Plaintiff originally commenced this action on 16 December 1994
by filing a complaint against defendant Susan Dawn Pearson Gragg
seeking visitation with his child. The parties entered into a
consent judgment regarding the custody of the minor child on 19
December 1994. That judgment provided for joint custody, but
specified that defendant would have sole care, custody, and control
of the child subject to visitation by plaintiff. Additionally, the
judgment ordered plaintiff (1) to pay all medical premiums for the
child; (2) to be equally responsible for payment of the insurance
deductible, dental expenses, and orthodontic expenses; and (3) to
pay defendant $200.00 per month in child support. On 19 February
1996, the trial court entered a second consent order that set out
requirements regarding the transfer of the child for visitation,
ordered plaintiff to make all child support payments to the
Caldwell County Clerk of Superior Court, and required plaintiff to
supply a copy of his insurance card to the child's doctors.
On 25 September 2003, defendant filed a motion seeking an
order holding plaintiff in contempt of the December 1994 and
February 1996 orders. The motion stated that plaintiff had, in
violation of those orders, failed to pay medical premiums for his
child; failed to pay his share of medical, dental, and orthodonticexpenses; and failed to provide his insurance card to the child's
doctors. Plaintiff was served with an order to show cause and the
trial court conducted an evidentiary hearing on 6 November 2003.
The court filed its order holding plaintiff in civil contempt
on 14 November 2003. The court ordered: "The Plaintiff is in
Civil Contempt of Court and shall be incarcerated in the Caldwell
County Jail indefinitely, but by and with his consent, he may purge
himself from this Contempt by paying $2,000.00 into the Office of
the Clerk of Superior Court of Caldwell County prior to his
release." The order further provided that upon plaintiff's
release, he was required to pay $100.00 per month until the
remaining past-due amount of $1,612.44 was paid in full.
Plaintiff subsequently filed a timely notice of appeal. He
also filed a motion to stay the court's order, asserting that "the
Plaintiff has no means with which to comply with the Order." On 4
December 2003, the trial court entered an order staying commitment
of plaintiff to jail pending appeal. The court, however, also
ordered plaintiff to "post an Appeal Bond secured by sureties
satisfactory to the Court that binds the Plaintiff and the sureties
to pay the amount of Three Thousand Six Hundred Twelve and 44/100
Dollars ($3,612.44) in this case into the Office of the Clerk of
Court of Superior Court of Caldwell County to be disbursed to the
Defendant if and when the Court's judgment is affirmed on appeal."
On 4 December 2003, plaintiff filed the required bond. He has also
noticed appeal from the order requiring the bond.
[1] Plaintiff's first assignment of error challenges the trial
court's entry of an order holding him in civil contempt on the
grounds that "[t]he Court must find facts and the evidence must
support such finding that the Plaintiff had the present ability
to
comply with the original support order. There is no such adequate
finding and there is no evidence to support any such finding." In
a civil contempt proceeding, the trial court must address a party's
"ability to comply" in two separate respects.
First, in order to find a party in civil contempt, the court
must find that the party acted willfully in failing to comply with
the order at issue.
Sowers v. Toliver, 150 N.C. App. 114, 118, 562
S.E.2d 593, 596 (2002). "Willfulness constitutes: (1) an ability
to comply with the court order; and (2) a deliberate and
intentional failure to do so."
Id. Therefore, in order to address
the requirement of willfulness, "the trial court must make findings
as to the ability of the plaintiff to comply with the court order
during the period when in default."
Id. at 119, 562 S.E.2d at 596.
See also Goodson v. Goodson, 32 N.C. App. 76, 80, 231 S.E.2d 178,
181 (1977) ("In order to hold a parent in contempt for failure to
pay child support in accordance with a decree, the failure must be
wilful. In order to find the failure wilful, there must be
particular findings of the ability to pay during the period of
delinquency." (emphasis added)).
Second, once the trial court has found that the party had the
means to comply with the prior order and deliberately refused to doso, "the court may commit such [party] to jail for an indefinite
term, that is, until he complies with the order."
Bennett v.
Bennett, 21 N.C. App. 390, 393-94, 204 S.E.2d 554, 556 (1974). At
that point, however, the court must also find that the party
possesses the means to avoid jail by complying with the terms
specified by the contempt order.
Id. at 394, 204 S.E.2d at 556.
In other words, in a civil contempt case, if the trial court orders
the party imprisoned unless he pays the full amount of any
arrearages, then the court must find that the party has the present
ability to pay the total outstanding amount.
See also McMiller v.
McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985)
("[T]hese statutes require that a person have the present ability
to comply with the conditions for purging the contempt before that
person may be imprisoned for civil contempt.").
Although plaintiff's assignment of error and his brief are not
as clear as we would prefer, it appears that plaintiff is arguing
on appeal that the trial court failed to make adequate findings
regarding plaintiff's willfulness in violating the consent orders.
(See footnote 1)
Plaintiff does not include any specific argument that he could not
pay the $2,000.00 that, according to the order, was required "by
and with his consent" to purge him of contempt. Nor does he
contend that he cannot comply with the requirement that he pay
$100.00 per month until the remaining amount due is paid in full. We, therefore, have limited our consideration to the question
whether the trial court made adequate findings of willfulness.
We agree that in holding plaintiff to be in civil contempt for
failure to comply with the two consent orders, the trial court
never made the findings necessary to establish that plaintiff's
non-compliance was willful. Indeed, the court never actually found
that plaintiff's non-compliance was "willful." Further, the trial
court never specifically found that plaintiff had the means to
comply with the orders during the period when he was in default.
See Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E.2d 391, 393 (1966)
("[T]his Court has required the trial courts to find as a fact that
the defendant possessed the means to comply with orders of the
court during the period when he was in default.").
The only findings of fact relating to plaintiff's ability to
pay include:
14. The Plaintiff is an able-bodied, 32 year
old, who attended high school up to the
tenth grade. He has no military
background. His work experience includes
running a Tenon machine in the furniture
industry. The plaintiff has skills in
the furniture industry, but prefers to
work in landscaping or construction. The
Plaintiff has worked odd-jobs for himself
and for others. The Plaintiff has been
paid in cash. The Plaintiff worked for 8
months last year as a brick mason for
Jones Rock Mason, and earned $8.00 per
hour and worked forty-hour weeks, with no
overtime.
. . . .
16. The Court finds that the Plaintiff is
like an ostrich, burying his head in the
sand, in [that] he believes that if he
does not see the minor child's medicalbills, that he will not have to pay them.
The Plaintiff believes ignorance is
bliss.
. . . .
18. While [the] Court does not disbelieve
that the Plaintiff would prefer to work
at an outside job, when a child is in the
equation, the Plaintiff has to do what is
necessary for the child.
Our appellate courts have previously held that almost identical
findings are insufficient, standing alone, to support the finding
of willfulness necessary to hold a party in civil contempt.
In Mauney, 268 N.C. at 257-58, 150 S.E.2d at 394, our Supreme
Court held that the following finding of fact was not a sufficient
basis for the conclusion that the non-paying party's conduct was
willful in the absence of a finding that defendant had in fact been
able to make the required payments during the period in which he
was in arrearage:
Judge Martin found that the defendant "is a
healthy, able bodied man, 55 years old,
presently employed in the leasing of golf
carts and has been so employed for many
months; that he owns and is the operator of a
Thunderbird automobile; that he has not been
in ill health or incapacitated since the date
of [the] order [requiring payment of alimony]
entered on the 5th day of October, 1964; that
the defendant has the ability to earn good
wages in that he is a trained and able
salesman, and is experienced in the restaurant
business; and has been continuously employed
since the 5th day of October, 1964; that since
October 5, 1964, the defendant has not made
any motion to modify or reduce the support
payments."
Id. at 255, 150 S.E.2d at 392. Likewise, in Hodges v. Hodges, 64
N.C. App. 550, 553, 307 S.E.2d 575, 577 (1983), this Court reversed
an order for civil contempt because
[o]ur Supreme Court has held that a trial
court's findings that a defendant was healthy
and able-bodied, had been and was presently
employed, had not been in ill-health or
incapacitated, and had the ability to earn
good wages, without finding that defendant
presently had the means to comply, do not
support confinement in jail for contempt.
Id. See also Yow v. Yow, 243 N.C. 79, 84, 89 S.E.2d 867, 871-72
(1955) (setting aside civil contempt decree when the trial court
found only that the defendant was employed as a manager of a
grocery and did not specifically find that the defendant possessed
the means to comply with the prior orders during the period that he
was in default).
The trial court, however, did include in its conclusions of
law a finding that "the Plaintiff has the present ability to comply
with at least a portion of the Orders of this Court." (Emphasis
added.) Even if we construe this finding to refer to plaintiff's
ability to comply with the prior consent judgments and not as
support for the court's requiring payment of $2,000.00, it is not
sufficient.
(See footnote 2)
This Court has held that a finding of fact that a
party has had the ability to pay as ordered "justif[ies] a
conclusion of law that defendant's violation of the support orderwas willful . . . ." McMiller, 77 N.C. App. at 809, 336 S.E.2d at
135. In this case, however, the trial court found only that
plaintiff had the ability to pay "a portion" of the prior orders.
In Green v. Green, 130 N.C. 578, 578-79, 41 S.E. 784, 785 (1902),
our Supreme Court held that such a finding is insufficient to
support an order of civil contempt. Id. (holding that "[c]learly"
a finding of fact that "'defendant could have paid at least a
portion of said money, as provided in said order'" could not
support an order of contempt based on a failure to pay alimony).
Accordingly, we must reverse the trial court's order and
remand for further findings of fact. The trial court must make
specific findings addressing the willfulness of plaintiff's non-
compliance with the prior consent orders, including findings
regarding plaintiff's ability to pay the amounts provided under
those prior orders during the period that he was in default.
[2] Plaintiff also assigns error to the trial court's order
requiring that he file an appeal bond. Plaintiff does not argue
that he lacked the ability to comply with the requirement to post
a bond; indeed, he did comply. Instead, he contends that the
General Statutes do not provide for a bond under the circumstances
of this case. Plaintiff has overlooked N.C. Gen. Stat. § 1-289
(2003).
Under N.C. Gen. Stat. § 1-289, no judgment directing the
payment of money is stayed pending an appeal unless a bond is
posted. That statute provides in pertinent part: (a) If the appeal is from a judgment
directing the payment of money, it does not
stay the execution of the judgment unless a
written undertaking is executed on the part of
the appellant, by one or more sureties, to the
effect that if the judgment appealed from, or
any part thereof, is affirmed, or the appeal
is dismissed, the appellant will pay the
amount directed to be paid by the judgment, or
the part of such amount as to which the
judgment shall be affirmed, if affirmed only
in part, and all damages which shall be
awarded against the appellant upon the appeal,
except as provided in subsection (b) of this
section.
Although plaintiff complains that the trial court ordered the bond
ex mero motu in response to his motion for a stay, the statute, by
its plain language, conditions a stay upon the posting of a bond.
As this Court has previously observed, "[o]ur courts have
construed orders for the payment of alimony, alimony
pendente lite,
child support, and counsel fees to be money judgments under G.S. 1-
289."
Berger v. Berger, 67 N.C. App. 591, 600, 313 S.E.2d 825,
831,
disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984).
See
also Faught v. Faught, 50 N.C. App. 635, 639, 274 S.E.2d 883, 886
(1981) (holding that an "order requiring the payment of alimony is
a 'judgment directing the payment of money'" under N.C. Gen. Stat.
§ 1-289(a) and, therefore, the trial court could require the
posting of a bond). As part of its decision below, the trial court
determined that plaintiff owed defendant $3,612.44 under the
consent judgments. The order in this case then sets out a payment
plan with plaintiff to immediately pay $2,000.00 towards his
arrearages and $100.00 per month thereafter until the remaining
past-due amount of $1,612.44 is paid in full. Under N.C. Gen.Stat. § 1-289(a), the trial court had authority to order the
posting of a bond as security for payment of those amounts. We,
therefore, overrule this assignment of error.
Reversed and remanded.
Chief Judge MARTIN and Judge CALABRIA concur.
Footnote: 1
