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21 N.C. App. 390

204 S.E.2d 554

Bennett v. Bennett

Court of Appeals of North Carolina · decided 1974-05-01

Key passage — most relied on by later courts

“In determining a contemnor's present ability to pay, the appellate courts of this state have directed trial courts to 'take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and work-an inventory of his financial condition.'”

quoted by 2 later decisions, including 253 N.C. App. 484 - Plasman v. Decca Furniture (USA), Inc., 233 N.C. App. 477 - Gordon v. Gordon

“... [I]n order to find a party in civil contempt, the court must find that the party acted willfully in failing to comply with the order at issue. "Willfulness constitutes: (1) an ability to comply with the court order; and (2) a deliberate and intentional failure to do so." Therefore, in order to address the requirement of willfulness, "the trial court must make findings as to the ability of the [contemnor] to comply with the court order during the period when in default." ... Second, once the trial court has found that the party had the means to comply with the prior order and deliberately refused to do so, "the court may commit such [party] to jail[.] ... At that point, however, ... the court must find that the party has the present ability to pay the total outstanding amount.”

quoted by 1 later decision, including Tigani v. Tigani

Relies on Mauney v. Mauney · Lamm v. . Lamm · 10 N.C. App. 476 - Cox v. Cox

Good law ✅— No negative treatment on recordhow we know

Decided 1974-05-01

How this case has been cited

Cited by 37 later decisions — most recently October 2018 · most notably 35 N.C. App. 748 - Moore v. Moore (1978), 74 N.C. App. 82 - Plott v. Plott (1985)

37 state decisions

11019741980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

BALEY, Judge.

¶1 Defendant contends that the facts found by the court were not sufficient to support the conclusion that he had wilfully failed to comply with the order for child support. He further maintains that there must be a specific finding by the court that he presently possesses the means to comply with the court order before he can be committed as for contempt.

¶2*393 G.S. 50-13.4(9) provides:

“The wilful disobedience of an order for the payment of child support shall be punishable as for contempt as provided by G.S. 5-8 and G.S. 5-9.”

¶3 Wilful disobedience has been interpreted by our court as disobedience “which imports knowledge and a stubborn resistance.” Mau ney v. Mauney, 268 N.C. 254, 257, 150 S.E. 2d 391, 393. In Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E. 2d 403, 404, the court stated:

“Manifestly, one does not act wilfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered.”

¶4 To constitute wilful disobedience there must be an ability to comply with the court order and a deliberate and intentional failure to do so.

¶5 The facts found by the trial court in the present case showed that defendant was employed during a large portion of the period when the default in support payments occurred at sufficient compensation to permit him to make the payments. Indeed, his employment with a construction company was terminated less than a week prior to the contempt hearing. The court found that defendant had openly stated to the plaintiff that he did not intend to remain employed or to earn sufficient income to make the support payments. Defendant was able to pay at the time payment was required and wilfully failed to comply with the court order. Past contempt cannot be ignored by the court even if at the exact time of the contempt hearing the defendant does not have means to comply. A defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order. The action of the trial court in punishing defendant by commitment for a definite term for past conduct constituting a violation of its order was entirely proper. Cox v. Cox, 10 N.C. App. 476, 479, 179 S.E. 2d 194, 197 (Brock, J., concurring).

¶6 When a defendant has the present means to comply with a court order and deliberately refuses to comply, there is a present and continuing contempt and the court may commit such defendant to jail for an indefinite term, that is, until he com *394 plies with the order. Under such circumstances, however, there must be a specific finding of fact supported by competent evidence to the effect that such defendant possesses the means to comply with the court order. Our Supreme Court has indicated in Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353, as reaffirmed in Gorrell v. Gorrell, 264 N.C. 403, 141 S.E. 2d 794, that “the court below should take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and work—an inventory of his financial condition”—so that there will be convincing evidence that the failure to pay is deliberate and wilful.

¶7 The findings of the trial court are sufficient to show wilful failure to comply with its prior order for child support, and its commitment of defendant as for contempt is affirmed.

¶8 Affirmed.

Chief Judge Brock and Judge Parker concur.
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