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 PlaintiffAppellee.

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. § 50A207(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. § 50A207(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.