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Breus v. Bezborodko
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1997 ME 211
Docket: Han-97-74
Submitted
on Briefs: September 19, 1997
Decided: November 4, 1997
Panel: WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
SERGEI BREUS
v.
INNA BEZBORODKO
DANA, J.
[¶1] Inna Bezborodko appeals from the decision of the Superior Court
(Hancock County, Mead, J.) affirming the order of the District Court
(Ellsworth, Staples, J.) denying her motion to dismiss for lack of personal
jurisdiction the complaint for a determination of parental rights and
responsibilities filed by her former husband, Sergei Breus. Although the
parties do not address the issue, we conclude that an interlocutory appeal of
a denial of a motion to dismiss for lack of personal jurisdiction does not fall
within any exception to the final judgment rule. Accordingly, we dismiss
the appeal.
[¶2] The relevant facts in this case are not in dispute. Breus and
Bezborodko were married and divorced in Russia. The divorce order made
no provisions for parental rights and responsibilities regarding their two
daughters. Breus moved to Maine in 1991 with one daughter, and
Bezborodko moved here in 1993 with the other. Although Breus is now a
naturalized citizen who plans to remain in the United States, Bezborodko is
here on a temporary student visa while she pursues graduate studies at the
University of Maine and ultimately plans to return to Russia.
[¶3] In 1996 Breus filed a complaint in the District Court seeking a
determination of parental rights and responsibilities regarding the two
children, including their primary residence, child support and visitation
rights. After being served with process at her home in Orono, Bezborodko
filed a motion to dismiss for lack of personal jurisdiction claiming the
requirements for personal jurisdiction provided in Maine's long-arm statute,
14 M.R.S.A. § 704-A (1980), had not been satisfied. Following the District
Court's denial of her motion, and before that court addressed the merits of
the complaint, Bezborodko appealed to the Superior Court. This appeal
followed the affirmance by the Superior Court.
[¶4] We have never held that the denial of a motion to dismiss for lack
of personal jurisdiction is immediately appealable as a matter of course. On
the contrary, we recently held that such an appeal is interlocutory and
merits our immediate review only if it falls within an exception to the final
judgment rule. Rosenbery v. Taylor, 685 A.2d 768, 769 (Me. 1996). We
have entertained interlocutory appeals from rulings that reject an affirmative
defense. See, e.g., Department of Human Servs. v. Lowatchie, 569 A.2d 197
(Me. 1990) (res judicata). Those cases recognize and apply the judicial
economy exception when a "review of a non-final order can establish a final,
or practically final, disposition of the entire litigation and the interests of
justice require that immediate review be undertaken." Lowatchie, 569 A.2d
at 199; See also Munsey v. Groves, 151 Me. 200, 202, 117 A.2d 64, 66
(1955).
[¶5] The "interests of justice" requirement of the judicial economy
exception cannot be met in this case. Bezborodko's interest in limiting the
court's jurisdiction is protected by her right to raise the issue on appeal
after final judgment. United States v. Sorren, 605 F.2d 1211, 1214 (1st Cir.
1979). Accord Donaldson v. Donaldson, 111 Idaho 951, 953, 729 P.2d 426,
428 (1986) ("[A] defendant who unsuccessfully objects to personal
jurisdiction may proceed on the merits without waiving the objection.").
The entry is:
Appeal dismissed.
Attorney for plaintiff:
Anthony W. Beardsley, Esq.
Roy, Beardsley & Williams
P O Box 723
Ellsworth, ME 04605-0723
Attorneys for defendant:
Mary N. Kellett, Esq.
Law Offices of Ellen S. Best
P O Box 386
Blue Hill, ME 04614
John D. Bunker, Esq.
Paine, Lynch & Harris, P.A.
P O Box 1451
Bangor, ME 04402-1451
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