Cox v. Cox , 10 N.C. App. 476 ( 1971 )

VAUGHN, Judge.

The findings of fact material to this appeal are as follows:

“4. That by admission of the plaintiff and his counsel, the plaintiff is Four Hundred Thirty-Five and 00/100 ($435.00) Dollars in arrears on the payments due under Judge Seay and Judge Lupton’s orders for the support of the two minor children and from the evidence, the plaintiff has had sufficient earnings to make said payments.”

It appears that plaintiff’s contention that the court’s findings of fact are insufficient to support the judgment has merit. Our decision is controlled by the opinion by Justice Branch in Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391, where we find the following:

“A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is wilful, which imports knowledge and a stubborn resistance. ‘Manifestly, one does not act wilfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered.’ Lamm v. Lamm, 229 N.C. 248, 49 S.E. 2d 403.

“Hence, this Court has required the trial courts to find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default.

“Parker, J. (now Q.J.), speaking for the Court in the case of Yow v. Yow, 243 N.C. 79, 89 S.E. 2d 867, said: ‘The lower court has not found as a fact that the defendant possessed the means to comply with the orders for payment of subsistence pendente lite at any time during the period when he was in default in such payments. Therefore, the finding that the defendant’s failure to make the payments of subsistence was deliberate and wilful is not supported by the record, and the decree committing him to imprisonment for contempt must be set aside.’ (Citing cases.)

“ In Green v. Green, 130 N.C. 578, 41 S.E. 784, it was held that in proceedings for contempt the facts found by the judge are not reviewable by this Court except for the purpose of passing upon their sufficiency to warrant the judgment. Where the trial judge found that the party was a healthy and able-bodied man for his age, and further found that he could pay at least a portion of the alimony, it was error to imprison him until he should pay the whole amount.

“In the case of Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351, this Court further stressed the necessity of finding as a fact that the plaintiff possessed the means to comply with the orders for payment. Here plaintiff had been ordered to make certain monthly payments for the support of his wife and child. Upon the hearing of an order directing plaintiff to show cause why he should not be held in contempt for failure to comply with the prior order, the trial judge found only that plaintiff was ‘in contempt of court because of his willful failure and neglect to comply. . . . ’ This Court found error and remanded, holding that ‘the court below should take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and work — an inventory of his financial condition.’ The Court has reaffirmed this position as recently as Gorrell v. Gorrell, 264 N.C. 403, 141 S.E. 2d 794.

“The finding of facts by the trial court in the instant case is not sufficient basis for the conclusion that defendant’s conduct was wilful and deliberate, nor for the founding of the judgment entered.

“The court entered judgment as for civil contempt, and the court must find not only failure to comply but that the defendant presently possesses the means to comply. The judgment committing the defendant to imprisonment for contempt is not supported by the record and must be set aside.”

Plaintiff’s assignment of error as to the allowance of counsel fees is without merit. See Blair v. Blair, 8 N.C. App. 61, 173 S.E. 2d 513.

For the failure to find facts in accord with Mauney v. Mauney, supra, the case is remanded for further hearing and findings of fact.

Remanded.

Judge Morris concurs.