Zetino-Cruz v. Benitez-Zetino , 249 N.C. App. 218 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1154
Filed: 16 August 2016
Durham County, No. 15 CVD 553
AURORA ZETINO-CRUZ, Plaintiff,
v.
ZOILA NOHEMY BENITEZ-ZETINO and CARLOS GIOVANI AMAYA-AREVALO,
Defendants.
Appeal by plaintiff from order entered 14 August 2015 by Judge Doretta L.
Walker in District Court, Durham County. Heard in the Court of Appeals 7 March
2016.
The Law Office of Derrick J. Hensley, by Derrick J. Hensley, for plaintiff-
appellant.
No brief filed on behalf of defendants-appellees.
STROUD, Judge.
Plaintiff Aurora Zetino-Cruz appeals from the trial court’s order changing
venue from Durham County to Lee County, North Carolina. Plaintiff argues that the
court committed reversible error when it changed venue to Lee County sua sponte.
We conclude that the trial court had no legal basis upon which to change venue since
no defendant had answered or objected to venue. Nor did the trial court have any
inherent power to change venue for the “convenience of the court.” We therefore
vacate the trial court’s order and remand to Durham County for further proceedings.
ZETINO-CRUZ V. BENITEZ-ZETINO
Opinion of the Court
Facts
On 1 May 2015, plaintiff filed a complaint in Durham County, seeking custody
of her grandchildren, Javier, born in 2006, and Maria, born in 2009.1 According to
the verified complaint, defendants are the children’s mother and father. Both of the
children and defendants are citizens of El Salvador. Plaintiff, the children’s maternal
grandmother, had lived in North Carolina for about 15 years prior to filing this action,
and the two children had resided with her in Sanford, North Carolina, since May
2014, or for about 12 months before the filing of the action. Plaintiff’s complaint set
forth extensive details regarding how the children ended up in her care. They have
never lived with defendant-father, whom plaintiff alleged was involved in “Mara 18,
one of the principal criminal gangs in El Salvador that controls many communities
and subjects local residents to violence and terror.” Defendant-father has also never
provided financially for the children or assisted in their care. She further alleged
that defendant-mother had fled El Salvador “[f]earing for her life and for the well-
being of the Minor Children,” due to defendant-father’s criminal activities and the
“extreme violence committed by organized criminal gangs that have taken control of”
much of El Salvador as the “de facto government.”
In May 2014, defendant-mother and the children were “apprehended by U.S.
Immigration officers” in Texas and later released on their own recognizance; they
1 We have used pseudonyms to protect the privacy of the children.
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then moved to North Carolina to live with plaintiff. Defendant-mother failed to
appear at her scheduled immigration hearing on 24 November 2014 and absconded.
Plaintiff alleged that defendant-mother has made only one phone call to her since she
absconded and has failed to provide any support for the children. When defendant-
mother absconded, she left the children with plaintiff but failed to sign any
documents which would give plaintiff legal authority to “fulfill the regular legal,
medical, and educational decisionmaking that may only be done by a legal custodian.”
In addition, plaintiff alleged that Javier has “very extensive special needs” which
require special services in school, including occupational therapy and speech therapy.
Without any legal authority to authorize care or make decisions regarding Javier’s
services, plaintiff has had extreme difficulty maintaining the care that Javier needs.
Plaintiff’s complaint requested full physical and legal custody of the children
and also requested additional factual findings by the trial court regarding “Special
Immigrant Juvenile Status” of the children pursuant to 8 U.S.C. § 1101(a)(27)(J) and
8 CFR 204.11. Plaintiff alleged that these findings would assist her in preventing
removal of the children by immigration authorities and possible deportation, since
return of the children to El Salvador would subject them to abuse and neglect from
defendant-father, disruption of their education, and risk from the “extraordinarily
high levels of crime and violence” in El Salvador. The complaint had many attached
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exhibits including birth certificates of the children and affidavits regarding the
situation in El Salvador and risks to the children should they have to return there.
Plaintiff filed a motion for emergency temporary custody along with the
verified complaint and a notice of hearing for 14 May 2015 for an emergency
temporary custody hearing. On 14 May 2015, the Honorable James T. Hill, District
Court Judge presiding, entered a temporary custody order granting plaintiff full legal
and physical custody of the children. In this order, the court concluded that the
children are “at risk of irreparable harm if an emergency custody order is not issued
to allow their legal, educational, and medical needs to be met.” The temporary
custody order also provided that:
The terms of this order will remain in effect until such time
as a further hearing occurs, and is entered without
prejudice to the rights of the parties to a full and fair
hearing on the merits of this matter. Should no further
hearing occur in a reasonable time frame, this order will
become the permanent order of this court, subject to
modification only by a showing of a substantial change in
circumstances.
The temporary custody order also set the case for a pre-trial hearing and “any
necessary review of this temporary order” on 14 August 2015 at 9:30 am and set a
permanent custody hearing on 10 September 2015 at 9:30 am in Courtroom 6B of the
Durham County Courthouse. The complaint was served on both defendants by
publication, in both Spanish and English in Durham and in Spanish in El Salvador;
the affidavit of service was filed on 24 July 2015. The publication also included the
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Opinion of the Court
dates set by the temporary order for the pretrial hearing and trial. The first
publication date was 10 June 2015, so defendants’ answers were due by 20 July 2015.
Neither defendant filed any answer or other response.
On Friday, 14 August 2015, the matter came on for pretrial hearing as
scheduled by the temporary order, but before a different judge. Plaintiff, her counsel,
and the minor children were present.2 The case was called for hearing, and the
following colloquy ensued:
MR. HENSLEY: Good morning, Your Honor. That’s
on for pretrial this morning.
THE COURT: Does everybody live in Durham?
MR. HENSLEY: Your Honor, nobody lives in
Durham.
THE COURT: All right. It will be the Court’s own
motion will be transferring.
MR. HENSLEY: Your Honor, if I may be heard
briefly. I prepared --
THE COURT: I’ll hear you briefly. Just be brief.
Tell me what county you want this transferred to.
MR. HENSLEY: We will not be transferring this,
Your Honor.
The trial court then called another case.
2 Plaintiff filed a memorandum regarding child custody venue on 14 August 2015, the day of
the hearing, that noted that the minor children “are physically present in Durham County and
attending today’s pretrial hearing[.]”
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After the trial court returned to plaintiff’s case, the following discussion
continued between the court and plaintiff’s counsel:
THE COURT: All right. Now you want to address
something with me, Aurora Cruz?
MR. HENSLEY: Yes, Your Honor.
THE COURT: I’m listening.
MR. HENSLEY: If I could switch out my piles here.
Your Honor, it came to my attention yesterday
afternoon that the question of venue had recently come to
your attention. I previously prepared a memorandum for
Judge Battaglia on this subject which was in my
understanding satisfactory to him. So I prepared a
memorandum for you this morning. If I may approach.
THE COURT: All right.
MR. HENSLEY: I do have two copies.
THE COURT: What county is this?
MR. HENSLEY: The Plaintiff and the children
happen to reside in Lee County but they may be found as
contemplated by the statute and case law in the County of
Durham.
THE COURT: I already looked this up. The Court
is changing venue to Lee County.
MR. HENSLEY: Your Honor -- Your Honor, if I
could go back to the table and be heard briefly.
THE COURT: I’m listening.
MR. HENSLEY: So I would like to first object to lack
of notice for this Court’s motion.
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THE COURT: I have so noted.
MR. HENSLEY: And, Your Honor, the matter of
venue is a substantive procedural right for the plaintiff and
for the defendant when timely objected to.
In this case the defendant has not objected and it is
convenient to the Plaintiffs to be heard in the County of
Durham wherein the children may be found on the occasion
of filing the complaint and case law specifies that that is
sufficient.
Moreover, I’m representing these individuals and it
is most convenient for them to have an attorney practice in
its own district in order to have most efficient
representation possible.
And beyond that, Your Honor, the case law
specifically gives the right to object to venue only to the
defendant, the parties may agree otherwise, but the only
statutory basis for changing venue is by objection of a
defendant and ask that you carefully read the
memorandum before issuing any order in this matter, Your
Honor.
THE COURT: I carefully read the law and I transfer
--
MR. HENSLEY: And the only other --
THE COURT: -- the venue to Lee County and you
may have the same option as the people that you talked to
yesterday. Thank you very much.
MR. HENSLEY: Your Honor, could you please state
for the record what that option would be. I would like to
have a full and complete record of these proceedings and
what you mean by these things because I was not given any
notice. I was not given a written motion. I just heard from
a friend yesterday afternoon that there was a question of
venue.
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THE COURT: This transfers to Lee County.
MR. HENSLEY: And what are the alternatives that
you spoke of just a moment ago, Your Honor?
THE COURT: I happen to move my calendar, Mr.
Hensley, which consist [sic] of you.
The trial court never identified what the “same option as the people that you
talked to yesterday” was. The trial court then called another case. After completion
of all of the remaining cases plaintiff’s counsel had with the court, the trial court
returned to plaintiff’s case, and counsel asked the trial court the following in relation
to this case:
MR. HENSLEY: . . .
Is there a written ruling with regards to the out-of-county
matter?
THE COURT: Yes, sir, there is.
MR. HENSLEY: All right. Is there a copy available
for me at this time?
THE COURT: Ask the clerk.
MR. HENSLEY: Thank you, Your Honor.
Both plaintiff’s memorandum regarding child custody venue, which was
handed up to the trial court during the hearing, and the trial court’s order changing
venue were filed at 9:40 am on the same day as the hearing, Friday, 14 August 2015
with the Durham County Clerk of Superior Court. Plaintiff filed notice of appeal from
the order in Durham County on 28 August 2015 and an alternative notice of appeal
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from the order in Lee County on 31 August 2015, since the case had been transferred
to Lee County. Defendants were served with the notices of appeal by filing with the
clerk of court, in accord with Rule 26(c) of the Rules of Appellate Procedure. Neither
has appeared in this appeal.
Discussion
A. Interlocutory appeal
Because the order on appeal does not finally resolve the case, it is interlocutory.
See Pay Tel Commc’ns, Inc. v. Caldwell Cnty., 203 N.C. App. 692, 694, 692 S.E.2d 885,
887 (2010) (“[T]he trial court’s order granting defendants’ motion to change venue is
an interlocutory order, and thus, not generally subject to appellate review.”). Plaintiff
argues that the order changing venue affects her substantial rights and thus she has
a right to immediate appeal. Plaintiff notes that the trial court relied upon N.C. Gen.
Stat. § 50-13.5(f) (2015) as authority for the change of venue. This statute provides
in pertinent part:
(f) Venue. -- 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.3
N.C. Gen. Stat. § 50-13.5(f) (emphasis added).
3 The remainder of the subsection addresses cases in which there are also claims for
annulment, divorce, or alimony, none of which are applicable here.
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Thus, plaintiff argues that she had a statutory right to file the lawsuit in
Durham County, since she claims that the children were “physically present” in
Durham County, even if she and the children reside in Lee County. In addition, she
argues that even if Durham County was an improper venue based upon residence of
the parties, venue is not jurisdictional and may be waived. Our case law agrees. See,
e.g., Bass v. Bass, 43 N.C. App. 212, 215, 258 S.E.2d 391, 393 (1979) (“Venue may be
waived by any party. 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.” (Citation omitted)).
Our Supreme Court has noted that
Although the initial question of venue is a
procedural one, there can be no doubt that a right to venue
established by statute is a substantial right. Its grant or
denial is immediately appealable.
Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (internal citations
omitted). Unfortunately, we have only the appellant’s brief in this case, since neither
defendant has appeared. Furthermore, since the trial court’s action was sua sponte,
we also have no argument or legal authority, other than that cited in the order itself,
addressing the rationale behind the trial court’s ruling. Based upon the cases
discussed in detail below, however, plaintiff had a statutory right for the action to
remain in Durham County, unless and until a defendant should file a motion for
change of venue to a proper county. See, e.g., Miller v. Miller, 38 N.C. App. 95, 97,
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247 S.E.2d 278, 279 (1978) (“[S]ince venue is not jurisdictional it may be waived by
express or implied consent[.]”). Accordingly, plaintiff’s interlocutory appeal is
properly before this court.
1. Standard of Review
Plaintiff argues that our review should be de novo since the trial court’s order
was expressly based upon N.C. Gen. Stat. § 50-13.5(f). Plaintiff is correct that the
order cites N.C. Gen. Stat. § 50-13.5(f) as the venue statute for custody matters, but
based upon the conclusions of law, we believe that the trial court ultimately relied
instead upon N.C. Gen. Stat. § 1-83 (2015) as to the change of venue.4 We have been
unable to find any case addressing the standard of review for a trial court’s sua sponte
change of venue in this type of factual situation, so we will look to the usual standards
of review for questions regarding venue.
Our review of an issue of venue involves two steps, and each step has a
different standard of review. The first step is determining the proper venue for a
case, which is based upon the substantive statute for the particular type of claim.
This determination of proper venue under the substantive statute presents a question
of law which is reviewed de novo. The second step is determining whether a change
of venue is appropriate under the procedural statute regarding changes of venue,
4 The order does not refer to N.C. Gen. Stat. § 1-83 specifically, but most of the language in the
conclusion of law is based upon this statute, and we cannot determine any other potential statutory
basis for change of venue.
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which in this instance appears to be N.C. Gen. Stat. § 1-83. If a case has been filed
in an improper venue under the substantive statute and a defendant has filed a
timely objection to venue “before the time of answering expires,” N.C. Gen. Stat. § 1-
83, then the trial court must change the venue and has no discretion to deny removal.
“ ‘The general rule in North Carolina, as elsewhere, is that where a demand
for removal for improper venue is timely and proper, the trial court has no discretion
as to removal. The provision in N.C.G.S. § 1-83 that the court may change the place
of trial when the county designated is not the proper one has been interpreted to
mean must change.’ ” Kiker v. Winfield, 234 N.C. App. 363, 364, 759 S.E.2d 372, 373
(2014) (emphasis added) (quotation marks omitted) (quoting Miller, 38 N.C. App. at
97, 247 S.E.2d at 279), aff’d per curiam, 368 N.C. 33, 769 S.E.2d 837 (2015). If,
however, the case has been filed in a substantively proper venue and a defendant
moves to change venue after filing an answer, the trial court may in its discretion
change venue, so we review that ruling for abuse of discretion. See N. Carolina Farm
Bureau Mut. Ins. Co. v. Paschal, 231 N.C. App. 558, 562, 752 S.E.2d 775, 778, disc.
review improvidently allowed per curiam, 367 N.C. 642, 766 S.E.2d 282 (2014). There
is no “bright line” test for abuse of discretion as to venue, and our review is based
upon all of the facts and circumstances.
The trial court is given broad discretion when ruling
on a motion to change venue for the convenience of
witnesses: The trial court may change the place of trial
when the convenience of witnesses and the ends of justice
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would be promoted by the change. However, the court’s
refusal to do so will not be disturbed absent a showing that
the court abused its discretion. The trial court does not
manifestly abuse its discretion in refusing to change the
venue for trial of an action pursuant to subdivision (2) of
N.C. Gen. Stat. § 1-83 unless it appears from the matters
and things in evidence before the trial court that the ends
of justice will not merely be promoted by, but in addition
demand, the change of venue, or that failure to grant the
change of venue will deny the movant a fair trial. In
resolving this issue here, we do not set forth a “bright line”
rule or test for determination of whether a trial court has
abused its discretion in denying a motion to change venue.
Rather, the determination of whether a trial court has
abused its discretion is a case-by-case determination based
on the totality of facts and circumstances in each case.
Id. (citations, quotation marks, brackets, and ellipses omitted).
The common element in review of changes of venue, whether from an improper
venue or proper venue, is that the right to any change of venue is triggered by a timely
motion filed by a defendant. The question then normally becomes whether the
defendant has waived proper venue, and we review the determination of waiver de
novo.
[A]lthough we apply abuse of discretion review to
general venue decisions, we apply de novo review to waiver
arguments. Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment
for that of the lower tribunal.
LendingTree, LLC v. Anderson, 228 N.C. App. 403, 407-08, 747 S.E.2d 292, 296 (2013)
(citations, quotation marks, and brackets omitted).
2. Analysis
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The order on appeal is brief, so we will quote its findings of fact, conclusions of
law, and decretal in their entirety:
FINDINGS OF FACT
1. That neither party is a resident or citizen of Durham
County, North Carolina.
2. That N.C.G.S. § 50-13.5(f) states that “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.”
3. Although a court may hear actions in counties in which
neither party resides, a change of venue is within the
discretion of the presiding judge.
4. That in the above listed case, Durham County is an
inconvenient forum for the courts and neither party, nor
the minor child resides in Durham County, North
Carolina.
CONCLUSIONS OF LAW
1. That . . . because of the convenience of witnesses, the
convenience of the court, significant ties of minor child
and Plaintiff to the County in which they reside, and
the interests of justice Durham County is not the
appropriate forum.
THEREFORE, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED:
1. That venue shall be changed to Lee County, North
Carolina and all files shall be transferred for continuing
issues regarding child custody and Petitions for Special
Immigration Status.
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The order appears to be on a form, as it is typed, except for the handwritten additions
of information specific to this case: the parties’ names, the file number, the date of
hearing, and the county to which the case is being removed.5
Although the order has a section entitled “Findings of Fact,” it only contains
one true factual finding: “That neither party is a resident or citizen of Durham
County, North Carolina.” The rest of the “findings” are either legal conclusions or
general statements of law. Moreover, plaintiff does not challenge the trial court’s
findings of fact on appeal, and plaintiff has never disputed that she lives in Lee
County. In any event, the trial court did not hear any evidence upon which it could
make findings of fact. Plaintiff does challenge the trial court’s legal conclusions on
appeal, both those contained within the “Findings of Fact” and the one conclusion of
law titled as such.
First, the trial court skipped the first requisite inquiry into whether venue was
proper under N.C. Gen. Stat. § 50-13.5(f) in the county where plaintiff filed the action.
The order contains no findings of fact upon which a determination of proper or
improper venue could be made. Yet to the extent that the trial court’s conclusion of
law is based upon N.C. Gen. Stat. § 50-13.5(f), it does seem to overlook one distinction:
the statute does not address where the parties reside. Venue is based upon residence
of the parents or a child or where a child is “physically present.” Plaintiff is the
5 The county to which the case is to be removed is the only blank in the body of the order,
underlined above.
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children’s grandmother, not their parent. N.C. Gen. Stat. § 50-13.5(f) places proper
venue in custody actions in “the county where the child resides or is physically
present or in a county where a parent resides[.]”
As is apparent from the complaint, the service by publication, and the lack of
response from either defendant, no one knows where the parents reside. The
complaint does show that the children reside with plaintiff, but the record also
indicates that the children were “physically present” in Durham County for the
hearing, as noted in plaintiff’s memorandum regarding child custody venue. In any
event, the order made no factual findings about the children’s residence or physical
presence. Nevertheless, it would appear that even under N.C. Gen. Stat. § 50-13.5(f),
either Lee County, where the complaint alleges that the children reside, or Durham
County, where they were “physically present,” could have proper venue. And basing
venue on the physical presence of the children would seem entirely appropriate,
particularly where a grandparent is seeking to protect grandchildren whose parents
have disappeared. In fact, the order does not really conclude that venue in Durham
County is “improper” under N.C. Gen. Stat. § 50-13.5(f) but only that it is
“inappropriate” based upon various factors.
Yet even if we assume that Durham County was not a proper venue under N.C.
Gen. Stat. § 50-13.5(f), the trial court may not change venue, even if the action was
filed in an improper venue, “unless the defendant, before the time of answering
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expires, demands in writing that the trial be conducted in the proper county[.]” N.C.
Gen. Stat. § 1-83. In this case, “time of answering” expired in July 2015, and the
defendants filed no answer. The trial court made one legal conclusion:
1. That . . . because of the convenience of witnesses, the
convenience of the court, significant ties of minor child and
Plaintiff to the County in which they reside, and the
interests of justice Durham County is not the appropriate
forum.
Although the order does not cite to N.C. Gen. Stat. § 1-83, the language of the
conclusion of law seems to be based upon it, at least to the extent that the order
concludes that venue should be changed based upon “the convenience of witnesses”
and “interests of justice.” There is no legal conclusion regarding proper or improper
venue.
If Durham County was a proper venue for this case, the trial court may have
discretion to move the matter, as laid out in N.C. Gen. Stat. § 1-83. N.C. Gen. Stat.
§ 1-83(2) provides that venue may be changed “When the convenience of witnesses
and the ends of justice would be promoted by the change.” Under N.C. Gen. Stat. §
1-83, however, a defendant must first file an answer and also move for change of
venue before the trial court has discretion to order removal. This Court has
previously addressed a situation in which a trial court changed venue under N.C.
Gen. Stat. § 1-83(2) where a defendant had not yet answered, and based upon
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Supreme Court precedent, held that the trial court abused its discretion in changing
venue prior to the defendant’s answer.
Pursuant to N.C. Gen. Stat. § 1-83(2), the court may
change the place of trial when the convenience of witnesses
and the ends of justice would be promoted by the change.
Whether to transfer venue for this reason, however, is a
matter firmly within the discretion of the trial court and
will not be overturned unless the court manifestly abused
that discretion. Moreover, motions for change of venue
based on the convenience of witnesses, pursuant to section
1-83(2), must be filed after the answer is filed. Defendant’s
motion, based upon the “convenience of the witnesses and
the ends of justice,” was filed prior to an answer and it was
therefore prematurely filed. As the trial court abused its
discretion to the extent that it prematurely made a
discretionary ruling to remove the case to Haywood
County, we believe that this Court must reverse and
remand to the trial court for further proceedings.
ITS Leasing, Inc. v. RAM DOG Enterprises, LLC, 206 N.C. App. 572, 576, 696 S.E.2d
880, 883 (2010) (citations, quotation marks, brackets, ellipses, and emphasis
omitted).
Since the trial court’s authority to change venue is triggered by a defendant’s
objection to venue whether the filing venue was proper or improper, we cannot find
any authority for a sua sponte change of venue in this situation. Whether we review
this order for abuse of discretion or de novo, we must reverse the order changing
venue. Neither defendant has filed an answer or objected to venue. Even assuming
that Durham County was an improper venue under N.C. Gen. Stat. § 50-13.5(f),
unless a defendant has filed an objection in writing to venue, the issue has been
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waived. Here, since defendants never appeared or filed an answer, they made no
objection to venue and thus it is clear that they waived it.
We have searched to find any inherent power for a trial court to change venue
sua sponte but have not found any legal authority which can support the trial court’s
order. “Courts have the inherent power to do only those things which are reasonably
necessary for the administration of justice within the scope of their jurisdiction.
Inherent powers are limited to those powers which are essential to the existence of
the court and necessary to the orderly and efficient exercise of its jurisdiction.”
Matter of Transp. of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 559 (1991)
(citations omitted). We cannot discern any reason that a change of venue in this case
would be “necessary to the orderly and efficient exercise of [the trial court’s]
jurisdiction.” Id.
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, N.C. Gen.
Stat. § 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. Both cases noted that the trial court does have
discretionary as well as statutory authority to change venue. See Everett v. Town of
Robersonville, 8 N.C. App. 219, 224, 174 S.E.2d 116, 119 (1970) (“In addition,
however, to the express statutory authority granted in G.S. 1-84, the judge of superior
court has the inherent discretionary power to order a change of venue ex mero motu
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when, because of existing circumstances, a fair and impartial trial cannot be had in
the county in which the action is pending.”); English v. Brigman, 227 N.C. 260, 260,
41 S.E.2d 732, 732 (1947) (holding superior court judge “had the inherent power ex
mero motu to order a change of venue” after concluding a fair and impartial trial could
not be held in original county). But the trial court did not conclude that plaintiff (or
defendants) could not have a “fair and impartial” trial in Durham County, and
nothing in our record suggests any reason to believe this.
Since the legal basis for the order is unclear, we will also address the other
factors the trial court cited as supporting a change of venue under N.C. Gen. Stat. §
1-83, “convenience of the court,” “convenience of witnesses,” and “the interests of
justice.” We cannot discern how plaintiff and the children, who were present and
ready to proceed, could possibly find removal to Lee County “convenient.” In fact,
plaintiff’s counsel expressed that removal to Lee County would not be convenient for
plaintiff. The record does not indicate any other potential witnesses who may be in
Lee County. But the phrase “convenience of witnesses” is at least a recognized factor
under N.C. Gen. Stat. § 1-83 and may apply based upon the facts of a particular case
and where proper objection or motion is made. Yet we cannot find any authority for
a transfer of venue based upon “convenience of the court.” We cannot even determine
what this phrase means and we decline plaintiff’s invitation to speculate.
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ZETINO-CRUZ V. BENITEZ-ZETINO
Opinion of the Court
Nor can we determine how the “interests of justice” are furthered by the change
of venue. The most obvious “interest of justice” in this case is the welfare of the minor
children. Plaintiff is a grandmother seeking custody of her grandchildren who were,
as alleged by her complaint, abused, neglected, and abandoned by their parents. She
requested legal authority to address their medical and educational needs, and in fact
had already been granted temporary custody based upon the “risk of irreparable
harm if an emergency custody order is not issued to allow their legal, educational,
and medical needs to be met.” Our legislature and courts have many times recognized
the importance of the court’s role in protecting children:
The legislature has spoken to the issue of child
custody in three separate chapters, Chapter 50 (addressing
primarily divorce and separation proceedings), Chapter 7A
of the Juvenile Code, (focusing on juvenile delinquency,
neglect and abuse), and Chapter 50A, (the Uniform Child
Custody Jurisdiction Act). A constant theme sounded
throughout each of these chapters is the overriding
importance of protecting the welfare of children.
Sharp v. Sharp, 124 N.C. App. 357, 362, 477 S.E.2d 258, 261 (1996) (citations
omitted).
The order changing venue has served only to delay a final resolution of custody
of the children, and our Supreme Court has often recognized the need to avoid delay
in cases involving children:
The importance of timely resolution of cases
involving the welfare of children cannot be overstated. A
child’s perception of time differs from that of an adult. As
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ZETINO-CRUZ V. BENITEZ-ZETINO
Opinion of the Court
one commentator observed, “The legal system views [child
welfare] cases as numbers on a docket. However, to a child,
waiting for a resolution seems like forever -- an eternity
with no real family and no sense of belonging.”
This Court has recognized that justice delayed in
custody cases is too often justice denied. Notably, our
Rules of Appellate Procedure provide for expedited appeals
in cases involving termination of parental rights and issues
of juvenile abuse, neglect, and dependency. Thus, in
almost all cases, delay is directly contrary to the best
interests of children, which is the “polar star” of the North
Carolina Juvenile Code.
In re T.H.T., 362 N.C. 446, 450, 665 S.E.2d 54, 57 (2008) (citations omitted.)
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 N.C. Gen.
Stat. § 1-83 where no defendant had answered or objected to venue. The only party
actively participating in the proceedings was present and ready to proceed in Durham
County. All in all, we can find no inherent authority for the trial court to change
venue sua sponte. The plaintiff has the right to select a forum initially for filing, and
although circumstances may later change in such a way that venue could be changed
for various reasons, there was no such change here. Accordingly, we reverse the trial
court’s order changing venue to Lee County and remand for further proceedings in
Durham County consistent with this opinion.
Conclusion
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ZETINO-CRUZ V. BENITEZ-ZETINO
Opinion of the Court
The trial court had no authority to enter an order sua sponte changing venue
where no defendant had answered or objected to venue. We vacate the order and
remand this matter to the trial court for further proceedings in Durham County
consistent with this opinion.
VACATED AND REMANDED.
Chief Judge McGEE and Judge ZACHARY concur.
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