Frank v. Glanville , 45 N.C. App. 313 ( 1980 )

262 S.E.2d 677 (1980)

Glenda M. FRANK, Petitioner-Appellee,
v.
Marshall GLANVILLE, Respondent-Appellant.

No. 7911DC461.

Court of Appeals of North Carolina.

February 19, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

M. Travis Payne of Wake-Johnston-Harnett Legal Services, Inc., Smithfield, for respondent-appellant.

HILL, Judge.

Defendant first assigns as error the order that he be imprisoned for civil contempt, contending that a person must possess the present ability to comply with the contempt order before he can be so imprisoned.

Our Supreme Court stated in Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E.2d 403, 404 (1948) that,

Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered.

Lamm has been favorably cited in subsequent cases—Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966), and Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971)—for the same proposition.

Since the decision of the above cases, the legislature has rewritten the statute governing civil contempt. The new statute, G.S. 5A-21, is consistent with prior case law and states that,

(a) Failure to comply with an order of a court is a continuing civil contempt as long as:

.....

(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 him to comply with the order.

The official commentary points out that civil contempt is appropriate ". . . only so long as the court order is capable of being complied with."

The official commentary also points out that subsection (a)(3) of the statute has perhaps broadened the scope of acts punishable by contempt. Under Lamm, supra, one could not be punished by contempt for failing to comply with a judgment if, since the time of the judgment, he has not had the ability to do so. The commentary to G.S. 5A-21 attempts to close any loopholes that may have arisen by stating that a person will be guilty of civil contempt, even if he does not have the money to make court order payments, if he ". . . could take a job which would enable him to make those payments . . .." We concur in the interpretation set out in the commentary.

Defendant, by his second assignment of error, contends there was no finding of fact by the trial court of a present ability to comply with the contempt order.

Our Supreme Court stated in Mauney, supra, 268 N.C. at p. 257, 150 S.E.2d at p. 393, that,

. . . 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.

The Court in Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353 (1938), even found it necessary before a contempt order could be issued for

. . . the court below [to] take an inventory of the property of the [defendant]; find what are his assets and liabilities and his ability to pay and work—an inventory of his financial condition.

The trial court attempted to meet the directive of Vaughan in its fourth finding of fact which detailed the property defendant owned. The finding was found to be contrary to the evidence, however, and was deleted by subsequent order. Therefore, no finding of fact that defendant possessed the means to comply with the order was contained in the order.

We find that in order for a person to be held in civil contempt, the person to whom the contempt order is directed must be able to comply with the order or be able to take reasonable measures that would enable him to comply. It would be ridiculous to hold otherwise, for the purpose of civil contempt is not to punish the contemnor, but to coerce compliance with a previous order. Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969). The trial court must find as fact that the defendant has the ability to comply.

It is not clear from the record in this case that defendant has the ability to comply with the contempt order, ever had the ability, or will ever be able to take reasonable measures that would enable him to comply. For that reason and because no finding of fact detailing defendant's ability to comply with the contempt order was made, this case is reversed and remanded to Judge Christian to find the facts, make conclusions of law, and enter judgment, all in accordance with the provisions of this opinion.

Reversed and Remanded.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.