MATTHEW VAUGHN,
Plaintiff,
v. Harnett County
No. 03 CVD 372
STEPHANIE VAUGHN,
Defendant.
Akins, Hunt & Fearon, PC, by Belinda Sukeena, for plaintiff-
appellant.
No brief for defendant-appellee.
ELMORE, Judge.
Matthew Vaughn (plaintiff) appeals from an order for civil
contempt entered on 18 January 2005. For the reasons stated below,
the contempt order is vacated.
Plaintiff and Stephanie Vaughn (defendant) were married on 22
February 1992 and had a child on 13 October 1994. The parties
entered into a separation and property settlement agreement on 5
February 2002, and plaintiff filed a complaint on 18 February 2003
in which he sought an absolute divorce. On 9 June 2003 the trial
court entered a judgment of divorce. The parties' separation andproperty settlement agreement, which had been modified on 30
October 2002, was incorporated into the divorce judgment.
On 30 September 2004 plaintiff filed a motion to modify child
custody and child support. Following a hearing, the trial court
entered a custody order on 27 October 2004 that awarded primary
physical custody of the child to plaintiff and terminated
plaintiff's child support obligation. The trial court further
ordered that “[n]either party shall have guests of the opposite sex
at the house between the hours of 8:00 pm and 7:00 am. . . . Any
violation of this order shall subject the parties to the contempt
powers of this court.”
On 28 December 2004 defendant filed a “motion and notice of
hearing for contempt” in which she claimed that plaintiff had
willfully failed to comply with the custody order. Defendant
asserted that the custody order required plaintiff to “have
girlfriend (Lace) move out” and that plaintiff's girlfriend had
continued to live at plaintiff's home as of 28 December 2004. At
the proceeding for civil contempt on 18 January 2005, plaintiff
introduced a certificate of marriage between himself and Lacene Fay
Koszi dated 15 January 2005. The certificate was filed with the
Harnett County Register of Deeds on 18 January 2005.
In entering its “order for civil contempt,” the trial court
utilized a preprinted “fill-in-the-blank” form. Although the trial
court found that the custody order required the parties “[n]ot have
guests of the opposite sex at the house between the hours of 8:00
pm and 7:00 am,” the contempt order does not contain a finding asto how plaintiff had violated this requirement. The trial court
did not fill in the contempt order's fifth finding of fact as to
how “the purpose of the order may still be served by compliance
. . . .” In addition, the trial court's contempt order failed to
specify the action which plaintiff must take to purge himself of
the contempt.
After concluding that plaintiff “has no just cause for
refusing to abide by the order of the Court and is in willful civil
contempt of this Court[,]” the trial court ordered plaintiff to
spend fifteen consecutive weekends in jail. Plaintiff gave notice
of appeal, and then filed a motion for temporary stay and a
petition for writ of supersedeas on 21 January 2005. This Court
allowed the motion on 21 January 2005 and the petition on 8
February 2005.
Plaintiff contends the trial court failed to make the
requisite findings of fact to support its conclusion that he was in
civil contempt of court. He further argues the trial court failed
to state how he could purge himself of the contempt. Plaintiff's
arguments are persuasive.
At the conclusion of a proceeding for civil contempt, the
trial court “must enter a finding . . . on each of the elements set
out in G.S. 5A-21(a).” N.C. Gen. Stat. § 5A-23(e) (2005). Those
elements are:
(1) The order remains in force;
(2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whomthe order is directed is willful; 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 the
person to comply with the order.
N.C. Gen. Stat. § 5A-21(a)(1-3) (2005). If a trial court finds
civil contempt, it then “must enter an order finding the facts
constituting contempt and specifying the action which the contemnor
must take to purge himself or herself of the contempt.” N.C. Gen.
Stat. § 5A-23(e) (2005).
The trial court's contempt order does not state how the
purpose of its custody order dated 19 October 2004 and entered on
27 October 2004 may still be served by compliance. Nor does the
contempt order contain a finding as to the alleged act of
noncompliance by plaintiff or that his action was willful. The
trial court made no finding as to plaintiff's ability to comply
with the custody order, and it failed to specify what action
plaintiff must take to purge himself of the contempt. Because the
trial court's incomplete findings of fact do not support its
conclusions of law, the contempt order must be vacated. In his
remaining argument, plaintiff contends the trial court's contempt
order was contrary to the evidence, an abuse of discretion, and an
error as a matter of law. Assuming the trial court had made proper
findings of fact consistent with the allegations in defendant's
“motion and notice of hearing for contempt,” the evidence in the
record of plaintiff's marriage to Lacene Fay Koszi on 15 January
2005 appears to show that plaintiff was in compliance with the
custody order prior to the proceeding for civil contempt on 18January 2005. A district court “does not have the authority to
impose civil contempt after an individual has complied with a court
order, even if the compliance occurs after the party is served with
a motion to show cause why he should not be held in contempt of
court.” Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d 909, 912
(2003). The order for civil contempt is vacated.
Vacated.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***