Westlake v. Westlake

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,
 -7-
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[.]”
 -12-
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.