Reece v. Reece

293 S.E.2d 662 (1982)

Don Franklin REECE, Plaintiff,
v.
Sarah S. REECE, Defendant.

No. 8119DC532.

Court of Appeals of North Carolina.

July 20, 1982.

Bell & Browne by Charles T. Browne and W. Edward Bunch, Asheboro, for plaintiff.

Beck & O'Briant by Lillian B. O'Briant, Asheboro, for defendant.

WEBB, Judge.

The plaintiff makes two assignments of error to the court's order; first, that the court erred by denying his motion for a continuance; and second, that the court could not properly confine him in jail for contempt without making a finding of fact that he had the present means to comply with the order. For the reasons stated herein, we affirm the order of the trial judge.

"Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it.... a motion to continue is addressed to the sound discretion of the trial judge, who should determine it `as the rights of the parties require under the circumstances.'" Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). In the case sub judice, the plaintiff was represented by his attorney's associate. Although the associate was unfamiliar with the case, the hearing involved only the brief testimony of the plaintiff and defendant. There was evidence that it had taken over seven years to get the plaintiff in court. He had already failed to appear in court once after being properly served, having left the state. We believe that under these circumstances, the judge properly denied the plaintiff's motion for a continuance. The plaintiff's first assignment of error is overruled.

A defendant in a civil contempt action will be fined or incarcerated only after a determination is made that the defendant is capable of complying with the order of the court. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). In the instant case, the trial judge found "The plaintiff had resources upon which to call to pay at least a portion of his arrearage and he has not done so." The court also found that the plaintiff was earning from $11,000.00 to $24,000.00 a year since 1974. These findings were supported by the evidence. We believe this constitutes a determination that the plaintiff has the present means to comply with the order of the court. The plaintiff's second assignment of error is overruled.

Affirmed.

ROBERT M. MARTIN and WELLS, JJ., concur.