Smith v. Smith

100 S.E.2d 370 (1957) 247 N.C. 223

John O. SMITH
v.
Myrtle Irene Kinney SMITH (Burrow).

No. 529.

Supreme Court of North Carolina.

November 20, 1957.

Ottway Burton, Asheboro, for plaintiff-appellant.

No counsel contra.

JOHNSON, Justice.

The order requiring the plaintiff to make payments for the support of his child is sufficient in form to be enforced by attachment for contempt. True, the order was entered by consent of the parents, but even so, the child was under the protective custody of the court. G.S. § 50-13. And the terms of the order in respect to maintenance payments to be made by the father, though fixed by consent, were nonetheless decreed by the court to be fulfilled by the father. The case is controlled by the principles applied in Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576. The decision in Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118, is factually distinguishable.

However, the order attaching the plaintiff contempt is fatally defective in that it is not supported by a finding of fact that the conduct of the plaintiff in failing or refusing to make the payments required by the former order of the court was willful. Our contempt statute, G.S. § 5-1, provides: "Any person guilty of any of the following acts may be punished for contempt: * * 4. Willful disobedience of any process or order lawfully issued by any court." Our decisions uniformly hold that in contempt proceedings it is necessary for the court to find the facts supporting the judgment and especially the facts as to the purpose and object of the contemner, since nothing short of "willful disobedience" will justify punishment. In re Odum, 133 N.C. 250, 45 S.E. 569; West v. West, 199 N.C. 12, 153 S.E. 600; In re Hege, 205 N.C. 625, 172 S.E. 345; Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403; Ponder v. Davis, 233 N.C. 699, 65 S.E. 2d 356.

For failure of the court to find the necessary supporting facts, the order must be stricken out, and the cause will be remanded for further proceedings. See Basnight v. Basnight, 242 N.C. 645, 89 S.E.2d 259.

Error and remanded.