                                 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.
                                     -2-
      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
                                      -3-
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
                                         -4-
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
                                       -5-
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,
                                -6-
           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
                                               -8-
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.
                                     -9-
                          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
                                      -10-
            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.
                                              -11-
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
                                        -13-
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.
