Tyll v. Berry ( 2014 )

NO. COA13-512
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
JENNIFER TYLL & DAVID TYLL,
Plaintiffs,
v. Orange County
No. 12 CVD 755
JOEY BERRY,
Defendant.
Appeal by defendant from orders entered 18 December 2012 by
Judge Joseph M. Buckner in Orange County District Court. Heard
in the Court of Appeals 7 November 2013.
No brief filed on behalf of plaintiffs-appellees.
Mary McCullers Reece for defendant-appellant (appeal from
contempt order).
Joey Berry, pro se, defendant-appellant (appeal from order
dismissing notice of appeal).
GEER, Judge.
Defendant Joey Berry appeals from the trial court's order
holding him in contempt for violating a civil no-contact order
entered pursuant to Chapter 50C of the General Statutes (the
"50C order") and from the trial court's order dismissing his
notice of appeal from the 50C order. With respect to the order
dismissing defendant's notice of appeal from the 50C order,
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defendant contends that the paper he filed was not actually a
notice of appeal, but only a "notice of intent to appeal," such
that it was not untimely filed under the Rules of Appellate
Procedure. We hold that whether the filing was a notice of
appeal or a notice of intent to appeal, the trial court properly
dismissed the filing as either untimely or a nullity.
With respect to the contempt order, defendant primarily
argues that the trial court improperly ordered him to pay a fine
to plaintiffs in order to purge himself of contempt. We hold
that precedent authorizes a purge condition consisting of a fine
payable to the complaining party. However, because the trial
court failed to make findings that defendant had the present
ability to comply with the purge condition, we reverse the fine
and remand for further proceedings.
Facts
On 11 May 2012, plaintiffs Jennifer and David Tyll filed a
verified complaint against defendant seeking a 50C order. David
and Jennifer Tyll are husband and wife, and David Tyll is the
brother of defendant's domestic partner, Michelle Willets.
The complaint alleged that defendant was disrespectful to
Jennifer Tyll, David Tyll, and Michelle Willets' mother, Sharon
Tyll, and as a result, plaintiffs told Ms. Willets that
defendant was not welcome at "upcoming family events."
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Defendant then sent angry emails to plaintiffs and demanded that
they come to South Carolina where defendant and Ms. Willets
lived. When plaintiffs refused, defendant sent an email to
David Tyll's employer "suggesting horrible defamatory things."
Defendant told David Tyll over the phone that the email to David
Tyll's employer was the "'tip of the ice-berg.'" An email from
Ms. Willets to Sharon Tyll stated that defendant, when "'forced
into a fight,'" believed in "'total war'" and would not "'back
down . . . until [his] opponent [was] completely defeated.'"
On 23 May 2012, the trial court entered an order pursuant
to N.C. Gen. Stat. § 50C-7 (2011) in which it found that
plaintiffs "suffered unlawful conduct by the defendant" in that
defendant sent "numerous emails to family members" and to David
Tyll's employer that contained "references to war, death and
never stopping, not following rules until your opponent is fully
defeated," and that made "references to worst case scenarios."
Based upon its findings, the court ordered defendant to, among
other things, "not visit, assault, molest, or otherwise
interfere with the plaintiffs or plaintiffs [sic] family." The
order was effective until 23 May 2013.
On 7 September 2012, defendant, acting pro se, filed a
document captioned "NOTICE OF APPEAL In Forma Pauperis." The
filing stated that defendant "hereby gives notice of intent to
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appeal to the Court of Appeals of North Carolina" from the 50C
order. The filing further stated: "The time for filing an
appeal allowed by the NORTH CAROLINA RULES OF APPELLATE
PROCEDURE having expired, the Defendant in this matter is
preparing to petition the Honorable Court of Appeals of North
Carolina for the writ of CERTIORARI in accordance with RULE 21
at the soonest point practical." Plaintiffs moved to dismiss
defendant's notice of appeal under the Rules of Appellate
Procedure, and the trial court entered an order dismissing
defendant's notice of appeal as untimely on 18 December 2012.
On 11 October 2012, plaintiffs filed a verified motion to
hold defendant in contempt of the 50C order. The motion alleged
that defendant willfully violated the 50C order on 23 June 2012
by emailing plaintiffs' family member, Sharon Tyll. On 22
October 2012, defendant filed a "MOTION FOR PROCEEDING/APPEAL IN
FORMA PAUPERIS," with an attached affidavit, requesting that the
court "issue an order allowing the Defendant to proceed as an
indigent" and appoint him counsel.
It appears that the Orange County Clerk of Superior Court
summarily denied the motion on 23 October 2012 by handwriting
"Motion is denied" on the motion itself and signing and refiling
the motion. On 29 October 2012, defendant timely appealed the
denial of his motion to proceed as an indigent to the district
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court pursuant to N.C. Gen. Stat. §§ 7A-251(b) (2011) and 1-
301.1(b) (2011).
On 2 November 2012, defendant filed a response to the
contempt motion in which he admitted sending the email to Sharon
Tyll, but disputed that the email was harassing and that the 50C
order was specific enough to bar communication with Sharon Tyll.
Defendant's response also argued that the denial of his motion
to proceed as an indigent, which forced him to file his response
without the assistance of appointed counsel, violated his due
process rights under the United States and North Carolina
Constitutions.
Following an 11 December 2012 hearing on the contempt
motion, at which defendant was not present, the trial court
entered an order on 18 December 2012 holding defendant in
contempt. The trial court found that defendant violated the 50C
order by sending Sharon Tyll, a family member of plaintiffs, an
email on 23 June 2012; that "the lawful purpose [of the 50C
order] would still be served with compliance with same, i.e. the
Defendant should continue to be restrained from any contact with
Plaintiffs or their family"; and that "Defendant is in willful
contempt of said order, as he has the ability to comply with
same and refrain from sending the email."
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The court ordered that "[t]o purge himself of [the]
contempt, Defendant shall pay to the Plaintiffs $2500.00 on or
before January 11, 2013" and that "each individual violation of
the May 23, 2012 [order] shall result in at least another
$2500.00 purge for each violation." In addition, the order
"further restrain[ed]" defendant by (1) preventing defendant
from contacting plaintiffs, their employers, or their family
members, other than Michelle Willets, by any means; (2)
preventing defendant from posting any information about
plaintiffs or their family members, other than Michelle Willets,
on the internet; and (3) ordering defendant to remove any
internet posts about plaintiffs or their family members, other
than Michelle Willets, within seven days from entry of the
order. Defendant timely appealed the contempt order to this
Court.
On 22 January 2013, defendant, still acting pro se, filed a
second "MOTION FOR PROCEEDING/APPEAL IN FORMA PAUPERIS," along
with the same affidavit attached to his first motion to proceed
as an indigent, again requesting that the trial court "issue an
order allowing the Defendant to proceed as an indigent." On 23
January 2013, the Orange County Clerk of Superior Court entered
an order allowing defendant to proceed as an indigent "[i]n
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accordance with NCGS § 1-288 and solely for the purposes stated
therein."
Defendant filed a motion for appointment of appellate
counsel on 11 April 2013. On 14 June 2013, the trial court
entered an order appointing appellate counsel for defendant
"with regards to any contempt motion or contempt orders." On 29
July 2013, defendant filed a pro se brief addressing his appeal
from the dismissal of his notice of appeal from the 50C order,
and defendant's appointed counsel filed a brief addressing his
appeal from the contempt order.
I
We first address defendant's appeal from the dismissal of
his "notice of appeal" from the 50C order. Defendant argues on
appeal that the trial court erred in dismissing his notice of
appeal as untimely under the Rules of Appellate Procedure
because the filing was not actually a notice of appeal but was,
rather, only a "notice of intent to appeal" that was not subject
to the Rules of Appellate Procedure. Defendant further argues
that since the trial court's order dismissing the notice of
appeal relied upon the Rules of Appellate Procedure as grounds
for dismissing the appeal, the court was without jurisdiction to
dismiss the filing that, he argues, did not create a valid
appeal and was not, therefore, subject to the appellate rules.
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Defendant's "NOTICE OF APPEAL" purported to give "notice of
intent to appeal" the 23 May 2012 50C order, but recognized that
the time for taking an appeal had already expired. The notice,
therefore, stated defendant was "preparing" to petition this
Court for a writ of certiorari to review the 50C order.
Given that defendant's filing was captioned a "NOTICE OF
APPEAL" and stated that defendant gave "notice of intent to
appeal to the Court of Appeals of North Carolina," the trial
court reasonably treated the filing as a notice of appeal.
Assuming the filing was a notice of appeal, defendant admitted
in the filing itself, and again recognizes on appeal, that the
notice was untimely. See N.C.R. App. P. 3.
Although defendant argues that plaintiffs' motion to
dismiss the appeal was improper since it was not supported by
affidavits or certified copies of docket entries showing
defendant took untimely action as required by Rule 25 of the
Rules of Appellate Procedure, we believe that Rule 25's
requirements for proof of the appellant's untimely action is
satisfied when, as here, the notice of appeal itself expressly
states that the appeal is untimely. The trial court's dismissal
of the notice as untimely was, under these circumstances,
proper. See N.C.R. App. P. 25(a).
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Assuming, as defendant contends, that the filing was not a
notice of appeal but, rather, solely a "notice of intent to
appeal" that did not itself constitute a valid appeal, the trial
court nonetheless properly dismissed the filing as a nullity.
Defendant has pointed to, and we have found, no authority
allowing defendant to file a "notice of intent to appeal" in a
civil case, and no authority limiting the trial court's
jurisdiction to dismiss such an ineffectual filing.
Defendant's contention that the trial court lacked
jurisdiction to dismiss the filing under the Rules of Appellate
Procedure fails to recognize that the trial court already had
jurisdiction over the case due to the proper filing of
plaintiffs' complaint and the issuance of a summons. See N.C.R.
Civ. P. 3(a) ("A civil action is commenced by filing a complaint
with the court."). See Estate of Livesay ex rel. Morley v.
Livesay, ___ N.C. App. ___, ___, 723 S.E.2d 772, 774 (2012)
("Without a proper complaint or summons under Rule 3 of the
Rules of Civil Procedure, an action is not properly instituted
and the court does not have jurisdiction."). The court's
jurisdiction over the case gave it jurisdiction to dismiss a
filing in the case that defendant himself asserts was a nullity.
We, therefore, hold the trial court did not err in dismissing
defendant's notice of appeal from the 50C order.
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II
Defendant next contends that the trial court erred in
failing to consider defendant's request for appointed counsel.
Defendant argues that the trial court's failure to address his
request for counsel violated his due process rights under the
United States and North Carolina Constitutions.
In civil contempt proceedings, the question whether an
indigent, alleged contemnor is entitled to counsel under the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution is a determination made on a case-by-case basis.
See Turner v. Rogers, ___ U.S. ___, ___, 180 L. Ed. 2d 452, 466,
131 S. Ct. 2507, 2520 (2011) (holding that "the Due Process
Clause does not automatically require the provision of counsel
at civil contempt proceedings to an indigent individual who is
subject to a child support order, even if that individual faces
incarceration (for up to a year)").
In contrast, in criminal contempt proceedings, the Sixth
and Fourteenth Amendments to the United States Constitution
generally "require only that no indigent criminal defendant be
sentenced to a term of imprisonment unless the State has
afforded him the right to assistance of appointed counsel in his
defense." See Scott v. Illinois, 440 U.S. 367, 374, 59 L. Ed.
2d 383, 389, 99 S. Ct. 1158, 1162 (1979); Turner, ___ U.S. at
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___, 180 L. Ed. 2d at 461-62, 131 S. Ct. at 2516 (observing that
Sixth Amendment right of an indigent criminal defendant to
appointed counsel "applies to criminal contempt proceedings
(other than summary proceedings)").
Given the differences between an indigent individual's
right to appointed counsel in a civil contempt proceeding and
his right to counsel in a criminal contempt proceeding, we must
initially determine whether the contempt proceeding and order in
this case involved civil or criminal contempt. "Civil contempt
is a term applied where the proceeding is had to preserve the
rights of private parties and to compel obedience to orders and
decrees made for the benefit of such parties." O'Briant v.
O'Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985).
"Criminal contempt is generally applied where the judgment is in
punishment of an act already accomplished, tending to interfere
with the administration of justice." Id.Here, the contempt order did not specify whether the trial
court held defendant in civil or criminal contempt. The order
simply stated that the court was holding defendant in contempt
based upon defendant's willful violation of the 50C order.
N.C. Gen. Stat. § 50C-10 (2013) provides that "[a] knowing
violation of an order entered pursuant to [Chapter 50C] is
punishable as contempt of court." Accordingly, all Chapter
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50C orders "shall include the following notice, printed in
conspicuous type: 'A knowing violation of a civil no-contact
order shall be punishable as contempt of court which may result
in a fine or imprisonment.'" N.C. Gen. Stat. § 50C-5(c) (2013).
Civil contempt proceedings are initiated, among other ways,
"by motion pursuant to G.S. 5A-23(a1)." N.C. Gen. Stat. § 5A-
23(a) (2013). "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) (2013).
Further, "[i]f civil contempt is found, the judicial
official must enter an order finding the facts constituting
contempt and specifying the action which the contemnor must take
to purge himself or herself of the contempt." N.C. Gen. Stat. §
5A-23(e). With regard to punishment for civil contempt, N.C.
Gen. Stat. § 5A-22(a) (2013) provides: "A person imprisoned for
civil contempt must be released when his civil contempt no
longer continues. The order of the court holding a person in
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civil contempt must specify how the person may purge himself of
the contempt."
Here, plaintiffs initiated the contempt proceeding with a
motion for contempt, pursuant to the procedures for civil
contempt set out in N.C. Gen. Stat. § 5A-23(a1). The trial
court's order likewise indicates the court was holding defendant
in civil contempt, as the order included each of the requisite
findings for civil contempt specified in N.C. Gen. Stat. § 5A-
21(a) and expressed the court's intent to include a "purge"
clause pursuant to N.C. Gen. Stat. § 5A-23(e).
At the contempt hearing, the trial court's statements
indicate it was rendering a civil contempt order in an effort to
force defendant to comply with the 50C order:
[PLAINTIFF'S COUNSEL:] I do want the
Court to be aware that there have been other
emails sent since that one, and we are now
seeking some different relief. We're asking
you to consider to bar him from any Internet
communication about the Tyll family, to or
from them or about them, in any form
including a website.
So, we want him to stay off the
Internet to or from any family member of the
Tyll's, and we want him to stop posting
about this family. We don't want any other
contact, through telephone or personal, and
that's all ready [sic] been ordered, and we
are asking you [sic] consider to allow an
order against him, a monetary order of
$2,500.
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THE COURT: Well, I think that's what's
gonna [sic] be necessary because he's
obviously -- has no boundaries.
Okay. The Court will find him in
contempt, [indecipherable], enter a purge
amount -- a bond amount in the amount of
$2,500 to be doubled each -- for each
violation.
(Emphasis added.)
Finally, construing the order as an order for civil
contempt is consistent with N.C. Gen. Stat. § 50C-10's provision
for contempt sanctions for a violation of a 50C order and N.C.
Gen. Stat. § 5A-25 (2013) general rule that "[w]henever the laws
of North Carolina call for proceedings as for contempt, the
proceedings are those for civil contempt . . . ." The trial
court's order was, therefore, an order for civil contempt. Cf.
Reynolds v. Reynolds, 147 N.C. App. 566, 576-81, 557 S.E.2d 126,
132-35 (2001) (John, J., dissenting) (treating order as one for
criminal contempt based on, among other factors, lack of purge
condition in sanction imposed, trial court's characterization of
contempt as criminal and not civil, and trial court's apparent
desire to punish contemnor as shown by trial court's statements
at hearing and nature of sanctions imposed), rev'd per curiam
sub nom. Reynolds v. Reynolds (now Flynn) for reasons stated in
the dissent, 356 N.C. 287, 569 S.E.2d 645 (2002).
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Turning to defendant's arguments on appeal, after
plaintiffs filed their contempt motion, defendant moved the
trial court to be allowed to proceed as an indigent and attached
an affidavit of indigency to his motion. The clerk of superior
court summarily denied defendant's motion, and defendant
appealed that denial to the district court judge. Defendant
then filed a response to plaintiffs' contempt motion that again
declared defendant's indigency and asserted as an "ADDITIONAL
DEFENSE[]" that the denial of defendant's motion to proceed as
an indigent, forcing defendant to respond to the contempt motion
without appointed counsel, violated defendant's state and
federal constitutional rights to due process.
N.C. Gen. Stat. § 7A-451(a)(1) (2013) provides that "[a]n
indigent person is entitled to services of counsel in . . .
[a]ny case in which imprisonment, or a fine of five hundred
dollars ($500.00), or more, is likely to be adjudged." "The
clerk of superior court is authorized to make a determination of
indigency and entitlement to counsel, as authorized by this
Article." N.C. Gen. Stat. § 7A-452(c)(1) (2013). However, a
"judge of superior or district court having authority to
determine entitlement to counsel in a particular case . . . may,
if he finds it appropriate, change or modify the determination
made by the clerk . . . ." N.C. Gen. Stat. § 7A-452(c)(2).
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Given defendant's appeal to the district court judge from
the denial of his motion to proceed as an indigent, and his
separate request for appointment of counsel in his response to
the contempt motion, the trial court in this case had the
authority to modify the clerk's denial of defendant's motion to
proceed as an indigent, to find defendant indigent, and to
appoint defendant counsel. However, we need not determine
whether defendant was entitled to counsel in this civil contempt
proceeding since defendant failed to seek a ruling from the
trial court on his request for counsel, failed to attend the
contempt hearing where he could have had his motion heard, and
failed to move to continue the matter.
Our Supreme Court has held that "a lawyer cannot properly
represent a client with whom he has no contact." Dunkley v.
Shoemate, 350 N.C. 573, 578, 515 S.E.2d 442, 445 (1999). This
is so because "'North Carolina law has long recognized that an
attorney-client relationship is based upon principles of
agency,' and '[t]wo factors are essential in establishing an
agency relationship: (1) The agent must be authorized to act for
the principal; and (2) The principal must exercise control over
the agent.'" Id. at 577, 515 S.E.2d at 444 (quoting Johnson v.
Amethyst Corp., 120 N.C. App. 529, 532-33, 463 S.E.2d 397, 400
(1995)).
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Here, the trial court could not appoint counsel to
represent defendant at the hearing since defendant was not
present and could neither authorize a particular attorney to be
his agent nor exercise control over that attorney. See id. at
575, 578, 515 S.E.2d at 443, 445 (holding law firm hired by
insurer could not represent defendant insured who had absconded
since insured had never authorized firm to represent him).
Since defendant also failed to move to continue the matter,
there was no relief requested of the court pursuant to which
defendant could be appointed counsel whose representation he
could authorize.
In addition, defendant's argument is not properly preserved
for appeal since, although defendant appealed the denial of his
motion to proceed as an indigent and requested the appointment
of counsel in his response to the contempt motion, defendant
failed to attend the contempt hearing and, therefore, failed to
obtain a ruling on his appeal and request for counsel after the
initial denial of his motion to proceed as an indigent. See
N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for
appellate review . . . [i]t is also necessary for the
complaining party to obtain a ruling upon the party's request,
objection, or motion."); Gilreath v. N.C. Dep't of Health &
Human Servs., 177 N.C. App. 499, 501, 629 S.E.2d 293, 294
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(holding plaintiff failed to preserve argument that court erred
in failing to grant plaintiff's motion to strike paragraphs from
affidavits since plaintiff never obtained ruling on motion),
aff'd per curiam, 361 N.C. 109, 637 S.E.2d 537 (2006). We,
therefore, hold that the trial court did not violate defendant's
due process rights by conducting the contempt hearing, in
defendant's absence, and holding defendant in contempt without
further considering defendant's request for appointed counsel.
III
Defendant additionally argues that the trial court erred in
finding in its contempt order that (1) Sharon Tyll was a member
of plaintiffs' family protected by the 50C order; (2) the 50C
order prohibited defendant from simply "contacting" plaintiffs
or their family; and (3) defendant continued to harass and
interfere with plaintiffs through electronic means following
entry of the 50C order. "The standard of review for contempt
proceedings is limited to determining whether there is competent
evidence to support the findings of fact and whether the
findings support the conclusions of law." Sharpe v. Nobles, 127
N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997).
The 50C order ordered defendant to, among other things,
"not visit, assault, molest, or otherwise interfere with the
plaintiffs or plaintiffs [sic] family." The trial court found
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that "Sharon Tyll is a family member of the Defendants [sic] who
is protected from harassment and interference by the May 23,
2012 Order." Sharon Tyll testified at the hearing that she was
plaintiff David Tyll's mother and considered herself his family
member.
Defendant, however, argues that he was in a relationship
with Michelle Willets, David Tyll's sister, throughout the life
of this case and that a reading of the 50C order that prohibited
certain contact with Sharon Tyll would be unreasonable because
such an interpretation could just as easily prohibit defendant's
contact with Ms. Willets. Defendant's argument fails to
recognize that the substance of the email he sent to Sharon
Tyll, for which defendant was found in contempt, demonstrates
defendant understood Sharon Tyll to be a member of plaintiffs'
family covered by the relevant provision of the 50C order.
Defendant wrote: "Please stop harassing us. You, David and
Jenny have gotten a court order severing Michelle (and me) from
your family for at least eleven more months. Your attempts to
call us are torturous to Michelle. Under no circumstance is any
form of communication welcome to either Michelle or me."
(Emphasis added.) As an attachment to defendant's response to
plaintiffs' contempt motion, this email was evidence before the
trial court that supported the court's finding that Sharon Tyll
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was considered part of plaintiffs' family for purposes of the
50C order.
Defendant further challenges the trial court's finding that
the 50C order prohibited defendant "from contacting, visiting,
molesting, or otherwise interfering with the Plaintiffs or the
Plaintiff's [sic] family." (Emphasis added.) Defendant asserts
that the relevant provision of the 50C order only ordered him to
"not visit, assault, molest, or otherwise interfere with the
plaintiffs or plaintiffs [sic] family." He argues that he was,
therefore, not barred from merely "contacting" plaintiffs'
family.
Even assuming that the trial court's description of the
underlying order was not completely consistent with the actual
terms of the order, that specific finding, describing the
underlying order, was not necessary to support the trial court's
conclusion that defendant wilfully violated the 50C order by
emailing Sharon Tyll. Defendant does not challenge the court's
finding that "Defendant violated the Order on June 23, 2012, by
sending an email from [defendant's email address] to [Sharon
Tyll's email address]. That email was received by Sharon Tyll
and it bothered her."
This unchallenged finding regarding Sharon Tyll being
"bothered" by the email falls within the undisputed term of the
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50C order that defendant not "interfere with" plaintiffs'
family. Because the finding as to "contacting" was unnecessary
to the trial court's conclusions, any error did not prejudice
defendant. See Blalock Elec. Co. v. Grassy Creek Dev. Corp., 99
N.C. App. 440, 445, 393 S.E.2d 354, 357 (1990) ("[A]ny error
with regard to this finding would not affect the court's
judgment where other findings supported by competent evidence
would be sufficient to support the judgment.").
Defendant also challenges the finding that "Defendant has
continued to harass and interfere with the Plaintiffs through
electronic means since the entry of the May 23, 2012 restraining
order." Having already observed that the trial court was
presented with evidence of the email sent from defendant to
Sharon Tyll, we note that in that email, defendant told
plaintiff David Tyll's mother, Sharon Tyll, to stop "harassing"
defendant, and stated that Sharon Tyll's "attempts to call" her
daughter, Michelle Willets, were "torturous." Defendant further
told Sharon Tyll that "[u]nder no circumstance" was "any form of
communication welcome to" her daughter. Sharon Tyll testified
that the email continued to bother her.
The email also specifically referred to both plaintiffs, by
name, and Sharon Tyll as "hav[ing] gotten a court order severing
Michelle (and [defendant]) from your family for at least eleven
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more months." This evidence permitted a reasonable inference
that plaintiff David Tyll, Sharon Tyll's son, would feel
"harass[ed]" and "interfere[d] with" by defendant's email to his
mother, sent after entry of the 50C order sought by plaintiffs
to prevent just such communications. We, therefore, hold that
the court's finding was supported by competent evidence.
IV
Defendant's final argument is that the trial court erred in
imposing sanctions for civil contempt that exceeded the trial
court's statutory contempt powers. First, defendant contends
that the court erred in requiring defendant to pay a "purge"
amount of $2,500.00 since that sanction actually operated as a
fine or monetary award against defendant, and, he asserts, there
is no legal basis for imposing a fine or monetary award against
a civil contemnor.
The contempt order in this case ordered that "[t]o purge
himself of [the] contempt, Defendant shall pay to the Plaintiffs
$2500.00 on or before January 11, 2013." The order further
provided, with respect to any future violations of the 50C
order, that "each individual violation of the May 23, 2012
[order] shall result in at least another $2500.00 purge for each
violation."
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As observed by defendant, N.C. Gen. Stat. § 5A-21(b)
provides that "[a] person who is found in civil contempt may be
imprisoned as long as the civil contempt continues." However,
defendant's argument that there are no further statutorily
permitted sanctions for civil contempt fails to recognize that
(1) N.C. Gen. Stat. § 50C-10 provides that "[a] knowing
violation of an order entered pursuant to [Chapter 50C] is
punishable as contempt of court"; (2) N.C. Gen. Stat. § 5A-25
provides that "[w]henever the laws of North Carolina call for
proceedings as for contempt, the proceedings are those for civil
contempt"; and (3) N.C. Gen. Stat. § 50C-5(c) provides that all
Chapter 50C no-contact orders "shall include the following
notice, printed in conspicuous type: 'A knowing violation of a
civil no-contact order shall be punishable as contempt of court
which may result in a fine or imprisonment.'" (Emphasis added.)
We believe that these statutes, read together, support the
inference that fines are statutorily permitted sanctions for
civil contempt proceedings based upon violations of Chapter 50C
no-contact orders.
Our Supreme Court has indicated that fines are appropriate
sanctions for civil contempt in North Carolina:
The purpose of civil contempt is not to
punish; rather, its purpose is to use the
court's power to impose fines or
imprisonment as a method of coercing the
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defendant to comply with an order of the
court. . . . Accordingly, defendant in a
civil contempt action will be fined or
incarcerated only after a determination is
made that defendant is capable of complying
with the order of the court. The
imprisonment or fine is lifted as soon as
defendant decides to comply with the order
of the court, or when it becomes apparent
that compliance with the order is no longer
feasible. . . . In the recently enacted
contempt statute, civil contempt is
carefully defined along these lines. G.S.
5A-21, et seq. and Official Commentary.
Jolly v. Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980)
(emphasis added), overruled on other grounds by McBride v.
McBride, 334 N.C. 124, 431 S.E.2d 14 (1993). See also McBride,
334 N.C. at 130, 431 S.E.2d at 18 (observing that "a defendant
in a civil contempt action should not be fined or incarcerated
for failing to comply with a court order without a determination
by the trial court that the defendant is presently capable of
complying").
This Court has similarly referred to the propriety of a
fine as a sanction for civil contempt: "'A defendant in a civil
contempt action will be fined or incarcerated only after a
determination is made that the defendant is capable of complying
with the order of the court.'" Oakley v. Oakley, 165 N.C. App.
859, 864, 599 S.E.2d 925, 929 (2004) (quoting Reece v. Reece, 58
N.C. App. 404, 406–07, 293 S.E.2d 662, 663–64 (1982)).
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Defendant further contends, however, that even if a fine is
a permissible sanction for civil contempt, this Court has held
that a court may not award damages or costs to a private party
in a civil contempt proceeding. In support of his argument,
defendant cites Baxley v. Jackson, 179 N.C. App. 635, 634 S.E.2d
905 (2006) and Green v. Crane, 96 N.C. App. 654, 386 S.E.2d 757(1990). See Baxley, 179 N.C. App. at 640, 634 S.E.2d at 908("Because contempt is considered an offense against the State,
rather than an individual party, 'damages may not be awarded to
a private party because of any contempt[.]'" (quoting M.G.
Newell Co. v. Wyrick, 91 N.C. App. 98, 102, 370 S.E.2d 431, 434
(1988))); Green, 96 N.C. App. at 659, 386 S.E.2d at 760("'[C]ontempt proceedings are sui generis and criminal in
nature. Although labeled "civil" contempt, a proceeding as for
contempt is by no means a civil action or proceeding to which
G.S. 6-18 (when costs shall be allowed to plaintiff as a matter
of course), or G.S. 6-20 (allowance of costs in discretion of
court) would apply.'" (quoting United Artists Records, Inc. v.
E. Tape Corp., 18 N.C. App. 183, 188, 196 S.E.2d 598, 601
(1973))).
"The word 'damages' is defined as compensation which the
law awards for an injury[;] 'injury' meaning a wrongful act
which causes loss or harm to another." Cherry v. Gilliam, 195
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N.C. 233, 235, 141 S.E. 594, 595 (1928). See also Black's Law
Dictionary 445 (9th ed. 2009) (defining "damages" as "[m]oney
claimed by, or ordered to be paid to, a person as compensation
for loss or injury"). "[C]ompensation," in turn, has been
defined as "[p]ayment of damages, or any other act that a court
orders to be done by a person who has caused injury to another."
Id. at 322. "In theory, compensation makes the injured person
whole." Id.
While damages or costs may not be awarded to plaintiffs in
a civil contempt proceeding, this Court has expressly
acknowledged that a person found in civil contempt may be
required to pay a fine to the opposing party. In Bishop v.
Bishop, 90 N.C. App. 499, 505, 369 S.E.2d 106, 109 (1988), this
Court looked to the character of the relief ordered in a
contempt proceeding to determine whether that proceeding
involved civil or criminal contempt. This Court held that civil
contempt could involve a monetary payment "if the monies are
either paid to the complainant or defendant can avoid payment to
the court by performing an act required by the court." Id. The
Court specifically held that civil contempt can involve a fine
"'when it is paid to the complainant'" or if payable to the
court "'when the defendant can avoid paying the fine simply by
performing the affirmative act required by the court's order.'"
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Id. at 504, 369 S.E.2d at 108-09 (quoting Hicks ex rel. Feiock
v. Feiock, 485 U.S. 624, 632, 99 L. Ed. 2d 721, 731, 108 S. Ct.
1423, 1429 (1988)).
In this case, there is no indication in the record that the
award of $2,500.00 payable to plaintiffs for defendant's
contempt, or the possibility of future payments of "at least
another $2500.00" for future violations of the 50C order, were
intended to compensate plaintiffs for loss or injury from
defendant's contempt or to pay the costs of the action incurred
by plaintiffs. The payments were denominated "purge" conditions
in the order, indicating the court intended the payments to
coerce defendant into compliance with the 50C order rather than
to compensate plaintiffs for defendant's contempt. See Cox v.
Cox, 133 N.C. App. 221, 226, 515 S.E.2d 61, 65 (1999) ("A court
order holding a person in civil contempt must specify how the
person may purge himself or herself of the contempt. The
purpose of civil contempt is not to punish but to coerce the
defendant to comply with a court order." (internal citations
omitted)).
Further, at the hearing, in response to plaintiffs'
counsel's request for a "monetary order of $2,500" in response
to defendant's contempt, the trial court stated: "Well, I think
that's what's gonna [sic] be necessary because he's obviously --
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has no boundaries. Okay. The Court will find him in contempt,
[indecipherable], enter a purge amount -- a bond amount in the
amount of $2,500 to be doubled each -- for each violation." The
foregoing indicates that, in this case, the court entered a
monetary award for civil contempt payable to plaintiffs in order
to coerce defendant into compliance with the 50C order and not
in order to compensate plaintiffs for defendant's contempt. The
trial court, therefore, did not err in ordering defendant to pay
a fine to plaintiffs.
Defendant further argues that the sanction imposed for
civil contempt was invalid because there was no effective purge
condition. To hold a person in civil contempt, "the judicial
official must enter an order . . . specifying the action which
the contemnor must take to purge himself or herself of the
contempt." N.C. Gen. Stat. § 5A-23(e). Here, the trial court
ordered that in order "[t]o purge himself of [the] contempt,
Defendant shall pay to the Plaintiffs $2500.00 on or before
January 11, 2013."
Defendant contends that although "this Court has considered
cases involving monetary awards payable on findings of civil
contempt, the instances of such awards are limited to those
cases where the underlying order imposed an obligation of
payment, as in a child support case." He then argues that "[i]n
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the case of the child support obligor, the payment of arrears is
partial compliance with the order being enforced. Thus, the
obligor may avoid incarceration by making payment in compliance
with the underlying child support order."
However, our courts have also held that requiring a
contemnor to pay attorneys' fees in order to purge himself of
contempt may be an appropriate purge condition. These cases do
not involve payments that would have been required by the
underlying order that the contemnor violated. See, e.g., Eakes
v. Eakes, 194 N.C. App. 303, 312, 669 S.E.2d 891, 897 (2008)
("North Carolina courts have held that the contempt power of the
trial court includes the authority to require the payment of
reasonable attorney's fees to opposing counsel as a condition to
being purged of contempt for failure to comply with a child
support order."); Middleton v. Middleton, 159 N.C. App. 224,
227, 583 S.E.2d 48, 49-50 (2003) ("This Court has held that the
contempt power of the district court includes the authority to
award attorney fees as a condition of purging contempt for
failure to comply with an order."). See also Hartsell v.
Hartsell, 99 N.C. App. 380, 392, 393 S.E.2d 570, 577 (1990)
(observing that when party has been held in contempt for
violating order requiring transfer of property, trial court had
authority to order contemnor to transfer property or its present
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value as condition of purging contempt), aff'd per curiam, 328
N.C. 729, 403 S.E.2d 307 (1991).
We see no basis for distinguishing a fine payable to the
moving party from these types of payments. Therefore, the trial
court included a proper purge condition when it required
defendant to pay the fine to plaintiffs in order to purge
himself of contempt.
Defendant next argues that the contempt order's $2,500.00
payments for present and any future violations of the 50C order
were invalid because the trial court made no findings concerning
defendant's ability to pay, at the time of the contempt hearing
or at any point in the future, respectively, the amount of
$2,500.00. We agree.
This Court has held that North Carolina's civil contempt
statutes "require that a person have the present ability to
comply with the conditions for purging the contempt before that
person may be imprisoned for civil contempt." McMiller v.
McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985). We
see no reason why a monetary sanction should be treated
differently. See Jolly, 300 N.C. at 92, 265 S.E.2d at 142("[D]efendant in a civil contempt action will be fined or
incarcerated only after a determination is made that defendant
is capable of complying with the order of the court.").
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The contempt order in this case contains no findings that
defendant, at the time of the contempt hearing or otherwise, had
the ability to pay a $2,500.00 award to plaintiffs. In fact,
the only evidence in the record regarding defendant's ability to
pay is defendant's affidavit of indigency attached to his two
motions to proceed as indigent. That affidavit stated that
defendant and his partner, Ms. Willets, each have no direct
source of income and receive room and board in exchange for
caring for defendant's mother. The affidavit further stated
defendant owned no real property; defendant owned some personal
property but any requirement to liquidate that property would
"substantially affect[]" defendant's ability to care for his
mother; and the total value of defendant's "cash" was "less than
$2500.00." The trial court, therefore, erred in requiring the
monetary payments without first finding defendant was presently
able to comply with the $2,500.00 fine imposed as a result of
defendant's past contempt or would be able to comply in the
future with any $2,500.00 fines imposed as a result of any
further violations of the 50C order.
Finally, defendant contends that the trial court exceeded
its authority in this contempt proceeding by imposing additional
restrictions on defendant's contact with plaintiffs and others
in the contempt order since defendant was not given notice of
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any request for sanctions beyond those allowed for contempt or
of a hearing to modify the 50C order. We do not agree.
The 23 May 2012 50C order ordered defendant to "not visit,
assault, molest, or otherwise interfere with the plaintiffs or
plaintiffs [sic] family"; to "cease harassment of the
plaintiff"; to "not abuse or injure the plaintiff"; to "not
contact the plaintiffs by telephone, written communication, or
electronic means"; and to "not enter or remain present at the
plaintiff's residence . . . [or] place of employment."
The contempt order contained the following provisions in
the decretal portion of the order:
4. The Court hereby further restrains the
Defendant from the following acts:
a) Defendant, Joey Berry, shall not
contact by phone, internet, mail
or any other means any employer or
family member of Jennifer and
David Tyll, except Michelle
Willets, directly or indirectly or
through a third party, even by
using a pseudonym or by acting as
power of attorney or attorney in
fact for any other person.
b) Defendant, Joey Berry, shall not
post or allow to be posted any
information of any kind whatsoever
referring to, referencing, or
stating the names of the
Plaintiffs or any member of their
family, except Michelle Willets,
on the internet, on any blog,
forum, in any email, in any
electronic newspaper or magazine,
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on any social website such as
Facebook, using his name or any
pseudonym.
c) Within 7 days from the date of
entry of this order, the Defendant
shall remove from any internet
posting, web sites and/or
postings, blogs, social media, and
other communications not limited
to the internet, if these
communications relate to or
reference the Plaintiffs or the
names of the Plaintiffs or any of
their family members other than
Michelle Willets, even if the
communication, posting, blog,
email, ect. [sic], was published
using a pseudonym or by acting as
power of attorney or attorney in
fact for any other person.
We initially note that these provisions do not necessarily
place any further restrictions on defendant beyond those set out
in the original 50C order. They may be viewed as simply
specifying the behaviors that reasonable people would understand
to be subsumed within the terms of the original order -- a
clarification that the trial court likely viewed as necessary
given defendant's apparent intention to try to avoid compliance
with the 50C order by a restrictive reading of the order.
Defendant cites no authority in support of his argument
that the trial court erred by including decretal paragraph 4.
Therefore, he has not properly presented this issue for our
review, and we do not address it. See Horne v. Cumberland Cnty.
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Hosp. Sys., Inc., __ N.C. App. __, __, 746 S.E.2d 13, 18 (2013)
("With regard to her substantive due process claim, plaintiff,
in her brief, fails to cite any legal authority in support of
her contention on this issue. We, therefore, deem this argument
abandoned on appeal pursuant to Rule 28(b)(6) of the North
Carolina Rules of Appellate Procedure.").
Conclusion
In sum, we affirm the trial court's order dismissing
defendant's notice of appeal from the 50C order. We hold that
the court did not violate defendant's right to due process by
not further considering defendant's request for appointed
counsel and that the challenged findings of fact in the contempt
order were either supported by the evidence or unnecessary to
support the court's conclusion that defendant was in contempt of
the 50C order. We also affirm the trial court's decision to
impose a fine payable to plaintiffs, but we reverse as to the
amount and remand for the trial court to make appropriate
findings regarding defendant's present ability to pay the fine.
Affirmed in part; reversed and remanded in part.
Judges STEPHENS and ERVIN concur.