NO. COA13-755
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
ELIZA ANN WESTLAKE,
Plaintiff-Appellee,
v. Mecklenburg County
No. 08 CVD 17227
EDWIN ALBERT WESTLAKE,
Defendant-Appellant.
On writ of certiorari from order entered 1 June 2012 by
Judge Ronald L. Chapman in District Court, Mecklenburg County
and appeal by Defendant from order entered 6 November 2012 by
Judge Ronald L. Chapman in District Court, Mecklenburg County.
Heard in the Court of Appeals 10 December 2013.
Krusch & Sellers, P.A., by Rebecca K. Watts, for Plaintiff-
Appellee.
Thurman, Wilson, Boutwell & Galvin, P.A., by John D.
Boutwell, for Defendant-Appellant.
McGEE, Judge.
Eliza Ann Westlake (“Plaintiff”) filed a complaint on 31
July 2008 against Edwin Albert Westlake (“Defendant”) seeking,
inter alia, equitable distribution, child custody, and child
support. The trial court entered an “Order for Permanent
Custody and Temporary Child Support” on 22 March 2010.
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On 16 April 2012, Defendant filed an “Emergency Motion for
Contempt for Interstate Custodial Interference.” Plaintiff
filed a motion to dismiss, which the trial court granted in an
order entered 1 June 2012, dismissing Defendant’s motion for
“failure to state a claim upon which relief can be granted.”
Defendant filed a motion for reconsideration on 25 May
2012, which the trial court dismissed with prejudice in an order
entered 6 November 2012. The trial court concluded that “North
Carolina is no longer a convenient forum for the parties and it
is no longer appropriate for [the trial court] to exercise
jurisdiction.” The trial court also concluded that “Defendant’s
Motion for Reconsideration does not state any grounds upon which
relief can be granted.”
Defendant, acting pro se, filed notice of appeal from the 6
November 2012 order. Defendant subsequently filed a petition
for writ of certiorari from the 1 June 2012 order. In our
discretion, we grant Defendant’s petition to review the 1 June
2012 order.
I. Defendant’s Motion for Contempt
A. Notice of Plaintiff’s Motion to Dismiss
Defendant first contends Plaintiff failed to give Defendant
sufficient notice of her motion to dismiss. Defendant’s “motion
for contempt for interstate custodial interference” was set for
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hearing 14 May 2012. That day, Plaintiff filed a motion to
dismiss Defendant’s motion. The certificate of service
indicates Plaintiff served the motion to dismiss on Defendant
via hand delivery on 14 May 2012. The trial court entered an
order on 1 June 2012, dismissing Defendant’s motion for failure
to state a claim upon which relief could be granted.
Defendant acknowledges the North Carolina Rules of Civil
Procedure permit a party to raise the “defense of failure to
state a claim upon which relief can be granted . . . at the
trial on the merits.” N.C. Gen. Stat. § 1A-1, Rule 12(h)(2)
(2011). “Unquestionably, a motion to dismiss for failure to
state a claim upon which relief may be granted, under Rule
12(b)(6), can be made as late as trial upon the merits.” Bodie
Island Beach Club Ass’n, Inc. v. Wray, ___ N.C. App. ___, ___,
716 S.E.2d 67, 75 (2011). Therefore, both statute and case law
indicate Plaintiff’s motion was timely.
Nevertheless, Defendant requests this Court to hold that
“when such a motion to dismiss is not an oral motion but is in
the form of a written motion . . . it should be subject to the
notice requirements of Rule 6(d)[.]” This we decline to do.
Furthermore, even assuming arguendo that Plaintiff’s motion to
dismiss was not timely served on Defendant, Defendant has not
shown that he was prejudiced. “The party asserting error must
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show from the record not only that the trial court committed
error, but that the aggrieved party was prejudiced as a result.”
Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104
(1986); see also N.C. Gen. Stat. § 1A-1, Rule 61 (2011).
Defendant asserts only that he “was not given sufficient time to
prepare[.]” Defendant does not argue he would have taken any
action differently or made any additional arguments at the
hearing if he had been served earlier. Defendant thus has not
shown reversible error on this basis.
B. Merits of Plaintiff’s Motion to Dismiss
Defendant next argues the trial court erred in dismissing
his motion for contempt. The trial court dismissed Defendant’s
motion for contempt “for failure to state a claim upon which
relief can be granted.”
“The system of notice pleading affords a sufficiently
liberal construction of complaints so that few fail to survive a
motion to dismiss.” Lea v. Grier, 156 N.C. App. 503, 507, 577
S.E.2d 411, 415 (2003). “Accordingly, when entertaining a
motion to dismiss, the trial court must take the complaint’s
allegations as true and determine whether they are sufficient to
state a claim upon which relief may be granted under some legal
theory.” Id. (internal quotation marks omitted). “This
rule . . . generally precludes dismissal except in those
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instances where the face of the complaint discloses some
insurmountable bar to recovery.” Id. (alterations in original).
“An order providing for the custody of a minor child is
enforceable by proceedings for civil contempt, and its
disobedience may be punished by proceedings for criminal
contempt, as provided in Chapter 5A, Contempt, of the General
Statutes.” N.C. Gen. Stat. § 50-13.3(a) (2011). In small print
on the first page of his motion for contempt, Defendant listed
“§ G.S. 5A-23, § G.S. 14-320.1, § G.S. 50-13.1.”
In his motion, Defendant referenced the “Order for
Permanent Custody and Temporary Child Support” entered 22 March
2010 and made the following allegations:
3. The Order (for Permanent Custody and
Temporary Child Support) cited above states
that [Plaintiff] is the primary custodial
parent and provides for visitation of
[Defendant] with his two minor children on a
schedule contained therein.
4. The Order has at all times since its
entry remained in full force and effect and
[the trial court] retains jurisdiction over
the Order and all matters related thereto.
5. Plaintiff[] moved the parties’ minor
children to Pensacola, in Escambia County,
Florida on July 15th, 2011 without obtaining
[Defendant’s] consent or the permission of
[the trial court] to allow the move.
. . . .
7. [Plaintiff] has repeatedly obstructed
[Defendant’s] visitation with his children,
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as early as March 3rd, 2010, less than two
months after the Order went into effect[.]
Defendant requested the following relief:
1. That the [trial court] cites [Plaintiff]
for Contempt for Interstate Custodial
Interference of [the trial court’s] Order
for Permanent Custody for moving the minor
children out-of-state with the willful
intent to violate the existing Custody
Order.
2. That an extended Hearing be calendared on
the earliest date possible to address
additional Contempt by [] Plaintiff of the
Custody Order and to Modify the Custody
Order in consideration of changed
circumstances.
3. That an Order of Enforcement be issued
immediately to provide for enforcement of
the existing Custody Order and Visitation
Schedule contained therein, pending the
Hearing for Modification of the Custody
Order.
4. Any remedy which would also be
appropriate to the proceedings herein, as a
conclusion of law or that is incorporated
herein by reference, including criminal
proceedings, as they relate to § G.S. 14-
320.1.
“[W]hen the allegations in the complaint give sufficient
notice of the wrong complained of[,] an incorrect choice of
legal theory should not result in dismissal of the claim if the
allegations are sufficient to state a claim under some legal
theory.” Haynie v. Cobb, 207 N.C. App. 143, 149, 698 S.E.2d
194, 198 (2010) (quoting Stanback v. Stanback, 297 N.C. 181,
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202, 254 S.E.2d 611, 625 (1979)).
Defendant’s motion indicates he sought to make the
following claim for civil contempt:
Failure to comply with an order of a court
is a continuing civil contempt as long as:
(1) The order remains in force;
(2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whom
the order is directed is willful; and
(3) The person to whom the order is directed
is able to comply with the order or is able
to take reasonable measures that would
enable the person to comply with the order.
N.C. Gen. Stat. § 5A-21(a) (2011).
“The [motion] must be liberally construed, and the court
should not dismiss the [motion] unless it appears beyond a doubt
that the [movant] could not prove any set of facts to support
his claim which would entitle him to relief.” Block v. County
of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419
(2000). Construing Defendant’s motion liberally and treating
the allegations as true, Defendant alleged facts sufficient to
support his motion for contempt. Thus, the trial court erred in
granting Plaintiff’s motion and in dismissing Defendant’s
motion. For the same reasons discussed above in this section,
the trial court also erred in dismissing with prejudice
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Defendant’s motion for reconsideration.
II. Convenience of Forum
A. Notice
Defendant contends the trial court erred in determining
“North Carolina was an inconvenient forum without first
providing appropriate notice that such issue was being
determined and without first allowing the parties to submit
information.”
The trial court “shall allow the parties to submit
information” before determining whether North Carolina is an
inconvenient forum. N.C. Gen. Stat. § 50A-207(b) (2011).
Defendant contends this “statutory right to submit information
implies that the parties will be given advance notice of the
hearing so that they will be prepared to submit such
information.”
Even assuming arguendo, without deciding, that Defendant’s
contention is accurate, Defendant has not shown he was not
allowed to submit information, or that he would have submitted
additional information had he received advanced notice. The
transcript does not show the trial court refused any information
Defendant offered. In his brief, Defendant gives no information
that he would have submitted on the convenience of the forum.
Defendant thus has not shown error on this basis.
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B. Statutory Factors
Defendant next contends the trial court erred in
“determining that North Carolina was an inconvenient forum
without first considering all of the statutory factors listed in
N.C.G.S. § 50A-207(b).” We agree.
Before determining whether it is an inconvenient forum, the
trial court “shall consider whether it is appropriate for a
court of another state to exercise jurisdiction.” N.C.G.S.
§ 50A-207(b).
For this purpose, the court shall allow the
parties to submit information and shall
consider all relevant factors, including:
(1) Whether domestic violence has occurred
and is likely to continue in the future and
which state could best protect the parties
and the child;
(2) The length of time the child has resided
outside this State;
(3) The distance between the court in this
State and the court in the state that would
assume jurisdiction;
(4) The relative financial circumstances of
the parties;
(5) Any agreement of the parties as to which
state should assume jurisdiction;
(6) The nature and location of the evidence
required to resolve the pending litigation,
including testimony of the child;
(7) The ability of the court of each state
to decide the issue expeditiously and the
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procedures necessary to present the
evidence; and
(8) The familiarity of the court of each
state with the facts and issues in the
pending litigation.
N.C.G.S. § 50A-207(b). “The factors listed in N.C.G.S. § 50A-
207(b) are necessary when the current forum is inconvenient[.]”
Velasquez v. Ralls, 192 N.C. App. 505, 509, 665 S.E.2d 825, 827
(2008); see also In re M.M., ___ N.C. App. ___, 750 S.E.2d 50,
COA13-600 (5 November 2013).
The transcript and record indicate no consideration by the
trial court of the factors listed in N.C.G.S. § 50A-207(b).
Defendant has shown error on this basis. On remand, the trial
court is to comply with the requirements of N.C.G.S. § 50A-
207(b).
III. Staying the Proceedings
Defendant next argues the trial court erred in dismissing
his motion for reconsideration instead of staying the
proceedings.
N.C. Gen. Stat. § 50A-207(c) (2011) states:
If a court of this State determines that it
is an inconvenient forum and that a court of
another state is a more appropriate forum,
it shall stay the proceedings upon condition
that a child-custody proceeding be promptly
commenced in another designated state and
may impose any other condition the court
considers just and proper.
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Id. (emphasis added).
In In re M.M., supra, this Court considered a similar
issue. The trial court “simply purported to transfer
jurisdiction, effectively dismissing the case in North Carolina.
It did not stay the present case and condition the stay on the
commencement of a child custody proceeding in Michigan.” Id. at
___, 750 S.E.2d at ___, slip op. at 7-8. “It is well
established that the word ‘shall’ is generally imperative or
mandatory.” Id. at ___, 750 S.E.2d at ___, slip op. at 7. This
Court remanded the case with instructions that, if the trial
court determines it should decline jurisdiction and “makes
sufficient findings to support its determination that North
Carolina is an inconvenient forum[,]” the trial court must stay
the case “upon condition that a child custody proceeding be
promptly commenced in” Michigan. Id. at ___, 750 S.E.2d at ___,
slip op. at 8.
Likewise, in the present case, the trial court effectively
dismissed the case in North Carolina. The trial court concluded
that “North Carolina is no longer a convenient or appropriate
forum to hear matters between these parties.” On remand, if the
trial court decides to decline jurisdiction, the trial court
must stay the case “upon condition that a child-custody
proceeding be promptly commenced in another designated state[.]”
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N.C.G.S. § 50A-207(c); see also In re M.M., supra.
IV. Child Support Payments
Defendant argues the trial court erred in ordering the
resumption of Defendant’s child support payments. The trial
court, on 6 November 2012, ordered Defendant “to resume payment
of child support consistent with the prior Orders in this
matter, including all arrearages.”
Defendant contends the trial court erred in ordering the
resumption of child support payments instead of staying the
proceedings. The implication in this argument seems to be that
ordering the resumption of child support payments is somehow
inconsistent with finding North Carolina to be an inconvenient
forum. However, Defendant provides no citation to authority to
support this argument.
Defendant further contends the trial court erred in
ordering the resumption of child support payments “without first
giving [Defendant] an opportunity to be heard.” Again, the
transcript reveals no instance in which Defendant sought to
offer evidence relevant to a determination on child support and
the trial court denied Defendant this opportunity. Furthermore,
assuming that Defendant was denied an opportunity, Defendant on
appeal points to no arguments that he would have presented to
the trial court. Defendant thus has not shown error on this
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basis.
V. Conclusion
On remand, the trial court is to comply with the
requirements of N.C.G.S. § 50A-207. Should the trial court
determine North Carolina is an inconvenient forum for this
matter, the trial court is to make findings showing
consideration of the factors set forth in N.C.G.S. § 50A-207(b).
If the trial court determines it should decline jurisdiction and
makes sufficient findings to support its determination that
North Carolina is an inconvenient forum, the trial court must
stay the case “upon condition that a child-custody proceeding be
promptly commenced in another designated state[.]” N.C.G.S.
§ 50A-207(c); see also In re M.M., supra.
Reversed and remanded.
Judges HUNTER, Robert C. and ELMORE concur.