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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-986


Filed: 19 June 2007


S.J.R.                                 Davidson County
                                    No. 05 J 128

    Appeal by defendant from judgment entered 9 May 2006 by Judge Mary F. Covington in Davidson County District Court. Heard in the Court of Appeals 22 February 2007.

    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.

    “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.

    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).

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