Golodner v. Women's Center, Inc., 17660.

• Decision Date: 03 April 2007
• Docket Number: No. 17660.,17660.
• Citation: 281 Conn. 819,917 A.2d 959
• Court: Connecticut Supreme Court
• Parties: Daniel J. GOLODNER et al. v. WOMEN'S CENTER OF SOUTHEASTERN CONNECTICUT, INC. et al.

917 A.2d 959

281 Conn. 819

Daniel J. GOLODNER et al. v. WOMEN'S CENTER OF SOUTHEASTERN CONNECTICUT, INC. et al.

No. 17660.

Supreme Court of Connecticut.

Argued February 15, 2007.

Decided April 3, 2007.

T.J. Morelli-Wolfe, for the appellant (named plaintiff).

Brett J. Boskiewicz, with whom, on the brief, was Frank F. Coulom, Jr., Hartford, for the appellee (defendant Frauke Sawaha).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The sole issue in this appeal is whether the trial court properly dismissed the complaint of the named plaintiff, Daniel J. Golodner, alleging custodial interference by the nonresident defendant, Frauke Sawaha, for lack of personal jurisdiction on the ground that she was in Connecticut involuntarily and, thus, was immune from service of process.¹ We conclude that, because the defendant was in Connecticut pursuant to a court order and was defending against a separate child custody action when she was served, she was immune from process. Accordingly, we affirm the trial court's judgment of dismissal.

The following undisputed facts and procedural history are relevant to our disposition of the plaintiff's appeal. The plaintiff and the defendant, a German citizen, began a relationship in 2001 while the plaintiff was living in the United States and the defendant was living in Germany. The couple, who never were married, are the parents of a child, Alisha K. Golodner (Alisha), born in Germany on January 31, 2003. At various times in 2003 and 2004, the plaintiff and the defendant lived together at the plaintiff's residence in New London. In May, 2004, the defendant left the plaintiff's residence with Alisha and moved into a shelter operated by the named defendant, the Women's Center of Southeastern Connecticut, Inc., an organization that assists abused women.

Thereafter, the plaintiff commenced an action seeking custody of Alisha, which the defendant opposed. In connection with that action, on June 3, 2004, the plaintiff obtained an ex parte order of custody from the Superior Court in the judicial district of New London, prohibiting the defendant from returning to Germany with Alisha. On June 4, 2004, before the defendant had been served with that order, she and Alisha returned to Germany. On September 13, 2004, the plaintiff brought an action in Germany against the defendant seeking the return of Alisha pursuant to the Hague Convention on the Civil Law Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. On November 1, 2004, the plaintiff and the defendant entered into a stipulation, which was approved by the New London trial court, regarding the claims of both parties as to custody and providing, inter alia, that, "[p]ursuant to Connecticut law, there exists a rebuttable presumption that the parties, even though unmarried, share joint legal custody of the minor child, with no designation as to primary residence."

On November 26, 2004, citing the stipulation, a German trial court ordered the repatriation of Alisha to the New London Superior Court. Specifically, the court ordered the defendant "to book only a direct flight from Hamburg or Frankfurt . . . [and] to immediately inform the police . . . and the border guard office . . . about the flight departure date, the departure airport and the flight number. . . . The travel documents — child [identification] . . . and passport for Alisha, passport of the defendant, escrowed at the police station . . . are to be handed out to the defendant . . . for the purpose of traveling to the [United States]." The defendant appealed from that order, but the German Appellate Court affirmed the order in February, 2005, thereby requiring the defendant to return Alisha to Connecticut.

The defendant then filed a motion to dismiss the plaintiff's custody action in the New London Superior Court.² In May, 2005, while the defendant was attending a court hearing in connection with that motion, a marshal served her with a summons and the complaint in the present action seeking, inter alia, money damages for the defendant's alleged custodial interference. The defendant thereafter moved to dismiss the present action for lack of personal jurisdiction on the ground that nonresidents are immune from service of process if they are in Connecticut involuntarily. According to the defendant, her presence was involuntary because she had been ordered by the German trial court to come to Connecticut to return Alisha and defend against the plaintiff's custody action. The plaintiff objected to the motion, claiming that the defendant's presence was not involuntary because the German trial court had ordered only Alisha's return, not the defendant's return. Additionally, the plaintiff contended that the defendant was not immune from service both because she had sought affirmative relief from Connecticut courts as to custody and visitation of Alisha and in light of her egregious behavior in fleeing the jurisdiction. The trial court granted the defendant's motion to dismiss, stating in its order that "[a] nonresident, here to serve as a witness, is immune from legal process. Chittenden v. Carter, 82 Conn. 585, [589-90] 74 A. 884 (1909). Any exception is limited to part[y] plaintiff[s]." Thereafter, the plaintiff appealed from the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199(c).

On appeal, the plaintiff renews the arguments that he had made to the trial court in opposition to the motion to dismiss. Although the plaintiff recognizes the legal doctrine that immunizes from process a nonresident who is involuntarily in Connecticut, he contends that, because the defendant was not here involuntarily, but rather chose to accompany Alisha on her flight to Connecticut, the trial court improperly dismissed the action for lack of personal jurisdiction. Additionally, according to the plaintiff, because the defendant sought affirmative relief from a Connecticut court in connection with the underlying custody action and engaged in egregious conduct in wrongfully abducting Alisha, the trial court should not have extended to the defendant the doctrine's protection.

The defendant maintains that she was here involuntarily because she had been ordered to return Alisha to Connecticut pursuant to the German trial court order. The defendant further maintains that, because she was in Connecticut defending against a separate custody action, she was protected from process in this action, and adds that, to penalize her for protecting her legal rights against the plaintiff's claims, as he suggests, would in effect limit immunity to nonresident defendants who chose not to defend themselves and thereby eviscerate the reasons for granting immunity from process in the first instance. Finally, the defendant contends that the plaintiff's one-sided claims invoking equitable considerations do not inform the jurisdictional matter before the court. We agree with the defendant that she was here involuntarily and, accordingly, we affirm the judgment of the trial court.

We begin with a brief discussion of pertinent legal principles relating to the issue of personal jurisdiction. "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss."³ Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction. Id. This general rule is different, however, with respect to determining whether the court has jurisdiction over a defendant who is served personally or through abode service. In those circumstances, as opposed to situations wherein service is constructive, e.g., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction.

"`The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return. . . .' [1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970)] § 96, p. 390." Standard Tallow Corp. v. Jowdy, supra, at 53, 459 A.2d 503.

Finally, a motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken. Weidenbacher v. Duclos, 234 Conn. 51, 54 n. 5, 661 A.2d 988 (1995). Because an evidentiary hearing was not held in the present case, we will accept, as did the trial court, all undisputed factual allegations for the purpose of determining whether the defendant has sustained her burden of proving that the court did not have personal jurisdiction over her.⁴

Following oral argument on the defendant's motion to dismiss, the trial court, in summary fashion, determined that the defendant was immune from legal process, citing only to Chittenden v. Carter, supra, 82 Conn. at 585, 74 A. 884, for the proposition that "[a] nonresident, here to serve as a witness, is immune from legal process." The underlying facts are not in dispute, only their meaning as to whether they establish a voluntary presence as reflected in Chittenden. Therefore, we turn to Chittenden, its genesis and its progeny, as they inform the question of when a...