D & D Fuller CATV Const., Inc. v. Pace

• Decision Date: 02 October 1989
• Docket Number: No. 87SC330,87SC330
• Parties: D & D FULLER CATV CONSTRUCTION, INC., a North Carolina corporation, Leamon C. Pace, Sr., and Dixie Pace, Petitioners, v. Van PACE, Respondent.
• Court: Colorado Supreme Court

Page 520

780 P.2d 520

58 USLW 2258

D & D FULLER CATV CONSTRUCTION, INC., a North Carolina

corporation, Leamon C. Pace, Sr., and Dixie Pace, Petitioners, v. Van PACE, Respondent.

No. 87SC330.

Supreme Court of Colorado,

En Banc.

Oct. 2, 1989.

Thomas H. Melton and David P. Voerman, Denver, for petitioners.

Gregory J. Fasing, P.C., Gregory J. Fasing, Denver, for respondent.

Justice ROVIRA delivered the Opinion of the Court.

We granted certiorari to review the judgment of the court of appeals in Pace v. D & D Fuller CATV Construction, 748 P.2d 1314 (Colo.App.1987), reversing the trial court's order which held that petitioners lacked sufficient contacts with Colorado to warrant the application of the long-arm statute, § 13-1-124, 6A C.R.S. (1987). Because we conclude that the exercise of jurisdiction over the petitioners satisfies the requirements of the statute and comports with due process of law, we affirm.

I.

Respondent, Van Pace (mother), married Leamon C. Pace, Jr. (father), on May 26, 1976, in Golden, Colorado. Two children were born of the marriage. In December 1980, she commenced a dissolution of marriage action in Jefferson County District Court, and obtained a temporary restraining order against the father, prohibiting him from going in or near her residence or interfering with their son, Jerritt.

On March 4, 1982, the father kidnapped Jerritt in violation of the Jefferson County District Court order. On March 12, 1982, the court awarded the mother temporary custody of Jerritt. A warrant was issued for the arrest of the father for violation of the custody order and he is still at large.

The mother commenced this action against, among others, ¹ Leamon C. Pace, Sr. and Dixie Pace (grandparents), the father's parents, and D & D Fuller CATV Construction, Inc. (D & D Fuller), a North Carolina corporation owned by them. ² She alleges that the grandparents and D & D Fuller aided and abetted the father in abducting and concealing Jerritt based on the following facts.

The complaint alleges that from September to December 1983, the grandparents had actual physical custody of Jerritt with knowledge that the father had kidnapped Jerritt and that they were keeping him in violation of court custody orders. ³ The grandparents also provided housing for their son during 1982 and 1983, and helped him remain at large by using an alias for Jerritt. Further, the grandparents refused to divulge the whereabouts of their son and grandson to the Sheriff of Craven County, North Carolina, despite their actual knowledge concerning the matter, and they helped their son flee to avoid apprehension by the sheriff. They also warned the father to hide upon learning that the mother's investigator was searching for him in September 1983.

In addition, in June 1982, the grandparents wrote to the Colorado Department of Vital Statistics requesting a duplicate copy of Jerritt's Colorado birth certificate with the intent that the duplicate birth certificate would further assist in the kidnapping of Jerritt. ⁴ In April 1982, the grandparents purchased a 1979 Datsun truck from their son, and attempted to transfer the Colorado title for the truck to North Carolina by letter mailed to the Colorado Department of Revenue, intending that the money from the purchase would assist in the concealment of Jerritt. ⁵ Moreover, the grandparents assisted in the abduction of Jerritt and prevented the return of Jerritt to his mother.

The complaint also alleges that the grandparents acted as agents for D & D Fuller within the scope of their employment and on behalf of the corporation, and that D & D Fuller participated in, affirmed, ratified, and approved the tortious conduct of its agents. The grandparents, both individually and as agents for D & D Fuller, negotiated checks from the father's Colorado employer and forwarded documents from his employer in order to help their son evade the custody orders. The checks were sent to D & D Fuller's post office box in North Carolina, despite a Jefferson County District Court order prohibiting the father's Colorado employer from sending money to him. ⁶ D & D Fuller also employed the father in 1983, and failed to make tax deductions from his paychecks in order to avoid detection of his whereabouts through the federal parent locator service.

Based on these allegations, the mother sought relief relying on the theories of tortious interference with the parent-child relationship, as defined by Restatement (Second) of Torts § 700 (1977), and outrageous conduct and prayed for compensatory and exemplary damages. Petitioners moved to dismiss and to quash service of process on the ground that the court lacked personal jurisdiction over them. The trial court dismissed the claim for lack of personal jurisdiction, ruling that there were "insufficient contacts with the State of Colorado to warrant application of the 'Long Arm' Statute for service of process and to obtain jurisdiction."

In conjunction with the mother's motion to reconsider, additional facts were alleged, ⁷ including: The grandfather was present in Colorado shortly before the kidnapping, where he and the father conspired to prevent the mother from obtaining custody; the grandfather telephoned the mother before and after the abduction and stated that he would do everything in his power to deprive her of her son; the grandmother telephoned the mother and stated that she would never reveal where Jerritt was, that the mother would never see Jerritt again, and that the grandparents would also try to take her other child from her; the grandfather telephoned Jerritt's Colorado physician approximately three months after the abduction and requested copies of Jerritt's medical records; when Jerritt was treated at medical facilities in North Carolina, the D & D Fuller post office box was listed as his address and the grandparents' phone number was listed as his number; ⁸ and, finally, the grandmother financially assisted her son after the abduction by paying off a loan incurred by him at a Colorado bank.

The trial court denied the motion, finding that "no factual basis was established connecting [petitioners] with torts committed in Colorado." The order was made final pursuant to C.R.C.P. 54(b). ⁹ The court of appeals reversed, concluding that the factual allegations were sufficient to support the inference that the petitioners' activities constituted a substantial connection with Colorado.

II.

An assertion of personal jurisdiction over a foreign defendant must satisfy both the requirements of the Colorado long-arm statute, § 13-1-124, 6A C.R.S. (1987), and the requirements of due process of law. See Le Manufacture Francaise Des Pneumatiques Michelin v. District Court, 620 P.2d 1040 (Colo.1980). We address these two requirements in turn.

A.

The mother bases her claim of jurisdiction on the tortious act section of the Colorado long-arm statute, which provides:

(1) Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person and, if a natural person, his personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from:

....

(b) The commission of a tortious act within this state....

§ 13-1-124, 6A C.R.S. (1987). In enacting this statute, the General Assembly intended to extend the jurisdiction of Colorado courts to the fullest extent permitted by the due process clause of the United States Constitution. Scheuer v. District Court, 684 P.2d 249 (Colo.1984); Fleet Leasing, Inc. v. District Court, 649 P.2d 1074 (Colo.1982).

When a non-resident defendant challenges the trial court's exercise of personal jurisdiction, the plaintiff must make a prima facie showing that the trial court may exercise personal jurisdiction over the defendant. Scheuer, 684 P.2d at 250-51; Fleet Leasing, 649 P.2d at 1078; Le Manufacture, 620 P.2d at 1042. To determine whether the plaintiff has established such a prima facie showing of jurisdiction, a court may consider the allegations of the complaint as well as any evidence introduced at a hearing conducted to determine the jurisdictional issue. Scheuer, 684 P.2d at 251; Fleet Leasing, 649 P.2d at 1078; Le Manufacture, 620 P.2d at 1042.

As previously stated, respondent's complaint alleges that petitioners "[i]ntended to assist, and actually assisted the abduction of Jerritt Pace by Leamon C. Pace, Jr., and intended to prevent, and actually prevented, the return of Jerritt to his mother and home in Jefferson County, Colorado." Because this court has not previously done so, we must now decide whether it is a tortious act in Colorado to cause a minor child to leave a parent who is legally entitled to custody of the child when the parent does not consent, or to prevent a child's return to such parent. We conclude that such conduct constitutes a tortious act.

It is criminal conduct in this state to deprive the lawful custodian of custody of a child.

(1) Any person, including a natural or foster parent, who, knowing that he has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody of his parents, guardian, or other lawful custodian commits a class 5 felony.

(2) Any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian of the custody of a child under the age of eighteen years, commits a class 5 felony.

§ 18-3-304, 8B C.R.S. (1986).

Restatement (Second) of Torts § 700 (1977), provides that "[o]ne who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has ... left him, is subject to...