OFFICIAL COMMENTARY

This Chapter replaces Chapter 5 of the North Carolina General Statutes. The Commission deals with the full range of contempt, both criminal and civil, for two reasons. First, criminal contempt is clearly within the subject matter which the Commission was charged to study, and many aspects of civil contempt are necessary to the enforcement of orders in criminal cases. Second, once the Commission began to deal with criminal contempt, it became necessary also to deal with civil contempt since the two are inextricably bound together in Chapter 5. The provisions in Chapter 5A are not directly drawn from any other statute, but they are drafted in light of Chapter 5 and of the American Bar Association's standards on the function of the trial judge. This Chapter does not carry forward the provisions of Chapter 5 which grant contempt powers to boards of county commissioners and the Utilities and Industrial Commissions. The application of those powers was sufficiently unclear under Chapter 5 that the Commission thought it best that those bodies either initiate statutes specifically dealing with that authority or that those bodies rely on court orders or criminal statutes dealing with the disruption of meetings.

Editor's Note. - The "Official Commentary" under this Chapter is reprinted from the Legislative Program and Report of the Criminal Code Commission to the 1977 General Assembly.

The Official Comments appearing under individual sections in this Chapter have been printed by the publisher as received, without editorial change, and relate to the Chapter as originally enacted. However, not all sections in this Chapter may carry Official Comments. Furthermore, Official Comments may or may not have been received or updated in conjunction with subsequent amendments to this Chapter and, therefore, may not reflect all changes to the sections under which they appear.

Where they appear in this Chapter, "Amended Comment" usually means that an error in the original comment has been corrected by a subsequent amendment, and "Supplemental Comment" pertains to a later development, such as an amendment to the statute text.

ARTICLE 1. Criminal Contempt.

Sec.

OFFICIAL COMMENTARY

The establishment of this Article represents one of the basic purposes of the Commission in drafting the Chapter on contempt - to draw a sharp distinction between proceedings for criminal contempt and the proceedings for civil contempt (or "as for contempt"). This Article deals with those matters for which a sanction is imposed purely as punishment. The sanction occurs without regard to what the contemnor will do after imposition of the sanction.

§§ 5A-1 through 5A-10: Reserved for future codification purposes.

§ 5A-11. Criminal contempt.

  1. Except as provided in subsection (b), each of the following is criminal contempt:
    1. Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.
    2. Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.
    3. Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.
    4. Willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified.
    5. Willful publication of a report of the proceedings in a court that is grossly inaccurate and presents a clear and present danger of imminent and serious threat to the administration of justice, made with knowledge that it was false or with reckless disregard of whether it was false. No person, however, may be punished for publishing a truthful report of proceedings in a court.
    6. Willful or grossly negligent failure by an officer of the court to perform his duties in an official transaction.
    7. Willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court.
    8. Willful refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A, Granting of Immunity to Witnesses.
    9. Willful communication with a juror in an improper attempt to influence his deliberations.
    10. Willful refusal by a defendant to comply with a condition of probation.
    11. Willful refusal to accept post-release supervision or to comply with the terms of post-release supervision by a prisoner whose offense requiring post-release supervision is a reportable conviction subject to the registration requirement of Article 27A of Chapter 14 of the General Statutes. For purposes of this subdivision, "willful refusal to accept post-release supervision or to comply with the terms of post-release supervision" includes, but is not limited to, knowingly violating the terms of post-release supervision in order to be returned to prison to serve out the remainder of the supervisee's sentence.
    12. Any other act or omission specified elsewhere in the General Statutes of North Carolina as grounds for criminal contempt.
  2. No person may be held in contempt under this section on the basis of the content of any broadcast, publication, or other communication unless it presents a clear and present danger of an imminent and serious threat to the administration of criminal justice.
  3. This section is subject to the provisions of G.S. 7A-276.1, Court orders prohibiting publication or broadcast of reports of open court proceedings or reports of public records banned.

The grounds for criminal contempt specified here are exclusive, regardless of any other grounds for criminal contempt which existed at common law.

History

(1977, c. 711, s. 3; 1994, Ex. Sess., c. 19, s. 1; 2011-307, s. 6.)

OFFICIAL COMMENTARY

This section is based on Section 5-1. Generally this section merely compresses the existing statement of grounds for criminal contempt, including the consolidation of previously separate grounds. Under subdivision (4), refusal to answer a question when that answer is privileged would not be contempt since the refusal would be "legally justified." Subdivision (5) adds the clause "made with knowledge that it was false . . ." thus engrafting the standard of New York Times v. Sullivan, 376 U.S. 254 (1964), onto cases of alleged contempt in publishing reports of proceedings. Subdivision (7) does not have a counterpart in Chapter 5; it was added to make clear, for example, that the failure to appear in court at the proper time by one, including counsel, whose nonappearance would interfere with the court's schedule, could be subject to criminal contempt. Subdivision (9) is new and gives the court authority to step in immediately in cases of improper communication with jury. It is intended to complement the provision of a new G.S. 14-225.1, enlarging the Chapter 14 provisions dealing with jury tampering. The provisions of G.S. 5A-12(e) dictate the relationship between the two sanctions for jury tampering. Subdivision (10) is also new and is intended to insure that this Chapter does not reject attempts elsewhere in the General Statutes to make certain acts criminal contempt. The final sentences of this section are intended to effect the same purpose as the final two sentences of G.S. 5-1. Subsection (b) supplements or clarifies G.S. 5A-11(a)(4) by prohibiting as punishment as contempt for a communication which does not pose a "clear and present danger" to justice. Subsection (c) operates as a reminder of the existence of another new provision, G.S. 7A-276.1, which prohibits "gag orders" of reports of open-court proceedings or of records required to be open to public inspection. Especially important is the final sentence of the section making such an order void, thus overcoming the usual rule that a person subject to an order must comply with that order, even though it may be illegal, until a higher court declares its illegality.

Cross References. - As to failure to obey judgment, see G.S. 1-302.

As to failure to obey a court order in supplementary proceedings, see G.S. 1-368.

Effect of Amendments. - Session Laws 2011-307, s. 6, effective June 27, 2011, and applicable to willful refusals to accept post-release supervision or to comply with the terms of post-release supervision that occur on or after that date, added subdivision (a)(9b).

Legal Periodicals. - For note on criminal and civil contempt proceedings, see 34 N.C.L. Rev. 221 (1956).

For comment on dealing with unruly persons in the courtroom, see 48 N.C.L. Rev. 878 (1970).

For note on right to jury trial in criminal contempt proceedings, see 6 Wake Forest Intra. L. Rev. 356 (1970).

For note on the right of an individual to freedom of speech, and the right of the State to carry out normal functions of the judiciary, a balancing of interests, see 6 Wake Forest Intra. L. Rev. 491 (1970).

For article surveying recent decisions by the North Carolina Supreme Court in the area of criminal procedure, see 49 N.C.L. Rev. 262 (1971).

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For article, "Trial Stage and Appellate Procedure Act: An Overview," see 14 Wake Forest L. Rev. 899 (1978).

For article, "Contempt, Order in the Courtroom, Mistrials," see 14 Wake Forest L. Rev. 909 (1978).

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

For note on enforcement of separation agreements by specific performance, see 16 Wake Forest L. Rev. 117 (1980).

For article, "The Distinction Between Civil and Criminal Contempt in North Carolina," see 67 N.C.L. Rev. 1281 (1989).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the annotations under this section are from cases decided under former statutory provisions.

This section should be strictly construed as a criminal statute. West v. West, 199 N.C. 12, 153 S.E. 600 (1930). See In re Hege, 205 N.C. 625, 172 S.E. 345 (1934); North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C. 1967), appeal dismissed, 386 F.2d 129 (4th Cir. 1967).

The power to punish for contempt is inherent in all courts. Ex parte Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405 (1888).

Statutory provisions regulating proceedings for contempt confer on the courts all the inherent powers to attach for contempt that were recognized by the common law as essential to the due and orderly exercise of their jurisdiction and functions. State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

For discussions of the history, nature, and extent of the power of courts to punish for contempt, see Ex parte McCown, 139 N.C. 95, 51 S.E. 957 (1905); In re Brown, 168 N.C. 417, 84 S.E. 690 (1915). See also 12 N.C.L. Rev. 260.

And Courts Cannot Be Deprived of Such Power. - It is essential for an effective administration of justice in an orderly and efficient way that the court possess certain powers to enforce its mandate. A legislative interference to the extent of depriving the courts of these powers is tantamount to depriving the judicial department of the means of self-preservation and cannot be constitutionally justified. See Ex parte McCown, 139 N.C. 95, 51 S.E. 957 (1905); Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621 (1922).

The power to punish for a contempt committed in the presence of the court, or near enough to impede its business, is essential to the existence of every court. In re Hennis, 6 N.C. App. 683, 171 S.E.2d 211 (1969), rev'd on other grounds, 276 N.C. 571, 173 S.E.2d 785 (1970).

But Legislature May Regulate Same. - Contempt powers, as they existed at common law, while they may not be abrogated, may be reasonably regulated by legislation. Thus, statutes such as those in former Chapter 5 were regulatory legislation upon the subject, and being in accord with modern doctrine, could not be assailed on the grounds of unconstitutionality. See In re Oldham, 89 N.C. 23 (1883); In re Robinson, 117 N.C. 533, 23 S.E. 453 (1895); In re Brown, 168 N.C. 417, 84 S.E. 690 (1915).

Limit of District Court's Authority. - A judge of the district court has no authority, except in his own district, to punish for contempt. In re Rhodes, 65 N.C. 518 (1871); Morris v. Whitehead, 65 N.C. 637 (1871).

Acts constituting contempt committed before a referee in supplementary proceedings are to be punished by the court making the reference. LaFontaine v. Southern Underwriters Ass'n, 83 N.C. 132 (1880).

Authority of Commissioner Not Exclusive. - The power of a commissioner, appointed by the court, to commit for refusal to testify is not given exclusively, if at all; but he may invoke the power of the judge, even though he may be given concurrent authority, under statute. Bradley Fertilizer Co. v. Taylor, 112 N.C. 141, 17 S.E. 69 (1893).

Authority of Nisi Prius Judge. - The right of a nisi prius judge to order a witness or anyone else into immediate custody for a contempt committed in the presence of the court in session is unquestioned. State v. Dick, 60 N.C. 440 (1864); State v. Ownby, 146 N.C. 677, 61 S.E. 630 (1908); State v. Swink, 151 N.C. 726, 66 S.E. 448 (1909).

Contempt of Subordinate Officer Regarded as Contempt of Appointing Court. - A contempt against a subordinate officer appointed by a court, such as a commissioner, ordinarily is regarded as contempt of the authority of the appointing court, and the appointing court has power to punish such contempt. This is true even where such subordinate officer is vested with the power to punish. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Notice of Charges and Opportunity to Be Heard. - The principles of due process require that before an attorney is finally adjudicated in contempt and sentenced after a trial for conduct during the trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), , 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

The superior court judge was well within the bounds of the court's inherent authority to manage the case docket when he struck defendant's answer as sanction for willful failure to execute agreed settlement because defendants offered no plausible excuse as to why they did not execute the two paragraph consent judgment, saying only that they did not understand it and in addition judge gave notice that failure to file consent order would result in the imposition of sanctions. Lomax v. Shaw, 101 N.C. App. 560, 400 S.E.2d 97 (1991).

Failure to Comply with Schedules. - The trial judge has the power to hold a party in contempt for willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court. Lomax v. Shaw, 101 N.C. App. 560, 400 S.E.2d 97 (1991).

Consecutive Sentences. - Trial court, upon finding defendant in direct criminal contempt on six occasions, did not err in sentencing defendant to six consecutive thirty-day terms of imprisonment because a finding of contempt was not a Class 3 misdemeanor. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923 (2016).

Applied in Osmar v. Crosland-Osmar, Inc., 43 N.C. App. 721, 259 S.E.2d 771 (1979); Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996); State v. Reaves, 142 N.C. App. 629, 544 S.E.2d 253 (2001); In re Contempt Proceedings Against Cogdell, 183 N.C. App. 286, 644 S.E.2d 261 (2007).

Cited in Faught v. Faught, 67 N.C. App. 37, 312 S.E.2d 504 (1984); Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984); Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260 (1985); Wilson v. Wilson, 73 N.C. App. 96, 325 S.E.2d 668 (1985); Michael v. Michael, 77 N.C. App. 841, 336 S.E.2d 414 (1985); In re Nakell, 104 N.C. App. 638, 411 S.E.2d 159 (1991); State v. Brown, 110 N.C. App. 658, 430 S.E.2d 433 (1993); State v. Pierce, 134 N.C. App. 148, 516 S.E.2d 916 (1999); Hodges v. Hodges, 156 N.C. App. 404, 577 S.E.2d 121 (2003); State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606 (2003), review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004); State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004); Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93 (2011), cert. denied, 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011); Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013); Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).

II. NATURE AND PURPOSE OF PROCEEDINGS.

Nature of Proceedings. - The fact that contemptuous conduct arises in a civil action does not alter the fact that contempt proceedings are criminal in nature. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Although contempt of court, in its essential character, is divided into various kinds, such as direct or constructive, and civil or criminal, nevertheless in every species of contempt there is said to be necessarily inherent an element of offense against the majesty of the law savoring more or less of criminality. Therefore it is said that the process by which the party charged is reached and tried is essentially criminal or quasi-criminal. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

A contempt proceeding is sui generis. It is criminal in its nature in that the party is charged with doing something forbidden, and if found guilty, is punished. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

A contempt proceeding under this section is sui generis, criminal in its nature, which may be resorted to in civil or criminal actions. Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969).

Although labeled "civil" contempt, the proceeding formerly designated "as for contempt" was by no means a civil action or proceeding to which G.S. 6-18 (when costs shall be allowed to plaintiff as a matter of course), or G.S. 6-20 (allowance of costs in discretion of court) would apply. United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 196 S.E.2d 598, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973).

Contempt proceedings may be resorted to in civil or criminal actions. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

Purpose. - Punishments for contempt of court have two aspects, namely: (1) To vindicate the dignity of the court from disrespect shown to it or its orders; and (2) To compel the performance of some order or decree of the court which it is in the power of the party to perform and which he refuses to obey. See In re Chiles, 89 U.S. 157, 22 L. Ed. 819 (1874); Bessette v. W.B. Conkey Co., 194 U.S. 324, 24 S. Ct. 665, 48 L. Ed. 997 (1904).

Contempt Proceeding as Part of Original Injunction Suit. - While some jurisdictions hold that a criminal contempt proceeding is independent and not a part of the case out of which the alleged contempt arose, there is authority that a contempt proceeding based on the violation of an injunction, regardless of whether the proceeding is civil or criminal in nature, is a part of the original injunction suit and properly triable as such. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Criminal and Civil Contempt Distinguished. - Proceedings for contempt are of two classes, criminal and civil. Criminal proceedings are those brought to preserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders. Civil proceedings are those instituted to preserve and enforce the rights of the parties to actions and to compel obedience to orders and decrees made for the benefit of the suitors. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Criminal contempt is a term 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. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966); Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969); O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Contempt proceedings are of two classes: those brought to vindicate the dignity and authority of the court; and those brought to enforce the rights of private parties. The former are as a rule held criminal in their nature and are generally governed by the rules applicable to criminal cases. North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C. 1967), appeal dismissed, 386 F.2d 129 (4th Cir. 1967).

Criminal proceedings, involving as they do offenses against the courts and organized society, are punitive in their nature, and the government, the courts, and the people are interested in their prosecution. Whereas civil proceedings, having as their underlying purpose the preservation of private rights, are primarily remedial and coercive in their nature, and are usually prosecuted at the instance of an aggrieved suitor. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Criminal contempt is the commission of an act tending to interfere with the administration of justice, while civil contempt is the remedy for the enforcement of orders in the equity jurisdiction of the court, and the willful refusal to pay alimony as ordered by the court is civil contempt. Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157 (1938).

A major factor in determining whether contempt is civil or criminal is the purpose for which the power is exercised. Where the punishment is to preserve the court's authority and to punish disobedience of its orders, it is criminal contempt. Where the purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Punishment for Both Criminal and Civil Contempt. - There are certain instances where contemners may be punished for both criminal contempt and for civil contempt. Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969).

When Criminal Contempt Sanctions Are Applied. - Criminal contempt or punishment for contempt is applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice. Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 320 (1967); Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Conditioning of Probation or Suspended Sentence on Contemnor's Purging Himself. - The imposition of probationary conditions under G.S. 15A-1343 and the possibility of early termination under G.S. 15A-1342(b) do not transform probationary or suspended sentences into civil relief. However, specifically conditioning the imposition or effect of the probationary or suspended sentence upon the contemnor's purging himself would constitute civil relief. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Order Allowing Defendant to Avoid Confinement by Paying Arrearages Held Remedial Relief. - Where the court ordered defendant confined in jail for a period of 29 days, but it allowed defendant to avoid that punishment altogether by paying the entire amount of child support arrearages, this constituted remedial relief and therefore required that the court's order be construed as adjudicating defendant in civil contempt. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

III. RIGHTS OF ACCUSED.

.

Criminal contempts are crimes. North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C. 1967), appeal dismissed, 386 F.2d 129 (4th Cir. 1967); O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Accordingly, accused is entitled to benefits of all constitutional safeguards. North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C. 1967), appeal dismissed, 386 F.2d 129 (4th Cir. 1967); O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Summary Proceedings Not Repugnant to Principles of Due Process. - Summary proceedings for contempt are not within the constitutional prohibition contained in the due process clause. The power to punish summarily for contempt has existed at common law "as far as the annals of the law extend." State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

But Safeguards Are Required Where Adjudication and Sentencing Are Delayed. - Due process safeguards must be extended to persons cited for direct contempt of court in cases where final adjudication and sentencing for the contemptuous conduct is delayed until after trial. In re Paul, 28 N.C. App. 610, 222 S.E.2d 479, appeal dismissed, 289 N.C. 614, 223 S.E.2d 767 (1976).

Notice of Charges and Opportunity to Be Heard. - Before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full scale trial is appropriate. In re Paul, 28 N.C. App. 610, 222 S.E.2d 479, appeal dismissed, 289 N.C. 614, 223 S.E.2d 767 (1976).

The principles of due process require that before an attorney is finally adjudicated in contempt and sentenced after a trial for conduct during the trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

When Notice and Hearing Are Required. - Summary proceedings are appropriate for punishing direct contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt; however, in cases where a court does not act immediately to punish acts constituting direct contempt or where the contempt is indirect, notice and a hearing are required. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

In contempt actions where the defendant is not punished summarily or where the contemptuous act does not occur in the presence of the judge or legislative body, principles of due process require reasonable notice of a charge and opportunity to be heard in defense before punishment is imposed. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Notice Held Inadequate. - Notice afforded plaintiff mother in custody and support proceedings was inadequate to inform her that she should be prepared to defend herself, for her failure to attend court hearings, on charges of contempt at custody trial. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Right to Jury Trial. - The United States Supreme Court has held that serious contempts are so merely like other serious crimes that they are subject to the jury trial provisions of U.S. Const., Art. 3, § 2 and of Amend. VI thereto, which is binding upon the states by virtue of the due process clause of Amend. XIV. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

The maximum punishment authorized for criminal contempt under former G.S. 5-1 and 5-4 was a fine of $250 or imprisonment for 30 days, or both. This made it a petty offense with no constitutional right to a jury trial. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

The possibilities that striking workers adjudged guilty of criminal contempt under former G.S. 5-1 might be denied the right to return to work or might be disqualified from drawing unemployment benefits for as long as 12 weeks were held irrelevant on the issue of whether the strikers were entitled to trial by jury in the contempt proceedings, since the possibilities were no part of the punishment which the court could impose for criminal contempt. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Contempt proceedings may be resorted to in civil or criminal actions, and though contempt is criminal in its nature, respondents therein are not entitled to trial by jury. Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577 (1947).

In a North Carolina contempt proceeding, the contemnor is not entitled to a jury trial. Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969).

Due Process Requirements Met. - Due process requirements of notice and opportunity to be heard on a contempt charge were adequately met where petitioner received actual notice, including the time and place, that he would be cited for contempt, and a written transcript provided formal notice of the specific actions for which petitioner was being cited. In re Paul, 28 N.C. App. 610, 222 S.E.2d 479, appeal dismissed, 289 N.C. 614, 223 S.E.2d 767 (1976).

Right to Confront Witnesses. - A person denying his asserted violation of a restraining order in contempt proceedings has the right under the provisions of N.C. Const., Art. I, § 19, synonymous with due process of law under the United States Constitution, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

The North Carolina Constitution preserves the right of confrontation of the witnesses against an accused, and this right is applicable to contempt proceedings, so that an adjudication of contempt against defendant based on the affidavit of the receiver of a corporation was invalid. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Such Right Is Waivable. - See Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

Self-Incrimination. - Where defendant was accused of mismanaging, diverting, converting and wasting corporate assets, and he was ordered by the trial court to produce his tax returns, the production of the returns did not amount to such authentication as to be compelled testimonial self-incrimination which would support a claim of Fifth Amendment privilege; thus, defendant could be found in contempt. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

IV. ACTS CONSTITUTING CONTEMPT.

.

A. IN GENERAL.

.

Grounds Exhaustive. - The enumeration of the acts punishable for contempt is exhaustive; hence no other act than those specifically designated may be the subject matter of contempt proceedings. See In re Odum, 133 N.C. 250, 45 S.E. 569 (1903).

A person guilty of any of the acts or omissions enumerated in this section may be punished for contempt, because such acts or omissions have a direct tendency to interrupt the proceedings of the court or to impair the respect due to its authority. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345 (1951); Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 206, 154 S.E.2d 313 (1967).

The acts and omissions enumerated in this section correspond to criminal contempt and involve offenses against the court and organized society, punishable for contempt for the purpose of preserving the power and vindicating the dignity of the court. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

"Willful" and "Unlawful" Distinguished. - The word "willful", when used in a statute creating an offense, implies the doing of the act purposely and deliberately in violation of law. The term "unlawfully" implies that an act is done or not done as the law allows or requires, while the term "willfully" implies that the act is done knowingly and of stubborn purpose. In re Hege, 205 N.C. 625, 172 S.E. 345 (1934); Clayton v. Clayton, 54 N.C. App. 612, 284 S.E.2d 125 (1981).

In order for an act to be "willful," as the term is used in criminal law, it must be done deliberately and purposefully in violation of law, and without authority, justification or excuse. State v. Chriscoe, 85 N.C. App. 155, 354 S.E.2d 289 (1987).

"Grossly negligent," for purposes of criminal culpability, implies recklessness or carelessness that shows a thoughtless disregard of consequences or a heedless indifference to the rights of others. State v. Chriscoe, 85 N.C. App. 155, 354 S.E.2d 289 (1987).

Willfulness or Gross Negligence Not Shown. - Where evidence showed that defendant's short delay of an hour or an hour and a quarter in arriving at court was due, not merely to an absence of transportation, but also to her concern for her mother's safety brought about by her mother's failure to arrive on time or to answer the telephone, defendant's behavior did not rise to the level of willfulness or gross negligence. State v. Chriscoe, 85 N.C. App. 155, 354 S.E.2d 289 (1987).

Trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. In re Little, 404 U.S. 553, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972).

The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. In re Little, 404 U.S. 553, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972).

Accused Conducting His Own Defense. - Where the accused was defending himself at his criminal trial when his motion for continuance, by reason of another trial engagement of his retained counsel, was denied, and he was adjudged in contempt for stating in summation after the close of evidence that the court was biased and had prejudged his case, and that he was a political prisoner, the court held that he was entitled to as much latitude in conducting his defense as is enjoyed by counsel vigorously espousing a client's cause, and that his statements did not constitute criminal contempt, as they were not uttered in a boisterous tone, and did not actually disrupt the court proceeding or constitute an imminent threat to the administration of justice. In re Little, 404 U.S. 553, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972).

A contempt citation delivered to a drunk who had been put into a holding cell at the far end of the room from the booking area, and who was behaving in a boisterous, rude, profane and obscene manner, by a magistrate who never engaged in any work on the drunk's warrant, was an unconstitutional and fundamentally unfair act which violated due process of law. Thompson v. Stahl, 346 F. Supp. 401 (W.D.N.C. 1972).

B. DISRUPTIVE CONDUCT.

.

Disturbances Calculated to Interrupt Proceedings. - Acts which are punishable under this section include all cases of disorderly conduct, breaches of the peace, noise and other disturbance near enough, designed and reasonably calculated to interrupt the proceedings of the court then engaged in the administration of justice and the dispatch of the business presently before it. State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

Trial court properly held defendant in criminal contempt of court and in sentencing him to 30 days in jail because during a witness's testimony, he disrupted the court proceedings by willfully making a hand gesture as to be pointing a gun to his head, and two exhibits were used to corroborate the testimony of the State's witnesses. State v. Baker, 260 N.C. App. 237, 817 S.E.2d 907 (2018).

Employment of Individual to Disrupt Criminal Trial. - Evidence held sufficient to support the trial judge's finding that respondent attorney solicited an individual to disrupt the criminal trial of his client, thereby committing willful behavior during the sitting of a court which tended to interrupt its proceedings, in violation of subsection (a) of this section. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), , 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

Assaulting Judge During Recess of Court. - Where the respondent visited the judge at his boardinghouse during a recess of the court, before the adjournment of the term and assaulted the judge, it was held that this conduct was a direct contempt of the court as much as if the assault had been committed in the court during trial. Ex parte McCown, 139 N.C. 95, 51 S.E. 957 (1905).

Protection Extended to Officers of Court, Witnesses, etc. - It is an act of contempt to interfere with the functioning of the business not only of the judge but also of all the officers of the court, and persons such as attorneys, jurors and witnesses, who in the line of their duty are assisting the court in the dispatch of its business. State v. Little, 175 N.C. 743, 94 S.E. 680 (1917); Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621 (1922).

Fighting in Courthouse Yard. - Fighting in the yard of the courthouse, before the courthouse door, constituted the basis of the offense of contempt. State v. Woodfin, 27 N.C. 199 (1844).

Willfulness Not Shown. - Because defendant did not exhibit a bad faith disregard for the trial court's authority by failing to silence a cell phone during the court proceedings, and because defendant's question of a client was logical in terms of context, it did not appear that defendant's actions were willful or intended to mislead anyone present; accordingly, the trial court erred in finding defendant in contempt under G.S. 5A-11(a)(1), (2). State v. Phair, 193 N.C. App. 591, 668 S.E.2d 110 (2008).

C. DISOBEDIENCE OF ORDERS.

.

Willful disobedience of an order lawfully issued by the court is contemptuous conduct. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Deliberate Disobedience Irrespective of Intent. - Attorney willfully disobeyed a lawful order of the court in a manner that was likely to interrupt the matters before the court where he deliberately disobeyed the judge's repeated orders to sit down and be quiet, and while it was unlikely that he intended any insult or injury to the court, he consciously disobeyed direct orders and was properly convicted of criminal contempt. Nakell v. Attorney Gen., 15 F.3d 319 (4th Cir.), cert. denied, 513 U.S. 866, 115 S. Ct. 184, 130 L. Ed. 2d 118 (1994).

In the absence of an order to be present, defendant may not be held in contempt for violation of such an order. State v. Chriscoe, 85 N.C. App. 155, 354 S.E.2d 289 (1987).

Conditioning of Probation or Suspended Sentence on Contemnor's Purging Himself. - The imposition of probationary conditions under G.S. 15A-1343 and the possibility of early termination under G.S. 15A-1342(b) do not transform probationary or suspended sentences into civil relief. However, specifically conditioning the imposition or effect of the probationary or suspended sentence upon the contemnor's purging himself would constitute civil relief. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Failure to obey a court order cannot be punished for contempt unless the disobedience is willful, which imports knowledge and a stubborn purpose. Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948); Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

Impossibility to Comply with Order or Process. - Where disobedience to process or order is due to circumstances which make it impossible for the contemnor to obey such order or process, he may not be punished for contempt. Thus where the clerk issued a notice to the respondent to produce a certain will which was in the custody of some other clerk, it was held that the order to adjudge the respondent guilty of contempt was reversible on appeal. In re Scarborough's Will, 139 N.C. 423, 51 S.E. 931 (1905).

The defendant must have been able to obey the order, and in spite of his ability must have disobeyed it. Inability to obey is a good excuse. Kane v. Haywood, 66 N.C. 1 (1872); Boyett v. Vaughan, 89 N.C. 27 (1883); Smith v. Smith, 92 N.C. 304 (1885).

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. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

Inability to Pay Money. - The excuse is sufficient where the defendant has been unable to pay money according to an order. Kane v. Haywood, 66 N.C. 1 (1872); Boyett v. Vaughan, 89 N.C. 27 (1883); Smith v. Smith, 92 N.C. 304 (1885).

Order Allowing Defendant to Avoid Confinement by Paying Arrearages Held Remedial Relief. - Where the court ordered defendant confined in jail for a period of 29 days, but it allowed defendant to avoid that punishment altogether by paying the entire amount of child support arrearages, this constituted remedial relief and therefore required that the court's order be construed as adjudicating defendant in civil contempt. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Alimony and Support Payments. - Where defendant testified that his failure after knowledge to obey a court order for the payment of alimony pendente lite was due to his lack of financial means, and no evidence was presented at the hearing tending to negative the truth of defendant's explanation or to establish as an affirmative fact that he possessed the means wherewith to comply with the order, the court's finding that defendant willfully disobeyed the order was not supported by the record, and judgment committing him to imprisonment for contempt would be set aside. Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948).

As to failure to pay alimony, see also Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893).

Where the husband, in proceedings against him for contempt for disobeying an order to pay moneys for the support of his child, showed by the uncontradicted testimony of himself and a witness that he had no property nor income except what he could earn, and that he had been unable to obtain employment and was therefore unable to comply with the terms of the order, the evidence failed to show that the disobedience was willful, and he could not be adjudged in contempt of court. West v. West, 199 N.C. 12, 153 S.E. 600 (1930).

The mere fact that defendant, ordered to pay a certain sum monthly for the necessary subsistence of his wife and child, has a right to move at any time for modification of the order does not support the conclusion that defendant's failure to comply with the order is willful. Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455 (1940).

Failure to Comply with Separation Agreement. - Husband could not be adjudged in contempt for failure to comply with separation agreement entered into prior to the institution of divorce action, judgment in which provided that it should not affect or invalidate the separation agreement. Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529 (1944).

Where the impossible circumstances are removed prior to the arrest for contempt the defendant will not be excused. Thomasville Shooting Club v. Thomas, 120 N.C. 334, 26 S.E. 1007 (1897).

Disavowal of Disrespectful Intent. - The willful disobedience of a restraining order by the party on whom it had been served, and who was aware of its meaning and import, is in itself an act of contempt, from which he may not purge himself by disavowing a disrespectful intent. In re Parker, 177 N.C. 463, 99 S.E. 342 (1919).

Violation of Courtroom Policy by Streaming. - Defendant's actions supported the trial court's finding of criminal contempt because it was evident that defendant had a clear understanding of courtroom policy, yet defendant willfully disregarded prior warnings and the posted policy by recording inside the courtroom as defendant knowingly carried a device and entered the courtroom with the intention of live streaming the courtroom proceedings, after being given express warnings, in violation of the court's rules. In re Eldridge, - N.C. App. - , 836 S.E.2d 859 (2019), review denied, 837 S.E.2d 883, 2020 N.C. LEXIS 112 (N.C. 2020).

Advice of Counsel No Excuse. - The failure to obey the order of the court placing property in possession of a receiver is contempt, even though the contemnor acted under an advice of counsel. Such advice is no protection to the intentional violation of the order. Delozier v. Bird, 123 N.C. 689, 31 S.E. 834 (1898).

In such a case the counsel himself may be subjected to contempt proceedings. This fact, however, will be considered by the judge in imposing the punishment. Weston v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799 (1912). See Green v. Griffin, 95 N.C. 50 (1886).

An order of court not lawfully issued may not be the basis on which to found a proceeding for contempt. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949); State v. Black, 232 N.C. 154, 59 S.E.2d 621 (1950).

Where an order is void ab initio, one may not be held for contempt for disobeying such order, and the fact that he did not appeal from the granting of the order does not affect his liability, the order not being one lawfully issued. In re Longley, 205 N.C. 488, 171 S.E. 788 (1933).

Where a subpoena issued by a municipal-county court and running outside the county was a nullity because not attested by the seal of the court, neither service of the process nor voluntary appearance thereunder could waive the defect or vitalize the process so as to make the willful disobedience of the subpoena a basis for contempt proceedings. State v. Black, 232 N.C. 154, 59 S.E.2d 621 (1950).

Thus, disobeying an order entered by a court without jurisdiction is not contempt. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131 (1980).

Upon application for custody of children after decree of divorce, the resident judge entered a temporary order awarding the custody to the father, and issued an order to defendant wife to appear outside the county and outside the district to show cause why the temporary order should not be made permanent. It was held that the judge was without jurisdiction to hear the matter outside the district, and an order issued upon the hearing of the order to show cause was void ab initio. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949).

Failure to Comply with Discovery Order Punishable for Both Civil and Criminal Contempt. - One act may be punishable both for civil contempt and for criminal contempt. This kind of duality particularly inheres in a party litigant's willful failure to comply with a discovery order. Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976).

Where defendant was accused of mismanaging, diverting and wasting corporate assets and the trial court ordered him to cooperate with receivers of the corporation and to provide them and plaintiffs with copies of his tax returns and a list of his assets, defendant's contempt, if any, in failing to provide the required materials could be criminal or civil, and contemnor waived procedural requirements when he came into court to answer charges of the trial court's show cause order. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Disobeying Order of Clerk. - Where, in supplementary proceedings, the defendant has willfully disobeyed an order of the clerk of the superior court having jurisdiction, in disposing of his property, he is guilty of contempt of court. Bank of Zebulon v. Chamblee, 188 N.C. 417, 124 S.E. 741 (1924).

Urging Witness to Disobey Subpoena. - Where there was evidence that defendant telephoned a witness in a civil action and tried to get her not to obey a subpoena to be issued by the court, defendant was held to be in indirect contempt of court in accordance with G.S. 5A-13. State v. Wall, 49 N.C. App. 678, 272 S.E.2d 152 (1980).

Noncompliance with Order to Produce Records of Business. - Where, in response to an order to produce records of his business for a designated period, defendant appeared and testified that the only business records kept by him were the cash register tapes, that these had been destroyed by rats, and that therefore he had no records or documents with which to comply with the order, and there was no evidence to the contrary, it was error for the court to find and conclude that defendant was in contempt within the purview of this section for noncompliance with the order. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Willfully Preventing Receiver from Taking Possession. - A judgment debtor, fixed with knowledge as a party upon whom notice was served, is guilty of contempt of court in willfully preventing the receiver from taking possession of the property in conformity with a lawful order of the court, even though the order may be erroneous, if no appeal therefrom was perfected by him. Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420 (1937).

Violation of Injunction. - Where courts of competent jurisdiction successively issued three injunctive orders for the purpose of protecting persons who desired to work, and who had a right to work, if they so desired, in plaintiff's plant, while the orders were by their terms temporary and effective only until final trial of the cause, they were lawful orders of a court of competent jurisdiction. Any person guilty of willful disobedience of such orders could be punished for contempt of court. Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969).

As to disobeying an injunction or restraining order such as cutting timber after injunction against the same, see Fleming v. Patterson, 99 N.C. 404, 6 S.E. 396 (1888); In re Carolina, C. & O. Ry., 151 N.C. 467, 66 S.E. 438 (1909); Weston v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799 (1912).

Defendant Not Subjected to Improper Burden of Proof. - Defendant was not subjected to an improper burden of proof under G.S. 5A-15(f) in finding that defendant was in criminal contempt under G.S. 5A-11(a)(3), as defendant admitted that defendant was ordered to stay out of the judges' offices and that defendant entered an area of the courthouse marked "Judges Offices" to file an emergency motion with the trial court administrator; there was no issue of fact to be decided, and thus no burden of proof was placed on defendant, as the trial court properly required proof beyond a reasonable doubt of defendant's contempt of court. State v. Simon, 185 N.C. App. 247, 648 S.E.2d 853 (2007).

Cases Involving Violations of Order Restraining Strikers. - For a series of cases involving violations of a restraining order which sought to prohibit violence and mass picketing on the part of strikers, see Harriet Cotton Mills v. Local No. 578, Textile Workers Union, 251 N.C. 218, 111 S.E.2d 457 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960); Harriet Cotton Mills v. Local No. 578, Textile Workers Union, 251 N.C. 231, 111 S.E.2d 465 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960); Henderson Cotton Mills v. Local No. 584, Textile Workers Union, 251 N.C. 234, 111 S.E.2d 476 (1959); Henderson Cotton Mills v. Local No. 584, Textile Workers Union, 251 N.C. 240, 111 S.E.2d 471 (1959); Harriet Cotton Mills v. Local No. 578, Textile Workers Union, 251 N.C. 248, 111 S.E.2d 467 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960); Henderson Cotton Mills v. Local No. 584, Textile Workers Union, 251 N.C. 254, 111 S.E.2d 480 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960).

As to failure of clerk to make transcript of record, see Worth v. Piedmont Bank, 121 N.C. 343, 28 S.E. 488 (1897). See also generally Murray v. Berry, 113 N.C. 46, 18 S.E. 78 (1893).

As to failure to deliver property, see McLean v. Douglass, 28 N.C. 233 (1846).

As to failure to return process, see Ex parte Summers, 27 N.C. 149 (1844).

As to failure to settle estates by public administrator, see In re Brinson, 73 N.C. 278 (1875).

Defendant Properly Found in Criminal Contempt. - Defendant was properly found in criminal contempt under G.S. 5A-11(a)(3) as: (1) G.S. 5A-11(a)(3) did not require that a finding of criminal contempt be predicated upon the failure to obey a written order; (2) the practical effect of a show cause order was the same as if it had noticed a first judge's order; (3) defendant was ordered not to visit the judges' office about the case any further, yet defendant entered the courthouse area marked "Judges' Office" to hand deliver an emergency motion to the trial court administrator; (4) defendant knew defendant was to stay out of the judges' office area where the trial court administrator's office was located; and (5) defendant's claim that defendant should not have been held in contempt because defendant's purpose for being in the trial court administrator's office was to leave an emergency motion for the trial court administrator was rejected. State v. Simon, 185 N.C. App. 247, 648 S.E.2d 853 (2007).

Findings by a trial court supported the determination that a former wife was in willful contempt pursuant to G.S. 5A-11(a)(3) for her failure to allow her former husband to exercise visitation with the parties' child, as she claimed she did not receive the husband's notice of his intent to exercise visitation but she had received it, she hid the minor child when the husband came to visit, and her claim that the husband could not safely drive due to a brain tumor was shown to lack merit by medical evidence. File v. File, 195 N.C. App. 562, 673 S.E.2d 405 (2009).

Conduct proscribed by the felony secret peeping statute constitutes a "sexual offense," and subject to the express limitation that a defendant's actions are for the purpose of arousing or gratifying the sexual desire of any person; therefore, defendant was in indirect criminal contempt of a custody consent order because she willfully allowed her children in the presence of her boyfriend, who was a "convicted sex offender" as provided in the order based on his conviction for felony secret peeping, even if he was not required to register as a sex offender. The record showed that the inclusion of the "convicted sex offender" language in the consent order was specifically targeted at defendant's relationship with her boyfriend. State v. Mastor, 243 N.C. App. 476, 777 S.E.2d 516 (2015).

Criminal contempt order was affirmed because it was supported by the trial court's finding of fact that defendant repeatedly argued matters outside the record during closing argument, despite the trial court's repeated instructions and admonishments over a two-day period. State v. Salter, 264 N.C. App. 724, 826 S.E.2d 803 (2019).

Violations of Court's Holding Regarding Standing. - Where court repeatedly held that former corporation manager had no standing to appeal, but he continued to appeal every decision reached on behalf of corporate defendants in violation of court's orders, trial court had jurisdiction to consider criminal contempt based on corporation manager's repeated violations of the court's orders. Lowder v. All Star Mills, Inc., 100 N.C. App. 318, 396 S.E.2d 92 (1990).

Because an administrative agency of the State is not subject to contempt, respondent, a State employee who was dismissed from his job and later reinstated, could not petition the superior court for a show cause order against petitioner Department of Transportation ("DOT"), an administrative agency of the State, for contempt pursuant to this section or G.S. 5A-21. North Carolina DOT v. Davenport, 334 N.C. 428, 432 S.E.2d 303 (1993).

D. RECALCITRANT WITNESSES.

.

Refusal to Testify After Having Been Sworn. - It has been uniformly held by the Supreme Court and by courts of other jurisdictions that the power to punish for contempt committed in the presence of the court is inherent in the court, and not dependent upon statutory authority. Without such power the court cannot perform its judicial function. This principle is especially applicable when the contempt consists in the refusal of the witness in attendance upon the court, after having been duly sworn, to answer a question propounded to him for the purpose of eliciting evidence material to the issue to be decided by the court. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

The giving of testimony which is obviously false or evasive can constitute contempt. In re Edison, 15 N.C. App. 354, 190 S.E.2d 235 (1972).

Since the power of the court over a witness in requiring proper responses is inherent and necessary for the furtherance of justice, it must be conceded that testimony which is obviously false or evasive is equivalent to a refusal to testify. In re Edison, 15 N.C. App. 354, 190 S.E.2d 235 (1972).

Obviously False or Evasive Testimony Is Equivalent to Refusal to Testify. - The power of the court to require a witness to give proper responses is inherent and necessary for the furtherance of justice, and therefore, testimony which is obviously false or evasive is equivalent to a refusal to testify. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Although It Is Also a Crime. - Making a false statement under oath may constitute contempt, notwithstanding that the conduct may also be a crime, such as perjury or false swearing. In re Edison, 15 N.C. App. 354, 190 S.E.2d 235 (1972).

And Can Be Punished Civilly or Criminally. - Giving "obviously false" testimony can be punishable by contempt civilly or criminally. In re Edison, 15 N.C. App. 354, 190 S.E.2d 235 (1972).

Commissioner May Ask Aid of Judge. - The commissioner before whom the witness had refused to answer may invoke the aid of the judge to punish for contempt. But the judge has no right to delegate the judicial power to punish for contempt to an executive officer. Bradley Fertilizer Co. v. Taylor, 112 N.C. 141, 17 S.E. 69 (1893).

No Distinction Between Refusing to Be Sworn and Refusing to Answer. - This section makes no distinction between one who, in the presence of the court, pursuant to its lawful subpoena, refuses to be sworn as a witness and one who, having been sworn, refuses to answer a proper question. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

Motive of Recalcitrant Witness Immaterial. - Whatever the motive of the recalcitrant witness or party may be, it does not determine whether he may lawfully be adjudged in contempt and punishment. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

The refusal of one subpoenaed as a witness to take the oath or to answer proper questions propounded to him, when done knowingly and intentionally, is willful even though such person believes it to be his moral duty to refuse to testify. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

Decrease in Esteem No Justification for Refusing to Testify. - The fact that one called as a witness fears that his testimony may decrease the esteem in which he is held in the community, or may decrease his ability to render service therein, does not justify refusal by him to testify in response to questions otherwise proper. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

Nor Religious Conscience. - The State has a compelling interest that a person called as a witness should be sworn and should testify in the administration of justice between the State and one charged with a serious offense; therefore a minister called as a witness in such prosecution may be held in contempt of court upon his refusal to be sworn as a witness, notwithstanding he asserts that his refusal is a matter of religious conscience. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967). But see G.S. 8-53.2

As to refusal to testify before a referee, see LaFontaine v. Southern Underwriters Ass'n, 83 N.C. 132 (1880).

E. INACCURATE PUBLICATIONS.

.

Publication After Adjournment of Court. - For constructive contempt by publication of false matter relating to the conduct of the presiding judge, published after the adjournment of the court, the judge must seek redress by the ordinary method and bring his cause before an impartial tribunal. He may not proceed to determine the matter summarily without the intervention of a jury. In re Brown, 168 N.C. 417, 84 S.E. 690 (1915).

Publication of Past Matter. - There no longer exists the power to punish summarily for defamatory reports and publications about a matter which is past and ended. To justify contempt proceedings the publication must have been pendente lite. In re Brown, 168 N.C. 417, 84 S.E. 690 (1915).

Trial of Issue by the Court Instead of the Jury. - If on the face of the publication there is nothing to show that it was grossly incorrect or calculated to bring the court into contempt, the respondent is entitled to have the issue tried not by a jury but by a court. In re Robinson, 117 N.C. 533, 23 S.E. 453 (1895).

F. FAILURE OF OFFICER TO PERFORM DUTIES.

.

Gross negligence of attorneys is a sort of contempt, and courts may order them to pay the costs of cases in which they are guilty of such negligence. Ex parte Robins, 63 N.C. 309 (1869).

Abandoning Client. - Actions of defendant, an attorney, in abandoning a client at a courthouse on the day of a hearing because the client failed to pay defendant's fee, were not legally justifiable under G.S. 5A-11(a)(7), as defendant was not held in criminal contempt for failing to return to court the day of the client's hearing and instead attending a parent-teacher conference for defendant's daughter later in the day, but for failing to appear at the client's absconder hearing and abandoning the client. State v. Key, 182 N.C. App. 624, 643 S.E.2d 444 (2007), cert. denied, 649 S.E.2d 398, 2007 N.C. LEXIS 759 (N.C. 2007).

Actions of defendant, an attorney, in abandoning a client at a courthouse on the day of a hearing because the client failed to pay defendant's fee were not legally justifiable as defendant entered an appearance in a criminal proceeding without limiting the representation under G.S. 15A-141(2), failed to comply with defendant's duties to the client under G.S. 15A-143, did not have the trial court's permission to withdraw under G.S. 15A-144, and substantially interfered with the court's business under G.S. 5A-11(a)(7) by requiring the trial court, its staff, and its officers to expend significant time and effort in an attempt to get the client's case resolved over a two-day period. State v. Key, 182 N.C. App. 624, 643 S.E.2d 444 (2007), cert. denied, 649 S.E.2d 398, 2007 N.C. LEXIS 759 (N.C. 2007).

Attorney Held in Contempt for Violation of Rape Shield Law. - Defense counsel was found guilty of criminal contempt, pursuant to G.S 5A-11(a), because competent evidence supported the trial court's finding that counsel violated the North Carolina Rape Shield Statute, G.S. 8C-412, in that counsel asked the complainant, in a case resulting from a charge of rape, about a possible prior instance of rape between the complainant and the complainant's cousin, without first addressing the relevance and admissibility of that question during an in camera hearing. Furthermore, the violation was willful and grossly negligent. State v. Okwara, 223 N.C. App. 166, 733 S.E.2d 576 (2012).

G. FAILURE TO COMPLY WITH SCHEDULES.

.

Willful Absence of Attorney from Trial. - Generally, the willful absence of an attorney from a scheduled trial constitutes contempt of court, although disputes arise over whether it is direct or indirect contempt. In re Smith, 45 N.C. App. 123, 263 S.E.2d 23 (1980), rev'd on other grounds, 301 N.C. 621, 272 S.E.2d 834 (1981).

V. PRACTICE AND PROCEDURE.

.

The court must specify the particulars of the offense on the record by stating the words, acts or gestures amounting to direct contempt, and when the record contains only conclusions that contemnor was contemptuous, contemnor is entitled to his discharge. Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 320 (1967).

Facts Must Be Found and Filed. - In contempt proceedings the facts 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 those findings. In re Odum, 133 N.C. 250, 45 S.E. 569 (1903); Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

In contempt proceedings it is necessary for the court to find the facts supporting the judgment and especially the facts as to the purpose and object of the contemnor, since nothing short of willful disobedience will justify punishment. Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370 (1957).

Failure to Denominate Conclusions of Law as Such. - Where the judgment in contempt fully states the facts found and the conclusions of law based thereon, adjudging defendants in contempt for a willful disobedience of an order lawfully issued by the superior court having jurisdiction, exception on the ground that the court did not specifically denominate his conclusions of law as such cannot be sustained. Glendale Mfg. Co. v. Bonano, 242 N.C. 587, 89 S.E.2d 116 (1955).

Review of Findings of Fact. - In proceedings for contempt, the facts found by the trial judge are not reviewable by the appellate division except for the purpose of passing upon their sufficiency to warrant the judgment. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

In contempt proceedings, the trial judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Non-party was properly held in contempt for failing to obey a subpoena directing the non-party to attend a deposition, despite the trial court's failure to find the non-party was "willfully disobedient," because: (1) G.S. 5A-11(a)(3), defining criminal contempt, did not apply, so the trial court did not have to find the non-party was "willfully disobedient"; (2) the court, under G.S. 1A-1-45(e), only had to find the non-party failed to obey the subpoena without adequate excuse; and (3) the non-party offered no evidence explaining the non-party's absence from the deposition. First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836 (2011).

Beyond a reasonable doubt standard not indicated. - Neither the trial court's findings in the summary proceeding, nor the superior court's findings in the plenary proceeding, conducted de novo pursuant to G.S. 5A-17, specifically indicated that the beyond a reasonable doubt standard was actually applied; the failure to make such an indication made the contempt orders fatally deficient. State v. Ford, 164 N.C. App. 566, 596 S.E.2d 846 (2004).

Appealability of Acquittal of Criminal Contempt. - In a domestic relations case in which plaintiff sought to have defendant's attorney held in contempt for harboring a child for the purpose of resisting and interfering with a court order granting temporary custody to the plaintiff, the charges were in the nature of criminal contempt, and the court's order finding that the attorney's conduct did not constitute contempt was not appealable, since the acquittal did not affect any substantial right of the plaintiff. Patterson v. Phillips, 56 N.C. App. 454, 289 S.E.2d 48 (1982).


§ 5A-12. Punishment; circumstances for fine or imprisonment; reduction of punishment; other measures.

  1. A person who commits criminal contempt, whether direct or indirect, is subject to censure, imprisonment up to 30 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three, except that:
    1. A person who commits a contempt described in G.S. 5A-11(8) is subject to censure, imprisonment not to exceed 6 months, fine not to exceed five hundred dollars ($500.00), or any combination of the three;
    2. A person who has not been arrested who fails to comply with a nontestimonial identification order, issued pursuant to Article 14 of Chapter 15A of the General Statutes is subject to censure, imprisonment not to exceed 90 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three; and
    3. A person who commits criminal contempt by failing to comply with an order to pay child support is subject to censure, imprisonment up to 30 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three. However, a sentence of imprisonment up to 120 days may be imposed for a single act of criminal contempt resulting from the failure to pay child support, provided the sentence is suspended upon conditions reasonably related to the contemnor's payment of child support.
  2. Except for contempt under G.S. 5A-11(5) or 5A-11(9), fine or imprisonment may not be imposed for criminal contempt, whether direct or indirect, unless:
    1. The act or omission was willfully contemptuous; or
    2. The act or omission was preceded by a clear warning by the court that the conduct is improper.
  3. The judicial official who finds a person in contempt may at any time withdraw a censure, terminate or reduce a sentence of imprisonment, or remit or reduce a fine imposed as punishment for contempt if warranted by the conduct of the contemnor and the ends of justice.
  4. A person held in criminal contempt under this Article shall not, for the same conduct, be found in civil contempt under Article 2 of this Chapter, Civil Contempt.
  5. A person held in criminal contempt under G.S. 5A-11(9) may nevertheless, for the same conduct, be found guilty of a violation of G.S. 14-225.1, but he must be given credit for any imprisonment resulting from the contempt.

History

(1977, c. 711, s. 3; 1985 (Reg. Sess., 1986), c. 843, s. 1; 1987 (Reg. Sess., 1988), c. 1040, ss. 2, 4; 1989 (Reg. Sess., 1990), c. 1039, s. 4; 1991, c. 686, s. 3; 1999-361, s. 3; 2009-335, s. 1.)

OFFICIAL COMMENTARY

Subsection (b) is drawn from the recommendations of the American Bar Association. It intends to preclude fine or punishment in response to what is essentially innocent conduct although censure alone would still be possible. Subsection (c) makes clear that a judge may change his mind and reduce or remove any punishment he imposed in response to contempt. Subsection (d) makes clear that, although civil contempt and criminal contempt proceedings are distinct, each may be imposed for the same conduct.

Effect of Amendments. - Session Laws 2009-335, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, designated the previously existing provisions of subsection (a) as subsection (a) and subdivisions (1) and (2), and made related punctuation and stylistic changes; in subdivision (a)(2), substituted "Chapter 15A of the General Statutes" for "G.S. 15A"; and added subdivision (a)(3).

Legal Periodicals. - For note on criminal and civil contempt proceedings, see 34 N.C.L. Rev. 221 (1956).

For note on right to jury trial in criminal contempt proceedings, see 6 Wake Forest Intra. L. Rev. 356 (1970).

For article surveying recent decisions by the North Carolina Supreme Court in the area of criminal procedure, see 49 N.C.L. Rev. 262 (1971).

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

CASE NOTES

Editor's Note. - Many of the annotations under this section are from cases decided under former statutory provisions.

No Constitutional Right to Jury Trial. - In view of the punishment, contempt is a petty offense for which there is no constitutional right to a jury trial. Thompson v. Thompson, 25 N.C. App. 79, 212 S.E.2d 243, appeal dismissed, 288 N.C. 120, 215 S.E.2d 606 (1975).

Punishment Immediate. - The punishment in contempt cases must be immediate, or it would be ineffectual, as it is designed to suppress an outrage which impedes the business of the court. State v. Yancy, 4 N.C. 133 (1814); Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Punishment for Criminal and Civil Contempt Distinguished. - Criminal contempt is administered as punishment for acts already committed that have impeded the administration of justice in some way. And as is the case with all offenses of a criminal nature, the punishment that courts can impose therefor, either by fine or imprisonment, is circumscribed by law. Civil contempt, on the other hand, is employed to coerce disobedient defendants into complying with orders of court, and the length of time that a defendant can be imprisoned in a proper case is not limited by law, since the defendant can obtain his release immediately upon complying with the court's order. Brower v. Brower, 70 N.C. App. 131, 318 S.E.2d 542 (1984).

A major factor in determining whether contempt is criminal or civil is the purpose for which the power is exercised. Where the punishment is to preserve the court's authority and to punish disobedience of its orders, it is criminal contempt. Where the purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. The importance in distinguishing criminal and civil contempt lies in the difference in procedure, punishment and right of review. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Contempt may be of two kinds, civil or criminal, although the demarcation between the two may be hazy at best. Criminal contempt is generally 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 the rights of private parties and to compel obedience to orders and decrees made for the benefit of such parties. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Treatment of Civil Contempt. - Where the court finds that a defendant is in civil contempt, it is not limited by this section to imposing a 30-day sentence for criminal contempt. It can, under G.S. 5A-21(b), order his imprisonment until he purges himself of contempt. Bennett v. Bennett, 71 N.C. App. 424, 322 S.E.2d 439 (1984).

Punishment of One Act as Both Criminal and Civil Contempt. - As recognized in subsection (d) of this section and G.S. 5A-21(c), a person may be found to be in both criminal and civil contempt, although only a single act was committed. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

One act may be punishable both as civil contempt and as criminal contempt. This kind of duality particularly inheres in a party litigant's willful failure to comply with a discovery order. Punishment is not, therefore, limited to criminal sanctions. Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976).

Defendant was not improperly found in civil and criminal contempt for the same acts because defendant was found in civil contempt for continued conduct and in criminal contempt for past conduct. State v. Revels, 250 N.C. App. 754, 793 S.E.2d 744 (2016).

Decision Not to Prosecute For Criminal Contempt - Defendant claimed that his prosecution for failure to appear violated his due process rights under N.C. Const. art. I, § 19, where he was prosecuted under G.S. 15A-543, and he could have been punished for failure to appear under the criminal contempt statute, G.S. 5A-12(a); however, because there was evidence from which a jury could have found that defendant violated either G.S. 15A-543 or G.S. 5A-12(a), it was within the prosecutor's discretion to decide under which statute the State wished to proceed. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606 (2003), review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004).

No Defense to Criminal Prosecution. - The fact that a person has been punished for contempt of court is no defense to a criminal indictment for the act constituting the contempt. State v. Yancy, 4 N.C. 133 (1814); In re Griffin, 98 N.C. 225, 3 S.E. 515 (1887).

Provision in a criminal contempt adjudication requiring defendant to pay $3,150 in damages to plaintiff was invalid, because this section limits the punishment that can be imposed for criminal contempts to a fine of $500 and 30 days in jail; and damages may not be awarded to a private party because of any contempt, which is an offense against the State. M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988).

Conditioning of Probation or Suspended Sentence on Contemnor's Purging Himself. - The imposition of probationary conditions under G.S. 15A-1343 and the possibility of early termination under G.S. 15A-1342(b) do not transform probationary or suspended sentences into civil relief. However, specifically conditioning the imposition or effect of the probationary or suspended sentence upon the contemnor's purging himself would constitute civil relief. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Order Allowing Defendant to Avoid Confinement by Paying Arrearages Held Remedial Relief. - Where the court ordered defendant confined in jail for a period of 29 days, but it allowed defendant to avoid that punishment altogether by paying the entire amount of child support arrearages, this constituted remedial relief and therefore required that the court's order be construed as adjudicating defendant in civil contempt. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Power of Industrial Commission. - The Industrial Commission proceeding under the Worker's Compensation Act, being expressly given the authority to subpoena witnesses and have them give evidence at the hearing, acts in a judicial capacity in adjudging in contempt a witness who refuses to give material evidence, and has power to punish by a fine or imprisonment under the provisions of this section. In re Hayes, 200 N.C. 133, 156 S.E. 791 (1931).

A sentence of ten days in jail, imposed by the superior court for contempt by refusal to be sworn as a witness, was well within the statutory maximum. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

Imprisonment for Indefinite Period Erroneous. - A judgment entered is erroneous in directing that the defendant be committed to jail for an indefinite period rather than for the statutory period. Basnight v. Basnight, 242 N.C. 645, 89 S.E.2d 259 (1955).

Effect of Abolishment of Imprisonment for Debt. - The abolishment of imprisonment for debt does not include commitment under attachments for failure to comply with an order of court. Wood v. Wood, 61 N.C. 538 (1868).

A fine for contempt goes to the State, being a punishment for a wrong to the State, and should not be directed to be paid to a party to the suit. In re Rhodes, 65 N.C. 518 (1871); Morris v. Whitehead, 65 N.C. 637 (1871).

Where the judge converted an entry into a final judgment, the violation of which subjected the defendant to criminal contempt of court, punishable under subsection (a), the trial court erred when it imposed a term of imprisonment of six months, suspended for five years under the supervision of a probation officer; therefore, the case was remanded for a hearing on contempt pursuant to G.S. 5A-11(a)(3). State v. Brown, 110 N.C. App. 658, 430 S.E.2d 433 (1993).

Probation Conditions for Contempt Violation. - Given defendant's questionable and intentional courtroom conduct, defendant's frequent visits to the courtroom, and defendant's direct willingness to disobey courtroom policies, no abuse of discretion was discerned in the trial court's decision to impose conditions on defendant's one-year probationary sentence for criminal contempt. The conditions were reasonably related to the necessity of preventing further disruptions of the court by defendant's conduct, and the need to provide accountability without unduly infringing on defendant's rights. In re Eldridge, - N.C. App. - , 836 S.E.2d 859 (2019), review denied, 837 S.E.2d 883, 2020 N.C. LEXIS 112 (N.C. 2020).

Consecutive Sentences. - Trial court, upon finding defendant in direct criminal contempt on six occasions, did not err in sentencing defendant to six consecutive thirty-day terms of imprisonment because a finding of contempt was not a Class 3 misdemeanor. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923 (2016).

Sentence Was Not An Abuse of Discretion. - It was not an abuse of discretion to sentence defendant to 30 days of imprisonment, suspended for 18 months, and to probation, as defendant argued only that the sanction was unreasonable, but not that it was an abuse of discretion; defendant did not argue that the special conditions of defendant's probation were not reasonably related to defendant's rehabilitation under G.S. 15A-1343(b1)(10). State v. Key, 182 N.C. App. 624, 643 S.E.2d 444 (2007), cert. denied, 649 S.E.2d 398, 2007 N.C. LEXIS 759 (N.C. 2007).

Cited in Faught v. Faught, 67 N.C. App. 37, 312 S.E.2d 504 (1984); North Carolina DOT v. Davenport, 334 N.C. 428, 432 S.E.2d 303 (1993); Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996); Peaches v. Payne, 139 N.C. App. 580, 533 S.E.2d 851 (2000); State v. Reaves, 142 N.C. App. 629, 544 S.E.2d 253 (2001); Hodges v. Hodges, 156 N.C. App. 404, 577 S.E.2d 121 (2003); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282; Unger v. Unger, - N.C. App. - , 834 S.E.2d 649 (2019), appeal dismissed, 373 N.C. 593, 837 S.E.2d 721, 2020 N.C. LEXIS 75 (N.C. 2020).


§ 5A-13. Direct and indirect criminal contempt; proceedings required.

  1. Criminal contempt is direct criminal contempt when the act:
    1. Is committed within the sight or hearing of a presiding judicial official; and
    2. Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and
    3. Is likely to interrupt or interfere with matters then before the court.
  2. Any criminal contempt other than direct criminal contempt is indirect criminal contempt and is punishable only after proceedings in accordance with the procedure required by G.S. 5A-15.

The presiding judicial official may punish summarily for direct criminal contempt according to the requirements of G.S. 5A-14 or may defer adjudication and sentencing as provided in G.S. 5A-15. If proceedings for direct criminal contempt are deferred, the judicial official must, immediately following the conduct, inform the person of his intention to institute contempt proceedings.

History

(1977, c. 711, s. 3.)

OFFICIAL COMMENTARY

This section specifies that only direct criminal contempt may be the subject of summary proceedings and defines direct criminal contempt. The three factors listed in subsection (a)(1), (2) and (3) must all be present before an act can be direct contempt. Subsection (a) also permits the judge who is authorized to punish summarily to defer the proceedings if he choose. The last sentence of subsection (a) establishes the rule that a person be cited for contempt at the time the contempt occurs even if the proceedings are to be held later.

CASE NOTES

Editor's Note. - Some of the annotations under this section are from cases decided under former statutory provisions.

When Notice and Hearing Are Required. - Summary proceedings are appropriate for punishing direct contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt; however, in cases where a court does not act immediately to punish acts constituting direct contempt or where the contempt is indirect, notice and a hearing is required. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Trial court had jurisdiction to find defendant in criminal contempt because, as statutorily required, the court's show cause order required defendant to appear and explain defendant's noncompliance with court orders. State v. Revels, 250 N.C. App. 754, 793 S.E.2d 744 (2016).

False Testimony as Direct or Indirect Contempt. - Where all the facts necessary to establish false testimony were not before the court, it was impossible to say that there were words spoken or acts committed in the actual presence of the court which would constitute direct contempt. In re Edison, 15 N.C. App. 354, 190 S.E.2d 235 (1972), decided under former statutory provisions.

Indirect Contempt. - Indirect contempt is that which arises from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice. Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).

Failure to comply with a prior court order would amount to an act committed outside the presence of the court, at a distance from it, which tends to degrade the court or interrupts, prevents or impedes the administration of justice and would be classified an indirect contempt. Ingle v. Ingle, 18 N.C. App. 455, 197 S.E.2d 61 (1973), decided under former G.S. 5-7; Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

Defendant's failure to appear at a show cause hearing was classified as indirect criminal contempt since trial judge had no direct knowledge of facts which would establish that defendant's failure to appear was willful. Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989).

Urging Witness to Disobey Subpoena as Indirect Contempt. - Where there was evidence that defendant telephoned a witness in a civil action and tried to get her not to obey a subpoena to be issued by the court, defendant was held to be in indirect contempt of court in accordance with this section. State v. Wall, 49 N.C. App. 678, 272 S.E.2d 152 (1980).

Deliberate Disobedience Irrespective of Intent. - Attorney willfully disobeyed a lawful order of the court in a manner that was likely to interrupt the matters before the court where he deliberately disobeyed the judge's repeated orders to sit down and be quiet, and while it was unlikely that he intended any insult or injury to the court, he consciously disobeyed direct orders and was properly convicted of criminal contempt. Nakell v. Attorney Gen., 15 F.3d 319 (4th Cir.), cert. denied, 513 U.S. 866, 115 S. Ct. 184, 130 L. Ed. 2d 118 (1994).

Requirements of Due Process. - The requirements of due process are met when one charged with contempt is afforded notice and an opportunity to be heard; delayed summary contempt proceedings are also consistent with due process. Nakell v. Attorney Gen., 15 F.3d 319 (4th Cir.), cert. denied, 513 U.S. 866, 115 S. Ct. 184, 130 L. Ed. 2d 118 (1994).

It was error to hold defendant in criminal contempt in a summary proceeding because he was statutorily entitled to an opportunity to respond, but the court struck language in the court's form order indicating defendant was given such an opportunity, so the criminal contempt order was facially deficient, and a criminal contempt judgment entered upon that order was likewise deficient. State v. Tincher, - N.C. App. - , 831 S.E.2d 859 (2019).

No Right to Counsel in Summary Proceedings for Direct Criminal Contempt. - In light of the existing precedent from both the United States and North Carolina Supreme Courts establishing there was no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt and the North Carolina Supreme Court's discussion in the case law establishing the statutory right to counsel for an indigent person extended only as far as the Sixth Amendment right to counsel, defendant had no statutory right to counsel for his direct criminal contempt. State v. Land, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Penalty for Direct and Indirect Contempt the Same; Thus, No Reversible Error. - In a quiet title action wherein the defendants testified in the trial court's presence, which constituted direct criminal contempt, but the trial court mistakenly held them in indirect criminal contempt, such error was not grounds for reversal as the penalty was the same for both direct and indirect criminal contempt. Adams Creek Assocs. v. Davis, 186 N.C. App. 512, 652 S.E.2d 677 (2007), review denied as to additional issues, 362 N.C. 354, 662 S.E.2d 900 (2008).

Trial court erred when it entered its orders finding defendant in indirect criminal contempt based solely upon acts which occurred after the issuance of the show cause orders. State v. Coleman, 188 N.C. App. 144, 655 S.E.2d 450 (2008).

Findings Did Not Support Direct Contempt Finding. - Trial court's order did not specify whether defendant was found guilty of direct or indirect criminal contact, but the order did not support a conclusion of direct criminal contempt, as the order did not contain any findings satisfying a requisite for such, and thus the court reviewed the order to see if defendant was convicted of indirect criminal contempt. State v. Phillips, 230 N.C. App. 382, 750 S.E.2d 43 (2013).

Orders finding a father in contempt for a failure to pay child support were vacated because (1) an agency presented no evidence other than the amount of child support arrears or past public assistance owed, while the father presented substantial evidence of an inability to pay, including the father's medical condition and minimal living expenses and lack of income, (2) the orders' findings did not support a conclusion that the father willfully refused to pay or had the ability to pay civil contempt purge payments, (3) nothing showed the father was working at the time of trial, nor was this found, and (4) the trial court did not address how much, if any, regular income the father had or the father's subsistence living expenses. Cty. of Durham ex rel. Wilson v. Burnette, 262 N.C. App. 17, 821 S.E.2d 840 (2018), aff'd, 824 S.E.2d 397, 2019 N.C. LEXIS 209 (2019).

Cited in State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251, 250 S.E.2d 603 (1979); State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (1979); State v. Johnson, 52 N.C. App. 592, 279 S.E.2d 77 (1981); State v. Simon, 185 N.C. App. 247, 648 S.E.2d 853 (2007); Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).


§ 5A-14. Summary proceedings for contempt.

  1. The presiding judicial official may summarily impose measures in response to direct criminal contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt.
  2. Before imposing measures under this section, the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt. The facts must be established beyond a reasonable doubt.

History

(1977, c. 711, s. 3.)

OFFICIAL COMMENTARY

If the contempt proceedings are to be summary, subsection (a) requires that they occur substantially at the same time as the contempt itself. Subsection (b) follows the American Bar Association recommendation that the person charged with contempt be given notice of what the contemptuous action was and an opportunity to respond. This was intended not to provide for a hearing, or anything approaching that, in summary contempt proceedings, but merely to assure that the alleged contemnor had an opportunity to point out instances of gross mistake about who committed the contemptuous act or matters of that sort.

Legal Periodicals. - For comment on In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967), see 45 N.C.L. Rev. 863, 884, 924 (1967).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

Editor's Note. - Some of the annotations under this section are from cases decided under former statutory provisions.

Constitutionality. - Summary punishment for direct contempt committed in the presence of the court does not contemplate a trial at which the person charged with contempt must be represented by counsel, and therefore sentence for contempt does not deprive the contemnor of his liberty without due process of law. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

The requirements of this section are meant to ensure that the individual has an opportunity to present reasons not to impose a sanction. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (1999).

The term "substantially contemporaneously with the contempt" in subsection (a) of this section is construed in light of its legislative purpose of meeting due process safeguards. The word "substantially" qualifies the word "contemporaneously," and clearly does not require that the contempt proceedings immediately follow the misconduct. Factors bearing on the time lapse include the contemnor's notice or knowledge of the charged misconduct, the nature of the misconduct, and other circumstances that may have some bearing upon the defendant's right to a fair and timely hearing. State v. Johnson, 52 N.C. App. 592, 279 S.E.2d 77, cert. denied and appeal dismissed, 303 N.C. 549, 281 S.E.2d 390 (1981).

No Right to Counsel in Summary Proceedings for Direct Criminal Contempt. - In light of the existing precedent from both the United States and North Carolina Supreme Courts establishing there was no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt and the North Carolina Supreme Court's discussion in the case law establishing the statutory right to counsel for an indigent person extended only as far as the Sixth Amendment right to counsel, defendant had no statutory right to counsel for his direct criminal contempt. State v. Land, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Jury Trial. - It is well settled that the defendant in contempt proceedings is not entitled to a jury trial upon the controverted facts. In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890).

Contemnor Must Have Opportunity to Be Heard. - The court violated this section where the transcript revealed that the court advised contemnor that, because he had questioned the rulings of the court and shown disrespect for the court, he was in the bailiff's custody after which the court was immediately recessed without giving him "an opportunity to present reasons not to impose a sanction." Peaches v. Payne, 139 N.C. App. 580, 533 S.E.2d 851 (2000).

Trial court failed to comply with the statutory requirements by failing to give defendant a summary opportunity to respond to the charge of criminal contempt after defendant failed to stand for the call to rise. State v. Randell, 152 N.C. App. 469, 567 S.E.2d 814 (2002).

It was error to hold defendant in criminal contempt in a summary proceeding because he was statutorily entitled to an opportunity to respond, but the court struck language in the court's form order indicating defendant was given such an opportunity, so the criminal contempt order was facially deficient, and a criminal contempt judgment entered upon that order was likewise deficient. State v. Tincher, - N.C. App. - , 831 S.E.2d 859 (2019).

When Notice and Hearing Are Required. - Summary proceedings are appropriate for punishing direct contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt; however, in cases where a court does not act immediately to punish acts constituting direct contempt or where the contempt is indirect, notice and a hearing is required. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

When Notice and Hearing Not Required. - Notice and a formal hearing are not required when the trial court promptly punishes acts of contempt in its presence. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (1999).

Failure to Provide Notice and Opportunity to be Heard. - In an appeal from a contempt judgment, the trial court erred by failing to give defendant summary notice and an opportunity to be heard before entering judgment, as the findings and order signed by the trial court contained a pre-printed finding that the contemnor was given summary notice of the charges and summary opportunity to respond but the record directly contradicted the form language, showing instead that judgment and sentence were imposed without notice and no opportunity to be heard was given. State v. Perkinson, - N.C. App. - , 844 S.E.2d 336 (2020).

What Findings of Fact Must Include. - A requirement that the judicial official's findings should indicate that the standard of proof required by subsection (b) was applied to his findings of fact is implicit in this section. State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (1979).

It is implicit in this section that the judicial official's findings in a summary contempt proceeding should clearly reflect that the contemnor was given an opportunity to be heard, along with a summary of whatever response was made and the judicial official's finding that the excuse or explanation proffered was inadequate or disbelieved. State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (1979).

Neither the trial court's findings in the summary proceeding, nor the superior court's findings in the plenary proceeding, conducted de novo pursuant to G.S. 5A-17, specifically indicated that the beyond a reasonable doubt standard was actually applied; the failure to make such an indication made the contempt orders fatally deficient. State v. Ford, 164 N.C. App. 566, 596 S.E.2d 846 (2004).

Trial court's order finding an attorney in criminal contempt under G.S. 5A-11(a)(6) was reversed because the trial court failed to indicate that the trial court applied the beyond a reasonable doubt standard to the trial court's findings as required by G.S. 5A-14(b). In re Contempt Proceedings Against Cogdell, 183 N.C. App. 286, 644 S.E.2d 261 (2007).

Trial court erred in holding defendant in direct criminal contempt as it failed to mention the beyond a reasonable doubt standard of proof. State v. Chavis, - N.C. App. - , - S.E.2d - (July 20, 2021).

Illustrative Case. - Trial court complied with the requirements of this section and properly declined to recognize a news reporter's qualified privilege to refuse to testify in a criminal proceeding regarding non-confidential information obtained from a non-confidential source. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (1999).

Applied in Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247 (1982).

Cited in State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251, 250 S.E.2d 603 (1979); Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989); Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93 (2011), cert. denied, 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011); State v. Phillips, 230 N.C. App. 382, 750 S.E.2d 43 (2013).


§ 5A-15. Plenary proceedings for contempt.

  1. When a judicial official chooses not to proceed summarily against a person charged with direct criminal contempt or when he may not proceed summarily, he may proceed by an order directing the person to appear before a judge at a reasonable time specified in the order and show cause why he should not be held in contempt of court. A copy of the order must be furnished to the person charged. If the criminal contempt is based upon acts before a judge which so involve him that his objectivity may reasonably be questioned, the order must be returned before a different judge.
  2. Proceedings under this section are before a district court judge unless a court superior to the district court issued the order, in which case the proceedings are before that court. Venue lies throughout the district court district as defined in G.S. 7A-133 or superior court district or set of districts as defined in G.S. 7A-41.1, as the case may be, where the order was issued.
  3. The person ordered to show cause may move to dismiss the order.
  4. The judge is the trier of facts at the show cause hearing.
  5. The person charged with contempt may not be compelled to be a witness against himself in the hearing.
  6. At the conclusion of the hearing, the judge must enter a finding of guilty or not guilty. If the person is found to be in contempt, the judge must make findings of fact and enter judgment. The facts must be established beyond a reasonable doubt.
  7. The judge presiding over the hearing may appoint a prosecutor or, in the event of an apparent conflict of interest, some other member of the bar to represent the court in hearings for criminal contempt.

History

(1977, c. 711, s. 3; 1987 (Reg. Sess., 1988), c. 1037, s. 44.)

OFFICIAL COMMENTARY

This section provides for a show-cause hearing in instances in which the judge either chooses not to proceed by summary proceedings or may not so proceed because the contempt was not direct. Plenary proceedings may not be held by a magistrate or clerk; they must always be held before a judge. The final sentence of subsection (a) responds to the constitutional requirement of Bloom v. Illinois, 391 U.S. 194 (1968), that contempt proceedings be held before another judge when the one citing the contemnor was involved in the act in question. Subsection (f) permits the judge, in addition to using the prosecutor, who traditionally represents the court in contempt actions, to appoint another member of the Bar when there is a conflict of interest. The central example of this would be when the prosecutor himself or a law-enforcement officer with whom he worked closely was involved in the contempt.

Legal Periodicals. - For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

Notice of Charges and Opportunity to Be Heard. - The principles of due process require that before an attorney is finally adjudicated in contempt and sentenced after a trial for conduct during the trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), , 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

Trial court had jurisdiction to find defendant in criminal contempt because, as statutorily required, the court's show cause order required defendant to appear and explain defendant's noncompliance with court orders. State v. Revels, 250 N.C. App. 754, 793 S.E.2d 744 (2016).

When Notice and Hearing Are Required. - Summary proceedings are appropriate for punishing direct contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt; however, in cases where a court does not act immediately to punish acts constituting direct contempt or where the contempt is indirect, notice and a hearing is required. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Section Held Applicable. - Where trial judge did not proceed summarily against plaintiff, the Supreme Court would conclude, without deciding whether plaintiff's acts constituted direct or indirect contempt, that this section, requiring a plenary proceeding, governed the appropriate procedure. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Reasonable Doubt Standard. - Trial court properly held defendant in criminal contempt for failure to appear and testify in accordance with subpoenas served on her because, while the subpoena personally served on her contained only the first page, and the protections required by statute were on the missing second page, the subpoena was properly served via telephone by a member of the county sheriff's department, the trial court was not required to make any findings of improper conduct before issuing a show cause order, and the trial court used the reasonable doubt standard when presenting its findings in open court. State v. Gonzalez, - N.C. App. - , - S.E.2d - (July 6, 2021).

Beyond a Reasonable Doubt Standard Required. - Although the trial court made numerous findings about defendant's inexcusable behavior, none of the findings indicated that the trial court used the beyond a reasonable standard of proof, nor was there a finding of guilt; the trial court's failure to indicate that it applied beyond a reasonable doubt as the standard of proof in finding facts, as required by the statute, rendered the contempt order fatally deficient. State v. Phillips, 230 N.C. App. 382, 750 S.E.2d 43 (2013).

What findings of fact must include - Superior court order from a plenary proceeding of contempt under G.S. 5A-15(f) must indicate that the reasonable doubt standard of proof was applied to the findings of fact; failure to make such an indication is fatally deficient, unless the proceeding is of a limited instance where there were no factual determinations for the court to make. State v. Ford, 164 N.C. App. 566, 596 S.E.2d 846 (2004).

Findings Not Required. - Court need not make specific findings of improper conduct when issuing a criminal contempt citation. State v. Pierce, 134 N.C. App. 148, 516 S.E.2d 916 (1999).

Defendant Not Subjected to Improper Burden of Proof. - Defendant was not subjected to an improper burden of proof under G.S. 5A-15(f) in finding that defendant was in criminal contempt under G.S. 5A-11(a)(3), as defendant admitted that defendant was ordered to stay out of the judges' offices and that defendant entered an area of the courthouse marked "Judges Offices" to file an emergency motion with the trial court administrator; there was no issue of fact to be decided, and thus no burden of proof was placed on defendant, as the trial court properly required proof beyond a reasonable doubt of defendant's contempt of court. State v. Simon, 185 N.C. App. 247, 648 S.E.2d 853 (2007).

Verification Not Prerequisite to Issuance of Show Cause Order. - The filing of a petition, an affidavit, or other proper verification is not required as a prerequisite to issuance of a show cause order under this section, although they may be a proper basis for issuance of the show cause order. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

Service Held Proper. - Where the court issued an order pursuant to G.S. 1A-1, Rule 4(j)(1)c notifying a foreign attorney of the contempt charges and allowing him 60 days to respond to the charges, which order was mailed to the attorney at the address he gave the court in a motion to be admitted in a case pro hac vice, this method of service was proper to comply with the requirement of subsection (a) that "[a] copy of the order must be furnished to the person charged", where the court had personal jurisdiction as provided in G.S. 1-75.4. In re Smith, 45 N.C. App. 123, 263 S.E.2d 23 (1980), rev'd on other grounds, 301 N.C. 621, 272 S.E.2d 834 (1981).

Notice Held Inadequate. - Notice afforded plaintiff mother in custody and support proceedings was inadequate to inform her that she should be prepared to defend herself, for her failure to attend court hearings, on charges of contempt at custody trial. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Contempt Following Chapter 19 Injunction. - The plenary proceedings provided for in this section apply to contempt actions following a Chapter 19 injunction. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251, 250 S.E.2d 603 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980), aff'd, 302 N.C. 321, 275 S.E.2d 443 (1981).

Trial court erred when it entered its orders finding defendant in indirect criminal contempt based solely upon acts which occurred after the issuance of the show cause orders. State v. Coleman, 188 N.C. App. 144, 655 S.E.2d 450 (2008).

Order Finding Attorney in Criminal Contempt was Erroneous. - Trial court erred in finding the attorney to be in criminal contempt because G.S. 5A-15(a) required the show cause order to be returned before a different judge when the circumstances cited in the statute caused the objectivity of the presiding judge to be reasonably questioned and, in the instant action, there was a reasonable possibility that, had the order been returned before a different judge, a different result would have been reached. In re Marshall, 191 N.C. App. 53, 662 S.E.2d 5 (2008).

Attorney was erroneously found in criminal contempt because the trial court did not follow the procedures required by G.S. 5A-15. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).

Recusal of Judge in Contempt Hearing. - Absent facts to suggest bias or impartiality toward defendant, the trial judge's decision to deny defendant's motion for recusal was affirmed because the colloquy between the judge and defense counsel reflected that the judge considered the judge's position as the trier of fact and determined that the judge was able to preside over the criminal contempt hearing in an objective, impartial manner. In re Eldridge, - N.C. App. - , 836 S.E.2d 859 (2019), review denied, 837 S.E.2d 883, 2020 N.C. LEXIS 112 (N.C. 2020).

Appellate Review. - Trial court's order did not specify whether defendant was found guilty of direct or indirect criminal contact, but the order did not support a conclusion of direct criminal contempt, as the order did not contain any findings satisfying a requisite for such, and thus the court reviewed the order to see if defendant was convicted of indirect criminal contempt. State v. Phillips, 230 N.C. App. 382, 750 S.E.2d 43 (2013).

Applied in Bennett v. Bennett, 71 N.C. App. 424, 322 S.E.2d 439 (1984); Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989).

Cited in State v. Johnson, 52 N.C. App. 592, 279 S.E.2d 77 (1981); State v. Fie, 320 N.C. 626, 359 S.E.2d 774 (1987); Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988); Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991); Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).


§ 5A-16. Custody of person charged with criminal contempt.

  1. A judicial official may orally order that a person he is charging with direct criminal contempt be taken into custody and restrained to the extent necessary to assure his presence for summary proceedings or notice of plenary proceedings.
  2. If a judicial official who initiates plenary proceedings for contempt under G.S. 5A-15 finds, based on sworn statement or affidavit, probable cause to believe the person ordered to appear will not appear in response to the order, he may issue an order for arrest of the person, pursuant to G.S. 15A-305. A person arrested under this subsection is entitled to release under the provisions of Article 26, Bail, of Chapter 15A of the General Statutes.

History

(1977, c. 711, s. 3.)

OFFICIAL COMMENTARY

The authority for taking custody of a person charged with contempt has been unclear. This section is aimed to fill that gap. Subsection (a) clarifies the legality of seizing a person charged with direct contempt and bringing him before the judge. Subsection (b) makes clear the propriety of issuing an order for arrest of a person when the proceedings are not to be summary. A concurrent change in G.S. 15A-305, providing for the order for arrest, makes clear that an order may be used for this purpose.

CASE NOTES

Applied in Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984).


§ 5A-17. Appeals; bail proceedings.

  1. A person found in criminal contempt may appeal in the manner provided for appeals in criminal actions, except appeal from a finding of contempt by a judicial official inferior to a superior court judge is by hearing de novo before a superior court judge.
  2. Upon appeal in a case where the judicial official imposes confinement, a bail hearing shall be held within a reasonable time period after imposition of the confinement. The judicial official holding the bail hearing shall be:
    1. A district court judge if the confinement is imposed by a clerk or magistrate.
    2. A superior court judge if the confinement is imposed by a district court judge.
    3. A superior court judge other than the superior court judge that imposed the confinement.
  3. A person found in contempt and who has given notice of appeal may be retained in custody not more than 24 hours from the time of imposition of confinement without a bail determination being made by a judicial official as designated under subdivisions (1) through (3) of subsection (b) of this section. If a designated judicial official has not acted within 24 hours of the imposition of confinement, any judicial official shall act under the provisions of subsection (b) of this section and hold the bail hearing.

History

(1977, c. 711, s. 3; 2013-303, s. 1.)

OFFICIAL COMMENTARY

This section rejects present law and permits appeal from all convictions for criminal contempt.

Cross References. - As to appeals in criminal actions before magistrates and district court judges, see G.S. 15A-1431 et seq.

As to appeals to the appellate division, see G.S. 15A-1441 et seq.

Editor's Note. - Session Laws 2013-303, s. 2, made the amendment to this section by Session Laws 2013-303, s. 1, applicable to confinement imposed on or after December 1, 2013.

Effect of Amendments. - Session Laws 2013-303, s. 1, effective December 1, 2013, added "bail proceedings" to the section heading; redesignated the formerly undesignated provisions of this section as present subsection (a); and added subsections (b) and (c). For applicability, see Editor's note.

Legal Periodicals. - For article, "The Substantial Right Doctrine and Interlocutory Appeals," see 17 Campbell L. Rev. 71 (1995).

CASE NOTES

Editor's Note. - Some of the annotations under this section are from cases decided under former statutory provisions.

Jurisdiction. - This section vests exclusive jurisdiction in the superior court to hear appeals from orders in the district court holding a person in criminal contempt. Michael v. Michael, 77 N.C. App. 841, 336 S.E.2d 414 (1985), cert. denied, 316 N.C. 195, 341 S.E.2d 577 (1986).

Criminal contempt orders are properly appealed from district court to the superior court, not to the Court of Appeals. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996).

Because neither the appellant, nor the appellant's trial counsel challenged the decision of the trial court judge, either at the end of a recusal hearing or in the appellant's notice of appeal, the appellate court lacked jurisdiction to review the appellant's arguments. State v. Okwara, 223 N.C. App. 166, 733 S.E.2d 576 (2012).

Court of Appeals had no jurisdiction to hear a father's appeal of a district court's criminal contempt finding because the father's only recourse was to appeal to a superior court. Summerville v. Summerville, 259 N.C. App. 228, 814 S.E.2d 887 (2018).

Appellate court lacked jurisdiction to review the trial court's contempt order, finding a former husband in criminal contempt for failure to pay spousal support, but not in contempt for failure to pay child support, because it was unclear whether the order was grounded in civil or criminal contempt, the former wife failed to articulate any basis for appealing the order, and failed to present any adequate basis to determine the appellate court's jurisdiction. Hardy v. Hardy, - N.C. App. - , 842 S.E.2d 148 (2020).

Standard of review de novo. - Neither the trial court's findings in the summary proceeding, nor the superior court's findings in the plenary proceeding, conducted de novo pursuant to G.S. 5A-17, specifically indicated that the beyond a reasonable doubt standard was actually applied; the failure to make such an indication made the contempt orders fatally deficient. State v. Ford, 164 N.C. App. 566, 596 S.E.2d 846 (2004).

Criminal Contempt. - Father's appeal of that portion of a trial court's contempt order finding him in criminal contempt was not properly before the appellate court, which dismissed that portion of the father's appeal. McKinney v. McKinney, 253 N.C. App. 473, 799 S.E.2d 280 (2017).

Appealability of Acquittal of Criminal Contempt. - In a domestic relations case in which plaintiff sought to have defendant's attorney held in contempt for harboring a child for the purpose of resisting and interfering with a court order granting temporary custody to the plaintiff, the charges were in the nature of criminal contempt, and the court's order finding that the attorney's conduct did not constitute contempt was not appealable, since the acquittal did not affect any substantial right of the plaintiff. Patterson v. Phillips, 56 N.C. App. 454, 289 S.E.2d 48 (1982).

Finding of Fact Not Disturbed. - Where the judge has found sufficient facts to attach the defendant for direct contempt of court, upon imposing punishment therefor, the finding will not be disturbed by appeal. In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890); State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

The finding of fact by the judge will not be disturbed upon an appeal on an indirect contempt. In re Parker, 177 N.C. 463, 99 S.E. 342 (1919).

On appeals from a subordinate court to the superior court, the facts as well as the law will be reviewed, and even additional testimony may be heard. In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890).

Cited in Patterson v. Phillips, 56 N.C. App. 454, 289 S.E.2d 48 (1982); State v. McGee, 66 N.C. App. 369, 311 S.E.2d 383 (1984); Hammock v. Bencini, 98 N.C. App. 510, 391 S.E.2d 210 (1990); Vaughn v. Vaughn, 99 N.C. App. 574, 393 S.E.2d 567 (1990); State v. Mauney, 106 N.C. App. 26, 415 S.E.2d 208 (1992); Jones v. Jones, 121 N.C. App. 529, 466 S.E.2d 344 (1996); Hodges v. Hodges, 156 N.C. App. 404, 577 S.E.2d 121 (2003).


§§ 5A-18 through 5A-20: Reserved for future codification purposes.

ARTICLE 2. Civil Contempt.

Sec.

OFFICIAL COMMENTARY

The Commission felt that it was proper, once they had to deal with civil contempt in some respect as a consequence of severing it in Chapter 5 from the related criminal contempt provisions, to resolve some of the uncertainties that surround the present civil contempt procedures.

§ 5A-21. Civil contempt; imprisonment to compel compliance.

  1. Failure to comply with an order of a court is a continuing civil contempt as long as:
    1. The order remains in force;
    2. The purpose of the order may still be served by compliance with the order;
    3. The noncompliance by the person to whom the order is directed is willful; and
    4. The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.
  2. A person who is found in civil contempt may be imprisoned as long as the civil contempt continues, subject to the limitations provided in subsections (b1) and (b2) of this section. Notwithstanding subsection (b2) of this section, if a person is found in civil contempt for failure to pay child support or failure to comply with a court order to perform an act that does not require the payment of a monetary judgment, the person may be imprisoned as long as the civil contempt continues without further hearing.
  3. A person who is found in civil contempt, but was not arrested, for failure to comply with a nontestimonial identification order issued pursuant to Article 14, Nontestimonial Identification Order, of Chapter 15A of the General Statutes may not be imprisoned more than 90 days unless the person is arrested on probable cause.
  4. The period of imprisonment for a person found in civil contempt shall not exceed 90 days for the same act of disobedience or refusal to comply with an order of the court. A person who has not purged himself or herself of the contempt within the period of imprisonment imposed by the court under this subsection may be recommitted for one or more successive periods of imprisonment, each not to exceed 90 days. However, the total period of imprisonment for the same act of disobedience or refusal to comply with the order of the court shall not exceed 12 months, including both the initial period of imprisonment imposed under this section and any additional period of imprisonment imposed under this subsection. Before the court may recommit a person to any additional period of imprisonment under this subsection, the court shall conduct a hearing de novo. The court must enter a finding for or against the alleged contemnor on each of the elements of G.S. 5A-21(a), and must find that all of elements of G.S. 5A-21(a) continue to exist before the person can be recommitted. For purposes of this subsection, a person's failure or refusal to purge himself or herself of contempt shall not be deemed a separate or additional act of disobedience, failure, or refusal to comply with an order of the court.
  5. A person who is found in civil contempt under this Article shall not, for the same conduct, be found in criminal contempt under Article 1 of this Chapter.
  6. A person who is found in civil contempt under this Article is not subject to the imposition of a fine.

History

(1977, c. 711, s. 3; 1979, 2nd Sess., c. 1080, s. 1; 1999-361, s. 1; 2015-210, s. 1.)

OFFICIAL COMMENTARY

This section is based on the Commission's recognition that civil contempt should be solely a matter of forcing the contemnor to comply with a court order and, unlike criminal contempt, is not a form of punishment. Subsections (a) and (b) make clear that civil contempt is appropriate only so long as the court order is capable of being complied with. The section rejects the approach of the present Chapter 5 specifying particular grounds for civil contempt. Instead, the only issue in determining whether imprisonment for civil contempt is proper is whether or not there is a court order which may be complied with. Subdivision (3) of subsection (a), by specifying that the contempt continues while the person is "able to take reasonable measures that would enable him to comply," is intended to make clear, for example, that the person who does not have the money to make court-ordered payments but who could take a job which would enable him to make those payments, remains in contempt by not taking such a job. In most cases, a person in civil contempt may be held for so long as his civil contempt continues; he holds the keys to his own jail by virtue of his ability to comply. The Commission felt, however, in the case of failure to comply with nontestimonial identification order by one who is only suspected of a crime, that this unlimited jailing would be improper. Therefore, unless probable cause for arrest arises, the person subject to a nontestimonial identification order who remains noncompliant must be released after 90 days. Concurrent amendments to G.S. 15A-279 (the section dealing with nontestimonial identification orders) point out that resisting compliance with a nontestimonial identification order may be used in determining whether there is probable cause that the person subject to the order committed the crime in question. This means that in many cases the person who resists the order for the full 90 day period will become subject to arrest on probable cause, at which time the 90 day limitation will no longer apply. Another concurrent amendment to G.S. 15A-279 provides, however, that a nontestimonial identification order may not be reissued unless there is newly available evidence to support it. In subsection (c), the Commission was seeking to insure that a person could not serve a longer period of imprisonment by being found in both civil and criminal contempt for the same conduct than he could if he had been found to be in only civil or criminal contempt. An earlier draft of this subsection had specified that a finding of civil or criminal contempt did not preclude disciplinary proceedings if the contemnor were a member of the Bar. The Commission approved this policy but felt it more appropriate that it be mentioned in commentary rather than in the body of the section.

Cross References. - As to punishment for civil contempt of persons failing to report dispositions of criminal cases, see G.S. 15A-1381.

Editor's Note. - Session Laws 2015-210, s. 5, made subsection (d) of this section, as added by Session Laws 2015-210, s. 1, effective October 1, 2015, and applicable to civil contempt orders entered on or after that date, added subsection (d).

Effect of Amendments. - Session Laws 2015-210, s. 1, effective October 1, 2015, and applicable to civil contempt orders entered on or after that date, added subsection (d).

Legal Periodicals. - For comment on this and other sections dealing with contempt, see 12 N.C.L. Rev. 260 (1934).

For note on criminal and civil contempt proceedings, see 34 N.C.L. Rev. 221 (1956).

For note on right to jury trial in criminal contempt proceedings, see 6 Wake Forest Intra. L. Rev. 356 (1970).

For article, "Trial Stage and Appellate Procedure Act: An Overview," see 14 Wake Forest L. Rev. 899 (1978).

For article, "Contempt, Order in the Courtroom, Mistrials," see 14 Wake Forest L. Rev. 909 (1978).

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

For note on enforcement of separation agreements by specific performance, see 16 Wake Forest L. Rev. 117 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1097 (1981).

For article, "The Distinction Between Civil and Criminal Contempt in North Carolina," see 67 N.C.L. Rev. 1281 (1989).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the annotations under this section are from cases decided under former statutory provisions.

Nature and Purpose of Proceeding. - Civil contempt is applied to a continuing act, and the proceeding is used to compel obedience to orders and decrees made for the benefit of private parties and to preserve and enforce private rights. Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 320 (1967); Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969).

Civil contempt proceedings are without question civil in nature. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980).

This section makes clear that civil contempt is not a form of punishment; rather, it is a civil remedy to be utilized exclusively to enforce compliance with court orders. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980).

The purpose of civil contempt is not to punish; rather, its purpose is to use the court's power to impose fines or imprisonment as a method of coercing the defendant to comply with an order of the court. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980); Ferree v. Ferree, 71 N.C. App. 737, 323 S.E.2d 52 (1984), cert. denied, 313 N.C. 328, 327 S.E.2d 889 (1985).

Acts and omissions constituting civil contempt involve matters tending to defeat, impair, impede, or prejudice the rights or remedies of a party to an action pending in court, and are punishable with the underlying purpose of preserving private rights by coercion. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

When the trial court ordered defendant to either pay plaintiff $400 or serve thirty days in jail for willfully refusing to pay postseparation support to plaintiff, the action was for defendant's failure to comply with the trial court's previous order, and it was evident that the trial court was exercising its contempt power to provide a remedy for an injured suitor and to coerce compliance with an order. Therefore, this was a contempt order, and it was civil contempt. Thompson v. Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012).

Trial court did not err by denying defendants' motions for release from conditional incarceration for civil contempt because its unchallenged findings supported its conclusion that continuation of defendants' incarceration under the contempt order was not punitive; because the relief was imprisonment, and defendants could be released by performing affirmative acts required by the trial court, it was coercive and thus, civil. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Criminal and Civil Contempt Distinguished. - The line of demarcation between civil and criminal contempts is hazy at best. A major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised. Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985).

Criminal contempt is a term 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. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

Proceedings instituted to vindicate the dignity of the court and to punish attorney for his alleged interference with a custody order, although arising in a civil case, are criminal in nature. Patterson v. Phillips, 56 N.C. App. 454, 289 S.E.2d 48 (1982).

In a quiet title action wherein defendants were found in civil contempt for failing to comply with the trial court's 2004 order not to trespass any longer, and were found in criminal contempt for their testimony threatening to disobey future orders of the court, the defendants were found in civil and criminal contempt on the basis of different acts and, therefore, they were found in civil and criminal contempt for the same behavior in violation of G.S. 5A-21 and G.S. 5A-23. Adams Creek Assocs. v. Davis, 186 N.C. App. 512, 652 S.E.2d 677 (2007), review denied as to additional issues, 362 N.C. 354, 662 S.E.2d 900 (2008).

An administrative agency of the State is not subject to contempt. North Carolina DOT v. Davenport, 334 N.C. 428, 432 S.E.2d 303 (1993).

Treatment of Civil Contempt. - Where the court finds that a defendant is in civil contempt, it is not limited by G.S. 5A-12 to imposing a 30-day sentence for criminal contempt. Under subsection (b) of this section, it can order his imprisonment until he purges himself of contempt. Bennett v. Bennett, 71 N.C. App. 424, 322 S.E.2d 439 (1984).

Trial court was in error where it described a civil contempt action as punishment. Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).

Civil contempt order was not proper where the court order allegedly violated was not directed at defendant. Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).

Punishment for Both Criminal and Civil Contempt. - As recognized in G.S. 5A-12(d) and subsection (c) of this section, a person may be found to be in both criminal and civil contempt, although only a single act was committed. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

There are certain instances where contemners may be punished for both criminal contempt and for civil contempt. Blue Jeans Corp. v. Amalgamated Clothing Workers, 4 N.C. App. 245, 166 S.E.2d 698, aff'd, 275 N.C. 503, 169 S.E.2d 867 (1969).

One act may be punishable as both civil contempt and criminal contempt. This kind of duality particularly inheres in a party litigant's willful failure to comply with a discovery order. Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976).

Disobedience Must Be Willful. - A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful, which imports knowledge and a stubborn resistance. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

The element of willfulness is required for a finding of civil contempt under G.S. 50-13.4(f)(9) and this section. Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981); Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

While a strict reading of this section does not require that a defendant's conduct be willful in order for him/her to be found in civil contempt, the courts have interpreted the statute to require an element of willfulness. Ross v. Voiers, 127 N.C. App. 415, 490 S.E.2d 244 (1997), cert. denied, 347 N.C. 402, 496 S.E.2d 387 (1997).

Although the statutes governing civil contempt do not expressly require willful conduct, case law has interpreted the statutes to require an element of willfulness. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997).

Father was properly held in contempt for not paying child support where (1) he was properly subject to an order increasing his child support obligation as of the date of the mother's filing of a divorce complaint, (2) the purpose of the order could be served by his compliance, and (3) his noncompliance with the order was willful in that he had made no payment toward the increase in his obligation from the date of the complaint to the date of trial, despite his ability to comply with the court's order, and he presented no evidence as to why he should not be held in contempt. Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002).

It was ambiguous whether the language of the order proscribed plaintiff's conduct, and thus it could not be said that her actions were willful and it was error for the trial court to have found plaintiff in contempt. Williams v. Chaney, 250 N.C. App. 476, 792 S.E.2d 207 (2016).

Defendant was not improperly found in civil and criminal contempt for the same acts because defendant was found in civil contempt for continued conduct and in criminal contempt for past conduct. State v. Revels, 250 N.C. App. 754, 793 S.E.2d 744 (2016).

Thus, Defendant Must Possess Means to Comply. - To support a finding of willfulness in failing to comply with a support order, there must be evidence to establish as an affirmative fact that defendant possessed the means to comply with the order at some time after the entry of the order. Teachey v. Teachey, 46 N.C. App. 332, 264 S.E.2d 786 (1980).

For civil contempt to be applicable, the defendant must have the present ability to comply, or the present ability to take reasonable measures that would enable him to comply, with the order. Teachey v. Teachey, 46 N.C. App. 332, 264 S.E.2d 786 (1980); Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983); Lee v. Lee, 78 N.C. App. 632, 337 S.E.2d 690 (1985).

In order to punish by contempt proceedings, the trial court must 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. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970); Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Civil contempt is based upon acts or neglect constituting a willful violation of a lawful order of the court. A failure to obey an order of the court cannot be punished by attachment for civil contempt unless the disobedience is willful. It is well settled that 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. Henderson v. Henderson, 307 N.C. 401, 298 S.E.2d 345 (1983).

This section and G.S. 5A-22 must be construed in pari materia. 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. McMiller v. McMiller, 77 N.C. App. 808, 336 S.E.2d 134 (1985).

The purpose of civil contempt is to coerce compliance with a court order; therefore, present ability or means to satisfy that order is essential. Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986).

Court Must Determine Defendant's Ability to Comply. - A defendant in a civil contempt action will be fined or incarcerated only after a determination is made that the defendant is capable of complying with the order of the court. Reece v. Reece, 58 N.C. App. 404, 293 S.E.2d 662 (1982).

Order holding a husband in civil contempt for not paying previously ordered obligations was vacated because only the husband's partial ability to comply was found, yet the husband was ordered to comply in full and pay more. Spears v. Spears, 245 N.C. App. 260, 784 S.E.2d 485 (2016).

When determining business owners' ability to comply with an order in proceedings on whether the owners should be held in contempt, it was not improper to consider the owners' jointly-held bank accounts and individually-held investment retirement accounts because such assets were relevant to the owners' ability to comply. Plasman v. Decca Furniture (USA), Inc., 253 N.C. App. 484, 800 S.E.2d 761 (2017), cert. denied, 812 S.E.2d 849, 2018 N.C. LEXIS 342 (2018) cert. denied, 813 S.E.2d 245, 2018 N.C. LEXIS 400 (2018).

Findings on Means to Comply Held Adequate. - Trial court's finding regarding contemnor's "present means to comply" held minimally sufficient to satisfy the statutory requirement for civil contempt, although specific findings supporting the contemnor's present means are preferable. Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986).

Trial court's finding that a debtor was in civil contempt for failing to comply with a consent judgment for the payment of a debt was proper pursuant to G.S 5A-21(a); the finding was based on evidence establishing as an affirmative fact that the debtor possessed the current ability to comply with the order. GMAC v. Wright, 154 N.C. App. 672, 573 S.E.2d 226 (2002).

Findings Inadequate to Support Contempt. - A trial court's findings that a defendant was healthy and able-bodied, had been and was presently employed, had not been in ill health or incapacitated, and had the ability to earn good wages, without finding that defendant presently had the means to comply, did not support confinement in jail for contempt. Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983).

Trial court erred in holding a husband in contempt for his failure to pay alimony where there was no determination in the trial court's findings of the husband's present ability to comply with the terms of the alimony order. Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004).

It was error to hold defendants in a summary ejectment proceeding in civil contempt. The trial court had not made appropriate findings of fact to support the entry of a civil contempt order, as required by G.S. 5A-23(e), and it had not found that defendants had the ability to comply with the order, as required by G.S. 5A-21(2a)-(3); indeed, it had found that defendants were not able to pay the order. Carter v. Hill, 186 N.C. App. 464, 650 S.E.2d 843 (2007).

Conduct Held Willful. - Defendant's voluntary purging of assets in bankruptcy was considered a deliberate divestment of assets; therefore, failure to comply with a child support order was willful and punishable by contempt proceedings. Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

Findings. - Business owners' claims that an order finding the owners in contempt lacked sufficient findings and was erroneous failed because (1) any lack of findings was immaterial to the owners' obligation to comply, and (2) the owners could not choose to ignore the order whether or not the order was properly issued. Plasman v. Decca Furniture (USA), Inc., 253 N.C. App. 484, 800 S.E.2d 761 (2017), cert. denied, 812 S.E.2d 849, 2018 N.C. LEXIS 342 (2018) cert. denied, 813 S.E.2d 245, 2018 N.C. LEXIS 400 (2018).

Business owners' willful disobedience of a court order enforcing an injunction was properly found because the owners (1) failed to comply with the order, (2) continually sought clarification of the terms of an order that were clear, and (3) refused to accept the trial court's finding that the trial court had jurisdiction despite the owners' appeal. Plasman v. Decca Furniture (USA), Inc., 253 N.C. App. 484, 800 S.E.2d 761 (2017), cert. denied, 812 S.E.2d 849, 2018 N.C. LEXIS 342 (2018) cert. denied, 813 S.E.2d 245, 2018 N.C. LEXIS 400 (2018).

Since defendants were already serving an indefinite, conditional prison sentence for civil contempt at the time their motions for release from conditional incarceration were filed, the trial court was not adjudicating an initial or continuing contempt and thus, had no inherent statutory obligation to consider any of subsection (a)'s enumerations; rather, the issue for the trial court was whether defendants satisfied their burden of showing they were subject to release. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Trial court did not err in refusing to make findings on defendants' inability to comply with a contempt order because based on their refusals to perform the attestation purge act, and their admissions that they would refuse to perform the purge act, they vitiated their inability defense; since the purge condition acts did not require defendants to pay a monetary judgment, they could be imprisoned without further hearing, and the hearing was not an initial or continuing adjudication of contempt. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Trial court did not err by failing to find that the purpose of the civil contempt order and prior orders served by defendants' continued incarceration because defendants had not removed their structures from plaintiff's property, and thus, the purpose of the summary judgment order could still be served by compliance; because the hearing was not an initial or continuing contempt adjudication, the trial court was under no statutory obligation to reconsider. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Findings Sufficient for Contempt Holding. - Finding that a husband was in contempt for failure to pay child support was proper because the trial court's finding that the husband's failure to comply with the order was willful and that he had the ability to comply or take reasonable efforts to do so was minimally sufficient for purposes of G.S. 5A-21; although the husband was gainfully employed at the time the orders were entered, shortly afterward, he joined a religious community which prohibited its members from earning outside income and claimed that he therefore did not have the ability to pay the order. That the husband's religious beliefs may have been sincerely-held was irrelevant. Shippen v. Shippen, 204 N.C. App. 188, 693 S.E.2d 240 (2010).

Trial court did not err by holding a former spouse in civil contempt for the spouse's failure to make the monthly distributive payments required by the equitable distribution order because the evidence supported the court's finding that the spouse had the present ability to pay the distributive award and that the spouse's failure to comply with the order was willful. Lesh v. Lesh, 257 N.C. App. 471, 809 S.E.2d 890 (2018).

Findings of Fact and Conclusions of Law Insufficient. - Findings of fact and conclusion of law in a civil contempt order were insufficient. The trial court had failed to make findings regarding G.S. 5A-21(a)(1) and (2); there were no findings regarding defendant's present ability to pay postseparation support; and the statement that the support order was interlocutory was not a conclusion of law. Thompson v. Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012).

Even if he does not have the money to make court ordered payments, a person will be guilty of civil contempt if he could take a job which would enable him to make those payments. Frank v. Glanville, 45 N.C. App. 313, 262 S.E.2d 677 (1980).

Disobedience of an order made without, or in excess of, jurisdiction is not punishable as contempt. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131 (1980); In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Violation of a provision of a judgment which is void cannot be made the basis for contempt. Corey v. Hardison, 236 N.C. 147, 72 S.E.2d 416 (1952).

Civil Contempt Order Was Improper After Mother Purged Herself - Trial court erred in holding the mother in civil contempt of an order awarding the father custody of the parties' children since the mother had purged herself of contempt by complying with the amended custody order and returning the children to the father; thus, there was no longer any purpose to be served by holding the mother in civil contempt, and the trial court's conclusion was improper as a matter of law. Ruth v. Ruth, 158 N.C. App. 123, 579 S.E.2d 909 (2003).

Confrontation of Witnesses. - The North Carolina Constitution preserves the right of confrontation of the witnesses against an accused, and this right is applicable to contempt proceedings, so that an adjudication of contempt against defendant based on the affidavit of the receiver of a corporation was invalid. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

No Authority to Award Costs to Private Party in Contempt Proceeding. - A North Carolina court has no authority to award damages in the form of costs to a private party in a contempt proceeding. Green v. Crane, 96 N.C. App. 654, 386 S.E.2d 757 (1990).

Although labeled "civil" contempt, a proceeding as for contempt is by no means a civil action or proceeding to which G.S. 6-18 (when costs shall be allowed to plaintiff as a matter of course) or G.S. 6-20 (allowance of costs in discretion of court) would apply. Green v. Crane, 96 N.C. App. 654, 386 S.E.2d 757 (1990).

While it was appropriate for a trial court to order the payment of attorneys' fees in a contempt proceeding for failure to comply with an equitable distribution consent order under G.S. 5A-21, the trial court erred in assessing expert witness fees against a former wife when G.S. 5A-21 did not provide for such payment. Watson v. Watson, 187 N.C. App. 55, 652 S.E.2d 310 (2007), review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).

Court Not Authorized to Award Attorneys' Fees. - In a contempt action for the enforcement of a consent judgment regarding defendant's obligation to pay daughter's college tuition, the trial court was without authority to award the plaintiff attorneys' fees. Powers v. Powers, 103 N.C. App. 697, 407 S.E.2d 269 (1991).

When the trial court found plaintiff in contempt under G.S. 5A-21, it erred in awarding attorney fees to defendant as sanctions; such an award was not authorized by statute, as G.S. 6-18 and G.S. 6-20, governing costs, did not apply to a contempt proceeding. Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc., 180 N.C. App. 230, 636 S.E.2d 307 (2006), review denied, stay denied, 361 N.C. 357, 644 S.E.2d 233 (2007), mot. dismissed, 361 N.C. 357, 644 S.E.2d 234 (2007).

Trial court was without authority to award attorney fees to an individual because there was no statutory authority allowing the trial court to impose attorney fees as a sanction for the failure of business parties to comply with an order of the trial court for the specific performance of a settlement agreement between the individual and the business parties. Baxley v. Jackson, 179 N.C. App. 635, 634 S.E.2d 905 (2006).

Consent Judgment Not Enforceable Through Contempt Powers. - Where the judgment on which the trial court based its contempt order did not reflect a determination by the trial court of either issues of fact or conclusions of law presented by the case before it, the order was merely a recital of the parties' agreement and not an adjudication of rights. Consequently, the consent judgment was not an order enforceable through the contempt powers of the court. Crane v. Green, 114 N.C. App. 105, 441 S.E.2d 144 (1994).

Applied in Monds v. Monds, 46 N.C. App. 301, 264 S.E.2d 750 (1980).

Cited in Abernethy v. Abernethy, 64 N.C. App. 386, 307 S.E.2d 396 (1983); Berger v. Berger, 67 N.C. App. 591, 313 S.E.2d 825 (1984); Burnett v. Wheeler, 133 N.C. App. 316, 515 S.E.2d 480 (1999); Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002); N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004); State v. Simon, 185 N.C. App. 247, 648 S.E.2d 853 (2007); Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93 (2011), cert. denied, 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011).

II. ORDERS ENFORCEABLE AS CIVIL CONTEMPT.

Child Support Orders. - Willful failure and refusal of a party to make payments for the support of his child in accordance with decree of court is civil contempt, and the court may order him into custody until he shows compliance or is otherwise discharged according to law. Smith v. Smith, 248 N.C. 298, 103 S.E.2d 400 (1958).

Civil contempt proceedings are a proper method of enforcing orders for payment of child support. The purpose of civil contempt in such a case is not to punish but to coerce a defendant into compliance with the support order. McMiller v. McMiller, 77 N.C. App. 808, 336 S.E.2d 134 (1985).

Father was properly held in contempt where he unilaterally reduced his child support payments after suffering a substantial reduction in income. Chused v. Chused, 131 N.C. App. 668, 508 S.E.2d 559 (1998).

Former wife was not in contempt, although she divided her child support in half when one of the parties' two children came to live with her, and shortly thereafter moved the court for a reduction in child support, thereby indicating that the reduction was not a deliberate or intentional attempt to violate the court's support order. Spencer v. Spencer, 133 N.C. App. 38, 514 S.E.2d 283 (1999).

Husband was found to be in contempt of order requiring him to pay $5,000 to his wife as a lump sum property settlement and to provide health insurance for their minor children: the husband was aware of his obligation to pay the property settlement, but admittedly failed to pay because he paid higher taxes due to the wife's failure to jointly file tax returns with him; in addition, there was no evidence to support the husband's contention that the wife agreed to modify that portion of the original order requiring the husband to provide health insurance for the children. Meehan v. Lawrance, 166 N.C. App. 369, 602 S.E.2d 21 (2004).

Trial court's order of specific performance, which required business parties to comply with the terms of a court approved settlement agreement with an individual, was enforceable through the contempt powers of the court. Baxley v. Jackson, 179 N.C. App. 635, 634 S.E.2d 905 (2006).

Under G.S. 5A-21(a)(2a), a former wife was in civil contempt because she used monies in a fund, which was created to satisfy her former husband's child support obligations and to pay for medical expenses for the parties' children, for purposes other than those established by court orders, the wife's improper use of the monies was willful, and the wife failed to provide a full accounting of her use of the monies in the fund. Eakes v. Eakes, 194 N.C. App. 303, 669 S.E.2d 891 (2008).

Trial court, in entering a civil commitment order for defendant's failure to pay child support, erred in finding that defendant had ability to comply with the child support order and that defendant's noncompliance with the order was willful because defendant was at all relevant times physically incapable of employment as defendant had little education, treating physicians testified that defendant was physically incapable of gainful employment, defendant had no income and lived with defendant's parents, and defendant was unable to find work. Cty. of Durham v. Hodges, 257 N.C. App. 288, 809 S.E.2d 317 (2018).

Orders finding a father in contempt for a failure to pay child support were vacated because (1) an agency presented no evidence other than the amount of child support arrears or past public assistance owed, while the father presented substantial evidence of an inability to pay, including the father's medical condition and minimal living expenses and lack of income, (2) the orders' findings did not support a conclusion that the father willfully refused to pay or had the ability to pay civil contempt purge payments, (3) nothing showed the father was working at the time of trial, nor was this found, and (4) the trial court did not address how much, if any, regular income the father had or the father's subsistence living expenses. Cty. of Durham ex rel. Wilson v. Burnette, 262 N.C. App. 17, 821 S.E.2d 840 (2018), aff'd, 824 S.E.2d 397, 2019 N.C. LEXIS 209 (2019).

Although defendant's child support obligation terminated because her son turned 18 and was no longer in school, the arrears owed to the county remained in force, as defendant made no child support payments before her son turned 18 and the court found the purpose of the order would be served by her compliance; her challenge to be held in civil contempt failed. Cumberland Cty. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 822 S.E.2d 305 (2018).

Trial court did not err in not holding the father in contempt as he did not intend to willfully violate the child support order because he was under the mistaken apprehension that he could simply stop paying after his son ceased living with the mother. Morris v. Powell, - N.C. App. - , 840 S.E.2d 223 (2020).

Visitation Orders. - Where mother encouraged child to go with his father for scheduled visitations, and the child refused, the evidence was insufficient to find that the mother acted purposefully and deliberately or with knowledge and stubborn resistance to prevent the father's visitation with the child, so as to subject her to civil contempt; the mother was not required to physically force the child to go. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996).

Trial court properly found a mother to be in civil contempt of court pursuant to G.S. 5A-21(a); the mother knew of the existence of an order granting the child's grandparents visitation, but refused to send the child for visitation and took the child to Hawaii for the summer to prevent the visitation in a willful manner. Young v. Young, 169 N.C. App. 31, 609 S.E.2d 795 (2005).

Trial court properly concluded that a father was in willful contempt of prior custody orders regarding the exchange time for weekend visitations because the father's habitual lateness did not result from unforeseen circumstances; the evidence supported the finding that although the father and the mother agreed he would leave a party at 8:30 p.m. to meet for the exchange, the father refused to leave at the agreed upon time and, as a result, the exchange did not occur. Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700 (2017).

Payment of Educational Expenses. - Where defendant refused to pay educational expenses as provided in consent judgment, there was competent evidence to support the court's findings and conclusion that the defendant was in contempt of the consent judgment pursuant to subsection (a). Smith v. Smith, 121 N.C. App. 334, 465 S.E.2d 52 (1996).

Trial court properly found father in civil contempt where he willfully failed to pay his daughters college expenses as he had contracted to do. Ross v. Voiers, 127 N.C. App. 415, 490 S.E.2d 244 (1997), cert. denied, 347 N.C. 402, 496 S.E.2d 387 (1997).

Because there was competent evidence to support the trial court's findings that the child diligently applied herself to her college studies, that the father was able to pay for her college expenses, and that his nonpayment was willful, the trial court did not err in holding the father in civil contempt for violating the stipulations and order requiring him to pay 90% of the child's college expenses and ordering him to pay $15,150. Barker v. Barker, 228 N.C. App. 362, 745 S.E.2d 910 (2013).

Imprisonment for Nonsupport. - A defendant in a nonsupport civil contempt proceeding can be imprisoned only if he has willfully violated the court order and has the present ability to make the payments. He can regain his liberty by doing that which the court has ordered him to do and he has the ability to do, i.e., make the payments. This is consistent with the notion that civil contempt is not criminal punishment, but a civil remedy to be utilized exclusively to enforce compliance with court orders. Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983).

Before a previous order of child support can be enforced by civil imprisonment which can be avoided by paying money, it must first appear that the defendant is capable of making the payments required. State v. Miller, 77 N.C. App. 436, 335 S.E.2d 187 (1985).

Failure to Pay Child Support Where Unable to Do So. - A defendant who has not made child support payments because he is actually unable to make the payments does not face a loss of liberty. Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983); Graham v. Graham, 77 N.C. App. 422, 335 S.E.2d 210 (1985).

Although an order for child support is enforceable by civil contempt proceedings, a supporting party cannot be held in contempt unless such party has willfully failed to comply with the support order. A finding of willful failure to comply with the order requires evidence of the present ability to pay or to take reasonable measures to comply. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Consent Judgment in Domestic Relations Setting. - In a domestic relations setting, a consent judgment which has been adopted by the court, but which contains unequivocal language to the effect that it is not subject to modification, may nevertheless be enforced by civil contempt. Henderson v. Henderson, 55 N.C. App. 506, 286 S.E.2d 657 (1982), aff'd, 307 N.C. 401, 298 S.E.2d 345 (1983).

Civil contempt proceedings to enforce orders for payment of support to children pursuant to consent judgment are authorized by this section. Smith v. Smith, 248 N.C. 298, 103 S.E.2d 400 (1958).

Alimony. - A judgment ordering the payment of alimony may be enforced by the contempt power. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).

Where the trial judge found that individual was a healthy and able-bodied man for his age, and further found that he could pay at least a portion of the alimony, it was error to imprison him until he should pay the whole amount. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

A breach of contract is not punishable as civil contempt. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345 (1951); In re Will of Smith, 249 N.C. 563, 107 S.E.2d 89 (1959).

Where proceeding for civil contempt is set in motion to compel a person to substitute a binding agreement for an invalid one, an order penalizing the plaintiff runs counter to the sound rule that the court will not entertain contempt proceedings where the mover's purpose is to coerce his adversary into making a contract. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345 (1951).

Refusal to effectuate an agreement to sign a consent judgment may not be made the basis for contempt proceedings where it does not appear that the parties ever agreed to the exact terms of such judgment. State v. Clark, 207 N.C. 657, 178 S.E. 119 (1935).

Failure to Comply with Discovery Order. - Where defendant was accused of mismanaging, diverting and wasting corporate assets, and the trial court ordered him to cooperate with receivers of the corporation and to provide them and plaintiffs with copies of his tax returns and a list of his assets, defendant's contempt, if any, in failing to provide the required materials could be criminal or civil, and contemnor waived procedural requirements when he came into court to answer charges of the trial court's show cause order. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Refusal of municipal officers to surrender their offices in accordance with the results of an election held pursuant to the provisions of a decree of court cannot be made the basis for contempt proceedings, since upon the hearing of the order to show cause the court must first adjudicate the rights of the parties to the offices, and such adjudication can be made only in a direct proceeding for that purpose. Corey v. Hardison, 236 N.C. 147, 72 S.E.2d 416 (1952).

Order to Produce Tax Returns. - Where defendant was accused of mismanaging, diverting, converting and wasting corporate assets, and he was ordered by the trial court to produce his tax returns, the production of the returns did not amount to such authentication as to be compelled testimonial self-incrimination which would support a claim of Fifth Amendment privilege; thus, defendant could be found in contempt. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Where defendant was accused of mismanaging, diverting, converting and wasting corporate assets, defendant's refusal to comply with the trial court's order to produce tax returns was not protected by the Fifth Amendment proscription against compulsory self-incrimination, and thus he could be found in contempt, since there was no evidence tending to show that defendant was under any physical or mental coercion at the time he prepared his tax returns, and he therefore could not rely upon the contents of the tax returns to support his claim of Fifth Amendment protection. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Order to Appear as Attorney. - An out-of-state attorney could not be held in and punished for willful contempt of court for failure to comply with an order of the trial court that he appear as an attorney in a criminal case where there had been no general appearance by local counsel as required by G.S. 84-4.1 and the out-of-state attorney thus never acquired eligibility to appear in the case and was never an attorney in the case admitted to limited practice in North Carolina. In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981).

Order Allowing Defendant to Avoid Confinement by Paying Arrearages Held Remedial Relief. - Where the court ordered defendant confined in jail for a period of 29 days, but it allowed defendant to avoid that punishment altogether by paying the entire amount of child support arrearages, this constituted remedial relief and therefore required that the court's order be construed as adjudicating defendant in civil contempt. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Continual Violation of Sexual Exhibition/Adult Business Ordinance. - Competent evidence supported the trial court's decision to hold plaintiff owner of adult business in contempt, and the plaintiff, by her refusal to present testimony and invoking her Fifth Amendment Right, chose to abandon her claim that she was not in contempt of the trial court's order. McKillop v. Onslow County, 139 N.C. App. 53, 532 S.E.2d 594 (2000).

No-Contact Order. - Proceedings to hold a contemnor in contempt for violating a no-contact order were in civil contempt because (1) the proceedings were initiated pursuant to civil contempt statutes, (2) the order finding the contemnor in contempt included civil contempt findings and a "purge" clause, and (3) construing the order as a civil contempt order was consistent with G.S. 50C-10 and G.S. 5A-25's default civil contempt rule. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).

When a contemnor was found in contempt for violating a no-contact order, a fine was an authorized sanction because, reading G.S. 5A-21, 50C-10, 5A-25, and 50C-5 together, the statutes supported the inference that fines were authorized. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).

Oral Order Was Not Judgment For Civil Contempt Purposes. - When the trial court orally ordered defendants in a summary ejectment proceeding to pay a certain amount but did not reduce a judgment to writing as required by N.C. R. Civ. P. 58, it was error to hold defendants in civil contempt under G.S. 5A-21, as there was no properly entered judgment of the trial court at the time defendants were found in civil contempt. Carter v. Hill, 186 N.C. App. 464, 650 S.E.2d 843 (2007).

III. PURGING CONTEMPT.

.

Payment of Counsel Fees as Condition to Being Purged of Contempt. - The contempt power includes the authority for a district court judge to require one whom he has found in willful contempt of court for failure to comply with a child support order entered pursuant to G.S. 50-13.1, et seq., to pay reasonable counsel fees to opposing counsel as a condition to being purged of contempt. Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970).

Effect of Payment of Fine. - A party to a proceeding as for contempt undoubtedly waives his right to have the judgment in the proceeding reviewed on appeal by voluntarily paying the fine imposed upon him by the judgment. But where the record reveals that the fine was paid under protest at the precise moment an appeal was noted from the order imposing it, and that the party took this course to avoid being committed to jail until the fine was paid, inasmuch as the payment was the product of coercion, the right of appeal was not waived by making it. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345 (1951).

Payment of Child Support. - Husband could not be found in civil contempt under G.S. 5A-21(b), for his failure to pay child support, where he paid the past due support prior to the contempt hearing, even though it was paid after he was served with the show cause contempt motion. Reynolds v. Reynolds, 147 N.C. App. 566, 557 S.E.2d 126 (2001), cert. denied, 355 N.C. 493, 563 S.E.2d 567 (2002).

Alimony Arrears. - Trial court did not err in requiring defendant to pay $10,000 towards alimony arrears as a purge payment for civil contempt of court because the uncontested facts supported the trial court's conclusion that defendant had the present means and ability to comply with the order or was able to take reasonable measures that would enable him to comply with the order by paying $10,000; the trial court properly considered the assets defendant had available at the time of the contempt hearing to satisfy the $10,000 payment towards the alimony arrears and specifically based its conclusion regarding his ability to pay upon the fact that he had available $6,200 from his 401K account, a $2,000 cashier's check, and assets that could be readily converted to cash. Tucker v. Tucker, 197 N.C. App. 592, 679 S.E.2d 141 (2009).

Conditioning of Probation or Suspended Sentence on Contemnor's Purging Himself. - The imposition of probationary conditions under G.S. 15A-1343 and the possibility of early termination under G.S. 15A-1342(b) do not transform probationary or suspended sentences into civil relief. However, specifically conditioning the imposition or effect of the probationary or suspended sentence upon the contemnor's purging himself would constitute civil relief. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

IV. PRACTICE AND PROCEDURE.

.

Trial Court Jurisdiction. - Trial court had jurisdiction to find business owners in contempt after the owners appealed the underlying order because ordering compliance with an injunction the owners did not appeal did not affect the owners' substantial right. Plasman v. Decca Furniture (USA), Inc., 253 N.C. App. 484, 800 S.E.2d 761 (2017), cert. denied, 812 S.E.2d 849, 2018 N.C. LEXIS 342 (2018) cert. denied, 813 S.E.2d 245, 2018 N.C. LEXIS 400 (2018).

Jury Trial. - Respondents in proceedings for civil contempt are not entitled to a jury trial. In re Gorham, 129 N.C. 481, 40 S.E. 311 (1901).

Filing of Injunction Required for Contempt Purposes. - A party could not be held in contempt for violations of a preliminary injunction that occurred after the order for the injunction was issued, but before it was filed with the county clerk. Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780 (1998).

Appointment of Counsel for Indigents. - Due process requires appointment of counsel for indigents in nonsupport civil contempt proceedings only in those cases where assistance of counsel is necessary for an adequate presentation of the merits or to otherwise ensure fundamental fairness. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980).

When a civil proceeding may result in imprisonment, due process requirements are met by evaluating the necessity for appointed counsel on a case-by-case basis. Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983).

Trial court did not violate a former husband's due process rights in denying his motion for court-appointed counsel in his former wife's motion for contempt under G.S. 5A-21, and for attorney's fees, as it was determined that the husband had the ability to pay and continuances were granted in order to allow him to speak with counsel; accordingly, he failed to show his indigence. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012).

Right to Confront Witnesses. - A person denying his asserted violation of a restraining order in contempt proceedings has the right under the provisions of N.C. Const., Art. I, § 19, synonymous with due process of law under the United States Constitution, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

But This Right Is Waivable. - See Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

Discretionary Nature of Sanction. - In a workers' compensation case, the North Carolina Industrial Commission did not err by not holding the employer in contempt for its failure to comply with a previous order and by not making specific findings on the issue of civil contempt because civil contempt is a completely discretionary sanction, thus, even if the Commission made explicit findings that all of the conditions outlined in G.S. 5A-21(a) were satisfied, it still would not have been required to sanction the employer. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793 (2008), cert. denied, 362 N.C. 233, 659 S.E.2d 436 (2008), review denied, 362 N.C. 355, 661 S.E.2d 242 (2008).

District Court May Enforce Judgment Entered in Superior Court. - A district court judge may hold a party to a proceeding before him in civil contempt for failure to comply with court orders issued pursuant to a confession of judgment regarding payment of alimony which was entered in the superior court prior to the establishment of a district court for the district in which the order was entered. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).

Where the trial court made no findings of defendant's ability to pay the entire arrearage arising from nonpayment of child support, the Court of Appeals was required to conclude that there were inadequate findings to support the adjudication of civil contempt. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988).

Inability to Take Reasonable Measures. - Husband could not take reasonable measures to comply with a court order because (1) the husband could not force the husband's second wife to sell a house the husband owned with the second wife as tenants by the entirety, and (2) any reduction in the husband's withholding from the husband's gross income for taxes still would not have enabled the husband to comply. Spears v. Spears, 245 N.C. App. 260, 784 S.E.2d 485 (2016).

No Evidence of Ability to Pay. - Record was devoid of evidence of defendant's ability to pay the child support amount or purge amount at the time of the hearing; while the record included her 2016 affidavit of indigency, it was not evidence of her present ability to pay at the time of the hearing. Cumberland Cty. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 822 S.E.2d 305 (2018).

Distributive Awards. - Trial court ordered plaintiff to liquidate certain real properties to pay down the distributive award; because this unquestionably disturbed plaintiff's rights in her separate property, the trial court's actions amounted to an impermissible distribution of that property, but this finding was not intended to limit the trial court's civil contempt power should she fail to comply with the order, at which time all of her assets could be taken into account. Crowell v. Crowell, 372 N.C. 362, 831 S.E.2d 248 (2019).

V. APPEAL AND ERROR.

.

Scope of Review. - The scope of review in contempt proceedings is limited to whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment. McMiller v. McMiller, 77 N.C. App. 808, 336 S.E.2d 134 (1985); Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986).

The findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970); Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Incorrect standard in ruling on show cause order. - Trial court's conclusion, in ruling on a motion to show cause for failure to comply with the court's previous orders, that no showing had been made under G.S. 5A-21 was error, as the trial court was only required to determine, pursuant to G.S. 5A-23(a), whether the information contained in the motion and the record was sufficient to warrant a prudent person to believe the contemnor had the ability to comply with the trial court's order; since the trial court used the incorrect standard in denying the motion, remand was required. Young v. Mastrom, Inc., 149 N.C. App. 483, 560 S.E.2d 596 (2002).

Interference with Order Awarding Child Custody - Trial court erred by holding a husband in contempt for violating the court's order awarding custody of the husband's children to his ex-wife where the husband followed his ex-wife as she was leaving a ball game and argued with her in front of their children. Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003).

No Finding of Contempt as Actions in Violation of Visitation Order Were Justified. - Trial court's finding that the mother's actions, suspending the father's visitation over his objection and without court authority, did not amount to contempt was upheld, as there was evidence that the mother's failure to comply with the visitation order was justified after the father physically discipline a child in an inappropriate way, the children were visibly shaken and upset by the incident, and there had been past allegations of domestic violence involving the father. Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013).

Contempt Upheld. - Trial court did not err by holding the husband in contempt of prior orders for child support and alimony while also setting his arrears owed based on the modified alimony obligation because the prior order remained in force for the child support obligation and for alimony up to the newly reduced amount. Hill v. Hill, 261 N.C. App. 600, 821 S.E.2d 210 (2018).

Evidence Sufficient to Support Finding of Contempt. - When parties' consent order provided that a wife was to assume financial responsibility for credit card debt, and the wife had the present means and ability to comply, it was not error for the trial court to hold defendant in contempt of court pursuant to G.S. 5A-23(a)(1) for failing to comply with the consent order as it related to the credit card accounts, and to order the wife to pay off the debt as a condition of purging herself of contempt as required by G.S. 5A-21(a)(2). When the wife refused to execute forms requested by the Internal Revenue Service in order to file amended tax returns, as required under the parties' consent order, it was not error for the court to order defendant to sign these form. Watson v. Watson, 187 N.C. App. 55, 652 S.E.2d 310 (2007), review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).

Sufficient evidence supported a trial court's finding a former wife in civil contempt for willful failure to comply with a consent order for equitable distribution, G.S. 5A-21(a), because the wife failed to remove the former husband's name from a vehicle's title, per the consent order, the vehicle was repossessed while in the wife's possession and sold with a resulting deficiency on the account, the wife had the ability to comply with the consent order, and the wife had the ability to pay the deficiency but willfully failed to pay the deficiency. Moss v. Moss, 222 N.C. App. 75, 730 S.E.2d 203 (2012).

When a consent order directed a father to make child support payments but the father failed to comply with the order, the evidence supported the trial court's decision to find the father in civil contempt because the father had maintained employment from the date the consent order was executed and had the means to comply with the order. Maxwell v. Maxwell, 212 N.C. App. 614, 713 S.E.2d 489 (2011).

Trial court properly held a former husband in contempt under G.S. 5A-21(a) for his failure to comply with provisions of prior court orders, which ordered him to make mortgage payments, as he had agreed to do in the parties' separation agreement; the trial court's findings provided a sufficient factual basis to support the contempt determination. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012).

District court did not err in finding the husband in civil contempt and ordering him jailed unless he paid $20,000 to his former wife within 60 days where the extensive evidence and findings as to his income and expenses showed that the trial court had considered his ability to comply as of the date of the hearing. Gordon v. Gordon, 233 N.C. App. 477, 757 S.E.2d 351 (2014).

Findings that the father had a monthly income of $47,000, purchased a residence worth approximately $840,000, owned over $140,000 worth of stocks, bonds, and securities, and had retirements accounts worth more than $900,000, supported the conclusion that the father had ample income and assets to pay the children's private school tuition and willfully failed to comply. Smith v. Smith, 247 N.C. App. 166, 785 S.E.2d 434 (2016).

District court erred in holding a father in civil contempt for failure to pay child support arrearages because, while the father failed to meet his burden of proof to show cause, the child support agency put forth no evidence to support the finding of fact that the father had the ability to comply with the previous order and had the ability to purge himself as ordered. Cumberland County ex rel. Ala. O. B. O v. Lee, 265 N.C. App. 149, 828 S.E.2d 548 (2019), review denied, 372 N.C. 708, 830 S.E.2d 836 (2019).

Evidence Sufficient to Reject Finding of Contempt. - Trial court did not err in denying a wife's motion for contempt where the husband had made a $50,000 payment, albeit under protest, under one of the options in a consent order, and thus, he had complied with the consent order prior to the contempt hearing. Gandhi v. Gandhi, 244 N.C. App. 208, 779 S.E.2d 185 (2015).

Insufficient Findings. - In the trial court's order failing to hold the father in civil contempt over the parties' visitation agreement, the court held that the trial court properly considered the 15-year-old daughter's best interests and the current circumstances in evaluating whether the father was in willful civil contempt for not forcing her to visit the mother. The record showed that the daughter was depressed and self-harming, both she and her older brother refused to return to the mother's home, and the daughter testified that she was more depressed and anxious at the mother's home. Grissom v. Cohen, 261 N.C. App. 576, 821 S.E.2d 454 (2018), review denied, 2019 N.C. LEXIS 85 (2019).

Order declining to hold a father in contempt for failure to pay child support was vacated and remanded for further findings because, while it was the father's burden to show why the father should not be held in contempt, the could only be so found if sufficient evidence supported each statutory element, and (1) the trial court did not find if the father complied with the most recent order, if the father's compliance could still serve the order's purpose, if any noncompliance were willful, or if the father could comply or take reasonable measures to do so, (2) such findings could not be inferred from the trial court's order, and (3) a mother did not provide a complete record of relevant pleadings or a full transcript of the proceedings before the trial court. Servatius v. Ryals, 263 N.C. App. 213, 823 S.E.2d 129 (2018).

Penalty for Direct and Indirect Contempt the Same; Thus, No Reversible Error. - In a quiet title action wherein the defendants testified in the trial court's presence, which constituted direct criminal contempt, but the trial court mistakenly held them in indirect criminal contempt, such error was not grounds for reversal as the penalty was the same for both direct and indirect criminal contempt. Adams Creek Assocs. v. Davis, 186 N.C. App. 512, 652 S.E.2d 677 (2007), review denied as to additional issues, 362 N.C. 354, 662 S.E.2d 900 (2008).


§ 5A-22. Release when civil contempt no longer continues.

  1. A person imprisoned for civil contempt must be released when his civil contempt no longer continues. The order of the court holding a person in civil contempt must specify how the person may purge himself of the contempt. Upon finding compliance with the specifications, the sheriff or other officer having custody may release the person without a further order from the court.
  2. On motion of the contemnor, the court must determine if he is subject to release and, on an affirmative determination, order his release. The motion must be directed to the judge who found civil contempt unless he is not available. Then the motion must be made to a judge of the same division in the same district court district as defined in G.S. 7A-133 or superior court district or set of districts as defined in G.S. 7A-41.1, as the case may be. The contemnor may also seek his release under other procedures available under the law of this State.

History

(1977, c. 711, s. 3; 1987 (Reg. Sess., 1988), c. 1037, s. 45.)

OFFICIAL COMMENTARY

Subsection (a) permits the one who has custody of a jailed contemnor to release him without a court order or any formal proceedings, if the custodian finds that the contemnor has purged himself of the contempt by complying with the contempt order's specifications. This is intended to apply mainly to the situation in which compliance with the order calls for payment to the court. It was felt that this action was so clear that the custodian should be able to proceed on his own. The possibility that a person will be released when a release was not proper was outweighed by the importance of seeing to it that a person did not remain jailed longer than was necessary. Subsection (b) establishes the machinery for a civil contemnor to seek his own release if he has complied or if compliance is no longer possible, but he has still not been released.

CASE NOTES

The purpose of civil contempt is not to punish but to coerce the defendant to comply with a court order. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

Civil contempt is employed to coerce disobedient defendants into complying with orders of court, and the length of time that a defendant can be imprisoned in a proper case is not limited by law, since the defendant can obtain his release immediately upon complying with the court's order. Brower v. Brower, 70 N.C. App. 131, 318 S.E.2d 542 (1984).

Trial court did not err by denying defendants' motions for release from conditional incarceration for civil contempt because its unchallenged findings supported its conclusion that continuation of defendants' incarceration under the contempt order was not punitive; because the relief was imprisonment, and defendants could be released by performing affirmative acts required by the trial court, it was coercive and thus, civil. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Defendant Must Have Present Ability to Comply. - This section and G.S. 5A-21 must be construed in pari materia. 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. McMiller v. McMiller, 77 N.C. App. 808, 336 S.E.2d 134 (1985).

Purging Provision. - The contempt order must be vacated if it fails to specify, as required by subsection (a) of this section, how the defendant might purge herself of contempt. The purpose of civil contempt is not to punish, but to coerce the defendant to comply with the order. Thus the purging provision is essential to the order. Bethea v. McDonald, 70 N.C. App. 566, 320 S.E.2d 690 (1984).

Trial court did not err in requiring defendant to pay $10,000 towards alimony arrears as a purge payment for civil contempt of court because the uncontested facts supported the trial court's conclusion that defendant had the present means and ability to comply with the order or was able to take reasonable measures that would enable him to comply with the order by paying $10,000; the trial court properly considered the assets defendant had available at the time of the contempt hearing to satisfy the $10,000 payment towards the alimony arrears and specifically based its conclusion regarding his ability to pay upon the fact that he had available $6,200 from his 401K account, a $2,000 cashier's check, and assets that could be readily converted to cash. Tucker v. Tucker, 197 N.C. App. 592, 679 S.E.2d 141 (2009).

Trial court did not improperly modify custody or impose improper purge conditions because its contempt order identified what a father could and could not do regarding visitation times in order to purge himself of the civil contempt and insure his compliance with the previous court orders regarding the exchange time for weekend visitations; permanent joint legal custody and secondary physical custody remained with the father both before and after the contempt order. Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700 (2017).

Trial court did not err in refusing to make findings on defendants' inability to comply with a contempt order because based on their refusals to perform the attestation purge act, and their admissions that they would refuse to perform the purge act, they vitiated their inability defense; since the purge condition acts did not require defendants to pay a monetary judgment, they could be imprisoned without further hearing, and the hearing was not an initial or continuing adjudication of contempt. Adams Creek Assocs. v. Davis, 257 N.C. App. 391, 810 S.E.2d 6 (2018).

Means for Purging Contempt Required. - Trial court had the authority to enforce consent order regarding repairs to a dwelling through its contempt powers, but the trial court erred by failing to provide for a means for defendant to purge himself of the contempt. Nohejl v. First Homes of Craven County, Inc., 120 N.C. App. 188, 461 S.E.2d 10 (1995).

Trial court erred in holding the father in civil contempt because the trial court did not clearly specify what the father could and could not do to purge himself of contempt. Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013).

Sufficient Notice of Civil Contempt Proceedings. - When a former wife was held in civil contempt of court pursuant to G.S. 5A-23(a)(1) for failing to comply with an equitable distribution consent order, the constitutional notice requirements applicable to criminal contempt proceedings were not implicated, and the wife received adequate notice of the nature of the contempt proceedings when the wife was served with a copy of the motion for an order to show cause, which stated the grounds for the alleged civil contempt as required by G.S. 5A-21(a)(2) and 5A-22, as well as the show cause order referencing the motion. Watson v. Watson, 187 N.C. App. 55, 652 S.E.2d 310 (2007), review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).

Purge Provision Impermissibly Vague. - A condition of a temporary child custody order was impermissibly vague, where a condition to be met for the mother to purge herself of civil contempt was that she not punish either of the minor children in any manner that was "stressful, abusive, or detrimental" to the child. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

Order finding a husband's non-compliance with purge conditions was vacated because (1) the husband could not comply with the conditions in a written order, (2) the order was impermissibly vague as the order's conditions had no end date, and, (3) despite the husband's compliance with a condition to reduce tax withholding, a condition requiring the husband to consult with a tax professional to reduce withholdings to the maximum extent possible was wrongly added. Spears v. Spears, 245 N.C. App. 260, 784 S.E.2d 485 (2016).

Trial Court Without Authority to Require Contemnor to Pay Compensatory Damages. - Upon a finding of contempt, in situations where the original order requires a transfer of property (including intangible property such as that represented by stock certificates), the trial court has authority to order the contemnor to transfer said property as a condition of purging the contempt, but does not have authority to require the contemnor to pay compensatory damages incurred as a result of his noncompliance with the original order. Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991).

Cited in Leonard v. Hammond, 804 F.2d 838 (4th Cir. 1986); Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997); Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003); Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).


§ 5A-23. Proceedings for civil contempt.

  1. Proceedings for civil contempt are by motion pursuant to G.S. 5A-23(a1), by the order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt, or by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt. The order or notice must be given at least five days in advance of the hearing unless good cause is shown. The order or notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order, including a judge, and a finding by the judicial official of probable cause to believe there is civil contempt.
  2. Proceedings for civil contempt may be initiated by motion of an aggrieved party giving notice to the alleged contemnor to appear before the court for a hearing on whether the alleged contemnor should be held in civil contempt. A copy of the motion and notice must be served on the alleged contemnor at least five days in advance of the hearing unless good cause is shown. The motion must include a sworn statement or affidavit by the aggrieved party setting forth the reasons why the alleged contemnor should be held in civil contempt. The burden of proof in a hearing pursuant to this subsection shall be on the aggrieved party.
  3. Except when the clerk of superior court has original subject matter jurisdiction and issued the order or when the General Statutes specifically provide for the exercise of contempt power by the clerk of superior court, proceedings under this section are before a district court judge, unless a court superior to the district court issued the order in which case the proceedings are before that court. When the proceedings are before a superior court, venue is in the superior court district or set of districts as defined in G.S. 7A-41.1 of the court which issued the order. Otherwise, venue is in the county where the order was issued.
  4. The person ordered to show cause may move to dismiss the order.
  5. The judicial official is the trier of facts at the show cause hearing.
  6. At the conclusion of the hearing, the judicial official must enter a finding for or against the alleged contemnor on each of the elements set out in G.S. 5A-21(a). If civil contempt is found, the judicial official must enter an order finding the facts constituting contempt and specifying the action which the contemnor must take to purge himself or herself of the contempt.
  7. A person with an interest in enforcing the order may present the case for a finding of civil contempt for failure to comply with an order.
  8. A person who is found in civil contempt under this Article shall not, for the same conduct, be found in criminal contempt under Article 1 of this Chapter.

History

(1977, c. 711, s. 3; 1979, 2nd Sess., c. 1080, ss. 2-4; 1987 (Reg. Sess., 1988), c. 1037, s. 46; 1999-361, ss. 2, 4, 5; 2000-140, s. 35; 2017-158, s. 11.)

OFFICIAL COMMENTARY

Subsection (a) draws a distinction between an order to appear for a show of cause hearing and a notice that the show-cause hearing will be held. The Commission wanted to make clear the propriety of a person's not appearing if he was notified of the show-cause hearing rather than ordered to appear at it. Since the Commission felt that there were some instances in which the court would want the contemnor present regardless of his wishes, the order was left as an option. Application of subsection (b) results in magistrates and clerks being unable to hold proceedings for civil contempt. The Commission particularly intended "a person with an interest" under subsection (f) to include the State, as represented by the district attorney, in a criminal case. Subsection (g) permits, in essence, consolidated hearings for civil and criminal contempt, thus permitting a judge who has begun a civil contempt hearing to continue and find the person in criminal contempt even though he is beyond the reach of civil contempt because of inability at that time to comply with the order.

Effect of Amendments. - Session Laws 2017-158, s. 11, effective July 21, 2017, inserted "when the clerk of superior court has original subject matter jurisdiction and issued the order or" near the beginning of the first sentence in subsection (b).

Legal Periodicals. - For note on right to jury trial in criminal contempt proceedings, see 6 Wake Forest Intra. L. Rev. 356 (1970).

CASE NOTES

Editor's Note. - Some of the annotations under this section are from cases decided under former statutory provisions.

Criminal and Civil Contempt Distinguished. - In a quiet title action wherein defendants were found in civil contempt for failing to comply with the trial court's 2004 order not to trespass any longer, and were found in criminal contempt for their testimony threatening to disobey future orders of the court, the defendants were found in civil and criminal contempt on the basis of different acts and, therefore, they were found in civil and criminal contempt for the same behavior in violation of G.S. 5A-21 and G.S. 5A-23. Adams Creek Assocs. v. Davis, 186 N.C. App. 512, 652 S.E.2d 677 (2007), review denied as to additional issues, 362 N.C. 354, 662 S.E.2d 900 (2008).

Defendant was not improperly found in civil and criminal contempt for the same acts because defendant was found in civil contempt for continued conduct and in criminal contempt for past conduct. State v. Revels, 250 N.C. App. 754, 793 S.E.2d 744 (2016).

Civil Contempt. - Proceedings to hold a contemnor in contempt for violating a no-contact order were in civil contempt because (1) the proceedings were initiated pursuant to civil contempt statutes, (2) the order finding the contemnor in contempt included civil contempt findings and a "purge" clause, and (3) construing the order as a civil contempt order was consistent with G.S. 50C-10 and G.S. 5A-25's default civil contempt rule. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).

This section has no application in criminal contempt proceedings. Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984).

Defendant's Rights Under U.S. Const., Amend. V, Not Implicated in Civil Contempt Case. - Where trial court ordered defendant incarcerated, gave defendant the opportunity to purge his contempt by complying with prior consent order and paying certain sums for attorney's fees and damages, and imposed no other penalty, the relief granted was wholly civil in nature. Since defendant was not, in fact, subject to criminal penalties, there was no necessity to examine whether defendant's rights under U.S. Const., Amend. V were adequately protected during the contempt proceeding. Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991).

When a former wife was held in civil contempt of court pursuant to G.S. 5A-23(a)(1) for failing to comply with an equitable distribution consent order, the constitutional notice requirements applicable to criminal contempt proceedings were not implicated, and the wife received adequate notice of the nature of the contempt proceedings when the wife was served with a copy of the motion for an order to show cause, which stated the grounds for the alleged civil contempt as required by G.S. 5A-21(a)(2) and G.S. 5A-22, as well as the show cause order referencing the motion. Watson v. Watson, 187 N.C. App. 55, 652 S.E.2d 310 (2007), review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).

Venue. - It was error to hold a husband in civil contempt because, (1) while venue was normally proper in the county in which the order allegedly violated was issued, the husband asserted the husband's statutory right to a change of venue, under G.S. 50-3, so all subsequent proceedings had to be held in the county with proper venue, and, (2) the trial court had to reconsider the court's alimony award before that award was enforceable by contempt. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).

Contemnor Must Have Means to Comply Before Being Found in Contempt. - Contempt proceedings are not a form of punishment, but serve to ensure obedience to orders of the court. Therefore it is essential that the alleged contemnor have the means to comply, and that the court so find, before she can be found in contempt. Glesner v. Dembrosky, 73 N.C. App. 594, 327 S.E.2d 60 (1985).

On its face order demonstrated noncompliance with this section where the trial court first determined that plaintiff's failure to appear created the jeopardy of contempt, then it immediately found plaintiff to be in actual contempt. Garrett v. Garrett, 121 N.C. App. 192, 464 S.E.2d 716 (1995).

District court erred in holding a father in civil contempt for failure to pay child support arrearages because, while the father failed to meet his burden of proof to show cause, the child support agency put forth no evidence to support the finding of fact that the father had the ability to comply with the previous order and had the ability to purge himself as ordered. Cumberland County ex rel. Ala. O. B. O v. Lee, 265 N.C. App. 149, 828 S.E.2d 548 (2019), review denied, 372 N.C. 708, 830 S.E.2d 836 (2019).

Findings Preferable But Not Essential in Proceeding to Enforce Support. - While explicit findings are always preferable in a civil contempt proceeding to enforce an order for child support, they are not absolutely essential where the findings otherwise clearly indicate that a contempt order is warranted. Plott v. Plott, 74 N.C. App. 82, 327 S.E.2d 273 (1985).

Court Need Only Find Means to Comply and Refusal to Do So. - In civil contempt proceedings to enforce orders for child support, the court is required to find only that the allegedly delinquent obligor has the means to comply with the order and that he or she willfully refused to do so. Plott v. Plott, 74 N.C. App. 82, 327 S.E.2d 273 (1985).

Incorrect standard in ruling on show cause order. - Trial court's conclusion, in ruling on a motion to show cause for failure to comply with the court's previous orders, that no showing had been made under G.S. 5A-21 was error, as the trial court was only required to determine, pursuant to G.S. 5A-23(a), whether the information contained in the motion and the record was sufficient to warrant a prudent person to believe the contemnor had the ability to comply with the trial court's order; since the trial court used the incorrect standard in denying the motion, remand was required. Young v. Mastrom, Inc., 149 N.C. App. 483, 560 S.E.2d 596 (2002).

Findings were insufficient to support the court's contempt holding that the defendant was in violation of the parental visitation order that provided for defendant's daily telephone contact with the minor child. Watkins v. Watkins, 136 N.C. App. 844, 526 S.E.2d 485 (2000).

It was error to hold defendants in a summary ejectment proceeding in civil contempt. The trial court had not made appropriate findings of fact to support the entry of a civil contempt order, as required by G.S. 5A-23(e), and it had not found that defendants had the ability to comply with the order, as required by G.S. 5A-21(2a)-(3); indeed, it had found that defendants were not able to pay the order. Carter v. Hill, 186 N.C. App. 464, 650 S.E.2d 843 (2007).

Remand for Further Findings Required. - Order declining to hold a father in contempt for failure to pay child support was vacated and remanded for further findings because, while it was the father's burden to show why the father should not be held in contempt, the could only be so found if sufficient evidence supported each statutory element, and (1) the trial court did not find if the father complied with the most recent order, if the father's compliance could still serve the order's purpose, if any noncompliance were willful, or if the father could comply or take reasonable measures to do so, (2) such findings could not be inferred from the trial court's order, and (3) a mother did not provide a complete record of relevant pleadings or a full transcript of the proceedings before the trial court. Servatius v. Ryals, 263 N.C. App. 213, 823 S.E.2d 129 (2018).

Opposing party must show cause why he should not be found in contempt. In a proceeding to enforce an order for child support, this would involve showing either that he lacked the means to pay or that the failure to pay was not willful. Plott v. Plott, 74 N.C. App. 82, 327 S.E.2d 273 (1985).

The statutes governing proceedings for civil contempt in child support cases clearly assign the burden of proof to the party alleged to be delinquent, and after a civil contempt proceeding is initiated by an interested party who files a motion in the cause, the opposing party must then show cause why he should not be found in contempt. Belcher v. Averette, 136 N.C. App. 803, 526 S.E.2d 663 (2000).

Evidence sufficient to support finding of contempt. - The trial court properly found that defendant was sufficiently able to comply with the temporary alimony order but willfully, deliberately, and without justification failed to do so where the defendant failed to meet his burden of proof of establishing that he lacked the means to pay or that his failure to pay was not willful; the defendant failed to provide a financial statement or personal bank statements, failed to give his accountant accurate information, failed to explain large sums of money he received from his girlfriend, and was generally vague or indifferent as to supplemental income he did or could receive. Shumaker v. Shumaker, 137 N.C. App. 72, 527 S.E.2d 55 (2000).

When parties' consent order provided that a wife was to assume financial responsibility for credit card debt, and the wife had the present means and ability to comply, it was not error for the trial court to hold defendant in contempt of court pursuant to G.S. 5A-23(a)(1) for failing to comply with the consent order as it related to the credit card accounts, and to order the wife to pay off the debt as a condition of purging herself of contempt as required by G.S. 5A-21(a)(2). When the wife refused to execute forms requested by the Internal Revenue Service in order to file amended tax returns, as required under the parties' consent order, it was not error for the court to order defendant to sign these form. Watson v. Watson, 187 N.C. App. 55, 652 S.E.2d 310 (2007), review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).

Judge was authorized to shorten notice period of civil contempt hearing for good cause, where the defendant had known for several months of the particular charges pending against him and had had ample opportunity to prepare to meet them, where all the witnesses, some of whom had been in court on earlier occasions, were present, along with the parties, and where defendant's lawyer acknowledged that his argument for delaying the hearing was based, not upon any unreadiness to proceed, but upon his mistaken impression that a hearing upon less than five days notice was automatically invalid. M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988).

Notice. - Arrest order was improper where it was issued without assurance that the party had received notice and opportunity to be heard as required by this section. In re Ammons, 344 N.C. 195, 473 S.E.2d 326 (1996).

Service on a father of a motion by the mother, and ex-wife of the father, of a motion to show cause and a notice of a hearing 27 days before the scheduled hearing was adequate notice of a contempt proceeding in a case where the mother claimed that the father was not meeting his child support obligations. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298 (2004).

Defendants in a summary ejectment proceeding were not given proper notice of a civil contempt proceeding as required by G.S. 5A-23(a). They were not told until the end of the summary ejectment trial that they would be held in contempt until the debt was paid; they were taken immediately to jail; and no good cause for the lack of notice had been shown. Carter v. Hill, 186 N.C. App. 464, 650 S.E.2d 843 (2007).

In divorce proceedings, a trial court erred by holding a husband in contempt because the wife failed to comply with the notice requirements of G.S. 5A-23(a1) and the trial court failed to provide any mechanism by which the husband could purge himself of contempt, as required by G.S. 5A-23(e). Ross v. Ross, 215 N.C. App. 546, 715 S.E.2d 859 (2011).

Trial court did not commit reversible error by failing to provide the father with the five-day notice required for a show cause order entered under G.S. 5A-23, as the child support order was issued the previous month, the father had time to construct a defense to enforcement of the order, and there was sufficient notice to the father and good cause to hear the proceeding on short notice. Smith v. Smith, 247 N.C. App. 166, 785 S.E.2d 434 (2016).

The trial court failed to comply with the provisions of this section in its contempt proceeding against the defendant where no notice or order to show cause was ever issued to the defendant. Watkins v. Watkins, 136 N.C. App. 844, 526 S.E.2d 485 (2000).

Defendant Held Not Entitled to Notice. - Where the defendant had notice of civil contempt hearing and he was simultaneously adjudged to be in both civil and criminal contempt, defendant was entitled to no notice as to the criminal contempt, as subsection (g) of this section expressly authorizes a judge conducting a hearing to determine civil contempt to "find the person in criminal contempt for the same conduct" upon making the required findings. M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988).

Requirement for Proper Verification. - Although the language used in this section seems to be permissive in nature, prior case law under the antecedent statute established that, in cases of civil contempt, previously denominated as cases as for contempt, a petition, affidavit, or other proper verification charging a willful violation of an order of court was necessary in order for an order to show cause to issue. The legislature has not altered this requirement. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part on other grounds, 301 N.C. 561, 273 S.E.2d 247 (1981).

The procedure to punish for civil contempt is by order to show cause based upon a petition, affidavit, or other proper verification charging a willful violation of an order of court. Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 313 (1967).

Precedent decrees that a judge should recuse himself in contempt proceeding involving his personal feelings, which do not make for an impartial and calm judicial consideration and conclusion in the matter. Ponder v. Davis, 233 N.C. 699, 65 S.E.2d 356 (1951).

No judge should sit in his own case or participate in a matter in which he has a personal interest or has taken sides. Ponder v. Davis, 233 N.C. 699, 65 S.E.2d 356 (1951).

Trial court did not have jurisdiction to conduct contempt proceedings while appeal was pending, because, under G.S. 1-294, all proceedings below are stayed; therefore order finding defendant in contempt was void, at least until appeal was perfected. Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282 (1973), decided under former G.S. 5-9.

Waiver of Procedural Requirements. - Where defendant was accused of mismanaging, diverting and wasting corporate assets and the trial court ordered him to cooperate with receivers of the corporation and to provide them and plaintiffs with copies of his tax returns and a list of his assets, defendant's contempt, if any, in failing to provide the required materials could be criminal or civil, and contemnor waived procedural requirements when he came into court to answer charges of the trial court's show cause order. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Although a trial court erroneously allocated the burden of proof to a former wife in civil contempt proceedings initiated by the former husband's filing of a motion, G.S. 5A-23(a1), the wife waived any objection to the burden of proof issue on appeal because she did not object to the trial court's action and acquiesced in the procedure employed by the trial court. Moss v. Moss, 222 N.C. App. 75, 730 S.E.2d 203 (2012).

Jurisdiction Conferred by General Appearance. - The defendant's appearance in court on the scheduled date and participation in the contempt proceedings constituted a general appearance which conferred jurisdiction over her person, despite the fact that the plaintiff's motion instigating the civil contempt proceedings was not accompanied by a sworn statement or affidavit and no order or notice by a judicial official directing the defendant to appear and show cause why she should not be held in civil contempt was ever issued or served upon her. Bethea v. McDonald, 70 N.C. App. 566, 320 S.E.2d 690 (1984).

Willfulness Required. - Although the statutes governing civil contempt do not expressly require willful conduct, case law has interpreted the statutes to require an element of willfulness. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997).

No Evidence of Ability to Pay. - Record was devoid of evidence of defendant's ability to pay the child support amount or purge amount at the time of the hearing; while the record included her 2016 affidavit of indigency, it was not evidence of her present ability to pay at the time of the hearing. Cumberland Cty. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 822 S.E.2d 305 (2018).

Burden of Proof. - Because the trial court erroneously placed the burden on the father to prove a lack of wilful contempt for failing to meet his child support payments, the trial court's finding of fact did not support its conclusion of law; thus, the appellate court vacated the father's adjudication of wilful civil contempt. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298 (2004).

In the trial court's order failing to hold the father in civil contempt over the parties' visitation agreement, the court held that the trial court did not improperly place the burden of proof on the mother and not on the father because the father met his burden to provide evidence in response to the show cause order to show why he should not be held in willful contempt with competent evidence that the trial court determined was credible, and the burden then shifted back to the mother to refute his evidence, but she elected not to present any evidence. Grissom v. Cohen, 261 N.C. App. 576, 821 S.E.2d 454 (2018), review denied, 2019 N.C. LEXIS 85 (2019).

Purge Conditions In Written Order Controlled. - Order finding a husband's non-compliance with purge conditions was vacated because (1) the husband could not comply with the conditions in a written order, (2) the order was impermissibly vague as the order's conditions had no end date, and, (3) despite the husband's compliance with a condition to reduce tax withholding, a condition requiring the husband to consult with a tax professional to reduce withholdings to the maximum extent possible was wrongly added. Spears v. Spears, 245 N.C. App. 260, 784 S.E.2d 485 (2016).

Appeal Dismissed. - Homeowner's appeal of orders purporting to hold the homeowner in civil contempt for violating no contact orders was dismissed because the orders were not properly entered, as the record did not show (1) an orally rendered judgment was entered or (2) another written order was filed with the clerk of court, so an appellate court had no subject matter jurisdiction to consider the appeal. McKinney v. Duncan, 256 N.C. App. 717, 808 S.E.2d 509 (2017).

Applied in Bennett v. Bennett, 71 N.C. App. 424, 322 S.E.2d 439 (1984).

Cited in Allison v. Allison, 51 N.C. App. 622, 277 S.E.2d 551 (1981); Wilson v. Wilson, 124 N.C. App. 371, 477 S.E.2d 254 (1996); State v. Pierce, 134 N.C. App. 148, 516 S.E.2d 916 (1999); Ollo v. Mills, 136 N.C. App. 618, 525 S.E.2d 213 (2000); Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002); State v. Coleman, 188 N.C. App. 144, 655 S.E.2d 450 (2008); In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921 (2008), rev'd in part on other grounds, and remanded, 363 N.C. 612, 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009); Watson v. Price, 211 N.C. App. 369, 712 S.E.2d 154 (2011), review denied, 718 S.E.2d 398, 2011 N.C. LEXIS 953 (2011); Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93 (2011), cert. denied, 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011); Powe v. Centerpoint Human Servs., 215 N.C. App. 395, 715 S.E.2d 296 (2011), review denied, 721 S.E.2d 230, 2012 N.C. LEXIS 93 (2012).


§ 5A-24. Appeals.

A person found in civil contempt may appeal in the manner provided for appeals in civil actions.

History

(1977, c. 711, s. 3.)

Legal Periodicals. - For article, "The Substantial Right Doctrine and Interlocutory Appeals," see 17 Campbell L. Rev. 71 (1995).

CASE NOTES

Jurisdiction. - Appellate court lacked jurisdiction to review the trial court's contempt order, finding a former husband in criminal contempt for failure to pay spousal support, but not in contempt for failure to pay child support, because it was unclear whether the order was grounded in civil or criminal contempt, the former wife failed to articulate any basis for appealing the order, and failed to present any adequate basis to determine the appellate court's jurisdiction. Hardy v. Hardy, - N.C. App. - , 842 S.E.2d 148 (2020).

Nature of Order. - Where order allowed mother to purge the contempt by delivering the child over to the father for his scheduled visitation and by turning over the father's property or otherwise consenting to a search of her home, the contempt order was actually civil in nature. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996).

In civil contempt matters, appeal is from the district court to the Court of Appeals. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996).

Cited in Watkins v. Watkins, 136 N.C. App. 844, 526 S.E.2d 485 (2000); Patterson v. Phillips, 56 N.C. App. 454, 289 S.E.2d 48 (1982); State v. Mauney, 106 N.C. App. 26, 415 S.E.2d 208 (1992); Crane v. Green, 114 N.C. App. 105, 441 S.E.2d 144 (1994); Wilson v. Wilson, 124 N.C. App. 371, 477 S.E.2d 254 (1996); Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997); Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700 (2017).


§ 5A-25. Proceedings as for contempt and civil contempt.

Whenever the laws of North Carolina call for proceedings as for contempt, the proceedings are those for civil contempt set out in this Article.

History

(1977, c. 711, s. 3.)

OFFICIAL COMMENTARY

This section makes clear that all of the existing references to "as for contempt" in the General Statutes should be interpreted to call for the procedures provided in this Article for civil contempt.

Legal Periodicals. - For note on enforcement of separation agreements by specific performance, see 16 Wake Forest L. Rev. 117 (1980).

CASE NOTES

Contempt Fine. - When a contemnor was found in contempt for violating a no-contact order, a fine was an authorized sanction because, reading G.S. 5A-21, 50C-10, 5A-25, and 50C-5 together, the statutes supported the inference that fines were authorized. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).

Civil Contempt. - Proceedings to hold a contemnor in contempt for violating a no-contact order were in civil contempt because (1) the proceedings were initiated pursuant to civil contempt statutes, (2) the order finding the contemnor in contempt included civil contempt findings and a "purge" clause, and (3) construing the order as a civil contempt order was consistent with G.S. 50C-10 and G.S. 5A-25's default civil contempt rule. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411 (2014).

Cited in Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997); McKillop v. Onslow County, 139 N.C. App. 53, 532 S.E.2d 594 (2000).


§§ 5A-26 through 5A-30: Reserved for future codification purposes.

ARTICLE 3. Contempt by Juveniles.

Sec.

§ 5A-31. Contempt by a juvenile.

  1. Each of the following, when done by an unemancipated minor who (i) is at least six years of age, (ii) is not yet 18 years of age, and (iii) has not been convicted of any crime in superior court, is contempt by a juvenile:
    1. Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.
    2. Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.
    3. Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.
    4. Willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified.
    5. Willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court.
    6. Willful refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A of the General Statutes, Granting of Immunity to Witnesses.
    7. Willful communication with a juror in an improper attempt to influence the juror's deliberations.
    8. Any other act or omission specified in another Chapter of the General Statutes as grounds for criminal contempt.
  2. Contempt by a juvenile is direct contempt by a juvenile when each of the following conditions is met:
    1. The act is committed within the sight or hearing of a presiding judicial official.
    2. The act is committed in, or in the immediate proximity to, the room where proceedings are being held before the court.
    3. The act is likely to interrupt or interfere with matters then before the court.
  3. Contempt by a juvenile that is not direct contempt by a juvenile is indirect contempt by a juvenile.

History

(2007-168, s. 1; 2017-57, s. 16D.4(m); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(m), substituted "18 years of age" for "16 years of age" in subsection (a) of G.S. 5A-31.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4.(m), substituted "18 years of age" for "16 years of age" in subsection (a). For effective date and applicability, see editor's note.

CASE NOTES

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 5A-32. Direct contempt by a juvenile.

  1. A presiding judicial official may summarily impose measures in response to direct contempt by a juvenile when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt. Before imposing measures summarily, the judicial official shall do all of the following:
    1. Give the juvenile summary notice of the contempt allegation and a summary opportunity to respond.
    2. Appoint an attorney to represent the juvenile and allow time for the juvenile and attorney to confer.
    3. Find facts supporting the summary imposition of measures in response to contempt by a juvenile. The facts shall be established beyond a reasonable doubt.
  2. When a judicial official chooses not to proceed summarily, the official may enter an order appointing counsel for the juvenile and directing the juvenile to appear before a judge in a juvenile proceeding at a reasonable time specified in the order and show cause why the juvenile should not be held in contempt. A copy of the order shall be furnished to the juvenile and to the juvenile's attorney. If the direct contempt by a juvenile is based on acts before a judge that so involve the judge that the judge's objectivity may reasonably be questioned, the order shall be returned before a different judge presiding in juvenile court.
  3. After a determination is made pursuant to subsection (a) or (b) of this section that a juvenile has committed direct contempt, the court may order any or all of the following:
    1. That the juvenile be detained in a juvenile detention facility for up to five days.
    2. That the juvenile perform up to 30 hours of supervised community service as arranged by a juvenile court counselor.
    3. That the juvenile be required to undergo any evaluation necessary for the court to determine the needs of the juvenile.
  4. A judicial official who finds a juvenile in direct contempt may at any time terminate or reduce a sanction of detention or eliminate or reduce the number of hours of community service ordered if warranted by the juvenile's conduct and the ends of justice.
  5. A judicial official may orally order that a juvenile the official is charging with direct contempt be taken into custody and restrained to the extent necessary to assure the juvenile's presence for summary proceedings or notice of plenary proceedings.
  6. The clerk shall place a copy of any order or other paper issued pursuant to this section in the juvenile's juvenile file, if one exists, or in a new juvenile file.
  7. Appeal from an order finding a juvenile in direct contempt is to the Court of Appeals.

The court shall not impose any of these sanctions without finding first that the juvenile's act or omission was willfully contemptuous or that the act or omission was preceded by a clear warning by the court that the conduct is improper.

History

(2007-168, s. 1.)

§ 5A-33. Indirect contempt by a juvenile.

Indirect contempt by a juvenile may be adjudged and sanctioned only pursuant to the procedures in Subchapter II of Chapter 7B of the General Statutes.

History

(2007-168, s. 1.)

§ 5A-34. When minor can be in contempt.

  1. No act or omission by a minor younger than six years of age constitutes contempt.
  2. The provisions of Article 1 and Article 2 of this Chapter apply to acts or omissions by a minor who:
    1. Repealed by Session Laws 2017-57, s. 16D.4(n), effective December 1, 2019.
    2. Is married or otherwise emancipated; or
    3. Before the act or omission, was convicted in superior court of any criminal offense.

History

(2007-168, s. 1; 2017-57, s. 16D.4(n); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(n), deleted G.S. 5A-34(b)(1), which read: "Is 16 years of age or older."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4.(n), deleted subdivision (b)(1) which read: "Is 16 years of age or older;" For effective date and applicability, see editor's note.