Filed 21 July 1992
1. Divorce and Separation 456 (NCI4th) — child custody and support order — venue for modification — waiver of venue Once a child custody and support order is entered by a court having subject matter jurisdiction and the parties remain the same, the proper venue for any modification of this decree pursuant to N.C.G.S. 50-13.7 is the court entering the original decree. However, a waiver of venue occurs when a modification request is filed with the district court in an improper county and there is no timely demand that the trial be conducted in the proper county.
Am Jur 2d, Divorce and Separation 1007.
2. Divorce and Separation 456 (NCI4th) — child custody and support — modification hearing — removal to proper county — plea in abatement The demand that a child custody and support modification hearing be held in the proper county should be by a plea in abatement based on the prior action pending, and this plea in abatement must be raised either in a pre-answer motion or set forth affirmatively in the answer.
Am Jur 2d, Divorce and Separation 1005.
3. Divorce and Separation 456 (NCI4th) — child custody and support — modification hearing — waiver of venue Defendant waived her right to remove from Buncombe County to New Hanover County plaintiff's action for modification of a child custody and support order entered in New Hanover County when she failed to make her demand for removal by a plea in abatement either in a pre-answer motion or in the answer. Defendant's oral motion at trial, after the pleadings were complete, was ineffective to raise the removal issue.
Am Jur 2d, Divorce and Separation 1004 et seq.
Appeal by plaintiff from order entered 31 October 1990 in BUNCOMBE County District Court by Judge Robert L. Harrell. Heard in the Court of Appeals 14 November 1991.
Brock, Drye Aceto, P.A., by Michael W. Drye, for plaintiff-appellant.
No brief was filed for defendant-appellee.
Judge PARKER dissenting.
Plaintiff appeals from an order dated 31 October 1990, granting defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the North Carolina Rules of Civil Procedure.
Charles Brooks (Plaintiff) and Lynn Brooks (Defendant) were separated in July, 1986, and entered into a Separation Agreement (Agreement). The Agreement provided for, among other things, the terms of custody and support of their minor child, John Brooks, born 22 October 1982. According to the Agreement, Plaintiff and Defendant were to have joint custody of the child, with Plaintiff contributing $600.00 per month in child support. In 1987, Plaintiff instituted an absolute divorce action against Defendant in New Hanover County District Court. In September, 1987, a final divorce decree, incorporating the terms of the Agreement, was granted.
Prior to and during the time of the separation and the divorce proceedings, both Plaintiff and Defendant were residents of New Hanover County. Subsequent to the final divorce decree, Plaintiff became a resident of Duplin County while Defendant and the child became residents of Buncombe County. In August, 1990, Plaintiff filed a civil action in Buncombe County, seeking a modification of the New Hanover County judgment. Plaintiff sought custody and support of the child, or, in the alternative, expanded visitation. Defendant filed no pre-answer motions, nor did she allege any affirmative defenses in her answer. At trial Defendant made an oral motion to dismiss for lack of subject matter jurisdiction. Finding that New Hanover County was the proper forum to consider the matter, and that Buncombe County lacked jurisdiction, Judge Robert L. Harrell granted Defendant's motion to dismiss. From this order Plaintiff appeals.
The issue is whether a custody and support modification motion is properly heard in some county other than the county where the original custody decree was entered.
When in compliance with the federal Parental Kidnapping Prevention Act, 28 U.S.C.S. 1738A, and the Uniform Child Custody Jurisdiction Act, N.C.G.S. 50A-3, subject matter jurisdiction for the trial of a child custody and support action is vested in the district courts of this State, N.C.G.S. 7A-244 (1989); Harris v. Harris, 104 N.C. App. 574, 576, 580, 410 S.E.2d 527, 529, 531 (1991), and is not subject to waiver by the parties. N.C.G.S. 1A-1, Rule 12(h)(3) (1990). Venue for these proceedings is controlled by N.C.G.S. 50-13.5(f) and may be waived by any party. Nello L. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 744, 71 S.E.2d 54, 55 (1952) (venue is not jurisdictional and may be waived by any party). Waiver occurs when any action is filed in an improper county and there is not a timely demand that the trial be removed to the proper county. Id.
Once custody and support are brought to issue there can be "no final judgment in that case, because the issue of custody and support remain in fieri until the children have become emancipated." In re Holt, 1 N.C. App. 108, 112, 160 S.E.2d 90, 93 (1968). Therefore, until the children are emancipated, the case in which custody and support is originally determined remains pending and if the parties remain the same, this prior pending action "works an abatement of a subsequent action . . . in another court of the state having like jurisdiction." Clark v. Craven Regional Medical Auth., 326 N.C. 15, 20, 387 S.E.2d 168, 171 (1990). Accordingly, once a child custody and support order is entered by a court having subject matter jurisdiction and the parties remain the same, the proper venue for any modification of this decree pursuant to N.C.G.S. 50-13.7 is the court entering the original decree. See Broyhill v. Broyhill, 81 N.C. App. 147, 149, 343 S.E.2d 605, 606-07 (1986). However, waiver of venue occurs when a modification request is filed with the district court in an improper county and there is no timely demand that the trial be conducted in the proper county. Snyder v. Snyder, 18 N.C. App. 658, 660, 197 S.E.2d 802, 803-04 (1973); see Clark, 326 N.C. at 20, 387 S.E.2d at 171. In such event, the district court in the improper county appropriately adjudicates the modification request. Id.; N.C.G.S. 7A-244 (1989).
The demand that the modification hearing be held in the proper county takes the form of a plea in abatement based on the prior pending action. See Powers v. Parisher, 104 N.C. App. 400, 406, 409 S.E.2d 725, 729-30 (1991) (discussing applicability of plea in abatement in context of action for child support). A plea in abatement based on a prior pending action, although not specifically enumerated in Rule 12(b) of the Rules of Civil Procedure, is a preliminary motion of the type enumerated in Rule 12(b)(2) — (5) and the time for filing such motion is governed by that rule. See 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure: Civil 2d 1360, 1394 (1990 Supp. 1992); Lehrer v. Edgecombe Mfg. Co., 13 N.C. App. 412, 414, 185 S.E.2d 727, 729 (1972). Furthermore, the defense is an affirmative defense and Rule 8(c) requires that such defenses be affirmatively set forth in the answer. N.C.G.S. 1A-1, Rule 8(c) (1990); Clark, 326 N.C. at 20, 387 S.E.2d at 171. Therefore, a plea in abatement based on a prior pending action must be raised either in a pre-answer motion or set forth affirmatively in the answer. N.C.G.S. 1A-1, Rule 12(h)(1) (1990); Clark, 326 N.C. at 20, 387 S.E.2d at 171. The failure to raise the defense in this manner constitutes a waiver of the defense. Id.; Southgate v. Russ, 52 N.C. App. 364, 366, 278 S.E.2d 313, 314 (1981); see also Clark, 326 at 20, 387 S.E.2d at 171; McDowell v. Blythe Bros. Co., 236 N.C. 396, 399, 72 S.E.2d 860, 863 (1952).
In the present action, plaintiff seeks modification of an earlier child custody and support order entered in New Hanover County. The child at issue is not emancipated and the parties to this action for modification are the same as the parties to the original action. Therefore, New Hanover County is the proper venue for the modification proceeding and the order entered in New Hanover County represents a prior pending action. Defendant, however, waived her right to remove the case from Buncombe County to New Hanover County when she did not make her demand for removal either in a pre-answer motion or in the answer. The defendant's oral motion made at trial, after the pleadings were complete, was not timely and therefore ineffective to raise the issue of the prior pending action. Accordingly, the trial court erred in dismissing the plaintiff's complaint. The order of dismissal is reversed and the matter is remanded to the District Court of Buncombe County for hearing on the plaintiff's request for modification of the 11 September 1987 order of custody and support entered in New Hanover County.
Reversed and remanded.
Judge WYNN concurs.
Judge PARKER dissents with separate opinion.