Mauney v. Mauney, 203

• Decision Date: 12 October 1966
• Docket Number: No. 203,203
• Citation: 150 S.E.2d 391,268 N.C. 254
• Court: North Carolina Supreme Court
• Parties: Dolly T. MAUNEY v. David Jennings MAUNEY.

Page 391

150 S.E.2d 391

268 N.C. 254

Dolly T. MAUNEY v. David Jennings MAUNEY.

No. 203.

Supreme Court of North Carolina.

Oct. 12, 1966.

Robert H. Forbes, Gastionia, for plaintiff, appellee.

Frank P. Cooke, Yastionia, and Childers & Fowler, Mt. Holly, for defendant, appellant.

BRANCH, Justice.

Civil contempt and criminal contempt are distinguishable. 'It is essential to the due administration of justice in this field of the law that the fundamental distinction between a proceeding for contempt under G.S. § 5--1 and a proceeding as for contempt under G.S. § 5--8 be recognized and enforced. The importance of the distinction lies in differences in the procedure, the punishment, and the right of review established by law for the two proceedings.' Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345.

The case of Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157, held: 'Criminal contempt is a form applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice. * * * Civil contempt is a term applied where the proceeding is had 'to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties.' * * * Resort to this proceeding is common to enforce orders in the equity jurisdiction of the court, orders for the payment of alimony, and in like matters. In North Carolina, such proceeding is authorized by statute, C.S. 985 (now G.S. § 5--8).'

In reaching decision in this case we need only consider the question, Did the trial court make the necessary findings of fact to support the judgment of imprisonment entered?

'A contempt proceeding is Sui generis. It is criminal in its nature, and (in) that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be resorted to in civil or criminal action. * * * In contempt proceedings, the fact upon which the contempt is based must be found and filed, especially the facts concerning the purpose and object of the contemnor, and the judgment must be founded on these findings.' In re Hege, 205 N.C. 625, 172 S.E. 345.

A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is wilful, which imports knowledge and a stubborn resistance. '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 v. Lamm, 229 N.C. 248, 49 S.E.2d 403.

Hence, 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.

Parker, J. (now C.J.), speaking for the Court in the case of Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867, said: 'The lower court has not found as a fact that the defendant possessed the means to comply with the orders for payment of subsistence Pendente lite at any time during the period when he was in default in such payments. Therefore, the finding, that the defendant's failure to make the payments of subsistence was deliberate and wilful, is not supported by the record, and the decree...