Forte v. Forte

309 S.E.2d 729 (1983)

Kenneth Eugene FORTE
v.
Nancy Boger FORTE.

No. 8220DC1104.

Court of Appeals of North Carolina.

December 20, 1983.

Hopkins, Hopkins & Tucker by William C. Tucker, Albemarle, for plaintiff-appellee.

D.D. Smith and Henry C. Doby, Jr., Albermarle, for defendant-appellant.

PHILLIPS, Judge.

The only question presented by defendant's appeal is whether the order deeming plaintiff not to be in contempt of court was erroneous. Since the evidence clearly indicates that plaintiff was able to make the payments ordered but chose not to do so, the defendant contends that we should remand the case to the trial court with instructions to find him in contempt of court. The law does not permit us to do that, however, for wilfulness is also a requisite of contempt, Jones v. Jones, 52 N.C.App. 104, 278 S.E.2d 260 (1981), and the record does not establish that plaintiff's failure to comply with the order was wilful.

Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966); West v. West, 199 N.C. 12, 153 S.E. 600 (1930). The trial judge's finding of fact that plaintiff stopped making payments, not in defiance of authority, but in a good faith reliance on defendant's agreement to support the child if he would waive his visitation rights, is supported by competent evidence, and is thus conclusive on us. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978). This finding supports His Honor's conclusion that plaintiff's failure to pay was not wilful and the determination that plaintiff was not in contempt. Jarrell v. Jarrell, 241 N.C. 73, 84 S.E.2d 328 (1954). The order was also in accord with sound legal principles. Most jurisdictions in this country follow the just rule that disobedience to a court order that results from the advice or agreement of the complainant should not be punished at the complainant's behest. 17 C.J.S. Contempt § 39, p. 103 (1963). We know of no North Carolina decision to the contrary. The order appealed from is affirmed.

Affirmed.

VAUGHN, C.J., and WHICHARD, J., concur.