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Johnston v. Johnston

Court of Appeals of North Carolina

November 21, 2017

WILLIAM RUSSELL JOHNSTON, Plaintiff,
v.
ALLYSON SCOTT JOHNSTON, Defendant.

          Heard in the Court of Appeals 9 January 2017.

         Appeal by defendant from order entered 20 January 2016 by Judge Lloyd Michael Gentry in District Court, Caswell County No. 15 CVD 312

          Manning, Fulton, & Skinner, by Michael S. Harrell, for plaintiff-appellee.

          Tharrington, Smith, LLP, by Steve Mansbery, for defendant-appellant.

          STROUD, Judge.

         Defendant Allyson Scott Johnston appeals an order denying her motion to dismiss the case filed by plaintiff in Caswell County and to have it transferred to Wake County. Because defendant's custody claim was filed in Wake County before plaintiff filed his claim in Caswell County, the district court in Caswell County did not have subject matter jurisdiction over the custody claim. We reverse the order denying defendant's motion to dismiss, remand for consideration of defendant's motion for sanctions, and vacate the temporary visitation and custody orders.

         I. Background

          On 4 April 2009, plaintiff William Russell Johnston ("Husband") and defendant Allyson Scott Johnston ("Wife") were married. The parties had two children, one in 2012 and one in 2014. The parties separated, although the exact date is in dispute, and on 15 September 2015, Husband filed a complaint in Caswell County against Wife for custody, divorce from bed and board, and equitable distribution, alleging the parties had separated on 2 August 2015. On 22 September 2015, the complaint was served on Wife. Thereafter, on 1 October 2015, Husband voluntarily dismissed his Caswell County complaint without prejudice.

         On 8 October 2015, Wife filed a complaint against Husband in Wake County for custody, child support, post-separation support, alimony, and attorney fees. A temporary custody hearing was set in Wake County for 15 December 2015. Husband was not served with the Wake County summons and complaint on the sheriff's initial attempts, and he later admitted that he intentionally avoided service. On 13 October 2015, Husband filed a second complaint against Wife in Caswell County for custody, divorce from bed and board, and equitable distribution; the complaint fails to note the active suit in Wake County, although husband was aware that it had been filed.

         On 19 October 2015, Husband filed a motion in Caswell County requesting entry of an order for temporary child custody and visitation. On 2 November 2015, Wife filed a motion to dismiss the Caswell County case for lack of jurisdiction because of her prior pending action in Wake County. Also on 2 November 2015, the district court heard Husband's request for temporary custody, although Husband was not present and his attorney admitted he did not come to the hearing he had scheduled for temporary custody because he was avoiding service in the Wake County case:

MS. RAMSEY: His client's not even here. His client is asking for temporary custody of the children, and he's not even here. The reason he's not here is because he knows, if he comes in here, he's going to be served with this Wake County action. He's avoiding service.
THE COURT: Well, let me say this. Mr. Bradsher, you need to get your client available for service so -
MR. BRADSHER: Your Honor, I don't doubt it. But there's nothing that says he has to make himself available. And we're prepared to go forward today . . . . We have everybody here.
. . . .
MR. BRADSHER: Your Honor, I mean, this is a civil matter.
THE COURT: Okay. Okay. As a directive from the bench, make sure your client is available for service on this -- on her -- on the Wake County case --
MR. BRADSHER: I don't know that I have the ability to do --
THE COURT: -- this week. Somebody in this room can get Russell Johnston into the Sheriff's Office to get served this week. Well, maybe I -- I'm just telling you he ...

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