{ "id": 11917190, "name": "BATOUL ATASSI, Plaintiff-Appellee v. INAD B. ATASSI, Defendant-Appellant", "name_abbreviation": "Atassi v. Atassi", "decision_date": "1996-05-07", "docket_number": "No. COA95-699", "first_page": "356", "last_page": "362", "citations": [ { "type": "official", "cite": "122 N.C. App. 356" } ], "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": "376 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "16" }, { "page": "16" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527556 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "706" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0702-01" ] }, { "cite": "150 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "393", "parenthetical": "\" '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.' \" (Citation omitted)" } ], "opinion_index": 0 }, { "cite": "268 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561177 ], "year": 1966, "pin_cites": [ { "page": "256", "parenthetical": "\" '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.' \" (Citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0254-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "85 A.L.R.3d 895", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1978, "opinion_index": 0 }, { "cite": "403 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539829 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0729-01" ] }, { "cite": "397 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498506, 2499917, 2493454, 2495514, 2493374 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0482-04", "/nc/327/0482-05", "/nc/327/0482-01", "/nc/327/0482-02", "/nc/327/0482-03" ] }, { "cite": "393 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523187 ], "year": 1990, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0380-01" ] }, { "cite": "431 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0124-01" ] }, { "cite": "265 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "142" } ], "opinion_index": 0 }, { "cite": "300 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559792 ], "year": 1980, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0083-01" ] }, { "cite": "456 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525860 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0506-01" ] } ], "analysis": { "cardinality": 691, "char_count": 15001, "ocr_confidence": 0.754, "pagerank": { "raw": 1.1178462890567846e-07, "percentile": 0.572686863210944 }, "sha256": "1806e67d4e5a82d8a2765a1ce88f4a343bb33ec444a16ece202d09051a44b3ec", "simhash": "1:9faad6ee624f5ed2", "word_count": 2472 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge GREENE concurs in the result with separate concurring opinion." ], "parties": [ "BATOUL ATASSI, Plaintiff-Appellee v. INAD B. ATASSI, Defendant-Appellant" ], "opinions": [ { "text": "SMITH, Judge.\nThe central .issues in this appeal are whether the trial court ruled properly in finding defendant in civil contempt, and whether the trial court erred in awarding compensatory damages to plaintiff as a result of the alleged contemnor\u2019s conduct. Because the order of contempt allegedly violated was not directed at the contemnor, and the order constitutes improper punishment, we conclude the trial court incorrectly found defendant in civil contempt. Additionally, we reaffirm existing precedent holding that compensatory damages are an inappropriate form of relief in civil contempt proceedings.\nAt the onset, we note that this is the instant parties\u2019 second visit to this Court. See Atassi v. Atassi, 117 N.C. App. 506, 451 S.E.2d 371, disc. review denied, 340 N.C.T09, 456 S.E.2d 310 (1995). The parties to this action, Batoul Atassi (plaintiff) and Inad Atassi (defendant), were married in Fayetteville, North Carolina in 1991. Defendant is a neurosurgeon practicing in Fayetteville. The parties have one child, Azmi Atassi, who was born 16 January 1992. On 4 June 1993, plaintiff filed a complaint for alimony, child custody, child support, relief from domestic violence and equitable distribution.\nBy the trial court\u2019s order of 19 November 1993, plaintiff was awarded primary temporary custody, and defendant was awarded secondary temporary custody. On or about 21 April 1994, plaintiff filed a motion requesting a modification of the 19 November 1993 temporary custody order. Plaintiff wished to take the parties\u2019 child, Azmi Atassi, to Syria for a visit with plaintiff\u2019s relatives. The motion was granted on 24 May 1994 (the 24 May 1994 order). The trial court entered an order authorizing plaintiff to transport Azmi to Syria, and directed plaintiff to return by 1 August 1994.\nPlaintiff traveled to Syria with Azmi, taking the trial court\u2019s order modifying custody with her. While plaintiff was in Syria with Azmi, defendant filed a separate custody suit in Syria. Defendant asked the Syrian court to wrest custody from plaintiff and prevent her from returning to the United States with Azmi. Plaintiff was forced to litigate defendant\u2019s Syrian action before she was permitted to leave Syria with Azmi.\nIn defending the action against her in Syria, plaintiff incurred approximately $3,500.00 in attorneys\u2019 fees, and $750.00 in document translation fees. Plaintiff was also required to purchase new airline tickets to return to Fayetteville, as her original tickets were not valid on her delayed departure date.\nOn her return to the United States, plaintiff filed a show cause motion requesting the trial court find defendant in contempt. In her show cause motion, plaintiff alleged that defendant had, \u201cby filing the lawsuit in the Country of Syria, [demonstrated an] intent to thwart and violate the previous Orders of this Court; that such action on the part of Defendant was willful and without legal justification.\u201d On plaintiff\u2019s motion, the trial court entered an order to show cause directed at defendant. The show cause order noticed defendant of the trial court\u2019s intent to \u201cmake a determination if you are in civil and/or criminal contempt.\u201d\nThe show cause hearing was held on 28 March 1995. After hearing the parties\u2019 evidence the trial court found, inter alia:\nIV\nThat on the 24th day of May, 1994, an Order was entered by Judge Andrew R. Dempster of the Twelfth Judicial District by the terms of which the Plaintiff and the minor child were allowed to leave the State of North Carolina and travel to the Country of Syria for a period of time from May 30, 1994 through August 1, 1994, and directing that the minor child return with the Plaintiff to North Carolina on or before August 1, 1994.\nV\nThat prior to the Plaintiff\u2019s return from the Country of Syria, a lawsuit was filed by the Defendant in the Country of Syria with regard to the custody of the minor child; that a portion of the lawsuit was equivalent to a restraining order preventing the removal of the minor child from the Country of Syria; that as a result of the lawsuit filed, the Plaintiff was not able to return as directed by the Order entered by this Court on May 24, 1994, and the Plaintiff had to expend $6,520.00 in attempt [sic] to comply with Judge Dempster\u2019s Order.\nVI\nThat the lawsuit in Syria was filed by the Defendant with the intent to prevent the Plaintiff from complying with the Order of this Court of May 24, 1994; that said conduct of the Defendant was willful, without legal excuse and contemptuous of the Orders of this Court.\nBased on the above findings, the trial court concluded that defendant\u2019s prosecution of the Syrian legal proceeding was a willful and intentional attempt to prevent plaintiff from complying with the trial court\u2019s 24 May 1994 order, and that defendant was in willful contempt of that order. The trial court determined, that\nas punishment for this civil contempt, the Defendant [was] ordered to pay to the Plaintiff the sum of $6,520.00 within 15-days of the date of this hearing for reimbursement to the Plaintiff for expenses resulting from the Defendant\u2019s civil contempt.\nIn addition to plaintiff\u2019s Syrian-related defense expenses, the trial court ordered defendant to pay the costs of plaintiff\u2019s attorneys\u2019 fees associated with the contempt proceeding.\nThough the record indicates that defendant\u2019s conduct was reprehensible, and contrary to the interests and administration of justice, we conclude that the trial court erred by finding defendant in civil contempt. Two reasons drive our conclusion that civil contempt is inappropriate to this set of facts. First, the statute governing civil contempt, N.C. Gen. Stat. \u00a7 5A-21(a)(3) (1986), requires violation of an order directed at the alleged contemnor. Second, civil contempt is not proper as a means of punishment, as our case law and statutes make clear.\nThe 24 May 1994 order at the center of this contempt matter arose upon plaintiff\u2019s motion, and was solely directed at the conduct of plaintiff. Plaintiff wished to take Azmi to Syria on vacation, requiring the trial court to grant a deviation from its standing custody order. The trial court granted plaintiff\u2019s request to take the minor child out of the United States for dates certain. The only mention of defendant in the 24 May 1994 order was a provision allowing defendant to exercise visitation privileges, if he were in Syria at times coincident with plaintiff\u2019s vacation. The entire focus of the order, save for this incidental provision, was on plaintiff.\nN.C. Gen. Stat. \u00a7 5A-21(a) requires a \u201c[f]ailure to comply with an order of the court,\u201d and that said failure arises from \u201c[t]he person to whom the order is directed . . . .\u201d N.C. Gen. Stat. \u00a7 5A-21(a)(3). Here, defendant did not fail to comply with the court order, nor was the order directed at him. Defendant\u2019s actions unquestionably impeded plaintiffs ability to comply with the 24 May 1994 order. But, this is not the sort of conduct appropriate to civil contempt under our statute.\nMoreover, the Official Commentary to our civil contempt statute states unambiguously that \u00a7 5A-21 is not \u201ca form of punishment.\u201d In Jolly v. Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980), overruled on other grounds, McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993), our Supreme Court followed the Official Commentary, noting that the \u201cstatutory definition of civil contempt 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.\u201d Id. (citing \u00a7 5A-21 and Official Commentary). The purpose of civil contempt is \u201cnot to punish; rather, its purpose is to use the court\u2019s power to . . . coerc[e] the defendant to comply with an order of the court.\u201d Id. In the instant matter, the trial court itself described the civil contempt action it took as \u201cpunishment.\u201d Under Jolly and \u00a7 5A-21, such action by the trial court was error.\nGiven our determination of the impropriety of the instant civil contempt order, it is unnecessary to fully address defendant\u2019s arguments concerning the trial court\u2019s award of compensatory damages (pursuant to the contempt order) to plaintiff. This Court is bound by our prior ruling in Hartsell v. Hartsell, 99 N.C. App. 380, 390, 393 S.E.2d 570, 577, review on additional issues denied, 327 N.C. 482, 397 S.E.2d 218 (1990), aff\u2019d by, 328 N.C. 729, 403 S.E.2d 307 (1991), where we held that \u201ccompensatory damages . . . [are] not properly within the scope of [a] contempt proceeding.\u201d\nWe acknowledge the persuasiveness of plaintiff\u2019s arguments for changing this rule, a rule in which North Carolina is a minority jurisdiction. See Annotation, Right Of Injured Party To Award Of Compensatory Damages Or Fine In Contempt Proceedings, 85 A.L.R.3d 895 (1978). However, this Court is without authority to dispense with rules adopted by our Supreme Court or another panel of this Court. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985); and In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Therefore, if plaintiff wishes to challenge the continued viability of North Carolina\u2019s minority rule, the proper forum is our Supreme Court.\nWe do not mean to imply that plaintiff is without remedy for the conduct of defendant. That remedy is criminal contempt, not civil. N.C. Gen. Stat. \u00a7 5A-11(a)(3) (1986 & Cum. Supp. 1995); and see Mauney v. Mauney, 268 N.C. 254, 256, 150 S.E.2d 391, 393 (1966) (\u201c \u2018Criminal contempt is a term applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice.\u2019 \u201d (Citation omitted)). It is criminal contempt to act in \u201c[w]illful disobedience of, resistance to, or interference with a court\u2019s lawful process, order, directive, or instruction or its execution.\u201d N.C. Gen. Stat. \u00a7 5A-11(a)(3) (emphasis added). The trial court\u2019s characterization of defendant\u2019s conduct (in its contempt order) appears to fit squarely within \u00a7 5A-ll(a)(3).\nWe note the trial court has satisfied the procedural requirements necessary to punish defendant for indirect criminal contempt. See N.C. Gen. Stat. \u00a7 5A-13(b) (1986). Indirect contempt (\u00a7 5A-13(b)) is that which arises from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice. See Cox v. Cox, 92 N.C. App. 702, 706, 376 S.E.2d 13, 16 (1989); and see Black\u2019s Law Dictionary 319 (6th ed. 1990).\nN.C. Gen. Stat. \u00a7 5A-15 (1986 & Cum. Supp. 1995) requires the trial court to conduct a plenary hearing for the purpose of adjudicating indirect criminal contempt. Generally speaking, \u00a7 5A-15 requires notice and a hearing before a trial court may find defendant in criminal contempt. Cox, 92 N.C. App. at 706, 376 S.E.2d at 16. If the defendant is found in criminal contempt, the trial judge must make findings of fact beyond a reasonable doubt in support of the verdict. Id.-, N.C. Gen. Stat. \u00a7 5A-15(f). Upon a finding of indirect criminal contempt, defendant may be subject to \u201ccensure, imprisonment up to 30 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three ....\u201d N.C. Gen. Stat. \u00a7 5A-12(a) (1986 & Cum. Supp. 1995). Punishment under \u00a7 5A-12 requires a mens rea of willfully contemptuous conduct, or an act proceeded by a clear warning of the court that the conduct was improper. N.C. Gen. Stat. \u00a7 5A-12(b)(l), (2).\nIt is not for this Court to decide for the trial court whether the instant situation demands a proceeding for criminal contempt. The record does indicate, though, that defendant has flouted the authority of the trial court, and has interfered with lawful orders of that court.\nThis is the second time defendant has sought to interpose the jurisdiction of a Syrian Court to accomplish what he could not in ours. We agree with Judge John Martin, in speaking for this Court, that \u201c[o]ur courts will not permit defendant, as an American citizen domiciled in North Carolina, to use his former status and relationship with Syria to evade the laws of North Carolina governing domestic relations.\u201d Atassi, 117 N.C. App. at 512, 451 S.E.2d at 375. We must regretfully set aside the trial court\u2019s finding of civil contempt against defendant for the grounds stated herein. This case is reversed and remanded for such further proceedings as are by law provided or required.\nReversed and remanded.\nJudge LEWIS concurs.\nJudge GREENE concurs in the result with separate concurring opinion.", "type": "majority", "author": "SMITH, Judge." }, { "text": "Judge Greene\nconcurring in the result.\nI agree with the two reasons given by the majority that the order of the trial court finding the defendant in civil contempt must be reversed: (1) there is no failure by the defendant to comply with a court order directed to him, and (2) compensatory damages are not properly within the scope of a contempt proceeding. Because either of these holdings requires we reverse the order of the trial court, I have not considered the questions of whether the compensatory damage rule represents good law or whether the defendant\u2019s conduct constitutes criminal contempt of court. I therefore express no opinion on these additional issues addressed by the majority.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "The McLeod Law Firm, P.A., by Joe McLeod, for plaintiff appellee.", "Harris, Mitchell & Hancox, by Ronnie M. Mitchell and Kenneth D. Bums, for defendant appellant." ], "corrections": "", "head_matter": "BATOUL ATASSI, Plaintiff-Appellee v. INAD B. ATASSI, Defendant-Appellant\nNo. COA95-699\n(Filed 7 May 1996)\nContempt of Court \u00a7 31 (NCI4th)\u2014 defendant\u2019s interference with court order directed at plaintiff \u2014 no civil contempt\u2014 attempt to punish defendant \u2014 error\nWhere plaintiff wished to take the parties\u2019 child to Syria on vacation, requiring the trial court to grant a deviation from its standing custody order, and the trial court granted plaintiff\u2019s request to take the child out of the United States for dates certain, the entire focus of the order was on plaintiff and was not directed at defendant; therefore, the trial court erred in finding defendant in civil contempt for filing a custody action in Syria while plaintiff and the child were in that country, and requiring, as punishment, that defendant reimburse plaintiff her expenses resulting from defendant\u2019s contempt, since N.C.G.S. \u00a7 5A-21(a)(3) requires violation of an order directed at the alleged contemnor, and civil contempt is not proper as a means of punishment. Rather, plaintiff\u2019s remedy against defendant was an action for indirect criminal contempt, as his custody action instituted in Syria while plaintiff and the child were vacationing there flouted the authority of the trial court, interfered with lawful orders of that court, and fell squarely within the definition of criminal contempt in N.C.G.S. \u00a7 5A-ll(a)(3).\nAm Jur 2d, Contempt \u00a7\u00a7 17, 18, 130.\nJudge Greene concurring in the result.\nAppeal by defendant from judgment entered 28 March 1995 by Judge A. Elizabeth Keever in Cumberland County District Court. Heard in the Court of Appeals 1 March 1996.\nThe McLeod Law Firm, P.A., by Joe McLeod, for plaintiff appellee.\nHarris, Mitchell & Hancox, by Ronnie M. Mitchell and Kenneth D. Bums, for defendant appellant." }, "file_name": "0356-01", "first_page_order": 392, "last_page_order": 398 }