Mussallam v. Mussallam , 321 N.C. 504 ( 1988 )

Justice Frye

dissenting.

The majority reverses the decision of the Court of Appeals which upheld the district court’s order distributing proceeds of the forfeited bonds to the child’s mother.

I find the reasoning of the majority totally unpersuasive. The clear purpose of the proceeding was to enforce the custody decree by getting the child out of Kuwait and back to Greensboro so that the mother could retain custody. Judge Williams entered a show-cause order directing the husband to appear on a day certain with the minor child. He also found the husband in contempt and ordered him held in custody until he purged himself of contempt by “sending for the minor child . . . and bringing her to this Court.” In the superior court, Judge Beaty set bond and ordered the husband to appear before the district court with the minor child. How the majority can then conclude that “the record demonstrates that the judges who heard various aspects of this case were primarily concerned with the husband’s attendance in court” is completely baffling to me. It seems obvious that the husband’s attendance in court was secondary to the primary purpose of the enforcement orders, that is, to secure the presence of the child.

The majority notes that the bonds actually signed by the husband were entitled “Appearance Bond” and contained the usual language for such bonds. While this language might be crucial if we were interpreting a question of the surety’s liability on the bonds, that is not the question before the Court. The only question is who gets the proceeds of the bonds once those proceeds are paid into court. The answer should depend, not upon which form some clerk or magistrate had the surety sign, but rather upon the purpose of the bond, as shown by the nature of the proceeding and the orders of the court pursuant to which the bonds were given.

The nature of this proceeding is not an ordinary civil proceeding, and certainly not a criminal action. It is a custody proceeding, to enforce compliance with a previous decree awarding custody of the child to the mother. Her husband had taken the child out of the country and refused to return the child to her. The court orders pursuant to which the bonds were given clearly required the husband to appear with the child. Thus they were compliance bonds and not ordinary civil or criminal bonds.

When compliance bonds are forfeited, the proceeds are paid to the injured party. See, e.g., N.C.G.S. § 1-478 (1983) (claim and delivery statute where failure to return property results in forfeiture of bond proceeds to injured party with recovery limited to value of property plus damages and costs incurred); N.C.G.S. § 1A-1, Rule 65(e) (1983) (injunction statute where the injured party may recover bond proceeds from party obtaining the temporary injunction when this latter party does not prevail in the subsequent action). Here the mother is clearly the injured party, having been completely frustrated in her efforts to secure compliance with the court orders giving her physical custody of the child. These orders were also consistent with the policy of this State which permits a court to require the posting of a bond to ensure the return of a child to the court’s jurisdiction. N.C.G.S. § 5043.2(c) (1987). The decision of the majority is contrary to this policy and represents a triumph of form over substance. Accordingly, I dissent.

Chief Justice EXUM joins in this dissenting opinion.