Civil Practice – Venue – Sua Sponte Transfer – Domestic Relations – Custody

Zetino-Cruz v. Benitez-Zetino (Lawyers Weekly No. 011-285-16, 23 pp.) (Donna Stroud, J.) Appealed from Durham County District Court (Doretta Walker, J.) N.C. App.

Holding: Where a grandmother seeks custody and where the parents have not responded, the trial court lacked the authority to sua sponte transfer venue to the county in which the grandmother resides.

The transfer order is vacated. Remanded.

Although the plaintiff-grandmother and the children live in Lee County, the grandmother filed this custody suit in Durham County. The parents’ whereabouts are unknown, and they have not answered the complaint, much less moved to change venue.

The grandmother and the children were present in Durham County when the case was called. Nevertheless, the trial court, sua sponte, without prior notice, and over the objection of the grandmother’s attorney, transferred venue to Lee County.

G.S. § 50-13.5(f) says, “An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided.”

In this case, no one knows where the parents reside. The record indicates that the children were “physically present” in Durham County.

Yet even if we assume Durham County was not a proper venue under § 50-13.5(f), defendants waived any venue objection by failing to respond to the complaint.

Although the order does not cite G.S. § 1-83, the language of order seems to be based on it, at least in part. Nevertheless, since the trial court’s authority to change venue is triggered by a defendant’s objection to venue, we cannot find any authority for a sua sponte change of venue in this situation.

We have been able to find only two cases addressing a trial court’s power to change venue ex mero motu, at least in dicta, under a related statute, G.S. § 1-84, in cases in which a party is unable to have a “fair and impartial trial” in the county where the action was filed. But the trial court did not conclude that plaintiff (or defendants) could not have a “fair and impartial” trial in Durham County.

We cannot find any authority for a transfer of venue based upon “convenience of the court,” as mentioned in the trial court’s order. Nor can we determine how the interests of justice are furthered by a change of venue, which served only to delay a final custody resolution for children who were allegedly abused, neglected and abandoned by their parents.

Javier and Maria are not “numbers on a docket”; they are children who need protection. The trial court’s concern “to move my calendar” was misplaced in this instance, and it had no legal authority to change venue sua sponte under § 1-83 where no defendant had answered or objected to venue.

Vacated and remanded.