Patterson v. Patterson
| Decision Date | 25 May 1949 |
| Docket Number | 601. |
| Citation | 53 S.E.2d 658,230 N.C. 481 |
| Parties | PATTERSON v. PATTERSON. |
| Court | North Carolina Supreme Court |
Civil action for divorce involving custody of children of the marriage, heard upon notice to defendant and her sister, Mrs. K.M. Cox, to show cause why they should not be held in contempt of court for violating an order pertaining to the custody of said children.
The record on this appeal discloses these procedural facts: 1. This action was instituted in Superior Court of Stanly County, 3 September, 1942, for absolute divorce from the bonds of matrimony existing between plaintiff and defendant on ground of two years separation, and, at November Term 1942, judgment was rendered therein in accordance with the relief sought. But no reference to the two children of the marriage is made in the complaint filed in the action, and no provision for their custody is made in the judgment so rendered.
2. Thereafter on 18 August, 1947, plaintiff, by verified petition filed in this action, petitioned the court for an order committing to him the custody and tuition of the said children of the marriage. Plaintiff alleges in this petition that defendant secured possession of the children on 10 August, 1947, under pretense of keeping them for a few days visit, and then refused to return them to him, and is about to leave the State of North Carolina taking the children with her.
3. Thereupon, on same date, 18 August, 1947, in Rockingham North Carolina, the Honorable W.G. Pittman, Judge of the 13th Judicial District of North Carolina, entered an order (1) awarding to plaintiff the immediate temporary custody of the children, and (2) requiring defendant to appear before him the Judge aforesaid, at the courthouse in Asheboro, North Carolina, on Monday, September 2, 1947, at 2 o'clock P.M., to show cause, if any she has, why the temporary order of custody of said children should not be made permanent. And, on same date, this order was served on defendant by a deputy sheriff of Alamance County, North Carolina.
4. Pursuant thereto, and on 4 September, 1947, his Honor W.G Pittman, in Chambers at Asheboro, North Carolina, entered an order in which, after finding as a fact that defendant was then a non-resident of the State of North Carolina, and a resident of the State of Georgia, the temporary custody of said children was granted to plaintiff until further orders of the court, and the permanent custody of the children be finally determined.
5. Thereafter plaintiff, by motion in the cause in this action and for causes set forth, moved the court for an order adjudging defendant and her sister Mrs. K.M. Cox, of Burlington, North Carolina, guilty of contempt for willful violation of the said order of his Honor W.G. Pittman, Resident Judge of the 13th Judicial District, dated 4 September, 1947. And, thereupon, on 10 December, 1948, his Honor F. Donald Phillips, then Resident Judge of the said 13th Judicial District, in Chambers at Rockingham, North Carolina, entered an order (1) requiring defendant and Mrs. K.M. Cox to appear before him on 20 December, 1948, at 11 o'clock A.M., in Rockingham, North Carolina, and "show cause, if any there be, why they should not be punished for contempt," and (2) requiring that Mrs. Cox, "in order to purge herself of the alleged acts of contempt, notify" defendant "wheresoever she may now reside of the issuance of this order, and that she personally see that the said infants are before this court on the date of said hearing." This order was served on Mrs. Cox on 13 December, 1948, by a deputy sheriff of Alamance County, and she answered, denying in the main the allegations made against her.
6. Thereafter when the cause came on for hearing on the rule to show cause described in last preceding paragraph at time and place designated therefor, his Honor Phillips, Judge as aforesaid, finding as facts in substance that Mrs. K.M. Cox, with knowledge of the said order of Pittman, J., dated 4 September, 1947, aided and abetted defendant in removing said children from the State of North Carolina, adjudged that "Mrs. K.M. Cox is guilty of contempt and as for contempt of this court" and continued prayer for judgment until 22 January, 1949--she to appear before said Judge at that time and abide the further orders of the court.
7. And on 22 January, 1949, Phillips, Judge as aforesaid, made additional findings of fact in respect to the alleged violation of the order of Pittman, J., as aforesaid, and thereupon adjudged and declared Mrs. K.M. Cox "to be guilty of contempt and as for contempt of this court, and that she be committed to the common jail of Stanly County, North Carolina, for a period of 30 days, for such contempt," and that in accordance therewith, commitment issue.
Mrs. K.M. Cox appeals therefrom to Supreme Court, and assigns error.
S.H. McCall, Jr., David H. Armstrong, Troy, for plaintiff appellee.
Thomas C. Carter, Burlington, W.I. Ward, Jr., Graham, for respondent appellant.
In this State any person found guilty of willful disobedience of an order lawfully issued by any court of competent jurisdiction may be punished for contempt. G.S. § 5-1, subd 4. Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420; Elder v. Barnes, 219 N.C. 411, 14 S.E.2d 249; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577. But an order of court not "lawfully issued" may not be the basis on which to found a proceeding for contempt. In re Longley, 205 N.C. 488, 171 S.E. 788. Hence appellant on this appeal challenges, and we hold properly so,...
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