Godino v. Cleanthes

Annotate this Case
GODINO_V_CLEANTHES.93-580; 163 Vt 237; 656 A.2d 991

[Filed 27-Jan-1995]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 

                                 No. 93-580

James and Florence Godino                         Supreme Court

                                                  On Appeal from
     v.                                            Windham Superior Court

Marilyn Cleanthes                                 September Term, 1994

Richard W. Norton, J.

Thomas W. Costello and Joel T. Faxon, Law Clerk (On the Brief), of Thomas W.
 Costello, P.C., Brattleboro, for plaintiffs-appellants 

Patricia M. Beu and Katherine S. Dodge of Fitts, Olson, Carnahan & Giddings,
 Brattleboro, for defendant-appellee 

PRESENT:  Allen, C.J., Gibson, Dooley, Morse, JJ. and Maloney, Supr. J.,
          Specially Assigned 

     MORSE, J.   Plaintiffs James and Florence Godino, Florida residents,
appeal a Windham Superior Court order dissolving an ex parte writ of
attachment and dismissing their action to collect on a promissory note for
lack of personal jurisdiction over defendant, Marilyn Cleanthes.  We reverse.

     Defendant, along with her estranged husband, gave plaintiffs an
unsecured promissory note in the amount of $20,000.  They executed the note
in New York State in 1988.  After separating from her husband, defendant
moved to a house she owns in Wardsboro, Vermont, where she lived for several
years.  Believing defendant lived in Wardsboro, plaintiffs instituted suit in
Vermont.  Plaintiffs obtained an ex parte writ of attachment of defendant's
property, alleging that she had fled and encumbered property in the past and
was likely to dispose of it. Plaintiffs served notice of the proceedings on
defendant by leaving the summons, complaint, motion for writ of attachment,
and writ of attachment with defendant's adult son, who continued 


to live in the Wardsboro home. 

     On October 15, 1993, defendant filed a notice of limited appearance and
a motion to dissolve the writ under V.R.C.P. 4.1(e) and to dismiss
plaintiffs' complaint pursuant to V.R.C.P. 12(b)(1), (2), and (5). 
Plaintiffs then served defendant in Florida. 

     At the time plaintiffs brought suit in August 1993, defendant claimed to
have been absent from Vermont for several months.  According to her
affidavit, defendant left Vermont for Florida in December 1992.  She sought
state services there and obtained a full-time job in May 1993.  She then
leased an apartment in June 1993.  Defendant, nevertheless, retained her home
in Wardsboro, remained a licensed driver in Vermont, and continued to
register her car in Vermont. 

     In its order granting defendant's motion to dismiss, the court limited
its review to minimum contacts jurisdiction and concluded solely on the basis
of affidavits that "defendant's mere ownership of property in Vermont,
without more, is not sufficient to allow this court to assert jurisdiction
over the defendant."  Plaintiffs appeal this ruling, arguing that they have
made out a prima facie case of quasi-in-rem jurisdiction and personal
jurisdiction based on domicile and minimum contacts.  Because plaintiff has
made a prima facie showing of personal jurisdiction based on defendant's
domicile in Vermont, we do not reach the other issues. 

     A court has discretion to decide a pretrial motion to dismiss for lack
of personal jurisdiction on the basis of affidavits alone, to permit
discovery, and to conduct an evidentiary hearing.  Roman Catholic Diocese of
Burlington, Inc. v. Paton Insulators Inc., 146 Vt. 294, 296, 501 A.2d 1187,
1188  (1985).  It is preferable to conduct an evidentiary hearing on the
merits of the motion where there are questions of credibility or disputed
issues of fact.  Id.  If a court chooses to rule on a motion to dismiss for
lack of personal jurisdiction on the basis of affidavits alone, the party
opposing a motion need make only a prima facie showing of jurisdiction, or,
in other words, demonstrate facts which would support a finding of
jurisdiction. Id.; see also Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d  Cir. 1981) (until 


plaintiff proves jurisdiction by preponderance of evidence at evidentiary
hearing or trial, prima facie showing suffices notwithstanding controverting
evidence of moving party). Plaintiff's burden, then, is relatively slight. 
Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir. 1980).  The trial court must make
its ruling as a matter of law, and appellate review is nondeferential and
plenary.  United Elec. Radio & Machine Workers v. Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. 1993). 

     Defendant concedes that domicile continues to be a valid basis of
jurisdiction, and we agree.  Milliken v. Meyer, 311 U.S. 457, 464 (1940),
firmly established that assertions of personal jurisdiction over absent
domiciliaries comport with due process.  See International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (citing Milliken, 311 U.S.  at 463 for
"traditional notions of fair play and substantial justice" standard satisfied
there); see also Mary Twitchell, The Myth of General Jurisdiction, 101 Harv.
L. Rev. 610, 633 n.111 (1988) (general personal jurisdiction based on
domicile so well accepted that never challenged). 

     Defendant maintains she is not domiciled in Vermont.  Domicile is (1)
"`a place where a person lives or has [her] home,'" Piche v. Department of
Taxes, 152 Vt. 229, 232, 565 A.2d 1283, 1285 (1989) (quoting Tower v. Tower,
120 Vt. 213, 221, 138 A.2d 602, 607 (1958)) (emphasis added), and (2) a place
to which the person intends to return if absent and "from which [s]he has no
present purpose to depart."  Id.  Plaintiff alleged that defendant resided in
Wardsboro, and the parties' submissions show that defendant owns a residence
there.  Further, the parties' submissions show that defendant registered her
car in Vermont and retained her Vermont driver's license.  These facts, taken
as true and viewed most favorably to plaintiffs, give show that defendant has
her home in Vermont and was only temporarily absent. 

     Although one can change domicile by moving to a new residence and
dwelling there with the intent to remain indefinitely, "[a]n essential
element of the intention requirement is the intent to give up the old
domicile."  Id.  Defendant's retention of the home, license, and registration
evidence the opposite intent, the intent to keep the old domicile. 
Consequently, plaintiffs have 


met their prima facie burden of proving personal jurisdiction. 

     Reversed and remanded.

                              FOR THE COURT:

                              Associate Justice