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.

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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.

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A. IN GENERAL.

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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.

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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.

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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); aff'd, 854 S.E.2d 579, 2021 N.C. LEXIS 172 (N.C. 2021).

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.

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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.

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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.

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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.

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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).

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).

There was no legal basis for an award of attorney's fees to a mother because even if a father's exercise of a third week of visitation had violated the consent order, that week was the sole alleged violation of the consent order, and it occurred before the mother filed her motion for contempt. Walter v. Walter, - N.C. App. - , - S.E.2d - (Aug. 17, 2021).

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).

Because a consent order was ambiguous, and a father acted in accordance with his reasonable interpretation of the consent order, the father did not willfully violate its terms, and the trial court erred by holding him in civil contempt; the father's interpretation of the consent order was at least as reasonable as the mother's interpretation, and the mother presented no parol evidence to support her interpretation beyond the four corners of the document. Walter v. Walter, - N.C. App. - , - S.E.2d - (Aug. 17, 2021).

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.

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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.

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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.

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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).