Both my ex and I relocated to NC well after our divorce. We have a 10 year old consent judgment for custody, support and property from LA. He lives in Meck. County and I in Union County. Per our consent judgment I am the custodial parent he gets visitation and pays me support. He registered our judgment in his county one day before I registered our same judgment in my county. Before the 20 days was up and before he received my notice of registering our judgment he filed a “motion in the cause” to modify custody and give him support(nothing mentioning requesting a reduction in his support or the like", no summons was issued nor service made upon me. After he received my notification of registry in my county he files for a bogus exparte emergency temp custody order which his county grants him. Again, no summons was issued nor service made upon me. Prior to the 20 days and prior to my knowing about his exparte I petitioned for expedited enforcement in my county because he would not return the children. He shows up as I properly served him summons and his attorney lies and successfully gets venue transfered after presenting his bogus 50B motion in his county as reason not to enforce. Without any notice to me a hearing is set for October 15, 2010, 51 days after the judge issued this exparte. I file all 12b’s motions to vacate and dismiss which were to be heard the same day. The judge dismisses the “50B” order as he terms stating it should have never been issued. I retain an attorney for that hearing only to plead the motions which I have drafted. Jurisdiction is objected to but the judge dismisses it and my ex’s attorney states that as he registered the order this creates a cause and essentially acts as a substitute for a summons and his motion to modify and subsequent exparte were properly served he states by rule 5. The judge then allows temporary custody to remain with my ex because we agree our girls should attend school in his county. I file numerous motions post hearing motions for judicial assistance and even notices of abuse perpetrated by my ex on the kids all which go ignored. The order from October is finally reduced to writing 6 months later by his attorney though I clearly object to his rendition the judge signs it anyway. He refuses to find that he does not have jurisdiction by virtue of the fact that there is no “cause” created by the mere registry of our custody order and this is not a summons. Jurisdiction should be in my county in which I am the plaintiff as in our original agreement and have issued him a summons numerous times. Am I right? And under rule 62a can I not have the judgment stayed for enforcement regarding the custody of my children? In addition I filed a request for 52a reasons etc. which the judge has yet to answer. I am thinking that I need to file for a writ of mandamus, prohibition and or superseadas. Please answer these questions as soon as possible as June 11, 2011 marks the 30th day from entry of judgment.
His registry of the Order in Mecklenburg County before your registration of the same in Union allowed him to file his motion there. The difference between counties is not one of jurisdiction, but of venue. It appears as if the issue of venue as been decided, and the case is to remain in Mecklenburg.
Thank you for responding. Yes venue is one of the issues however jurisdiction, both personal and subject matter come first do they not? Registering a custody order is about enforcment not obtaining jurisdiction. Personal jurisdiction is not even needed over a party for the purposes of enforcment of custody but is for purposes of enforcing child support. If the procedure to register custody judgments were for the purpose of gaining jurisdiction over the res for modification then like the registry form for child support orders it would contain the various check boxes to that effect. Furthermore his “motion in the cause” was filed with the roles reversed(he as plaintiff) and filed before he even received my registry of the same judgment in my county. His so called subsequent pleading reads as more of an initial complaint. In addition a properly issued complaint and summons was issued from my county to him when he failed to return the children to me per the very judgment he sought recognition of. Regardless of his filing for registry a day before me should matter not when I am the proper party plaintiff, the custodial parent and he pays me support. Had he wanted to modify before I registered our judgment(an enforcing action) he could have initiated a complaint, had summons issued, and service made upon me under rules 3, and 4. Please correct my line of thinking if I am wrong but Jerson and Lynch support me and Connor Brothers supports the void cause for failure to have summons issued. If it could possibly be construed that he created a NC cause(suit) by registering a judgment, then does rule 5 service by regular mail apply to everything thereafter? including modification, including exparte custody divestiture, including notice to appear in court? When does rule 4 service ever come back into play? Surely his captioned suit reflecting totally different roles for the parties and barely mentioning whatsoever the existing foreign judgment let alone his requirement to pay me child support reflect a cause the court will recognize as being the same as our foreign judgment? Not to mention our judgment is a consent judgment for which we never even went to court over. Plus what about rule 62a and an automatic stay during the time I may appeal? Thanks so much for being there.
I do not think it can be construed that he initiated a new suit. I suggest you file a motion for relief from judgment under rules 59 and 60.