Frank v. Glanville
| Citation | 45 N.C.App. 313,262 S.E.2d 677 |
| Decision Date | 19 February 1980 |
| Docket Number | No. 7911DC461,7911DC461 |
| Court | North Carolina Court of Appeals |
| Parties | Glenda M. FRANK, Petitioner-Appellee, v. Marshall GLANVILLE, Respondent-Appellant. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.
M. Travis Payne of Wake-Johnston-Harnett Legal Services, Inc., Smithfield, for respondent-appellant.
Defendant first assigns as error the order that he be imprisoned for civil contempt, contending that a person must possess the present ability to comply with the contempt order before he can be so imprisoned.
Our Supreme Court stated in Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E.2d 403, 404 (1948) that,
Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered.
Lamm has been favorably cited in subsequent cases Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966), and Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971) for the same proposition.
Since the decision of the above cases, the legislature has rewritten the statute governing civil contempt. The new statute, G.S. 5A-21, is consistent with prior case law and states that,
(a) Failure to comply with an order of a court is a continuing civil contempt as long as:
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(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 him to comply with the order.
The official commentary points out that civil contempt is appropriate ". . . only so long as the court order is capable of being complied with."
The official commentary also points out that subsection (a)(3) of the statute has perhaps broadened the scope of acts punishable by contempt. Under Lamm, supra, one could not be punished by contempt for failing to comply with a judgment if, since the time of the judgment, he has not had the ability to do so. The commentary to G.S. 5A-21 attempts to close any loopholes that may have arisen by stating that a person will be guilty of civil contempt, even if he does not have the money to make court order payments, if he ". . . could take a job which would enable him to make those payments . . . ." We concur in the interpretation set out in the commentary.
Defendant, by his second assignment of error, contends there was no finding of fact by the trial court of a present ability to comply with the contempt order.
Our Supreme Court stated in Mauney, supra, 268 N.C. at p. 257, 150 S.E.2d at p. 393, that,
. . . this 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 Court in Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353 (1938), even found it necessary before a contempt order could be issued for
. . . the court below (to) take an inventory of the property of the (defendant); find what are his assets and liabilities and his ability to pay and work an inventory of his financial condition.
The trial court attempted to...
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...Jones v. Jones, 62 N.C.App. 748, 303 S.E.2d 583 (1983); Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980); Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980); Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 ...
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Shumaker v. Shumaker, No. COA99-197.
...to fluctuations in the income of his truck painting business, if in fact, such fluctuations [exist]." In Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980), this Court held that a person may be guilty of civil contempt, even if he does not have the money to make court ordered paymen......
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...either by making immediate payment or by taking reasonable measures to obtain that amount. Mauney, supra; Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980). On the record before us, there is insufficient evidence of defendant's ability to comply with the order during the period of ......
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Cumberland Cnty. ex rel. Mitchell v. Manning, COA17-662
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