Fitch v. Fitch

216 S.E.2d 734 (1975) 26 N.C. App. 570

Betsy FITCH
v.
Joe Dennis FITCH.

No. 7526DC313.

Court of Appeals of North Carolina.

July 16, 1975. Certiorari Denied September 2, 1975.

Nelson M. Casstevens, Jr., Charlotte, for plaintiff appellee.

Lila Bellar and Marshall H. Karro, Charlotte, for defendant appellant.

Certiorari Denied by Supreme Court September 2, 1975.

MORRIS, Judge.

Defendant first argues that it was error for the trial court to find that he was in present and continuing contempt of court and to order that he be imprisoned indefinitely because of such contempt, "in that there was no determination based on competent evidence that Defendant was presently able to comply with the Order of the Court."

It is well settled in this State that the courts possess the authority to confine a person who willfully violates the terms and provisions of the orders of a court. More specifically G.S. § 50-13.4(f)(9) gives the courts authority to punish individuals for willful disobedience of orders for the payment of child support, with punishment for contempt to be as provided in G.S. § 5-8 and G.S. § 5-9. As we noted in Bennett v. Bennett, 21 N.C.App. 390, 393, 204 S.E.2d 554, 556 (1974), under these statutes "[w]hen a defendant has the present means to comply with a court order and deliberately refuses to comply, there is a present and continuing contempt and the court may commit such defendant to jail for an indefinite term, that is, until he complies with the order. Under such circumstances, however, there must be a specific finding of fact supported by competent evidence to the effect that such defendant possesses the means to comply with the court order." Although the 31 January 1975 order contains such a finding, defendant maintains there is no evidence to support it. We disagree.

A careful examination of the evidence shows that between 22 November 1974 and 20 December 1974, the defendant withdrew $750 from Matthews Auto Sales, a partnership operated by him; that during 1974 the defendant withdrew at least $5,265 from the partnership; that on 10 December 1974 the defendant loaned the partnership $1,000; that from the entry of the 2 November 1973 order "until recently" the defendant has contributed $80 per month to the Gospel Chapel Church, and that since 2 November 1973, the defendant has paid his attorney $1,000 in legal fees. Furthermore, defendant's own evidence, which consisted in part of an income statement from Matthews Auto Sales for the year ending 31 December 1974, indicates that the partnership had an inventory of $29,700 and outstanding debts of only $6,000 on 31 December 1974, some 28 days prior to the hearing of this matter. On the basis of the foregoing evidence, we are of the opinion that the trial court was entirely justified in finding that the defendant possessed sufficient assets to enable him to pay the $3,570.55 needed to comply with the 2 November 1973 order. We are aware that defendant failed to except to the finding of fact. However, because of the lengthy and bitter litigation between the parties, we have spoken to the merits of the question raised.

Defendant next argues that the trial court abused its discretion by refusing to consider a motion filed by the defendant on 5 March 1974 seeking a "reduction of child support payments based on the emancipation of the minor child of Plaintiff and Defendant". He asserts that the motions, which alleged emancipation of his children, bore upon his duties under the 2 November 1973 order, and consequently, upon his alleged contempt. We fail to see how the defendant was prejudiced by the trial court's failure to hear his motion since the court nonetheless admitted evidence on emancipation and granted the relief sought by the defendant by retroactively reducing his child support payments. In any event, we note that the plaintiff did not receive notice from the defendant, as required by G.S. § 1A-1, Rule 6(d), of defendant's intention to have his motion heard. This assignment of error is overruled.

In his final argument defendant contends the 31 January 1975 written order differs substantially from the decision announced in open court on 29 January 1975 and that this constitutes reversible error. We disagree. In our opinion no judgment was "rendered" in this case until 31 January 1975. Cutts v. Casey, 275 N.C. 599, 170 S.E.2d 598 (1969). On 29 January 1975 the trial court merely instructed the plaintiff's attorney to prepare an order containing certain specific findings of fact, these findings to be in addition to other necessary and pertinent findings of fact.

G.S. § 1A-1, Rule 52(a)(1), in pertinent part, provides that in nonjury trials "the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment". Here the trial court did not direct that any conclusions of law be placed in the order nor did the court issue any other orders. We conclude judgment was not in fact rendered until the entry of the order of 31 January 1975, which both parties agree was properly signed by the judge and entered.

Affirmed.

VAUGHN and CLARK, JJ., concur.