. 226 (1859) (dictum); child custody actions, see Ex parte Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); disputes over visitation rights, see Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975); Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir. 1967); suits to establish paternity and to obtain child support, see Buechold v. Ortiz, 401 F.2d 371 (9th Cir. 1968); Albanese v. Richter, 161 F.2d 688 (3d Cir.), cert. denied, 332 U.S. 782, 68 S.Ct. 49, 92 L.Ed. 365 (1947); and actions to enforce separation or divorce decrees still subject to state court modification, see Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d 678 (7th Cir. 1960). The reasons for federal abstention in these cases are apparent: the strong state interest in domestic relations matters, the competence of state courts in settling family disputes, the possibility of incompatible federal and state court decrees in cases of continuing judicial supervision by the state, and the problem of congested dockets in federal courts. See Armstrong v. Armstrong, 508 F.2d 348, 349-50 (1st Cir. 1974); Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 514 (2d Cir. 1973); C. Wright, Handbook of the Law of Federal Courts § 25, at 97 (3d ed. 1976).
While we approvingly acknowledge the so-called domestic relations exception to diversity jurisdiction,
The separation agreement in dispute here was executed in 1974, following Mr. Crouch's persistent failure to honor the support agreement that was drawn up when he and Mrs. Crouch separated in 1957. Under the terms of the more recent agreement, Mr. Crouch was obligated to pay his former wife (1) the sum of $2,500, (2) $4,000 annually for five years, and (3) $150 per month for the rest of her life. Appellant fulfilled these obligations for a time, paying a total of $9,000 but then breached the agreement, and the present litigation ensued.
The lower court found that Mr. Crouch had repudiated the separation agreement and that his former wife had accepted his repudiation. Appellant does not contest these findings but contends that the district court erred when it calculated the damages for appellant's breach of his promise to pay monthly installments of $150 by multiplying that figure times the factor for the number of months appellee is expected to live under the pertinent actuarial table. Mr. Crouch's argument is that this evaluation improperly ignores the separation agreement's disability clause, which relieved him of the duty to make any monthly payments in the event of his total and permanent incapacitation. While the district court rejected Mr. Crouch's claim of present disability resulting from his diabetic condition, appellant now contends that the possibility of future incapacity precluded the court's lump-sum award. If we were to accept this argument, the only alternative form of relief would be an order decreeing specific performance as to future installments.
Texas law provides no specific answer to appellant's argument.
In Texas the anticipatory repudiation of a contract entitles the wronged party to recover, as of the date of repudiation, the present value of all that he would have received had the contract been performed. See Republic Bankers Life Insurance Co. v. Jaeger, 551 S.W.2d 30, 31 (Tex.1976); Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.Comm'n App.1931, holding approved); Continental Casualty Co. v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App.—Waco 1965, writ dism'd); Patterson v. Magill, 259 S.W.2d 954, 956 (Tex.Civ.App.—Austin 1953, no writ). To take an analogous case, if an insurance company repudiates its agreement to pay monthly installments to a disabled policyholder, the insured can, by bringing an action for anticipatory breach, recover the value of those installments in lump sum. See Lumbermens Mutual Casualty Co. v. Klotz, 251 F.2d 499 (5th Cir. 1958) (applying Texas law); Williams v. Mutual Benefit Health & Accident Ass'n, 100 F.2d 264 (5th Cir. 1938) (applying Texas law); Pan American Life Insurance Co. v. Garrett, 199 S.W.2d 819, 824-25 (Tex.Civ.App.—El Paso 1946, no writ); Englehart v. Volunteer State Life Insurance Co., 195 S.W.2d 798, 802 (Tex.Civ.App.—Eastland 1946, writ ref'd n.r.e.) (dictum). But that sum would have to be calculated with reference to the probable duration of the disability as found by judge or jury. See Universal Life & Accident Insurance Co. v. Sanders, 129 Tex. 344, 348, 102 S.W.2d 405, 407-08 (Tex.Comm'n App.1937, opinion adopted); Commercial Travelers Casualty Co. v. Dymke, 279 S.W.2d 405 (Tex.Civ.App.—Eastland 1955, no writ).
While we agree with appellant that repudiation does not change the terms of the contract, see Newman v. San Antonio Traction Co., 155 S.W. 688, 690 (Tex.Civ.App.—San Antonio 1913, no writ), and that the wronged party is limited to recovering expectancy damages, we cannot agree that the lower court's damage award would have been proper only if appellee had shown that her former husband will not become disabled during her lifetime. Appellee need prove damages only to a reasonable certainty, see Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781, 804 (5th Cir. 1973) (applying Texas law); International Harvester Co. v. Kesey, 507 S.W.2d 195, 197 (Tex.1974); Bildon Farms, Inc. v. Ward County Water Improvement District No. 2, 415 S.W.2d 890, 896-97 (Tex.1967), a standard we find satisfied in this case. The possibility of future incapacity is a much too speculative reason for denying lump-sum recovery.
For the reasons stated above, the judgment of the trial court is hereby AFFIRMED.