IN THE MATTER OF
S.J.R. Davidson County
No. 05 J 128
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for the State.
Bryan Gates for defendant-appellant.
CALABRIA, Judge.
Donna W. (“defendant”) appeals from an order finding her in
contempt of court and sentencing her to 48 hours in the custody of
the Davidson County Sheriff. We reverse the order of the trial
court and remand the case for appropriate proceedings.
The State presented evidence that on 24 March 2006, Robert
Lanier (“Chief Lanier”), chief of the Denton Police Department,
came to defendant's home to arrest defendant's son, S.J.R.
(“S.J.R.”) for larceny of a motor vehicle. Chief Lanier testified
that he handcuffed S.J.R., but removed the handcuffs so that S.J.R.
could put on his shoes and shirt. “At that point he ran out the
back door,” Chief Lanier stated. “His mother was standing besidethat door, and as I was pursuing him out the door she told him _
this is a quote _ 'Run, S.[], run.'”
Although Chief Lanier chased S.J.R. for approximately 500
feet, he lost him. Officers spent the rest of the day trying to
locate S.J.R. S.J.R. was later apprehended by the police in West
Virginia and returned to North Carolina.
Defendant, in her testimony, denied encouraging her son to run
from the officers. She stated that after her son fled, she began
searching for him. Approximately one week later, defendant had a
friend drive her to West Virginia, where she found S.J.R. She did
not alert the police, but instead called S.J.R.'s father and asked
him to come to West Virginia to pick up the boy. However, police
apprehended S.J.R. before the boy's father arrived.
On 11 April 2006, defendant was served with a motion and order
to show cause why she should not be held in contempt. The show
cause order accused defendant of violating a 10 February 2006 order
requiring defendant and S.J.R.'s father to cooperate with programs
relating to their son's participation in the Intensive Family
Preservation Community Program.
On 9 May 2006, Judge Covington heard the show cause motion,
ordered that defendant was in civil contempt and sentenced her to
48 hours in the custody of the Davidson County Sheriff. North
Carolina General Statute . 5A-21 (2005) allows the court to hold a
party in civil contempt in certain circumstances.
(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;
(2a) The noncompliance by the person to whom
the 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.
(b) A person who is found in civil contempt
may be imprisoned as long as the civil
contempt continues, subject to the limitations
provided in subsections (b1) and (b2) of this
section. Notwithstanding subsection (b2) of
this section, if a person is found in civil
contempt for failure to pay child support or
failure to comply with a court order to
perform an act that does not require the
payment of a monetary judgment, the person may
be imprisoned as long as the civil contempt
continues without further hearing.
(b1) A person who is found in civil contempt,
but was not arrested, for failure to comply
with a nontestimonial identification order
issued pursuant to Article 14, Nontestimonial
Identification Order, of Chapter 15A of the
General Statutes may not be imprisoned more
than 90 days unless the person is arrested on
probable cause.
(b2) The period of imprisonment for a person
found in civil contempt shall not exceed 90
days for the same act of disobedience or
refusal to comply with an order of the court.
A person who has not purged himself or herself
of the contempt within the period of
imprisonment imposed by the court under this
subsection may be recommitted for one or more
successive periods of imprisonment, each not
to exceed 90 days. However, the total period
of imprisonment for the same act of
disobedience or refusal to comply with the
order of the court shall not exceed 12 months,
including both the initial period of
imprisonment imposed under this section and
any additional period of imprisonment imposed
under this subsection. Before the court may
recommit a person to any additional period of
imprisonment under this subsection, the courtshall conduct a hearing de novo. The court
must enter a finding for or against the
alleged contemnor on each of the elements of
G.S. 5A-21(a), and must find that all of
elements of G.S. 5A-21(a) continue to exist
before the person can be recommitted. For
purposes of this subsection, a person's
failure or refusal to purge himself or herself
of contempt shall not be deemed a separate or
additional act of disobedience, failure, or
refusal to comply with an order of the court.
(c) A person who is found in civil contempt
under this Article shall not, for the same
conduct, be found in criminal contempt under
Article 1 of this Chapter.
Id.
“The purpose of civil contempt is not to punish; rather, its
purpose is to use the court's power to . . . coerce the defendant
to comply with an order of the court.” Atassi v. Atassi, 122 N.C.
App. 356, 360, 470 S.E.2d 59, 61 (1996) (quotation marks omitted).
Here, Judge Covington ordered defendant confined for 48 hours
as punishment for violating a court order. The trial court did not
confine the defendant to coerce her compliance with that order. In
doing so, the judge essentially punished defendant for criminal
contempt. Criminal contempt is provided in N.C. Gen. Stat. . 5A-15
(2005) as follows:
(a) When a judicial official chooses not to
proceed summarily against a person charged
with direct criminal contempt or when he may
not proceed summarily, he may proceed by an
order directing the person to appear before a
judge at a reasonable time specified in the
order and show cause why he should not be held
in contempt of court. A copy of the order must
be furnished to the person charged. If the
criminal contempt is based upon acts before a
judge which so involve him that his
objectivity may reasonably be questioned, theorder must be returned before a different
judge.
(b) Proceedings under this section are before
a district court judge unless a court superior
to the district court issued the order, in
which case the proceedings are before that
court. Venue lies throughout the district
court district as defined in G.S. 7A-133 or
superior court district or set of districts as
defined in G.S. 7A-41.1, as the case may be,
where the order was issued.
(c) The person ordered to show cause may move
to dismiss the order.
(d) The judge is the trier of facts at the
show cause hearing.
(e) The person charged with contempt may not
be compelled to be a witness against himself
in the hearing.
(f) At the conclusion of the hearing, the
judge must enter a finding of guilty or not
guilty. If the person is found to be in
contempt, the judge must make findings of fact
and enter judgment. The facts must be
established beyond a reasonable doubt.
(g) The judge presiding over the hearing may
appoint a prosecutor or, in the event of an
apparent conflict of interest, some other
member of the bar to represent the court in
hearings for criminal contempt.
Id.
Here, Judge Covington sat as trier of fact and found facts
using the reasonable doubt standard. However, there was no finding
that defendant was guilty of criminal contempt. Instead, she was
cited for civil contempt. In doing so, the judge failed to state
a purge condition that would allow the defendant to avoid
incarceration. We have held that a civil contempt order must be
vacated if the judge fails to include this purge condition. Betheav. McDonald, 70 N.C. App. 566, 320 S.E.2d 690 (1984). See also
N.C. Gen. Stat. . 5A-22 (2005) (“The order of the court holding a
person in civil contempt must specify how the person may purge
himself of the contempt.”) Accordingly, it is clear Judge
Covington's order cannot stand as a civil contempt order. Although
it appears from the record that defendant could have been punished
for criminal contempt, no such finding was made by the trial judge.
A judge may order a criminal contemnor to be incarcerated as a
punitive measure without a purge condition since criminal contempt
is punitive rather than coercive in nature, so long as the judge
complies with the statutory requirements set forth in N.C. Gen.
Stat. . 5A-15 (2005).
Because we determine the trial court erred in citing defendant
for civil contempt, we set aside the trial court's finding of civil
contempt against the defendant and remand this case for further
proceedings as required by law.
Reversed and remanded.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***