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Bass v. Bass

Filed: October 2, 1979.

JAMES CALEB BASS
v.
EVY JEAN BASS



Appeal by plaintiff from Tate, Judge. Order entered 19 December 1978 in District Court, Catawba County. Heard in the Court of Appeals 18 September 1979.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

Plaintiff argues the district court erred in denying his motion for change of venue. We find no merit in this assignment of error. Plaintiff began this litigation. He chose Catawba County as the forum although he could have elected to proceed in Mecklenburg County, the defendant and children living there at that time. N.C. Gen. Stat. 50-3 and 50-13.5(f). Plaintiff invoked the jurisdiction of the court to decide the question of custody of the children born of the marriage. It is true that a final judgment of absolute divorce was entered in the case in 1974, but the divorce decree was by no means a final judgment with respect to the custody and support of the children. The court expressly retained jurisdiction of the child custody and support proceedings in its divorce decree. N.C.G.S. 50-13.5(f) requires that when a divorce case is pending any motion for custody or support must be made in the divorce case. It does not prevent further custody and support hearings after the divorce is granted. The court in which the suit for divorce is pending has exclusive jurisdiction of proceedings for custody and child support, and once they are commenced, maintains it after the divorce decree is entered. In re Custody of Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967); Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148 (1964). Where custody or support has been brought to issue in a divorce case, there can be no final judgment in the case as to the custody and support issues, as they remain in fieri until the children are emancipated. Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E.2d 215 (1976). We hold

Catawba County is the proper venue for the custody and child support proceedings.

It is elementary law that the residence of the parties at the time of the institution of the action is controlling, and venue is not affected by a subsequent change of residence of the parties. Brendle v. Stafford, 246 N.C. 218, 97 S.E.2d 843 (1957). Venue may be waived by any party. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E.2d 54 (1952). Plaintiff voluntarily appeared and participated in the 27 June 1977 hearing on child support. He did not object to the venue or move for change of venue. He stipulated the court could enter an order concerning his visitation privileges with the children. If plaintiff had any objection to the venue, he waived it.

Because plaintiff waived any objection he may have had to the venue, his motion was addressed to the discretion of the court. Ordinarily, rulings as to venue made in the discretion of the court are not reviewable except for abuse of discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961). Plaintiff's appeal was subject to dismissal; however, in the absence of such a motion, we have considered it upon the merits.

In bringing this appeal to the appellate division, plaintiff has effectively postponed all proceedings in the case, including his citation for contempt, for eleven months so far. Meanwhile the question of what is proper support for his three children languishes without determination. The economic pressure thus brought to bear upon the children is unconscionable.

This case is a prime example why the method of appellate review should be studied and the use of review by petition for certiorari considered in certain cases to avoid unnecessary delay and expense. Had this case been presented to this Court by petition for certiorari, it could have been promptly decided within days after it was filed on 1 February 1979. The rights of the children could have been promptly protected and the waste of time and money for printing and filing of record and briefs prevented.

Affirmed.

Disposition

Affirmed.

19791002 ...


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