McMiller v. McMiller, No. 8518DC463
| Docket Nº | No. 8518DC463 |
| Citation | 77 N.C.App. 808, 336 S.E.2d 134 |
| Case Date | November 19, 1985 |
| Court | Court of Appeal of North Carolina (US) |
Page 134
v.
Romie McMILLER.
Gregory L. Gorham, Greensboro, for plaintiff-appellee.
Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for defendant-appellant.
[77 N.C.App. 809] PARKER, Judge.
Civil contempt proceedings are a proper method of enforcing orders for payment of child support. Smith v. Smith, 248 N.C. 298, 103 S.E.2d 400 (1958). The purpose of civil contempt is not to punish but to coerce a defendant into compliance with the support order. See, e.g., Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). Although the power of a court to hold a violator of a court order in contempt is inherent, e.g., Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577 (1948), it is limited somewhat by the requirements of G.S. 5A-21 thru 5A-25.
General Statute 5A-21 provides that a person may not be imprisoned for civil contempt unless "[t]he 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." G.S. 5A-21(a)(3). General Statute 5A-22 provides that the order of a court holding a person in contempt must specify how the person may purge himself of the contempt. Because these statutes relate to the same subject matter, they must be construed in pari materia. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984). When so construed, these statutes require that a person have the present ability to comply with the conditions for purging the contempt before that person may be imprisoned for civil contempt. Bennett v. Bennett, 71 N.C.App. 424, 322 S.E.2d 439 (1984).
In the instant case, the trial judge found as fact only that defendant "has had the ability to pay as ordered." This finding justifies a conclusion of law that defendant's violation of the support order was willful, Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980); however, standing alone, this finding of fact does not support the conclusion of law that defendant has the present ability to purge himself of the contempt by paying the arrearages. See Brower v. Brower, 70 N.C.App. 131, 318 S.E.2d 542 (1984).
To justify conditioning defendant's release from jail for civil contempt upon payment of a large lump sum of arrearages, the district court must find as fact that defendant has the present ability to pay those arrearages. The majority of cases...
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McBride v. McBride, No. 419PA92
...Bishop v. Bishop, 90 N.C.App. 499, 369 S.E.2d 106 (1988); Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1988); McMiller 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); Jon......
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Dawkins v. Staley, 1:22-CV-299
...parties have “an obligation to observe [a court] order [to pay child support] until it [is] lawfully changed.”); McMiller v. McMiller, 336 S.E.2d 134, 135 (N.C. Ct. App. 1985) (citation omitted) (noting that “[c]ivil contempt proceedings are a proper method of enforcing orders for payment o......
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County of Durham by and through Durham DSS v. Burnette, No. COA17-557
...ability test," which requires the defendant to "possess some amount of cash, or asset readily converted to cash." McMiller v. McMiller , 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985).In this case, Defendant expressly acknowledged his duty to support his children. Defendant entered into ......
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Whitaker v. Whitaker, No. COA06-465 (N.C. App. 2/6/2007), No. COA06-465
...judgment.'" Gen. Motors Acceptance Corp. v. Wright, 154 N.C. App. 672, 677, 573 S.E.2d 226, 229 (2002) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 Of the elements of contempt, plaintiff challenges only the first and third, arguing that Judge John's order was no......
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McBride v. McBride, 419PA92
...Bishop v. Bishop, 90 N.C.App. 499, 369 S.E.2d 106 (1988); Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1988); McMiller 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); Jon......
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Dawkins v. Staley
...parties have “an obligation to observe [a court] order [to pay child support] until it [is] lawfully changed.”); McMiller v. McMiller, 336 S.E.2d 134, 135 (N.C. Ct. App. 1985) (citation omitted) (noting that “[c]ivil contempt proceedings are a proper method of enforcing orders for payment o......
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County of Durham by and through Durham DSS v. Burnette, COA17-557
...ability test," which requires the defendant to "possess some amount of cash, or asset readily converted to cash." McMiller v. McMiller , 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985).In this case, Defendant expressly acknowledged his duty to support his children. Defendant entered into ......
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Whitaker v. Whitaker, No. COA06-465 (N.C. App. 2/6/2007), COA06-465
...judgment.'" Gen. Motors Acceptance Corp. v. Wright, 154 N.C. App. 672, 677, 573 S.E.2d 226, 229 (2002) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 Of the elements of contempt, plaintiff challenges only the first and third, arguing that Judge John's order was no......