Stokes v. Stokes , 371 N.C. 770 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 82A18
Filed 7 December 2018
BREE RUSHING STOKES
v.
WILLIAM COREY STOKES, II
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 693 (2018), dismissing an
interlocutory appeal from an order changing venue entered on 9 February 2017 by
Judge N. Hunt Gwyn in District Court, Union County. Heard in the Supreme Court
on 30 August 2018.
Collins Family Law Group, by Rebecca K. Watts, for plaintiff-appellant.
Passenant & Shearin Law, by Brione B. Pattison, for defendant-appellee.
NEWBY, Justice.
In this case we consider the appropriate timing of a trial court’s consideration
of a motion to change venue based upon the convenience of witnesses and whether
such a decision is an interlocutory order subject to immediate appellate review. In
doing so, we must decide if filing an answer is a prerequisite for the trial court to
enter a discretionary order changing venue. The trial court and Court of Appeals
determined defendant’s motion challenging venue was proper because it was
equivalent to an “answer.” While defendant’s filing was not an answer under our
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Rules of Civil Procedure, we nonetheless hold that the trial court had the authority
to enter the discretionary order changing venue. Defendant’s appeal from this order
is interlocutory and not subject to immediate review. Accordingly, we modify and
affirm the decision of the Court of Appeals dismissing the appeal.
In April 2016, plaintiff Bree Stokes and defendant William Stokes separated
after fourteen years of marriage. Plaintiff and defendant have two minor children.
On 20 October 2016, plaintiff and the children moved from Pitt County to Union
County without defendant’s knowledge. On 24 October, four days after moving there,
plaintiff filed a complaint in Union County seeking child custody, child support, and
equitable distribution. On 26 October, seemingly before he was served with plaintiff’s
action, defendant filed a complaint in Pitt County seeking child custody.
In early November 2016, defendant filed in Union County a “Motion for
Emergency Ex Parte Custody and Motion to Dismiss for Improper Venue, or in the
alternative, Motion to Change Venue.” Defendant argued that Union County was a
legally improper venue because plaintiff and defendant continued to reside in Pitt
County. Alternatively, defendant argued the trial court should order the venue
changed to Pitt County for the convenience of the witnesses. Defendant alleged that
both parties resided in Pitt County until plaintiff moved, that they own property and
a business in Pitt County, and that their friends and family, who will likely be
witnesses, are located in Pitt County. Defendant further alleged that the children
have been lifelong residents of Pitt County and currently attend school in Pitt County,
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that the children’s health care providers, therapists, and counselors who could
provide firsthand knowledge of the children’s well-being are all located in Pitt
County, and that the Pitt County Department of Social Services has had an ongoing
investigation into plaintiff’s alleged abuse of the children.
At the trial court hearing on 6 December 2016, defendant accused plaintiff of
forum shopping by filing her action in Union County instead of Pitt County.
Defendant also noted that he intentionally filed his motion without having first filed
an answer for the apparent purpose of avoiding waiver of his legal venue objection.
The trial court determined:
10. N.C.G.S. § 1-82 allows for the proper venue of
cases to be heard in the county in which the Plaintiff’s [sic]
or the Defendant’s [sic] reside with the emphasis on the
word “or.” The disjunctive allows some cases, such as this
one, to be in either venue.
11. . . . . The Defendant filed a written response . . .
within the time for answering and it is a written request of
the court to change venue along with other relief requested.
The Court finds this is a responsive pleading amounting to
an answer and that was timely filed.
The trial court entered an order on 8 February 2017 denying defendant’s motion to
dismiss for legally improper venue but granting defendant’s motion to change venue
to Pitt County. Plaintiff appealed.
A divided panel of the Court of Appeals dismissed plaintiff’s appeal as
interlocutory. Stokes v. Stokes, ___ N.C. App. ___, ___, 811 S.E.2d 693, 699 (2018).
The Court of Appeals determined that the trial court granted the motion to change
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venue for the convenience of the witnesses, N.C.G.S. § 1-83(2) (2017), and not for
legally improper venue, id. § 1-83(1) (2017). Stokes, ___ N.C. App. at ___, 811 S.E.2d
at 697. Relying upon this Court’s decision in Hartford Accident & Indemnity Co. v.
Hood, 225 N.C. 361, 34 S.E.2d 204 (1945), the Court of Appeals concluded defendant
could only file the motion to change venue for the convenience of the witnesses either
with or after filing an answer. Stokes, ___ N.C. App. at ___, 811 S.E.2d at 698 (quoting
Hartford, 225 N.C. at 362, 34 S.E.2d at 204-05). Because the Court of Appeals
concluded that defendant’s filing “amount[ed] to an answer,” the court determined
that defendant simultaneously and timely filed his motion to change venue with his
“answer.” Id. at ___, 811 S.E.2d at 698-99. After further determining that the trial
court’s order for discretionary change of venue was interlocutory and did not affect a
substantial right, the Court of Appeals dismissed plaintiff’s appeal. Id. at ___, 811
S.E.2d at 699 (citing Kennon v. Kennon, 72 N.C. App. 161, 164, 323 S.E.2d 741, 743
(1984)). The dissent argued that defendant’s filing was not an answer. Therefore,
defendant’s motion was untimely, and the trial court’s order changing venue should
have been reversed. Id. at ___, 811 S.E.2d at 699 (Murphy, J., dissenting).
Venue is “[t]he proper or a possible place for a lawsuit to proceed, usu[ally]
because the place has some connection either with the events that gave rise to the
lawsuit or with the plaintiff or defendant.” Venue, Black’s Law Dictionary (10th ed.
2014). Section 1-82 of the North Carolina General Statutes states that venue is
proper “in the county in which the plaintiffs or the defendants . . . reside at [the
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action’s] commencement.” N.C.G.S. § 1-82 (2017). Improper venue is not
jurisdictional, and it is subject to waiver. See id. § 1A-1, Rule 12(h)(1) (2017) (“A
defense of . . . improper venue . . . is waived (i) if omitted from a motion [raising other
Rule 12 defenses], or (ii) if it is neither made by motion under this rule nor included
in a responsive pleading . . . .”); see also, e.g., Hawley v. Hobgood, 174 N.C. App. 606,
609-10, 622 S.E.2d 117, 119 (2005) (“[S]ince venue is not jurisdictional it may be
waived . . . .” (quoting Miller v. Miller, 38 N.C. App. 95, 97, 247 S.E.2d 278, 279
(1978))).
A party may move for a change of venue (1) when the venue is legally improper
or (2) when the change would promote “the convenience of witnesses and the ends of
justice.” N.C.G.S. § 1-83(1)-(2). Our cases treat the first of these venue changes as
mandatory; the second is discretionary. See Zetino–Cruz v. Benitez–Zetino, ___ N.C.
App. ___, ___, 791 S.E.2d 100, 105 (2016).
Regarding legally improper venues, section 1-83 of the North Carolina General
Statues provides:
If the county designated . . . in the summons and
complaint is not the proper [venue], the action may,
however, be tried therein, unless the defendant, before the
time of answering expires, demands in writing that the
trial be conducted in the proper county, and the place of
trial is thereupon changed by consent of parties, or by order
of the court.
N.C.G.S. § 1-83 (2017). Thus, if “before the time of answering expires” a party
demonstrates the venue is legally improper, it has a right to a change of venue.
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Id. § 1-83(1). An interlocutory order changing venue as of right affects a substantial
right and thus is immediately appealable. See id. § 7A-27(b)(3)(a) (2017) (providing
appeal of right for an interlocutory order if it affects a substantial right); Gardner v.
Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (“[A] right to venue
established by statute is a substantial right.”).
While a party has a right to a legally proper venue, a party does not have a
right to a preferred venue. When the current venue is proper, a party may
nonetheless request a venue change in the court’s discretion. A party may file a
motion to change venue for the convenience of the witnesses at any time before trial
if the party can make the required showing. A trial court may grant such a
discretionary venue change “[w]hen the convenience of witnesses and the ends of
justice would be promoted by the change.” N.C.G.S. § 1-83(2). Though “an appeal
from a discretionary ruling as to venue is interlocutory, does not affect a substantial
right, and is not immediately appealable,” either party may appeal the venue change
order upon final judgment. Its Leasing, Inc. v. Ram Dog Enters., 206 N.C. App. 572,
574, 696 S.E.2d 880, 882 (2010) (citing Kennon, 72 N.C. App. at 164, 323 S.E.2d at
743); see also, e.g., Kennon, 72 N.C. App. at 163-65, 323 S.E.2d at 742-43 (considering
the trial court’s discretionary decision to change venue upon appeal from the trial
court’s final judgment).
The courts below believed that a defendant must file an answer before a court
could consider a discretionary change of venue. This perception arose from this
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Court’s decision in Hartford, a case decided in 1945 under code pleading and
predating the Rules of Civil Procedure. See generally Sutton v. Duke, 277 N.C. 94,
176 S.E.2d 161 (1970) (noting and discussing North Carolina’s transition to the Rules
of Civil Procedure in 1970). In Hartford the defendant moved for a discretionary
venue change before filing his answer. On appeal this Court determined that because
“it is impossible to anticipate what issues may be raised” by a defendant, the court
could not exercise its discretion “until the allegations of the complaint [were]
traversed.” Hartford, 225 N.C. at 362, 34 S.E.2d at 204-05. At that time, “traverse”
may have implied the need for a formal answer under our code pleading system. See
Traverse, Black’s Law Dictionary (10th ed. 2014) (defined as “[a] formal denial of a
factual allegation made in the opposing party’s pleading”).
Under our current notice pleading system, however, neither the Rules of Civil
Procedure nor the plain text of N.C.G.S. § 1-83 prohibits a party from filing a motion
for a discretionary venue change before filing an answer. The Rules of Civil
Procedure merely require that a party provide the court sufficient information in a
written motion so the trial court may appropriately exercise discretion to rule on the
motion’s merits. See N.C.G.S. § 1A-1, Rule 7(b)(1) (2017) (stating that motions
typically “shall be made in writing, shall state with particularity the grounds
therefor, and shall set forth the relief or order sought”). Hartford’s underlying
rationale and principal holding that the defendant failed to provide sufficient
information contesting the plaintiff’s venue choice in a formal filing thus parallels the
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modern requirements under the Rules of Civil Procedure. As long as the party
provides sufficient information in a motion, the trial court’s discretionary venue
change does not need to await a party’s filing of an answer.1
Before filing an answer, defendant here moved to change venue both as of right
and in the court’s discretion. The trial court first found that, even though plaintiff
recently moved to Union County, the venue was legally proper and could not be
changed as of right. The trial court then properly evaluated whether to grant
defendant’s discretionary motion to change venue. Defendant’s motion contained
many facts affecting venue, such as the parents’ and children’s current and past
residency information, as well as the location of the children’s school, disputed assets,
potential witnesses with firsthand knowledge, and the ongoing child abuse
investigation.2 Thus, defendant gave the trial court sufficient information, which
allowed that court to exercise its discretion and order the venue changed to Pitt
County. While the trial court had sufficient information to rule on the timely motion,
1While defendant’s motion clearly contests many allegations of the complaint, it is, as
captioned, a motion under Rule 7(b) of the Rules of Civil Procedure and not an answer under
Rule 8(b). See N.C.G.S. § 1A-1, Rule 7(b); id., Rule 8(b) (2017).
2 Plaintiff raises a question about whether the trial court should have considered
discretionary venue change at the motion hearing. Any argument that addresses the merits
of the trial court’s decision to grant a discretionary change of venue, as compared to its
authority to do so, is more properly addressed in an appeal from any final judgment in this
case, if properly preserved. As a result, we express no opinion concerning whether the trial
court may have erred in granting defendant’s discretionary change of venue motion; instead,
we simply hold that the trial court had the authority necessary to make such a decision.
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the trial court’s discretionary determination is interlocutory and affects no
substantial right of either party. Therefore, plaintiff’s appeal is premature and must
be dismissed, though plaintiff may still challenge the trial court’s discretionary venue
decision in an appeal taken from a final judgment, if the issue is properly preserved.
In sum, we hold that defendant’s motion, though not an answer, was timely
filed and properly considered by the trial court. We further hold that plaintiff’s
appeal from the trial court’s order is interlocutory and warrants dismissal.
Accordingly, we modify and affirm the decision of the Court of Appeals dismissing the
appeal as interlocutory.
MODIFIED AND AFFIRMED.
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