Luther v. Luther

67 S.E.2d 345 (1951) 234 N.C. 429

LUTHER
v.
LUTHER.

No. 389.

Supreme Court of North Carolina.

November 7, 1951.

Ottway Burton, Asheboro, for plaintiffappellant.

Smith & Walker, Asheboro, for defendant-appellee.

ERVIN, Justice.

This question arises at the outset: Does G.S. § 5-2 preclude the plaintiff from prosecuting this appeal from the judgment imposing the penalty upon her?

A person guilty of any of the acts or omissions enumerated in the eight subsections of G.S. § 5-1 may be punished for contempt because such acts or omissions have a direct tendency to interrupt the proceedings of the court or to impair the respect due to its authority. A person guilty of any of the acts or neglects catalogued in the seven subdivisions of G.S. § 5-8 is punishable as for contempt because such acts or neglects tend to defeat, impair, impede, or prejudice the rights or remedies of a party to an action pending in court.

It is essential to the due administration of justice in this field of the law that the fundamental distinction between a proceeding for contempt under G.S. § 5-1 and a proceeding as for contempt under G.S. § 5-8 be recognized and enforced. The importance of the distinction lies in differences in the procedure, the punishment, and the right of review established by law for the two proceedings.

We are concerned on this appeal with only one of these differences, i. e., the right of review.

The right of review in proceedings for contempt is regulated by G.S. § 5-2, which denies to persons adjudged guilty of contempt in the superior court the right of appeal to the supreme court in all cases arising under subsections one, two, three, and six of G.S. § 5-1, and also in those cases arising under subsections four and five of G.S. § 5-1 where the "contempt is committed in the presence of the court." State v. Little, 175 N.C. 743, 94 S.E. 680.

G.S. § 5-2 has no application, however, to proceedings as for contempt under G.S. § 5-8. Cromartie v. Commissioners of Bladen, 85 N.C. 211. As a consequence, no legal impediment bars a person, who is penalized as for contempt, from obtaining a review of the judgment entered against him in the superior court by a direct appeal to the supreme court. Our decisions show that such right of appeal has been exercised in proceedings as for contempt without question for upwards of a hundred years. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658; Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403; Elder v. Barnes, 219 N.C. 411, 14 S.E.2d 249; Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455; Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157; State v. Moore, 146 N.C. 653, 61 S.E. 463; In re Young, 137 N.C. 552, 50 S.E. 220; Green v. Green, 130 N.C. 578, 41 S.E. 784; In re Gorham, 129 N.C. 481, 40 S.E. 311; Delozier v. Bird, 123 N.C. 689, 31 S.E. 834; Cromartie v. Commissioners of Bladen, supra; LaFontaine v. Southern Underwriters' Ass'n, 83 N.C. 132, 133; Wood v. Wood, 61 N.C. 538. The right was successfully invoked by the appellants in the comparatively recent proceeding entitled State v. Clark, 207 N.C. 657, 178 S.E. 119, which is virtually on "all fours" with the case at bar.

Despite the legal conclusion recited in the order under scrutiny "that the plaintiff is in direct contempt of court," it is indisputable that this is a proceeding as for contempt, and not a proceeding for contempt. The order itself confesses as much, for it imposes the penalty on the plaintiff on the theory that her act offends this provision of subsection one of G.S. § 5-8: "Every court of record has power to punish as for contempt * * * any * * * person in any manner selected or appointed to perform any ministerial or judicial service, for any neglect or violation of duty or any misconduct by which the rights or remedies of any party in a cause or matter pending in such court may be defeated, impaired, delayed, or prejudiced." Besides, the plaintiff's act does not bear any legal resemblance to any of the contempts enumerated in any of the subdivisions of G.S. § 5-1.

Since this is a proceeding as for contempt, the plaintiff has the legal right to prosecute her appeal, unless she has waived it by paying the fine.

A waiver is the voluntary and intentional relinquishment of a known right. Aldridge v. Greensboro Fire Insurance Co., 194 N.C. 683, 140 S.E. 706. A party to a proceeding as for contempt undoubtedly waives his right to have the judgment in the proceeding reviewed on appeal by voluntarily paying the fine imposed upon him by the judgment. But such is not this case. The record reveals that the plaintiff paid the fine under protest at the precise moment she noted her appeal from the order imposing it, and that she took this course to avoid being committed to jail until the fine was paid. Inasmuch as the payment was the product of coercion, we hold that the plaintiff did not waive her right of appeal by making it. If the law afforded the plaintiff no way out of her dilemma except that of forfeiting her right of appeal on the one hand or going to jail on the other, she might well exclaim with the poet: "Which way I fly is hell!" Our conclusion on this aspect of the case finds support in well considered opinions. Wachoira Bank & Trust Co. v. Miller, 184 N.C. 593, 115 S.E. 161; State v. Winthrop, 148 Wash. 526, 269 P. 793, 59 A.L.R. 1265.

This brings us to this final question: Do the facts found in the order show plaintiff to be guilty of an act or neglect made punishable as for contempt by G.S. § 5-8?

This query must be answered in the negative. The plaintiff is not a person "selected or appointed to perform * * * ministerial or judicial service, and consequently the statutory provision invoked by the order, i. e., subsection one of G.S. § 5-8, does not apply to her. When all is said, the plaintiff acted wholly within her legal rights in refusing to give her consent to the judgment tendered by defendant.

The case made out against plaintiff by the findings is simply this: The plaintiff and the defendant made an oral contract to settle their law suit on agreed terms to be incorporated in a subsequent consent judgment; and the plaintiff breached the oral contract by withholding her consent when the proposed judgment embodying the agreed terms was drafted and presented to her for signing.

It is to be remembered that a consent judgment is merely a contract between parties to litigation entered on the records of the court with its approval. Pack v. Newman, 232 N.C. 397, 61 S.E.2d 90.

The oral contract undertook to bind plaintiff to release her dower interest in the lands of the defendant, and runs afoul of the statute of frauds, which renders parol promises to surrender dower unenforceable. G.S. § 22-2; Houston v. Smith, 88 N.C. 312. In addition, the agreement is invalidated by the statutory requirements that certain contracts between husband and wife made during coverture must be reduced to writing and adjudged not to be unreasonable or injurious to the wife. G.S. §§ 52-12, 52-13. The plaintiff cannot be held guilty of legal misconduct because she refuses to perform an oral contract outlawed by the legislature.

The defendant set the proceeding as for contempt in motion to compel the plaintiff to substitute a binding agreement for an invalid one, and the order penalizing the plaintiff runs counter to the sound rule that the court will not entertain contempt proceedings where the mover's purpose is to coerce his adversary into making a contract. State v. Clark, supra; Howard v. Durand, 36 Ga. 346, 91 Am.Dec. 767. The order would not enjoy legal vitality, however, even if the agreement were binding on plaintiff. A breach of contract is not punishable as for contempt under G.S. § 5-8. Stanley v. Stanley, 226 N. C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529; Davis v. Davis, 213 N.C. 537, 196 S.E. 819.

Randolph County will doubtlessly refund the fine to plaintiff on request. The order imposing it is hereby

Reversed.