I’ve been getting asked a number of questions from local family court attorneys regarding venue (the county in which a case is properly heard) in family court. Figuring it might be useful to have all my research on venue in one place, here it is:
Attorneys and litigants sometime confuse subject matter jurisdiction, which is never waivable, with venue, which always is. The case of Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994) does a good job of explaining the difference:
The distinction between subject matter jurisdiction and venue is an important one in the law. The terms are not synonymous. Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong. On the other hand, venue is the place or geographical location of trial. The propriety of either is independent of the other. A court sitting where venue is improper may nevertheless render judgment provided the party who possesses the venue right consents, either expressly or impliedly. A court lacking subject matter jurisdiction, however, has no authority to act regardless of the geographical location or consent of the litigants.
Id., 442 S.E.2d at 600 (citations omitted).
A defense of improper venue may be waived if not made by motion or raised as an affirmative defense in a responsive pleading. Holroyd v. Requa, 361 S.C. 43, 603 S.E.2d 417 (Ct.App. 2004). When an action is filed in the wrong county, the remedy appears to be to transfer it to where it is proper. See, Whaley v. CSX Transp., Inc., 362 S.C. 456, 484, 609 S.E.2d 286, 301 (2005) (finding trial in Hampton County was improper and remanding for new trial in Greenwood County).
When venue is improper, the proper procedure isn’t to dismiss the action but to transfer the action to the county where venue is proper. Rule 82(b), SCRCP.
Not only is venue waivable, the family court may move venue to a county in which venue would not otherwise be proper if “there is reason to believe that a fair and impartial trial cannot be had there”, “or the convenience of witnesses and the ends of justice would be promoted by the change.” S.C. Code § 15-7-100. The family court can also move venue to a proper county if the action is filed in an improper county. Id.
So where is venue proper for family court actions? Typically venue is proper in the county in which the defendant resides. However a few statutes and case law authorize venue in counties other than the county of the defendant’s residence:
“Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident, in which case it must be brought in the county in which the defendant resides.” S.C. Code § 20-3-60.
“Proceedings for adoption by residents of this State may be brought in the family court of the county in which the petitioner resides or is in military service, or in the county in which the child resides or is born. For nonresidents of this State proceedings for adoption must be brought in the county in which the child resides, in which the child is born, or in which the agency having custody of the child is located.” S.C. Code § 63-9-40.
Venue remains in the original county for child support and alimony modifications, even if the defendant or both parties no longer live there, though venue can be transferred to the county of the other party’s residence upon proper motion. S.C. Code § 63-17-320. It appears that venue also remains in the original county for custody or visitation modification actions though, again, venue can be transferred upon proper motion. Sartor v. Ward, 262 S.C. 398, 205 S.E.2d 1, 2 (1974) (venue to modify York County visitation and support order was proper in York County despite all parties now residing in Darlington County).
Nice post. I’ve been enjoying your blog, having been drawn to it due to being caught in my own legal battle. I’ve a question, if you don’t mind, regarding venue in a custody battle between two unmarried individuals. Does the statute regarding divorce proceedings apply, or does the location of the children become the determining factor?
I’m not so sure about this. I agree that venue can customarily be waived, but that is a general principle of law. The family courts are creatures of statute. The statue provides that actions for divorce and Separate Maintenance “must” be tried in one of three places. That certainly sounds as if the court’s authority to hear those two types of cases has only been granted to the family courts in those places. I’ve not looked for quite some time, but when I last did, I could not find any family court decisions resolving the question as to whether divorce or separate maintenance actions could be heard anywhere other than the three places established by statute.
I would be somewhat hesitant to bring them elsewhere for fear that a good result might be vulnerable on appeal. Title 15 is general and 20 is specific. Also Title 20 was enacted after title 15. So rules of statutory construction would also be implicated.
Joe:
While I greatly respect your knowledge of the law, I believe your comment reflects the general confusion my blog notes between subject matter jurisdiction and venue. No family law attorney or family court judge would dispute that the family court is the place to litigate divorce and separate maintenance actions. The county where the matter is litigated goes to venue. As Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994) notes, venue is waivable. Citing that case, the family court has always allowed me to waive venue.
Great post, Greg. It seems that jurisdiction and venue are commonly conflated, and this sums up the differences concisely.
I just had this come up with Judge McLin. She says 20-3-60 is jurisdictional and after reviewing the statute I agree. She definitely believes that this cannot be waived under any circumstance. I have never had a problem with this until several weeks ago.
Now I have the problem where I filed in Berkeley, Defendant lives in Aiken, and they last resided in Beaufort. I filed for divorce, but the case does not fall under 20-3-60, so I’m going to have to get it transferred I suppose. Has anyone ever done that? I suppose I’d rather go to Beaufort than Aiken. I would love to hear from anyone who has actually had a similar situation and has been allowed to go forward when none of the 3 subsections of 20-3-60 applies to the action. thanks.
As you can see from my prior post, I do not share Greg’s view on this issue. Evidently Judge McLin doesn’t either. Family Courts are creatures of statute. You cannot err by following the limitations imposed by the plain language of the statute. You can, of course file a motion to reconsider, but the motion, brief, and hearing will exceed the cost of transferring it, and the outcome is not likely to be favorable based upon her comments and your own apparent agreement.
You say that none of the subsections apply, but it certainly sounds as if Aiken and Beaufort apply respectively as the residence of the defendant and as the last county of residence of the couple.
I wasn’t clear. Several weeks ago this came up before judge mclin who claimed the statute was jurisdictional. We were able to salvage the case in front of her because the parties had last lived in dorchester county where the case was filed. She did not see this in the pleadings and wanted to transfer the case beforethat was made clear. I had never thought about the jd argument bc I had always thought this was a venue argument and could be waived. I am not sure that mclin’s view is widely shared around here. When I was preparing a final order for a divorce I have this week in berkeley it dawned on me that if I were before mclin, which I am not, she would transfer it to aiken or beaufort. Of course the fee I quoted, well before the vignette befor mclin, contemplated driving to berkeley not beaufort or aiken. In my berkeley case I pled that defendant waived any objection to venue in berkeley. So maybe I will get her divorced but I will disclose the potential problem to my client in the event I get embarassed. Ah family court. Sorry for typos. Doing this on my bb.
Question: If plaintiff does not reside in that county any longer or the state????subsection part(c)
So where is venue proper for family court actions? Typically venue is proper in the county in which the defendant resides. However a few statutes and case law authorize venue in counties other than the county of the defendant’s residence:
“Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident, in which case it must be brought in the county in which the defendant resides.” S.C. Code § 20-3-60.
With all due respect to Greg, I disagree with his citation of the Sartor case for the proposition that venue for a custody modification action is proper in the venue in which the original custody order was made. Sartor affirmed denial of a motion to change venue “if for no other reason, because it came too late.” The party had moved to change venue at trial for the convenience of the parties and witnesses, when all witnesses already were present in the courtroom.
I believe venue for custody modification actions is determined by reference to the general venue statute, SC Code 15-7-30, but I am interested if others disagree.