Brower v. Brower

318 S.E.2d 542 (1984)

Judy F. BROWER
v.
Richard Dwight BROWER.

No. 8319DC696.

Court of Appeals of North Carolina.

August 21, 1984.

Smith, Casper & Smith by Archie L. Smith, Jr., Asheboro, for plaintiff-appellee.

Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for defendant-appellant.

PHILLIPS, Judge.

Defendant's appeal is from an order of civil contempt confining him to prison until past due child support payments amounting to $10,590 are paid. The order is without legal sanction, in our opinion, and must be vacated.

The difference between civil contempt and criminal contempt has been noted in several decisions of our Supreme Court. In essence, criminal contempt is administered as punishment for acts already committed that have impeded the administration of justice in some way. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966). And as is the case with all offenses of a criminal nature, the punishment that courts can impose therefor, either by fine or imprisonment, is circumscribed by law. See G.S. 5A-12. Civil contempt, on the other hand, is employed to coerce disobedient defendants into complying with orders of court, and the length of time that a defendant can be imprisoned in a proper case is not limited by law, since the defendant can obtain his release immediately upon complying with the court's order. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). The necessity of a defendant being able to comply with an order of civil contempt is made plain by the following provisions of the General Statutes:

§ 5A-21. Civil contempt; imprisonment to compel compliance.

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

(1) The order remains in force;

(2) The purpose of the order may still be served by compliance with the order; and

(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.

§ 5A-22. Release when civil contempt no longer continues.

(a) A person imprisoned for civil contempt must be released when his civil contempt no longer continues. The order of the court holding a person in civil contempt must specify how the person may purge himself of the contempt.

Thus, before a previous child support order can be enforced by a civil contempt order directing a defendant's imprisonment until the contempt order is complied with, it must first be established that the defendant then has the ability to comply with the order of contempt. Hodges v. Hodges, 64 N.C.App. 550, 307 S.E.2d 575 (1983); Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980).

Though the order appealed from requires defendant's imprisonment for continuing civil contempt until he pays $10,590, it is supported only by a finding that he had the present ability to pay a portion of that sum. A similar order was struck down by our Supreme Court in Green v. Green, 130 N.C. 578, 41 S.E. 784 (1902). Since the same law still abides, the order in this case must also be vacated. The case is remanded to the District Court for further proceedings consistent with this opinion.

Vacated and remanded.

HEDRICK and ARNOLD, JJ., concur.