{ "id": 8522325, "name": "DONNA McBRIDE, Plaintiff-Appellee v. TERRY McBRIDE, Defendant-Appellant", "name_abbreviation": "McBride v. McBride", "decision_date": "1992-11-03", "docket_number": "No. 9122DC922", "first_page": "51", "last_page": "55", "citations": [ { "type": "official", "cite": "108 N.C. App. 51" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "52 ALR3d 1002", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "302 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522179 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0318-01" ] }, { "cite": "307 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527211 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0550-01" ] }, { "cite": "300 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559792 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0083-01" ] }, { "cite": "265 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "222", "parenthetical": "trial court in civil contempt proceeding must find that the alleged con-temnor has the present ability to comply with the court order" } ], "opinion_index": 1 }, { "cite": "82 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358742 ], "year": 1986, "pin_cites": [ { "page": "293", "parenthetical": "trial court in civil contempt proceeding must find that the alleged con-temnor has the present ability to comply with the court order" } ], "opinion_index": 1, "case_paths": [ "/nc-app/82/0289-01" ] }, { "cite": "369 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "108-09", "parenthetical": "contempt order is remedial and coercive and thus civil in character if the contemnor may avoid or terminate his imprisonment by performing some act required by the court" } ], "opinion_index": 1 }, { "cite": "90 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525208 ], "year": 1988, "pin_cites": [ { "page": "504-05", "parenthetical": "contempt order is remedial and coercive and thus civil in character if the contemnor may avoid or terminate his imprisonment by performing some act required by the court" } ], "opinion_index": 1, "case_paths": [ "/nc-app/90/0499-01" ] }, { "cite": "307 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "577-78", "parenthetical": "failure to make finding that alleged contemnor has present ability to pay reversible error when there is no evidence in the record to support such a finding" } ], "opinion_index": 1 }, { "cite": "64 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527211 ], "year": 1983, "pin_cites": [ { "page": "553", "parenthetical": "failure to make finding that alleged contemnor has present ability to pay reversible error when there is no evidence in the record to support such a finding" } ], "opinion_index": 1, "case_paths": [ "/nc-app/64/0550-01" ] } ], "analysis": { "cardinality": 428, "char_count": 7669, "ocr_confidence": 0.754, "pagerank": { "raw": 2.0836750816237383e-07, "percentile": 0.7593900262138835 }, "sha256": "3044604b75de014e15ba3c07985ebd3579568786e232b938a8f9fd568dbd43ee", "simhash": "1:8668d024374a346e", "word_count": 1258 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR concurs.", "Judge GREENE concurs in separate opinion." ], "parties": [ "DONNA McBRIDE, Plaintiff-Appellee v. TERRY McBRIDE, Defendant-Appellant" ], "opinions": [ { "text": ".WELLS, Judge.\nDefendant\u2019s assignments of error are as follows:\n1. It was error for the court to jail Mr. McBride for civil contempt without first evaluating whether he should be appointed an attorney under the standards set forth in Jolly v. Wright, 265 S.E.2d 135, 143 (N.C. 1980).\n2. It was error for the court to issue an order jailing Mr. McBride for civil contempt without stating in the order his reasons for refusing to appoint counsel. Record, p. 8, 9.\n3. It was error for the court to jail Mr. McBride for civil contempt without first appointing counsel to represent him. Record, p. 8, 9.\nWithout direct reference to his assignments of error, but generally tracking his assignments, defendant makes the following three arguments:\n1. Due Process requires that trial judges actually evaluate the necessity of counsel in civil contempt cases.\n2. Due Process requires that trial judges state in their civil contempt orders their grounds for refusing to appoint counsel.\n3. Due Process requires appointment of counsel for any indigent defendant in any civil contempt case in which the defendant will be jailed.\nWe begin our analysis by revisiting Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). The factual and legal context of Jolly was virtually identical to the case now before us. However, in Jolly, there was a pre-trial motion for appointment of counsel, and the trial court\u2019s order contained the following finding:\n8. That the character of the issues raised by this particular proceeding requiring the Defendant to show cause why he should not be held in civil contempt for failure to comply with the terms of the support order previously entered in this cause are of insufficient complexity for the Defendant to be prejudiced or treated unfairly by the refusal of the Court to appoint him legal counsel.\nThe holding in Jolly speaks for itself, but does not directly address the question of whether, as defendant here argues, that the trial court must engage in the due process \u201ccomplexity\u201d analysis in every. civil contempt case and then make a determination of whether counsel should be appointed, whether requested or not.\nThe question was indirectly before this Court in Hodges v. Hodges, 64 N.C. App. 550, 307 S.E.2d 575 (1983). There, defendant\u2019s request for counsel was denied, but apparently the trial court did not engage in the due process \u201ccomplexity\u201d analysis. In affirming the trial court\u2019s denial of counsel, this Court made the analysis, to wit: \u201cThe instant case presents no unusually complex issues of law or fact which would necessitate the appointment of counsel.\u201d\nDaugherty v. Daugherty, 62 N.C. App. 318, 302 S.E.2d 664 (1983) presented the same question. This Court responded as follows:\nDefendant, who appeared at the contempt hearing without counsel, first cites as error the court\u2019s failure to ascertain and find whether defendant desired and was able to employ counsel, and whether the assistance of counsel was necessary for a proper presentation of his case. According to the record, the defendant\u2019s possible indigency and possible need of and desire for court appointed counsel were not mentioned by defendant or anyone else. The.contention is that the court\u2019s failure to initiate about and resolve these matters was manifest prejudicial error as a matter of law. We disagree.\nThe Daugherty Court engaged in the same \u201cafter the fact\u201d analysis made by the Hodges Court, and upheld the trial court\u2019s order of civil contempt.\nWe are persuaded that both Hodges and Daugherty require us to reject all of defendant\u2019s arguments in this case, and therefore affirm the order below. The stay order pending the outcome of this appeal is vacated and the order of arrest and confinement shall be given immediate effect upon the certification of this opinion to the trial court.\nAffirmed and remanded.\nJudge ORR concurs.\nJudge GREENE concurs in separate opinion.", "type": "majority", "author": ".WELLS, Judge." }, { "text": "Judge GREENE\nconcurring.\nThe character of the relief ordered by the trial court is the \u25a0dispositive distinction between criminal and civil contempt, and because the trial court ordered defendant incarcerated, but provided for defendant\u2019s release from jail upon payment of the amount of arrearage owed, I agree with the majority that the proceeding was one for civil contempt. See Bishop v. Bishop, 90 N.C. App. 499, 504-05, 369 S.E.2d 106, 108-09 (1988) (contempt order is remedial and coercive and thus civil in character if the contemnor may avoid or terminate his imprisonment by performing some act required by the court). I write separately to emphasize that the trial court failed to make a finding that \u2022 defendant has the present ability to comply with the court order, and there is no evidence in the record to support such a finding. Under these circumstances, the lack of the required finding is reversible error. See Adkins v. Adkins, 82 N.C. App. 289, 293, 346 S.E.2d 220, 222 (1986) (trial court in civil contempt proceeding must find that the alleged con-temnor has the present ability to comply with the court order); Hodges v. Hodges, 64 N.C. App. 550, 553, 307 S.E.2d 575, 577-78 (1983) (failure to make finding that alleged contemnor has present ability to pay reversible error when there is no evidence in the record to support such a finding). However, defendant has failed to properly preserve this issue for appeal, see N.C.R. App. P. 10 (1992) (scope of appellate review confined to a' consideration of those assignments of error properly set out in the record on appeal), and I respect the majority\u2019s decision not to exercise its discretion under N.C.R. App. P. 2 to suspend the rules in order to address the issue.", "type": "concurrence", "author": "Judge GREENE" } ], "attorneys": [ "No brief filed for plaintiff-appellee.", "Central Carolina Legal Services, Inc., by Stanley B. Sprague, for defendant-appellant." ], "corrections": "", "head_matter": "DONNA McBRIDE, Plaintiff-Appellee v. TERRY McBRIDE, Defendant-Appellant\nNo. 9122DC922\n(Filed 3 November 1992)\nIndigent Persons \u00a7 14 (NCI4th)\u2014 civil contempt \u2014appointment of counsel \u2014 no requirement that court engage in due process complexity analysis\nThe trial court is not required to engage in the due process \u201ccomplexity\u201d analysis in every civil contempt case and then make a determination of whether counsel should be appointed, whether requested or not.\nAm Jur 2d, Contempt \u00a7 201.\nRight to Counsel in contempt proceeding. 52 ALR3d 1002.\nJudge Greene concurring.\nAppeal by defendant from order entered 7 June 1991 in DAVIDSON County District Court by Judge George Fuller. Heard in the Court of Appeals 23 September 1992.\nOn 12 January 1989, defendant signed a Voluntary Support Agreement in which he agreed to pay $40 a week in child support. That same day, a district court judge signed the agreement, making it a court order. On 10 May 1991, after defendant failed to appear in court for a civil contempt hearing involving failure to pay child support, a district court judge ordered defendant\u2019s arrest. On 7 June 1991, defendant was brought before District Court Judge George Fuller. The materials before us clearly show that the trial court\u2019s order now on appeal was for civil contempt growing out of defendant\u2019s failure to comply with a previous court order in this civil case. We also note that the trial court\u2019s order contained a finding that defendant \u201cHas not just cause for refusing to pay support as heretofore called for, in the cause, and that defendant is in willful contempt of the Court.\u201d Defendant represented himself and he neither requested nor was offered counsel. After the hearing, Judge Fuller issued an order which held defendant in custody until he purged himself by paying $1,380.46, the full amount of child support arrearage. On 2 July 1991, defendant gave notice of appeal.\nNo brief filed for plaintiff-appellee.\nCentral Carolina Legal Services, Inc., by Stanley B. Sprague, for defendant-appellant." }, "file_name": "0051-01", "first_page_order": 79, "last_page_order": 83 }