Stokes v. Stokes

811 S.E.2d 693, 258 N.C. App. 165
CourtCourt of Appeals of North Carolina
DecidedFebruary 20, 2018
DocketCOA17-440
StatusPublished
Cited by1 cases

This text of 811 S.E.2d 693 (Stokes v. Stokes) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stokes v. Stokes, 811 S.E.2d 693, 258 N.C. App. 165 (N.C. Ct. App. 2018).

Opinions

BRYANT, Judge.

*166Where the trial court's order granting defendant's motion to change venue was based on N.C. Gen. Stat. § 1-83(2), the convenience of the witnesses, and where a motion for change of venue filed contemporaneously with responsive pleadings is not untimely filed, the trial court's order is interlocutory and not immediately appealable, and we dismiss plaintiff's appeal.

Plaintiff Bree Stokes and defendant William Stokes were married on 6 April 2002 and separated on 20 April 2016. During the marriage, the parties had two children. In April 2016, defendant filed an action for domestic violence against plaintiff in Pitt County. Plaintiff counterclaimed, asking for child custody, child support, alimony, and equitable distribution. At some point, an ex parte domestic violence protective order was entered against plaintiff, which included temporary custody provisions. Before 20 October 2016, both parties dismissed their claims, and the domestic violence order was set aside.

On or about 20 October 2016, plaintiff and the minor children relocated from Pitt County to Union County, while defendant remained a resident of Pitt County. On 24 October 2016, plaintiff filed a complaint for child custody, child support, and equitable distribution in Union County. On 26 October 2016, defendant filed his own custody action in Pitt County. Thereafter, on 9 November 2016, defendant filed a motion in Union County for emergency ex parte custody and motion to dismiss for improper venue, or in the alternative, a motion to change venue in the Union County case.

On 6 December 2016, the trial court in Union County conducted a hearing on defendant's motion to change venue. After hearing testimony from the parties and the arguments of counsel on the issue of venue, the trial court ruled that venue was proper in both Pitt and Union Counties, but ordered that venue be changed to Pitt County by order entered 9 February 2017. Plaintiff appeals.

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On appeal, plaintiff argues the trial court erred as a matter of law and abused its discretion in changing venue from Union County to Pitt County. Specifically, plaintiff contends that venue is proper in Union County and to the extent the order is an attempt to change venue for the convenience of witnesses, the trial court abused its discretion in changing venue to Pitt County. We disagree.

*167A. The Nature of Defendant's Motion

The trial court's venue order is an interlocutory order in that the parties' claims for child custody, child support, and equitable distribution remain unresolved. "An appeal of an order disposing of ... a [venue] motion is interlocutory because 'it does not dispose of the case.' " Snow v. Yates , 99 N.C.App. 317, 319, 392 S.E.2d 767, 768 (1990) (quoting DesMarais v. Dimmette , 70 N.C.App. 134, 135, 318 S.E.2d 887, 888 (1984) ). "Generally, there is no right to appeal an interlocutory order, unless the trial court's decision affects a substantial right of the appellant which would be lost absent immediate review." Caldwell v. Smith , 203 N.C.App. 725, 727, 692 S.E.2d 483, 484 (2010) (citing Boynton v. ESC Med. Sys., Inc. , 152 N.C.App. 103, 105-06, 566 S.E.2d 730, 731 (2002) ). "Our courts have established, however, that '[m]otions for *696change of venue because the county designated is not proper affect a substantial right and are immediately appealable.' " Heustess v. Bladenboro Emergency Servs., Inc. , --- N.C.App. ----, ----, 791 S.E.2d 669, 671 (2016) (alteration in original) (quoting Hawley v. Hobgood , 174 N.C.App. 606, 608, 622 S.E.2d 117, 119 (2005) ).

"[G]rant or denial of a motion asserting a statutory right to venue affects a substantial right and is immediately appealable." Snow , 99 N.C.App. at 319, 392 S.E.2d at 768 (emphasis added) (citing Gardner v. Gardner , 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) ). On the other hand, "an order denying [or granting] a motion for change of venue ... based upon the convenience of witnesses and the ends of justice , is an interlocutory order and not immediately appealable." Kennon v. Kennon , 72 N.C.App. 161, 164, 323 S.E.2d 741, 743 (1984) (emphasis added) (citations omitted). In other words, "an appeal from a discretionary ruling as to venue is interlocutory, does not affect a substantial right, and is not immediately appealable[;] a determination of venue based upon a statutory right to venue in a particular county is immediately appealable." ITS Leasing, Inc. v. RAM DOG Enters., LLC , 206 N.C.App. 572

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Related

Stokes v. Stokes
821 S.E.2d 161 (Supreme Court of North Carolina, 2018)

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Bluebook (online)
811 S.E.2d 693, 258 N.C. App. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stokes-v-stokes-ncctapp-2018.