Teachey v. Teachey
| Citation | 264 S.E.2d 786,46 N.C.App. 332 |
| Decision Date | 15 April 1980 |
| Docket Number | No. 7921DC902,7921DC902 |
| Parties | Anne Marlette TEACHEY v. William Granger TEACHEY. |
| Court | Court of Appeal of North Carolina (US) |
Pfefferkorn & Cooley by David C. Pishko, Winston-Salem, for plaintiff-appellee.
House, Blanco & Randolph by Clyde C. Randolph, Jr., and Reginald F. Combs, Winston-Salem, for defendant-appellant.
This contempt proceeding is governed by N.C.G.S. 5A-21(a) which provides in pertinent part:
The trial court found as a fact that "(d)efendant has possessed the means with which to comply with the Order for child support subsequent to the date said Order was registered in the State of North Carolina, December 14, 1978." Defendant excepted to this finding and argues the evidence does not support it. This finding is essential to a valid contempt order.
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.
. . . the court must find not only failure to comply but that the defendant presently possesses the means to comply.
Mauney v. Mauney, 268 N.C. 254, 257-58, 150 S.E.2d 391, 393-94 (1966) (emphasis in original).
"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, 250, 49 S.E.2d 403, 404 (1948). To support a finding of willfulness, there must be evidence to establish as an affirmative fact that defendant possessed the means to comply with the order for support at some time after the entry of the order. Id.
Where the evidence supports a finding that defendant did have the ability to comply with a support order at some time while it was effective but failed to do so, the question remains whether he can be punished for civil contempt by imprisonment until he complies with the order, or whether his behavior is only punishable as criminal contempt by imprisonment for a maximum of thirty days. The answer lies in the above quoted portion of N.C.G.S. 5A-21. For civil contempt to be applicable, the defendant must be able to comply with the order or take reasonable measures that would enable him to comply with the order. We hold this means he must have the present ability to comply, or the present ability to take reasonable measures that would enable him to comply, with the order. Mauney, supra....
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