Improper Service of Summons - Filing a New Complaint


#1

I live in Union County with my children and in my marital home (and have for almost four years), but my husband moved in with his brother in Meck County after we separated (a couple months ago). The children have resided with me since our separation and visited with my husband. Late last month (April), my husband’s attorney filed a complaint in Meck County for custody, support, and equitable distribution. But his attorney failed to properly serve me with the summons, meaning the attorney mailed the complaint/summons via regular 1st class postal service (a $.48 Stamps.com digital stamp… no certified or registered mail, no sheriff, no public posting… I saved the envelope). I was told that this means I can ignore it (until it’s properly served according to NC civil procedures). Is this true? Does Meck County have personal jurisdiction over me if I haven’t been properly served? Also, I’d like to file my own complaint as a plaintiff in Union County, where a child support case has been active with the CSEA since mid-February. Can I do that, seeing that my husband’s Meck County complaint is approaching 30 days without proper service and the fact that Union County is as qualified to have jurisdiction (and is likely the proper venue)? When is the complaint void/considered inactive, if there is no service extension requested - 30, 60, 90 days? I don’t plan to respond to the complaint unless I receive a properly executed summons, as I believe that would be volunteering to personal jurisdiction by Meck County… I really want to file in Union County, but don’t want to get in trouble because there’s “existing” litigation in Meck County (that’s if the unserved complaint equals existing litigation). Doesn’t Union County already have jurisdiction since there was an existing child support case before the Meck County filing? If I know of the Meck County complaint, but haven’t been properly served, am I obligated to wait for proper service before filing something in Union? Or maybe I could file for post-separation support in Union? Much thanks!


#2

Jurisdiction is not tied to whether the complaint was served properly. His complaint does not become voided or inactive if he doesn’t get service. He simply has to obtain a new summons after 90 days and get you served with your new summons. Without proper service, the time allotted for you to respond does not start to toll, but I would not advise you to simply wait to be served. You should be proactive in determining the best course of action. You can file your own action in Union County, and you would then have to ask the court to determine which court is more appropriate to hear the action. Union County is probably a more appropriate venue for the child custody claim since the children reside with you, but the court does not have to move any or all of the different claims.