in the Court of Appeals 9 January 2017.
by defendant from order entered 20 January 2016 by Judge
Lloyd Michael Gentry in District Court, Caswell County No. 15
Manning, Fulton, & Skinner, by Michael S. Harrell, for
Tharrington, Smith, LLP, by Steve Mansbery, for
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.
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.
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
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 ...