BARBARA J. SHEEDY, JUDGE.
Factual and Legal Background
This suit centers upon the abduction of two minor children (hereafter referred to as "H" and "V"), then ages 7 and 6, by their natural father (this defendant, Anwar Wissa, Jr.) who took them from their home in Massachusetts to Cairo, Egypt, via a flight from Bradley Airport in this state on a privately chartered airliner. There is not a dispute the defendant, Executive Jet Management (EJM), operated the airline or that its employees or agents arranged the flight and flew the plane. The mother of the children is the named plaintiff who, in the Second Revised Complaint ("Complaint"), asserts causes of action for custodial interference (Count One), negligence (Count Two), negligent infliction of emotional distress (Count Four), and loss of filial consortium (Count Six). The children were not reunited with the plaintiff until June of 2003 when she went to Cuba (where the children and their father were temporarily) and recovered them. At the time of the claimed abduction, the plaintiff had shared legal and primary physical custody of H and V under valid and enforceable orders of the Probate and Family Court of the Commonwealth of Massachusetts, the state in which she, her former husband, and the children continuously resided prior to the occurrence. The couple divorced in March of 2001 and the abduction was on August 23, 2001.
The action proceeded to trial as against Executive Jet Management and a jury verdict as against EJM was returned in favor of the plaintiff mother on Counts One, Two, and Six on April 28, 2005.
The action was commenced on May 13, 2002, and, on June 11, 2002, was removed to federal district court. On December 3, 2002, it was remanded to state court. On February 4, 2005, this court entered a default for failure to appear as against defendant Wissa; notice of the same was sent to Cairo, Egypt, CT Page 12653 then the last known address of Wissa, on February 5, 2005, by certified mail-return receipt requested. That notice was received, executed as accepted, returned to this court by postal date of February 19, 2005, and received by the court on February 28, 2005.
Original service upon Wissa was made on May 30, 2002, and a supplemental return was filed on January 5, 2005, and received by the court on January 12, 2005 (#177.50).
The Second Revised Complaint of March 3, 2004, asserts the following causes of action as against Wissa: a) Interference with Custodial Relations (Count One) by plaintiff mother; b) False Imprisonment (Count Three) by the minors H and V as asserted on their behalf by plaintiff mother; c) Intentional Infliction of Emotional distress (Count Five) by the minors as asserted on their behalf by the plaintiff; and d) Loss of Filial Consortium by the mother (Count Six). The plaintiff mother, individually and on behalf of the minors, moved for judgment against Wissa on May 6, 2005. That case was tried to the court (concurrently with the case against EJM) from April 15, 2005-April 26, 2005. The defendant did not appear — personally or through counsel — for trial.
On November 3, 2003, this court, on motion by EJM, dismissed the claims of the minors for failure of the original complaint to assert bodily injury to them. Thereafter, the complaint was amended to assert "significant trauma" to the minors. Count Three, Para. 52. That claim remains — as does the claim by the minors as against their father since never attacked.
"A default admits the material facts that constitute a cause of action and entry of default conclusively determines the liability of a defendant . . ." Catalina v. Nicolelli, 90 Conn.App. 219, 221 (2005). "If the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff need . . . not offer evidence to support those allegations." Id. While the entry of a default operates as a confession of the truth of the material facts alleged in the complaint, it is not the equivalent of an admission of all the facts pleaded; rather its effect is to preclude the defendant from making any further defense and to permit entry of judgment against him. Id. Thus, the above-referenced trial as against Wissa was a hearing in damages tried to this court. Relevant is that no motion to open the default was filed under Practice Book § 17-43 and no written notice of Wissa's intent to contradict the complaint's allegations under P.B. § 17-34 was provided. In addition to testimony offered and exhibits produced at the hearing in damages, the plaintiff has also submitted affidavits of:
a) FBI Special Agent Gerald B. Mohan in support of a Criminal Complaint against Wissa (
USA. v. Wissa, Case Number 01M-1065-JGD) in the U.S. District Ct. in Massachusetts and sworn to and subscribed in the presence of United States Magistrate Judge Lawrence CT Page 12654 P. Cohen on August 30, 2001 (attached to plaintiff's 11/16/04 Motion for Default);
b) the plaintiff mother dated 5/5/05; and
c) FBI Special Agent Gerald B. Mohan in support of a second Criminal Complaint (
U.S.A. v. Wissa (Case Number 02-1618-035)) in the same U.S. District Court; it is sworn to and subscribed in the presence of United States Magistrate Judge Charles B. Swartwood, III (attached to plaintiff's Motion for Judgment dated 5/6/05).
Findings
Having heard all of the evidence and examined all exhibits offered at the hearing in damages, the allegations of the governing complaint, and the affidavits above referenced, the court makes the following findings of fact:
1) The plaintiff is and has been a citizen and resident of the Commonwealth of Massachusetts.
2) She married the defendant in 1990 and they had two children — H (born 9/12/93) and V (born 7/6/95).
3) The family resided continuously together in Topsfield, Massachusetts, until the plaintiff and defendant separated in 1998.
4) In 1998, the couple separated and Wissa moved out of the home.
5) The parties were divorced on or about March 19, 2001, in the Essex Probate and Family Court in the Commonwealth of Massachusetts (Tr. Exh. 13).
6) Under the terms of the Amendment Judgment of Divorce Nisi, the parties shared joint legal custody of the children and the plaintiff had primary physical custody under the terms of a Parenting Plan based upon the recommendations of a guardian ad litem, which plan was later made an Order of the court (Tr. Exhs. 11-14).
7) Under that Order, the defendant had scheduled visitation CT Page 12655 with the children to include some overnights and/or weekends, as well as all or portions of holidays, holy days, school and/or summer vacations, and other special occasions (Tr. Exh. 11).
8) In August of 2001, the defendant had two weeks visitation with the children and the plaintiff had been told he and the children would spend that time in the Bahamas. For that purpose, the plaintiff gave Wissa the childrens' passports which, under the Parenting Plan incorporated in the court's order, the father had to return to the plaintiff within a week of the childrens' return home. In fact, Wissa took the children to Cuba without the plaintiff's knowledge or consent. On Monday, August 20, 2001, the children were timely returned to the plaintiff's home though their passports were not returned to the mother.
9) The plaintiff, upon learning of the trip to Cuba and in response both to that information and the defendant's having failed to return the passports, became concerned about the childrens' safety when with Wissa and of the possibility he would in the future take them out of the country without her knowledge or permission.
10) Accordingly, the plaintiff communicated those concerns to her divorce attorney and to the childrens' court-appointed guardian ad litem. An emergency court hearing was scheduled for the following Monday, August 27, 2001, to address the return of the passports and limiting the defendant's ability to take the children out of state.
11) On Thursday, August 23, 2001, Wissa's mother picked up the children from their home for Wissa's regularly scheduled overnight visitation. He was obligated under the Parenting Plan to return the children, then seven (7) and six (6) years old, to the family home by 9:00 a.m. the following morning.
12) While at work on Friday morning, August 24, 2001, the plaintiff learned from the childrens' live-in nanny the children had not been returned.
13) During that day and evening, the plaintiff spoke with various persons concerning the childrens' absence — her attorney, the local and state police, the guardian ad litem, the district attorney's office, and Margaret (Meg) Reiss, the Managing Director of Kroll Business Investigations and Intelligence in New York. On Saturday, August 25, 2001, the plaintiff formally CT Page 12656 retained that group to locate and return her children. Their rates ranged from $210-$325/hr.
14) While at the courthouse the following Monday morning for the planned emergency hearing, the plaintiff learned from Meg Reiss that the children were in Egypt with their father and had been flown there on August 23, 2001, on a private charter flight arranged by Executive Jet Management (EJM), a co-defendant in this action.
15) The flight originated at Bradley International Airport in Connecticut, made a fuel stop in Ireland, and landed in Egypt.
16) At the time of the flight, Wissa had only overnight visitation.
17) At the time of the flight, the Parenting Plan afforded him no right to remove the children from the states.
18) Wissa had not informed the plaintiff of his intent to travel with the children outside the continental U.S.
19) Wissa's removal of the children as above described was without the mother's knowledge or consent, beyond the scope of his visitation rights under the previously referenced court Order, and deprived the plaintiff of her custodial rights.
20) The mother and children were not reunited for twenty-two months, on or about June 25, 2003, when the children were recovered in Cuba where they had been brought by Wissa from Egypt both to avoid discovery and capture by the plaintiff, her investigators, and law enforcement officials and because, on November 19, 2002, the plaintiff had been awarded custody in Egypt. Once the plaintiff obtained a final custody award, Egyptian law enforcement had the obligation to take physical custody of the children and to return them to their mother.
21) In that twenty-two month period, the plaintiff spent $683,000 of her own money in an effort to recover her children — specifically in payment for the professional services of attorneys and investigators retained in the U.S. and abroad where the children were then believed to be and for travel, hotel, meals, etc. (for herself and others retained by her) to places to include Egypt, Turkey, Cuba, New York, London, Houston, and Washington, D.C. — all in an effort to find and recover her CT Page 12657 children.
22) The plaintiff was not able to speak with her children until almost two weeks following their abduction. For two-four months, telephone contact was intermittent. Thereafter, communications with her son and daughter ceased. Because the abduction occurred, less than three (3) weeks prior to the devastating terrorist attacks here on September 11, 2001, and, because the children were believed to be in Egypt, the plaintiff, who spent more than two hundred (200) days overseas, found herself in an area of the world often unwelcoming to Americans as a result of this country's controversial military action.
23) During that same period, she sent out hundreds of e-mails, did web research, made countless telephone calls, and visited personally with U.S. congressional aides and senators — eventually to obtain the signatures of fifty (50) plus senators on a letter to Egypt's President soliciting his aid in getting the children out of the country. She also spoke to persons at the State Department here at home and at the U.S. Embassy in Egypt.
24) During her search for the children, the plaintiff's emotional state was one of hopelessness and desperation.
25) When mother and children were reunited in Cuba, her daughter inquired of her who she was, Wissa having told the children their mother did not want to visit with them and that, should anyone inquire about her, the children should say she was dead. Her son started screaming and ran to the other side of the room; he began hitting, kicking, and screaming obscenities at her and didn't want to remain in the same room with his mother and sister. The son was "wild-haired" and "wild-eyed," "filthy," and "scrawny." They were covered in bug bites. The children had been living on a boat for the prior six (6) months and "showering" every other day with a garden hose.
26) During the childrens' absence, the plaintiff began seeing Dr. William Newman who prescribed medication for depression and she also began treating with Dr. William Kenyan, a therapist. Following the childrens' return, all three began going to therapy twice a week until school started that fall; since then, the family has continued on a once weekly basis.
27) The plaintiff's children continue to exhibit fear of being left alone and of the plaintiff leaving them. CT Page 12658
28) Her minor son now expresses anger toward his father; her daughter continues to be afraid to go upstairs at home alone and has had academic problems as a result of memory losses, for which she now is seen by medical specialists.
29) The plaintiff continues to fear her children will be kidnapped again and worries that, as a result of her childrens' experience, they may not in the future be able to cope with life's stresses and challenges and to form lasting, loving bonds with lifetime partners.
30) The defendant husband knew, in August of 2001, the plaintiff mother had primary physical custody and that his visitation rights were as determined by the Massachusetts Probate and Family Court Order.
31) Wissa planned the taking of his children from their mother's custody as is evidenced by his failure to return the childrens' passports when they returned from their trip to Cuba one week prior to the abduction.
32) Wissa knew too that, as a result of the emergency hearing on Monday, August 27, 2001 in the Massachusetts family court, he would likely have been required to immediately surrender the childrens' passports.
33) Wissa knew the likely result of his prior taking of the minors to Cuba without their mother's knowledge and consent would be the entry of a family court order on August 27, 2001, that he would no longer be able to remove them from the continental United States — or perhaps even from the state of Massachusetts.
34) That Wissa knew time was of the essence is evidenced by his early inquiry of Executive Jet Management's Director of Charter Services, Ty Montag, whether the flight to Cairo could be arranged within thirty (30) hours.
35) Wissa knew he did not intend to return the children to their mother when he took them from their home on August 23, 2001, as evidenced by his request of Executive Jet Management for a one-way trip to Egypt, a destination he likely knew was not a signatory to the Hague Convention and thus was not likely to recognize or enforce the plaintiff mother's custodial rights once the children were in Egypt. CT Page 12659
36) That Wissa had purposefully selected Egypt as the country of destination for sometime prior to the abduction is further evidenced by the son's mention to his mother, after his return from Cuba and prior to the abduction to Egypt (between Mon., Aug. 20, and Thurs., Aug. 23, 2001), of a "trip to Egypt."
37) That Wissa was intent on continuing to deprive the plaintiff mother of her custodial rights to her children is evidenced by his flight with the children from Egypt to Cuba after she was awarded final custody of them from the Egyptian court and before Egyptian authorities had picked up the minors.
38) In September and October of 2001, Wissa telephoned the plaintiff from Egypt and attempted to negotiate his and the childrens' return by demanding the plaintiff provide him a home similar to the plaintiff's home or that she either turn over her home to him outright or sell that home and share equally with him the proceeds of the sale and that she find him a job in the investment services field (He was fired from his job in that field shortly after the abduction.) and pay him a salary and all office expenses or that the plaintiff's mother hire him as her asset manager and pay him $600,000 a year for five (5) years.
39) To accomplish the childrens' return, Wissa demanded the plaintiff's acquiescence to various modifications of the divorce judgment and parenting plan — specifically, that he and the plaintiff spend equal time with the children and share equally the cost of health insurance for the children, that the children no longer attend the private school they had been attending (and at which the mother played an active role), that he pay no child support, that he and the plaintiff share equally the cost of the childrens' education, and that, upon return to court to effect these changes, no guardian ad litem be appointed for the minors.
40) Wissa further demanded she provide him $20 million with which he could invest, reimburse him the sum of $250,000 which he claimed was the cost to him of the trip to Egypt, and fund a lawsuit he intended to bring if he returned. The court finds the cost of the flight was $160,000 (Exh. 8), which sum was paid primarily by Hope Amanda Smith, a former friend of the plaintiff mother.
41) He further demanded the plaintiff place the sum of $1,200,000 in an escrow account she establish for his benefit so CT Page 12660 as to underwrite such future "liabilities" as he might incur.
42) Finally, he demanded the plaintiff assure him there would be no further court proceedings (ostensibly at odds with his demands re modifications to the divorce judgment and Parenting Plan) and that any criminal or contempt matters already instituted be dropped.
43) The attempts to extort money from his former wife in return for the safe return of her children were intentional acts.
Wissa intentionally interfered with the mother's custodial rights when he abducted the children and took them to Egypt without her knowledge and consent when she had primary physical custody. Judgment enters for the plaintiff on Count One.
Count Three asserts the mother's claim on behalf of both children for false imprisonment. Specifically, Paragraph 51 therein states Wissa "knowingly and intentionally falsely imprisoned H and V by abducting them on a private jet without the consent of their custodial mother. From August 23, 2001, through on or about June 25, 2003, Defendant . . . knowingly and intentionally falsely imprisoned H and V in places in Egypt and Cuba without the consent of their custodial mother." As a proximate result of this false imprisonment "in connection with the wrongful removal and retention" of H and V, they experienced significant trauma. Paragraph 52. False imprisonment is the intentional, unjustified confinement of a person, directly or indirectly, by force or threat, of which that person is conscious or by which he is harmed. Cremaldi-Vickery v. Otis Elevator, Inc., 57 Mass.App.Ct. 1105 (2003); Restatement (Second) of Torts § 40. It is a linguistic stretch to analogize the childrens' abduction to Egypt as a "confinement" though the court recognizes the competing tensions created by their having been taken without warning from their mother and their home to a new life in a foreign land they had every reason to believe would now be their permanent home at an age where individual choice was denied them. Assuming however the court's willingness to make that Everestian leap, the plaintiff does not allege nor does the evidence establish the taking of the children by force or threat. The court can conjure a scenario in which a father's kidnapping of his children to a foreign land could be as a result of force or threat and eventuate in the childrens' confinement — but this is not that case. Despite being deprived of their mother's love and companionship, the society of their friends at home, etc., CT Page 12661 the requirements of this cause of action were not established. Judgment for the defendant enters on Count Three.
"H" and "V" are the first initials of the childrens' names.
Count Five asserts a claim by the plaintiff mother individually and on behalf of the two children for the intentional infliction of emotional distress as against Wissa. It asserts the "knowing and intentional abduction of H and V and his attempted extortion of Plaintiff were extreme and outrageous." Paragraph 60. It alleges the international abduction and the lengthy separation from their mother caused them emotional distress and depression with physical manifestations. Id. Paragraph 61 pleads the result of Wissa's intentional wrongdoing and extortionate demands was the plaintiff mother's "severe mental anguish and emotional distress." As earlier stated, the defendant has filed no appearance or notice of defenses.
This court, on 11/3/03, dismissed the childrens' claims for emotional distress as against Executive Jet Management under the provisions of the Warsaw Convention. The Warsaw Convention addresses and exclusively concerns airline liability for passenger injuries occurring on board the aircraft or in the course of embarking or disembarking. See e.g., El Al Israel Airlines, Ltd v. Tseng, 525 U.S. 155 (1999). The court found the mother's claim was not governed by the convention.
The court has already found Wissa's abduction of the children and the extortionate demands made of the plaintiff mother were deliberate and intentional acts. To establish liability for this tort, four (4) elements must be proven: a) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; b) that the conduct was "extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized society"; c) that the defendant's actions were the cause of the plaintiff's distress; and d) that the emotional distress sustained by the plaintiff was "severe" and of a nature "that no reasonable man could be expected to endure it." Agis v. Howard Johnson Company, 371 Mass. 140, 145 (1976); Restatement (Second) of Torts § 46, comments d, i, and j. Testing this plaintiff's evidence by these rules, the plaintiff mother has made out her cause of action. This trier of fact concludes Wissa's conduct was extreme and outrageous, that he knew or should have known his former wife would likely experience emotional distress as a result of his taking of the children, and that her emotional distress was sufficiently severe as to necessitate treatment with Dr. William Newman, a clinical psychologist, beginning approximately October of 2001 and continuing to the present time with her children. Dr. Newman diagnosed Ms. Streeter as suffering from generalized anxiety disorder and disorder with depression and anxiety, which conditions were aggravated by the childrens' behavioral posture upon their return — specifically, hostility, negativity, and aggression toward her as a result of Wissa's having provided them with incorrect information which caused them to perceive her in CT Page 12662 an unfavorable light. Dr. Newman prescribed medication (Paxil) and psychotherapy for those conditions.
Tr., 4/21/05, afternoon session, pp. 9-10.
The children did not attend the trial though they were deposed prior to trial. As above referenced, the court heard the testimony of their mother regarding their behavior following their recovery, their continuing psychotherapy, and the minor female's persistent cognitive problem with memory, focus, and concentration for which she has been treated by Dr. Newman and has undergone testing by Dr. Elizabeth Gidell, a neurologist. As an example, the mother testified to the daughter's being able to master a homework assignment on telling time by a clock one week and, using the same homework sheet the following week, had no idea how to complete the task. Tr., p.m. session injury was that they suffered just by observing the behavior. Tr., afternoon session of 4/21/05, p. 10. He witnessed violent behavior by the son in his office in the early days of treatment (yelling, screaming, hitting, kicking, and punching) and told of their expressing excessive worry, nightmares, socialization problems, and personal safety concerns as well as of V's neuropsychological testing which evidenced concentration and memory problems and symptoms of depression. It is not outside the ken of the trier of fact's experiential reservoir to recognize the adjustment the children were required to make when they left behind their life in Topsfield, Massachusetts (the only home they had known), for a very different life in Cairo where they knew no one, where values and traditions warred with those embraced at home, where American children were — at best — alien, and where they could not speak the language to the further adjustment of living on a thirty (30) foot boat in Cuba for six (6) months and then to return home to Massachusetts to a mother they no longer recognized and believed was dead, leaving behind the only parent they had known for their twenty-two (22) month absence without any communication with him and no expectation of seeing him again. They have established the elements of this tort as against their father. Judgment enters for the plaintiff on behalf of each of her children on this count; the plaintiff shall herself not recover further damages on this count, having already been compensated individually for the intentional infliction of emotional distress in damages awarded in Count One.
As a result of the earlier referenced criminal warrants sworn out against him, Wissa is a fugitive from justice in the United States and, for that reason as well as for the reason of this litigation, it is highly unlikely he will ever return.
Under Massachusetts law, "one who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result." Agis, supra, 37 Mass. 140, 144 (1976).
Count Six states a claim for the plaintiff-mother's filial loss of consortium, a cause of action recognized in Massachusetts. At least as early as 1863, the Massachusetts Supreme Court recognized damages for loss of a child's society (as opposed to CT Page 12663 the loss of his/her services). Stowe v. Heywood, 7 Allen 118, 122 (1863). See also Murphy v. I.S.K. Con. Of New England, Inc., 409 Mass. 842 (1991); Norman v. Massachusetts Bay Transp. Auth., 403 Mass. 303 (1988). "[T]he actual basis of recovery for intentional tortious acts which interfere with a parent-child relationship is the loss of filial consortium." Murphy, 409 Mass. at 862.
Judgment for the plaintiff on Count Six enters.
On Count One, the plaintiff-mother is awarded damages in the amount of ten million dollars ($10 million).
On Count Five, the plaintiff-mother is awarded damages in the amount of five hundred thousand ($500,000.00) on behalf of her son H, and, on behalf of her daughter V, damages of one million dollars ($1 million).
On Count Six, the plaintiff-mother individually shall recover damages in the amount of seventeen million dollars ($17 million).
Judgment against the defendant Wissa enters in the total amount of twenty-eight million five hundred thousand dollars ($28.5 million).