Hodges v. Hodges
| Decision Date | 18 October 1983 |
| Docket Number | No. 8219DC1051,8219DC1051 |
| Citation | 64 N.C.App. 550,307 S.E.2d 575 |
| Parties | Anita HODGES v. Clarence Don HODGES, Jr. |
| Court | North Carolina Court of Appeals |
Rodney Mason, Asheboro, for plaintiff-appellee.
Central Carolina Legal Services, Inc. by Stanley Sprague, Greensboro, for defendant-appellant.
Defendant's first assignment of error is that the trial court erred in not appointing counsel for defendant at the civil contempt hearing. We find no error. In reaching this result, we are bound by the North Carolina Supreme Court's holding in Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980), that (1) the Sixth Amendment right to counsel is inapplicable to civil contempt because that right is confined to criminal proceedings and (2) due process does not guarantee appointment of counsel in nonsupport civil contempt proceedings.
The Sixth Amendment right to counsel is guaranteed in any criminal prosecution where the defendant may face imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). A civil contempt proceeding is not a criminal prosecution; its purpose is not to punish, but to compel a defendant to comply with an order of the court. Jolly v. Wright, 300 N.C. at 92, 265 S.E.2d at 142. North Carolina's civil contempt statute requires that the court find that the defendant has the present ability to comply with its order before the defendant can be imprisoned. G.S. 5A-21. A defendant who has not made child support payments because he is actually unable to make the payments does not face a loss of liberty. A defendant in a nonsupport civil contempt proceeding can be imprisoned only if he has willfully violated the court order and has the present ability to make the payments. Henderson v. Henderson, 307 N.C. 401, 408, 298 S.E.2d 345, 350 (1983); Teachey v. Teachey, 46 N.C.App. 332, 334, 264 S.E.2d 786, 787 (1980). He can regain his liberty by doing that which the court has ordered him to do and he has the ability to do; i.e., make the payments. This is consistent with the notion that civil contempt is not criminal punishment, but a civil remedy to be utilized exclusively to enforce compliance with court orders. See Jolly v. Wright, supra.
When a civil proceeding may result in imprisonment, due process requirements are met by evaluating the necessity for appointed counsel on a case-by-case basis. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The court in Jolly held that since nonsupport civil contempt cases usually are not sufficiently complex to necessitate the assistance of counsel, appointment of counsel for indigents is required only "where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise insure fundamental fairness." Jolly v. Wright, 300 N.C. at 93, 265 S.E.2d at 143; see also, Daugherty v. Daugherty, 62 N.C.App. 318, 302 S.E.2d 664 (1983). A similar approach is utilized in civil paternity cases when determining whether due process requires appointment of counsel. Wake County, Ex. Rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982). The instant case presents no unusually complex issues of law or fact which would necessitate the appointment of counsel.
Defendant next assigns as error the trial court's order that defendant be imprisoned if he did not pay $350.00 because the court made no finding that defendant had the present ability to pay the money. We agree that the trial court erred.
G.S. 5A-21 provides that civil contempt is the failure to comply with an order of a court if the individual "is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order." In order to imprison a defendant found in civil contempt, the trial judge must find that the defendant has the present ability to comply or to take reasonable measures to enable him to comply with the order. Henderson v. Henderson, supra; Teachey v. Teachey, s...
To continue reading
Request your trial
-
McBride v. McBride
...v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985); Brower v. Brower, 70 N.C.App. 131, 318 S.E.2d 542 (1984); Hodges v. Hodges, 64 N.C.App. 550, 307 S.E.2d 575 (1983); 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 ......
-
Leonard v. Hammond
...in cases decided subsequent to Lassiter, see, e.g., Daugherty v. Daugherty, 62 N.C.App. 318, 302 S.E.2d 664 (1983); Hodges v. Hodges, 64 N.C.App. 550, 307 S.E.2d 575 (1983), the court had no choice. The North Carolina Court of Appeals is without authority to reverse or modify precedent of t......
-
County of Durham by and through Durham DSS v. Burnette
...not made any motion to modify or reduce the support payments." Id . at 255, 150 S.E.2d at 392. Likewise, in Hodges v. Hodges , 64 N.C. App. 550, 553, 307 S.E.2d 575, 577 (1983), this Court reversed an order for civil contempt because [o]ur Supreme Court has held that a trial court's finding......
-
Clark v. Gragg
...has not made any motion to modify or reduce the support payments." Id. at 255, 150 S.E.2d at 392. Likewise, in Hodges v. Hodges, 64 N.C.App. 550, 553, 307 S.E.2d 575, 577 (1983), this Court reversed an order for civil contempt [o]ur Supreme Court has held that a trial court's findings that ......