Blair v. Blair , 8 N.C. App. 61 ( 1970 )

173 S.E.2d 513 (1970) 8 N.C. App. 61

Frances W. BLAIR
v.
Larry Donald BLAIR.

No. 7026DC107.

Court of Appeals of North Carolina.

May 6, 1970.

Gene H. Kendall, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant contends that this is an action under G.S. § 50-16 and that in the absence of allegations and proof that plaintiff wife is the dependent spouse the requirement in the order appealed from that defendant pay plaintiff's counsel for services rendered subsequent to 4 September 1969 is invalid. We disagree with this contention primarily for the reason that the action is supported by statutes other than G.S. § 50-16; in fact, that statute was repealed by Chapter 1152 of the 1967 Session Laws.

In her complaint plaintiff prayed for alimony, temporary and permanent, without divorce as authorized by G.S. § 50-16.1 et seq., and for custody and support of the minor child born to the marriage as authorized by G.S. § 50-13.1 et seq.; she alleged sufficient facts to support the relief sought. G.S. § 50-13.5(a) provides that "[t]he procedure in actions for custody and support of minor children shall be as in civil actions * * *"; G.S. § 50-13.5(b) (3) provides that an action for custody and support may be joined with an action for alimony without divorce. The effect of the 4 September 1969 order was to grant plaintiff no alimony under G.S. § 50-16.1 et seq., but to grant her custody and support for the child under G.S. § 50-13.1 et seq.

It is true, as defendant argues, that G.S. § 50-16.4 authorizes the court, upon application of a dependent spouse entitled to alimony pendente lite pursuant to G.S. § 50-16.3, to enter an order for reasonable counsel fees for the benefit of the dependent spouse to be paid by the supporting spouse; but G.S. § 50-13.4(f) (9) provides that "[t]he wilful disobedience of an order for the payment of child support shall be punishable as for contempt as provided by G. S. 5-8 and G.S. 5-9."

The court is vested with broad power when it is authorized to punish "as for contempt." Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967); Blue Jeans Corp. v. Clothing Workers of America, 4 N.C.App. 245, 166 S.E.2d 698 (1969), affirmed by Supreme Court in 275 N.C. 503, 169 S.E.2d 867 (1969). We hold that this power includes the authority for a district court judge to require one whom he has found in wilful contempt of court for failure to comply with a child support order entered pursuant to G.S. § 50-13.1 et seq., to pay reasonable counsel fees to opposing counsel as a condition to being purged of contempt. In the order appealed from, the district court judge did not exceed that authority, therefore, the order is

Affirmed.

BROCK and GRAHAM, JJ., concur.