Vol. 3, No. 4, Pg. 39. Saved by Another Lawyer's Negligence.

• Author: By Thomas F. McDow

South Carolina Lawyer

1992.

Vol. 3, No. 4, Pg. 39.

Saved by Another Lawyer's Negligence

39Saved by Another Lawyer's NegligenceBy Thomas F. McDowFor years I advocated that lawyers who practice in strange forums do a disservice to their clients. Little good happens in strange jurisdictions and venues and it is embarrassing to make mistakes caused by lack of familiarity with the idiosyncrasies of the local forum. I practiced what I preached for years and even avoided appearances in neighboring counties.

Then, in July 1979, like the recovering alcoholic who thinks that one drink may be okay, I made the decision to appear not only in a neighboring county but in the neighboring state of North Carolina as well. The facts seemed innocent enough.

Another lawyer, who shall remain anonymous to protect his reputation, joined me in representing the mother of two children in a relatively routine divorce.

The parties were residents of South Carolina. The father's parents lived in South Carolina. All the contacts were in South Carolina. The case was pending in South Carolina. The father had appeared in South Carolina and counterclaimed. Jurisdiction appeared firmly planted in South Carolina.

The father moved to North Carolina and brought a custody action in that state. The mother was served and ordered to appear by the North Carolina Court. Surely this would require no more than a simple special appearance in North Carolina to contest jurisdiction, I thought. The North Carolina case would be promptly dismissed and we would be back on our familiar turf. Distinguished co-counsel agreed.

I made the special appearance--only to be told by the North Carolina Family Court judge that there was no special appearance in North Carolina. He then welcomed me to North Carolina to litigate the case on its merits at the temporary hearing, to begin in about 10 seconds. The term panic-stricken became meaningful.

The judge turned to my North Carolina adversary and asked him for his Uniform Child Custody Jurisdiction Act affidavit. The lawyer was clearly puzzled. The judge explained that the UCCJA had become effective in North Carolina the week before, that it required each party to a custody proceeding to file an affidavit with his or her first pleading, and that it was jurisdictional. He then dismissed the plaintiff's case for lack of jurisdiction.

I have not...