65 Mass. App. Ct. 887 | Mass. App. Ct. | 2006
The defendant, John C. Lussier, appeals from a series of abuse prevention orders entered against him pursuant to G. L. c. 209A upon the complaint of the plaintiff, Katie J. Lamarche.
Lamarche’s April 13, 2004, affidavit in support of her application for an abuse prevention order recites that Lussier repeatedly threatened to kill her, warning her that, as an intelligence officer, he could always discover her whereabouts. She attested that Lussier carried knives, hit her on one occasion, threatened to hurt Adam,
At the April 27, 2004, hearing, Lussier, through counsel, moved both to continue the matter pursuant to 50 U.S.C. App. § 521(d) (Supp. 2005),
2. Analysis. A judgment is void if the court from which it issues lacked personal jurisdiction over the defendant. Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 532 (1997). However, “the moving party must show not only a lack of personal jurisdiction, but also that he or she did not waive the lack of jurisdiction and voluntarily submit to the court’s jurisdiction.” Id. at 529, quoting from 12 Moore’s Federal Practice § 60.44[3] (3d ed. 1997). The relevant inquiry thus has two parts: whether there was a waiver and, if there was not, whether there is personal jurisdiction over the defendant.
a. Waiver. The question before us is whether the defendant waived the personal jurisdiction defense by appearing at the July 29, 2004, hearing. Such a defense may be waived by conduct, express submission, or extended inaction. Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 25 (1st Cir. 1992). If a party makes voluntary appearances and contests the case at all stages until judgment is rendered, such conduct gives jurisdiction. Ingersoll v. Ingersoll, 348 Mass. 209, 210 (1964).
The threshold question in these cases is whether the defendant brought the jurisdictional defense to the attention of the court before further proceedings had gotten underway. In Walling v. Beers, 120 Mass. 548, 550 (1876), the Supreme Judicial Court held that where the defendant appeared specially for the purpose of contending lack of personal jurisdiction and filed an answer that did not waive the objection to personal jurisdiction, his acts did not amount to a waiver of that defense. The court noted
While nothing in the record suggests that Lussier raised the jurisdictional defense at the July 29, 2004, hearing, on several prior occasions he had unmistakably voiced his objections to the court’s assertion of personal jurisdiction.
b. Assertion of jurisdiction over the defendant. An assertion of personal jurisdiction over a nonresident defendant poses a two-pronged inquiry: “(1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution?” Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). The Massachusetts long-arm statute, G. L. c. 223A, § 3, authorizes jurisdiction to the limits allowed by the Federal Constitution.
Nothing in the record before us suggests that any of the statutory grounds for the assertion of personal jurisdiction can be satisfied. Lussier lived in the States of New Hampshire and Washington, not in Massachusetts. There is no suggestion of his having any interest in Massachusetts real property, of his having transacted any business here, or of his having contracted to supply services or things in Massachusetts. See G. L. c. 223A, § 3(a), (b), (e). The injuries to Lamarche are asserted to have occurred while Lamarche and Lussier were living together out-of-State. Although § 3(d) of c. 223A provides that out-of-State acts can in some circumstances confer jurisdiction, e.g., where the tortious act caused injury in Massachusetts, there is nothing in the record to indicate that Lamarche engaged in a “persistent course of conduct” in this State, also a prerequisite to personal jurisdiction under § 3(d). As Lamarche never maintained a domicil in Massachusetts, and the present claim concerns an abuse prevention order, rather than matters of domestic relations, § 3(g) does not apply. Last, although the record shows that a paternity action has been filed in the Probate and Family Court, there is nothing to indicate that any of the conditions in § 3(h) have been satisfied.
The failure to satisfy the aforesaid requirements of our long-arm statute precludes the need for us to address whether the activities of the defendant were of sufficient dimension to withstand constitutional limitations requiring “certain minimum contacts with [the State] such that [jurisdiction] does not offend ‘traditional notions of fair play and substantial justice.’ ” Droukas v. Divers Training Academy, Inc., 375 Mass. at 152, quoting from International Shoe Co. v. Washington, 326 U.S. 310, 316
The G. L. c. 209A orders dated April 13, 2004, through July 29, 2004, are vacated.
So ordered.
Lamarche neither filed a brief in connection with this appeal nor appeared for argument.
A pseudonym.
Although not germane to our conclusion, the record is unclear as to the birthplaces of both Lussier and Adam. In response to the judge’s question confirming the date of Adam’s birth, Lamarche stated, “He was also bom in Massachusetts.” Lamarche, however, could have been referring to Lussier, and the judge subsequently noted, without objection, that Adam was bom in Washington.
The exact date of Lamarche’s return to Washington is not clear.
Lamarche’s affidavit states that Lussier threatened to hurt Adam when the child kicked at the back of Lussier’s seat, presumably in Washington. There is no further information regarding any subsequent harm or threat to harm Adam, either in Washington or Massachusetts.
The record does not indicate the location of Lamarche’s mother when she received this call.
Section 521(d) of 50 U.S.C. App. (Supp. 2005) provides, in relevant part:
We have made a distinction between a special appearance and a voluntary general appearance. In Ingersoll v. Ingersoll, 348 Mass. at 21, the defendant made a voluntary general appearance, giving the court jurisdiction. In Leffler v. Todd, 316 Mass. 227, 232 (1944), the court cited the general principle that a defendant who files a special appearance, but seeks relief beyond the narrow
Lussier filed a special appearance to contest jurisdiction and a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(2). When his motion to dismiss was denied twice during the April 27, 2004, hearing, he renewed his objection twice. The judge noted his objection and stated, “Your motion to dismiss is formally denied on that issue. So that should protect your rights.”
The defendant’s motion to continue pursuant to 50 U.S.C. App. § 521(d) specifically noted that the filing of that motion “does not waive any defenses the defendant may have and, most importantly, does not subject the Defendant to the personal jurisdiction of this Court.” The motion also cited § 202(c) of the Federal Servicemembers Civil Relief Act, 50 U.S.C. App. § 522(c) (Supp. 2005), which states that “[a]n application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense related to lack of personal jurisdiction).”
The defendant in Vangel v. Martin participated in the litigation for three
General Laws c. 223A, § 3, as amended through St. 1993, c. 460, § 86, provides in pertinent part: “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in this commonwealth; (b) contracting to supply services or things in this commonwealth; (c) causing tortious injury by an act or omission in this commonwealth; (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth; (e) having an interest in, using or possessing real property in this commonwealth; ...(g) maintaining a domicile in this commonwealth while a party to a personal. . . relationship out of which arises a claim for . . . parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or (K) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of . . . custody . . . [or] child support . . . notwithstanding the subsequent departure of one of the original parties from the
Nonetheless, the situation described is of great concern: a victim from out-of-State flees her alleged abuser and seeks refuge in a State with which the abuser has had insufficient contacts to permit the assertion of personal jurisdiction over him. Has the victim no recourse? Our abuse prevention statute would offer such a victim protection if she has first obtained an abuse protection order in the State from which she fled; such an order would be given full faith and credit in Massachusetts pursuant to G. L. c. 209A, § 5A. Nothing in the record, however, suggests that Lamarche got such an order in Washington. Nor is there anything in the record to suggest that Lussier presented any threat to Adam while the child was in Massachusetts. We note in this regard that, under § 2(a)(3) of G. L. c. 209B (the Massachusetts Child Custody Jurisdiction Act), a Massachusetts court can award temporary emergency custody of a child to a parent fleeing to Massachusetts from an allegedly abusive situation in another State, thereby acting without personal jurisdiction over the out-of-State parent. See Umina v. Malbica, 27 Mass. App. Ct. 351, 359 (1989); Orchard v. Orchard, 43 Mass. App. Ct. 775, 778 (1997). Cf. Khan v. Saminni, 446 Mass. 88, 98 (2006).
It does not appear that the parties raised before the trial court judge any suggestion that, absent personal jurisdiction over Lussier, there was any means by which to afford Lamarche the protection of our statutory scheme, designed to preserve the “fundamental human right to be protected from the devastating impact of family violence.” Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 772-773 (2005), quoting from Champagne v. Champagne, 429 Mass. 324, 327 (1999). This being so, and given the absence of an appellee’s brief, we do not address the matter further except to note that courts in Iowa and New Jersey have recently addressed essentially this situation and have taken somewhat different paths to the same end. The courts in both jurisdictions make the distinction between prohibitory and affirmative relief, holding that the former, but not the latter, is available when the court lacks personal jurisdiction over the defendant. See Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001), citing Pennoyer v. Neff, 95 U.S. 714 (1877), and Williams v. North Carolina, 317 U.S. 287 (1942) (on theory that protection of resident from domestic abuse affects only her “civil status,” personal jurisdiction over nonresident defendant unnecessary for court to issue protective “stay away” order); Shah v. Shah, 184 N.J. 125, 138 (2005) (because “issuance of a prohibitory order does not implicate any of defendant’s substantive rights,” State resident entitled to temporary restraining order providing only prohibitory relief in absence of personal jurisdiction over nonresident defendant).