Caplan v. Donovan

879 N.E.2d 117

450 Mass. 463

Ariana CAPLAN v. David R.J. DONOVAN.

SJC-09923.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 8, 2007.

Decided January 17, 2008.

Thomas T. Worboys, Wellesley, for the defendant.

Pauline Quirion, Boston (Megan H. Christopher, Framingham, with her) for the plaintiff.

Claire Laporte & Rebekah R. Clark, Boston, for Jane Doe Inc. & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

We consider in this case whether a Massachusetts court has jurisdiction to issue an abuse prevention order under G.L. c. 209A in favor of a plaintiff who alleges that she has fled to this Commonwealth to escape the abuse of her domestic partner who remains in their home in Florida. We conclude that a court may issue such an order of prevention and protection even without personal jurisdiction over the defendant, but may not impose affirmative obligations on the defendant if there is no personal jurisdiction.

1. Background.¹ The plaintiff, Ariana Caplan, and the defendant, David Donovan, met in Massachusetts in 2000 and lived together in this Commonwealth before moving to Florida in 2002. In 2004 the parties had a child. The plaintiff took the child with her on occasional vacations to Massachusetts, but the defendant never returned to the Commonwealth. The plaintiff alleges that, beginning in 2004, the defendant was periodically physically abusive to her. After an incident on May 14, 2006, the plaintiff fled with their son from their home in Ocklawaha, Florida. According to the plaintiff, the defendant accused her of cheating, called her a whore, and threatened to kill her and to keep their son. He blocked the door when she tried to leave the room, and when she grabbed the telephone to contact the police, he ripped the telephone from her hand and threw her across the room. He again blocked the door when she attempted to leave, this time slamming his fist against the wall, punching a hole in the wall.

The plaintiff and the child arrived at her mother's house in Massachusetts on June 5, 2006, twenty days after the May 14 incident. At some time before June 7, 2006, when the plaintiff first came to court, the defendant had telephoned the plaintiff's father's house in Massachusetts, had telephoned his own friends in Massachusetts apparently trying to locate the plaintiff, and also had called the plaintiff's cellular telephone five or six times each day.² On June 7, the plaintiff filed a complaint in the Natick Division of the District Court Department, seeking an abuse prevention order under G.L. c. 209A. Following an ex parte hearing, a judge in that court issued an order. The order directed the defendant not to abuse the plaintiff, not to contact the plaintiff, and not to come within fifty yards of the plaintiff's residence in Natick. It also awarded custody of the parties' child to the plaintiff and ordered the defendant not to contact the child. The defendant was also ordered to surrender his firearms to the local police department in Ocklawaha, Florida. Finally, the order directed the defendant to compensate the plaintiff in an amount to be determined at a later hearing.³ By its terms, the order was set to expire on June 19, 2006, and it set June 19 as the next hearing date.

At the hearing held on June 19, 2006, the plaintiff was present and counsel appeared on behalf of the defendant. The defendant moved to dismiss the complaint under Mass. R. Civ. P. 12(b)(2), 365 Mass. 754 (1974), for lack of personal jurisdiction and to vacate the abuse prevention order. The court denied the motion and extended the order for one year. The defendant appealed. We granted the plaintiff's application for direct appellate review. We conclude that the District Court lacked personal jurisdiction over the defendant, but that personal jurisdiction was not required for the court to issue an abuse prevention order. Accordingly, we affirm in part and reverse in part.

2. Discussion. a. Personal jurisdiction. "Generally, a claim of personal jurisdiction over a nonresident defendant presents a two-fold 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? Jurisdiction is permissible only when both questions draw affirmative responses." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). The plaintiff argues that the court had personal jurisdiction over the defendant, and she points to the Massachusetts long-arm statute, G.L. c. 223A, § 3(d) and (g) as providing the statutory authorization.

Section 3(d) does not apply in this case.⁴ That provision allows the exercise of personal jurisdiction over a person who causes "tortious injury in this [C]ommonwealth by an act or omission outside this [C]ommonwealth if he ... engages in any ... persistent course of conduct ... in this [C]ommonwealth." G.L. c. 223A, § 3(d). The plaintiff argues that tortious injury in this Commonwealth was caused by the defendant's telephone calls to the plaintiff's father and the defendant's friends in Massachusetts, and also to the plaintiff's cellular telephone.

The calls did not amount to a tortious injury in the Commonwealth sufficient to allow personal jurisdiction. The mere fact of making telephone calls, even five or six calls per day, does not by itself create a tortious injury in the Commonwealth. While telephone calls made from outside a State could create a tortious injury within it when the calls include threats or harassing statements, see, e.g., Beckers v. Seck, 14 S.W.3d 139, 141, 143 (Mo.Ct.App.2000); McNair v. McNair, 151 N.H. 343, 349, 856 A.2d 5 (2004), the record is silent on the content of the calls at issue in this case. Even in the context of allegations of abuse, there is no basis to assume that the calls were threatening or abusive, and no evidence that the calls themselves placed the plaintiff in fear. Cf. A.R. v. M.R., 351 N.J.Super. 512, 517, 520, 799 A.2d 27 (2002) (finding personal jurisdiction for plaintiff's restraining order against defendant when order was sought "as a result of the fear engendered by one or more of defendant's telephone calls" placed from outside State).

The plaintiff did not state expressly in her complaint or in testifying before the judge that she continued to experience emotional distress or fear stemming from the abusive incident in Florida. Even if one might reasonably infer that she did, this would not provide the "tortious injury in this [C]ommonwealth" required by § 3(d). Although the continuing "manifestations, effects, and consequences of an out-of-State injury may be experienced in Massachusetts, they do not constitute `injury in this commonwealth' within the meaning of § 3(d)." Cunningham v. Ardrox, Inc., 40 Mass. App.Ct. 279, 282, 663 N.E.2d 577 (1996). Compare Crocker v. Hilton Int'l Barb., Ltd., 976 F.2d 797, 799-800 (1st Cir.1992) (no personal jurisdiction over defendant because tortious injury to which § 3 [d] refers and on which plaintiffs' claims were based was sexual assault that occurred at defendant's Barbados hotel; posttrauma injuries experienced on return to Massachusetts were "manifestations or effects of that injury"), with Darcy v. Hankle, 54 Mass.App.Ct. 846, 850-852, 768 N.E.2d 583 (2002) (emotional and economic injuries suffered by plaintiff when contacted in Massachusetts by police as result of out-of-State defendant's wrongfully initiated New York criminal proceeding against him constituted "tortious injury [occurring] in this [C]ommonwealth," supporting personal jurisdiction over defendant under § 3[d]).⁵ Any continued fears or emotional distress that the plaintiff experienced in Massachusetts would qualify as "[m]anifestations, effects, and consequences" of the injury she suffered in Florida and then transported to Massachusetts, not injuries created in the Commonwealth. See Cunningham v. Ardrox, Inc., supra.

Nor does § 3(g) supply a basis for personal jurisdiction. Section 3(g) allows the exercise of personal jurisdiction over a person who maintains "a domicile in this [C]ommonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim." G.L. c. 223A, § 3(g). The plaintiff's claim for a protective order is not one of the types of claims listed in § 3(g). Nor does the presence of a claim for custody confer personal jurisdiction over the defendant with respect to a protective order merely because the two claims are presented in the same document.⁶ The plaintiff does not point to any other provisions in the long-arm statute that might apply in this case, and none appears to fit the circumstances presented. There is, therefore, no reason to consider whether the exercise of personal jurisdiction over the defendant would fall within the minimum contacts standard required by the due process clause of the United States Constitution.

b. Status determination. Our conclusion that the District Court lacked personal jurisdiction over the defendant does not end the inquiry. It is established that a court may adjudicate matters involving the status of the relationship between multiple parties even where personal jurisdiction over all of the parties is not established. See Pennoyer v. Neff, 95 U.S. 714, 722, 734-735, 24 L.Ed. 565 (1877) (recognizing that State has authority to determine civil status of its citizen with respect to that citizen's relationship to nonresident). This authority stems from a State's "rightful and legitimate concern" in the status of "persons domiciled within its borders," a concern that is no less legitimate because that status might also affect a person...