Daugherty v. Daugherty, 8228DC421
| Decision Date | 17 May 1983 |
| Docket Number | No. 8228DC421,8228DC421 |
| Citation | 302 S.E.2d 664,62 N.C.App. 318 |
| Parties | Betty DAUGHERTY v. Frederick DAUGHERTY. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. John W. Lassiter, Raleigh, for the State.
Whalen, Hay & Cash by Gary S. Cash, Asheville, for defendant-appellant.
Defendant, who appeared at the contempt hearing without counsel, first cites as error the Court's failure to ascertain and find whether defendant desired and was able to employ counsel, and whether the assistance of counsel was necessary for a proper presentation of his case. According to the record, the defendant's possible indigency and possible need of and desire for court-appointed counsel were not mentioned by defendant or anyone else. The contention is that the Court's failure to initiate inquiries about and resolve these matters was manifest prejudicial error as a matter of law. We disagree.
Though due process does require appointment of counsel for indigents in some nonsupport, civil contempt proceedings, in other such proceedings counsel need not be supplied. Counsel must be furnished indigents only in those proceedings "where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise ensure fundamental fairness." Jolly v. Wright, 300 N.C. 83, 93, 265 S.E.2d 135, 143 (1980). This was not such a proceeding. Instead, it was about as simple a proceeding of this kind as ever arises. The District Attorney did not participate in it; the failure to pay as directed could not be disputed; no formal evidentiary processes, complicated or otherwise, were involved; no witness appeared against the defendant, who was afforded the opportunity to present any information that he wanted to the judge, and did so without interference. Had a lawyer been there he would have had no occasion to cross-examine anyone or object to anything. The only thing that the situation permitted or required was for the defendant to explain his failure to pay. The record shows that he did that about as well as anyone could have under the circumstances that existed. What his explanation amounted to was that: His gross monthly earnings of $835 were all needed by his subsequently-acquired family, which included a wife, two new children, and his wife's child by a former marriage, and he was therefore unable to pay $80 a month toward the support of the child of his first marriage as the Court had directed. Neither the record nor appellant's brief contains anything that causes us to even suspect that this old, familiar, and unavailing story could have been...
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