I’ve been getting asked a number of questions from local 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).