Contempt--civil--insufficient findings
The trial court's order purporting to hold defendant in civil contempt is vacated because:
(1) the trial court's findings are insufficient to support its holding; and (2) the trial court failed to
comply with the provisions of N.C.G.S. § 5A-23 when it did not provide defendant with notice or
an order to show cause.
No brief for plaintiff-appellee.
Herring McBennett Mill Green & Flexner, PLLC, by Scott E.
Allen, for defendant-appellant.
WALKER, Judge.
Defendant appeals from an order of the trial court finding him
“in contempt of this court and its order.” The record shows that
plaintiff Linda Mazzone Watkins and defendant Claiborne E. Watkins,
Jr. were married on 18 July 1992 and separated on 28 November 1995.
On 12 December 1997, plaintiff and defendant entered into a court-
approved consent order, governing issues of custody and visitation
of their minor child. Subsequently, defendant filed a motion to
show cause alleging that plaintiff violated the 12 December 1997
consent order. This matter was heard on 2 November 1998 and the
trial court entered an order on 8 December 1998 finding in part:
2. THAT the [Defendant's] actions in filing
this motion and constantly paging the
plaintiff on a regular basis since the last
hearing in this matter has become overreachingand oppressive.
Accordingly, the trial court concluded that defendant was in
contempt of court and ordered that he serve thirty days in jail,
with twenty-nine days suspended.
Although the trial court did not indicate whether the order is
criminal or civil in nature, it is apparent the order purports to
find defendant in civil contempt of the 12 December 1997 order
since this is the only order in the record. Proceedings for civil
contempt are governed by N.C. Gen. Stat. § 5A-23, which prescribes
the steps to be followed by the trial court before a person can be
found to be in contempt. Civil contempt orders are properly
appealed to this Court. N.C. Gen. Stat. § 5A-24 (Cum. Supp. 1998).
The defendant contends the trial court erred in finding him in
contempt of the 12 December 1997 order permitting him to have
telephone contact with the minor child.
The 12 December 1997 order provides in part:
3(e). The defendant shall be entitled to talk
with the minor child on the telephone once per
day before 8:00 pm for at least five minutes
when the minor child is not with him. Both
parties shall try to facilitate this call and
the defendant shall only call once a day
requesting that call and the plaintiff if she
does not accept the call and allow the child
to talk at that time shall call the defendant
and allow the minor child to talk to his
father. The plaintiff shall be aware of the
defendant's call by either having an answering
machine or something on her phone to show what
number is being called so that she can
identify the defendant's number. After reviewing the record, we conclude the trial court's
findings are insufficient to support its holding that the defendant
is in violation of the 12 December 1997 order in view of provision
3(e) of that order. Furthermore, the trial court failed to comply
with the provisions of N.C. Gen. Stat. § 5A-23 in its contempt
proceeding against the defendant. In particular, no notice or
order to show cause was ever issued to the defendant.
We urge our trial courts to identify whether contempt
proceedings are in the nature of criminal contempt as set forth in
Article I, Chapter 5A of the North Carolina General Statutes or are
in the nature of civil contempt as set forth in Article II, Chapter
5A of the North Carolina General Statutes.
In light of the foregoing, the trial court's order of 8
December 1998 is
Vacated.
Chief Judge EAGLES and Judge SMITH concur.
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