These two cases did not beak any new legal ground and both point to the clear need for trial lawyers to mindful of what is contained in their pleadings and to clearly preserve the record for appeal.

In the first case, Braswell v Braswell, Plaintiff filed for divorce in Wake County while she lived in Wayne County and Defendant lived in Johnson County.  Defendant timely filed a Motion to Change Venue and Motion to Dismiss for improper Venue and requested a hearing.  Prior to the hearing, Defendant filed a Counterclaim asserting new claims not raised by Plaintiff, while once again re-asserting his objection to Venue.

However, filing of the Counterclaim turned out to be the fatal error for Defendant, even though the Court acknowledged that Defendant's Counterclaim strenuously reasserted his objection to Venue.  In citing Lending Tree v Anderson the court found that “[e]ven if defendants properly raise a venue objection, they can impliedly waive the defense through their actions or conduct.”  Defendant's conduct or action was filing a Counterclaim raising a new claim for relief in Wake County, regardless of his continued objection to Venue in his Counterclaim.  

Needless to say, the case stays in Wake County!

The next case is a custody matter from New Hanover County titled EFSTATHIADIS v EFSTATHIADIS.  In 2021 the parties had entered into a Separation Agreement that dealt with property division and custody.  Oddly, Defendant alleged the parties were divorced in March of 2022, but no divorce decree was ever presented to the Court. Now, I don't mean to pick on anyone here, but how can a lawyer assert, in court, that a divorce occurred without any evidence? All that was needed was a trip to the courthouse!

Defendant was arguing that the non existent prior divorce decree made the separation agreement a final custody determination. But, as no divorce decree ever surfaced at trial, the trial court used the "best interests of the child" in making an initial custody determination in favor of Plaintiff.

Furthermore, Defendant's objection to an initial custody determination was raised for the first time on appeal! As the saying goes, raise it or waive it.

It is surprising to me that this case was reported, but perhaps it is another message to trial lawyers to make a good record or lose on appeal.

I hope you find this helpful,

Guy Vitetta, Charleston