{ "id": 11918454, "name": "EVELYN CAROL S. HANCOCK, Plaintiff, v. CARY GLENN HANCOCK, Defendant", "name_abbreviation": "Hancock v. Hancock", "decision_date": "1996-06-04", "docket_number": "No. COA94-1415", "first_page": "518", "last_page": "529", "citations": [ { "type": "official", "cite": "122 N.C. App. 518" } ], "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": "2 ALR Fed. 917", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "24 ALR4th 870", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "23 ALR3d 1416", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "72 ALR4th 298", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "28 ALR4th 9", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "33 ALR3d 589", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "33 ALR3d 448", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "24 ALR3d 650", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "trial judge did not \"pre-judge\" plaintiffs case when stating in chambers what child support would be appropriate since he had already heard some evidence in the matter" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "parenthetical": "trial judge did not \"pre-judge\" plaintiffs case when stating in chambers what child support would be appropriate since he had already heard some evidence in the matter" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "388 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520189 ], "year": 1990, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0227-01" ] }, { "cite": "303 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "222-23" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522618 ], "year": 1983, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0387-01" ] }, { "cite": "346 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358601 ], "year": 1986, "pin_cites": [ { "page": "248", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0244-01" ] }, { "cite": "264 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550410 ], "year": 1980, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0301-01" ] }, { "cite": "307 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "\"if a parent 'encounters unreasonable difficulty in exercising his visitation rights, he may apply to the trial judge, who can compel compliance with the order by making it more specific.' \"" }, { "page": "394" }, { "page": "394" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526788 ], "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "\"if a parent 'encounters unreasonable difficulty in exercising his visitation rights, he may apply to the trial judge, who can compel compliance with the order by making it more specific.' \"" }, { "page": "341" }, { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0338-01" ] }, { "cite": "245 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "389" }, { "page": "389" } ], "opinion_index": 0 }, { "cite": "36 N.C App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555489 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "726" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0720-01" ] }, { "cite": "309 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "730" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525344 ], "year": 1983, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0615-01" ] }, { "cite": "278 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "264", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170028 ], "year": 1981, "pin_cites": [ { "page": "110", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0104-01" ] }, { "cite": "465 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "53-54" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916967 ], "year": 1996, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0334-01" ] }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "139" }, { "page": "139", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "571" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "369 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525208 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0499-01" ] } ], "analysis": { "cardinality": 926, "char_count": 24453, "ocr_confidence": 0.73, "pagerank": { "raw": 3.6096340669288665e-07, "percentile": 0.8881334394399055 }, "sha256": "a803a19898ea8ad8606e7c1cf175063231b5d8f8b92d7660f0fbb231e66dbdaa", "simhash": "1:e31bf5ece510be92", "word_count": 4096 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C., and JOHN concur." ], "parties": [ "EVELYN CAROL S. HANCOCK, Plaintiff, v. CARY GLENN HANCOCK, Defendant" ], "opinions": [ { "text": "McGEE, Judge.\nWe first note that the contempt order states the court \u201cconcludes that Plaintiff is in willful, criminal contempt of this court\u201d (emphasis added). Criminal contempt orders are properly appealed from district court to the superior court, not to the Court of Appeals. N.C. Gen. Stat. \u00a7 5A-17 (1986). However, in civil contempt matters, appeal is from the district court to this Court. N.C. Gen. Stat. \u00a7 5A-24 (1986). In Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988), this Court held that the character of the relief is dispositive of the distinction between criminal and civil contempt, and where the relief is imprisonment, but the contemnor may avoid or terminate imprisonment by performing an act required by the court, then the contempt is civil in nature. Bishop, 90 N.C. App. at 505, 369 S.E.2d. at 109. Since the order in this case allows plaintiff to purge the contempt by delivering the child over to defendant for his scheduled visitation and by turning over the coin collection or otherwise consenting to a search of her home, the contempt order is actually civil in nature. Therefore, the appeal is properly before this Court.\nI. Visitation\nPlaintiff first argues there was insufficient evidence to support a finding that she willfully refused to allow defendant his visitation with the child. Plaintiff contends there must be a showing that the custodial parent deliberately interfered with or frustrated the noncustodial parent\u2019s visitation before the custodial parent\u2019s actions can be considered willful. We agree and reverse this portion of the contempt order.\n\u201cIn contempt proceedings^] the judge\u2019s 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 to warrant the judgment.\u201d Clark v. Clark, 294 N.C. 554, 571, 243 S.E.2d 129, 139 (1978). Although the statute governing civil contempt, N.C. Gen. Stat. \u00a7 5A-21 (1986), does not expressly require that a contem-nor\u2019s conduct be willful, case law has interpreted the statute to require an element of willfulness. Smith v. Smith, 121 N.C. App. 334, 336, 465 S.E.2d 52, 53-54 (1996). The trial court found as a fact that \u201cPlaintiff has willfully failed and refused to abide by the terms of the [consent judgment] .. . [b]ecause of Plaintiffs willful refusal to allow the minor child to visit with the Defendant and/or the Plaintiffs inaction in not requiring the minor child to visit the Defendant....\u201d Since a willful failure by plaintiff to abide by the consent judgment would support a finding of contempt in this case, we must review the record to determine if it contains competent evidence to support a finding of willfulness.\n\u201cWillful\u201d has been defined as \u201cdisobedience \u2018which imports knowledge and a stubborn resistance,\u2019 and as \u2018something more than an intention to do a thing. It implies doing the act purposely and deliberately, indicating a purpose to do it, without authority \u2014 careless whether [the contemnor] has the right or not \u2014 in violation of law ....\u2019\u201d Jones v. Jones, 52 N.C. App. 104, 110, 278 S.E.2d 260, 264 (1981) (citations omitted). Willfulness \u201cinvolves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.\u201d Forte v. Forte, 65 N.C. App. 615, 616, 309 S.E.2d 729, 730 (1983). Evidence which does not show a person to be guilty of \u201cpurposeful and deliberate acts\u201d or guilty of \u201cknowledge and stubborn resistance\u201d is insufficient to support a finding of willfulness. In re Dinsmore, 36 N.C App. 720, 726, 245 S.E.2d 386, 389 (1978). Here, the record contains no evidence plaintiff acted with a bad faith disregard for the law by committing purposeful and deliberate acts or acted with knowledge and stubborn resistance in order to violate defendant\u2019s visitation rights.\nPlaintiff, her daughter, and the minor child all testified that plaintiff encouraged the child to go on his scheduled visitations with defendant. Plaintiff testified: \u201cI have had Andrew ready, I\u2019ve had Andrew\u2019s things ready, I\u2019ve told Andrew he had to go, I\u2019ve put Andrew outside so that [defendant] could get Andrew. I\u2019ve even tried to stay inside so he would have a chance to get Andrew.\u201d When asked whether she had told her son he had to go visit his father, plaintiff replied: \u201cI had told him he had to go ... I told him to get in the car.\u201d On direct examination, the child testified as follows:\nQ. Okay. Has your mother, at any time, told you not to go and be with your father?\nA. No.\nQ. Has she always encouraged you to go see your father?\nA. Yes.\nQ. Has she physically restrained you or told you not to go visit your father?\nA. No_\nQ. Has your mother done anything to try to discourage your love for your father or discourage you visiting your father?\nA. No.\nThe child also testified he loved his father and wished to spend time with him, but only if his father\u2019s second wife and her children would not be there. Upon cross-examination the child testified as follows:\nQ. If [plaintiff] tells you to go visit with your father, are you going to do that?\nA. I don\u2019t know.\nQ. Well[,] has she told you to get in the car with your father and go home?\nA. Yes.\nQ. And you refused to do that?\nA. Yes.\nQ. Does she make you do it?\nA. No. She tried to.\nQ. How does she try to do it?\nA. By telling me that I had to go, it was his weekend.\nQ. And you didn\u2019t do that?\nA. No.\nThe child also testified on cross-examination that he did not visit with his father because he \u201cdidn\u2019t feel comfortable\u201d with defendant\u2019s wife or at defendant\u2019s house, that defendant\u2019s wife had called him \u201ca spoiled brat,\u201d and that the beds at defendant\u2019s house were \u201cuncomfortable.\u201d Plaintiff\u2019s daughter testified she had n\u00e9ver heard her mother discourage the child from visiting his father and had instead always encouraged him to go. She said her brother refused to go because he \u201chated it down there\u201d at his father\u2019s home and because the child \u201chated\u201d defendant\u2019s wife\u2019s son. Defendant testified he thought plaintiff should \u201cat least make\u201d the child go for his visitation in the same way she made the child attend school. He also testified he had never seen plaintiff tell the child he did not have to go, and on one occasion, he saw her encourage the boy and tell him he had to go. Defendant stated the child said his psychologist, Rodney Jones, had told him he did not have to go.\nNowhere in the record do we find evidence that plaintiff acted purposefully and deliberately or with knowledge and stubborn resistance to prevent defendant\u2019s visitation with the child. The evidence shows plaintiff prepared the child to go, encouraged him to visit with his father, and told him he had to go. The child simply refused. Plaintiff did everything possible short of using physical force or a threat of punishment to make the child go with his father. While perhaps the plaintiff could have used some method to physically force the child to visit his father, even if she improperly did not force the visitation, her actions do not rise to a willful contempt of the consent judgment.\nWillfulness in a contempt action requires either a positive action (a \u201cpurposeful and deliberate act\u201d) in violation of a court order or a stubborn refusal to obey a court order (acting \u201cwith knowledge and stubborn resistance\u201d). See Dinsmore, 36 N.C. App. at 726, 245 S.E.2d at 389. Neither are present in this case. We find no evidence that plaintiff willfully refused to allow the child to visit with the defendant. Nor do we agree with the trial court\u2019s finding that \u201cPlaintiff\u2019s inaction in not requiring the minor child to visit with the Defendant\u201d amounts to contempt because there is no evidence plaintiff resisted defendant\u2019s visitation or otherwise refused to obey the visitation order. She simply did not physically force the child to go. Absent any evidence she encouraged his refusal to go or attempted in any way to prevent the visitation, her actions or inactions, even if improper, do not rise to the level of contempt.\nDefendant\u2019s frustration over not being able to have visitation with his child is certainly understandable. Where, as here, the custodial parent does not prevent visitation but takes no action to force visitation when the child refuses to go, the proper method is for the noncustodial parent to ask the court to modify the order to compel visitation. See Mintz v. Mintz, 64 N.C. App. 338, 307 S.E.2d 391 (1983) (\u201cif a parent \u2018encounters unreasonable difficulty in exercising his visitation rights, he may apply to the trial judge, who can compel compliance with the order by making it more specific.\u2019 \u201d). \u201c[A] trial judge has the power to make an order forcing a child to visit the noncustodial parent.\u201d Mintz, 64 N.C. App. at 341, 307 S.E.2d at 394. In this case, the trial court attempted the functional equivalent of an order of forced visitation by sentencing plaintiff to jail but allowing her to purge herself of contempt by delivering the child over to defendant each and every time he was entitled to visitation. However, the order fails as an attempt at forced visitation.\n[A trial judge has the power to enter an order of forced visitation,] but only when the circumstances are so compelling and only after he has done the following: afforded to the parties a hearing in accordance with due process; created a proper court order based on findings of fact and conclusions of law determined by the judge to justify and support the order; and made findings that include at a minimum that the drastic action of incarceration of a parent is reasonably necessary for the promotion and protection of the best interest and welfare of the child.\nMintz, 64 N.C. App. at 341, 307 S.E.2d at 394. Neither the consent judgment nor the contempt order contains any findings that the incarceration of the plaintiff is reasonably necessary to promote and protect the best interests of the child. Because the record contains no evidence the plaintiff\u2019s actions were willful, and therefore contemptuous, and because the contempt order fails as an order compelling visitation, the trial court improperly sentenced plaintiff to thirty days in custody for violating the consent judgment by preventing visitation. This portion of the contempt order is reversed.\nII. Coin Collection\nPlaintiff next argues the trial court improperly found her in contempt for failing to return all of the coin- collection to defendant. Plaintiff testified she turned over all of the coins she had to defendant. Both the minor child and plaintiffs daughter testified they had seen the coin collection prior to their parent\u2019s separation and that plaintiff had turned over all of the coins in the collection to defendant and had not disposed of any of the coins. Plaintiff contends the record fails to show she had the ability to return any more coins than she had already given the defendant, and therefore she cannot be held in contempt for failure to return the \u201ccomplete\u201d collection. We disagree.\nThe trial court found as a fact that: \u201cThe Plaintiff has failed to produce the complete coin collection as agreed in the [consent judgment], In fact, Plaintiff produced only bits and pieces of said very valuable coin collection and has refused to produce the complete collection.\u201d As stated above, these findings of fact \u201care conclusive on appeal when supported by any competent evidence.\u201d Clark, 294 N.C. at 571, 243 S.E.2d at 139 (emphasis added). The record contains evidence to support this finding.\nDefendant testified plaintiff gave him a paper sack which contained some, but not all, of the coins. He testified the value of the entire coin collection would be approximately two to three thousand dollars. However, defendant stated the value of the coins he received from plaintiff was only approximately ten to fifteen dollars. This evidence supports the trial court\u2019s finding of fact and is therefore binding on this Court. This is so even if the weight of the evidence might sustain findings to the contrary. Monds v. Monds, 46 N.C. App. 301, 304, 264 S.E.2d 750, 752 (1980). \u201cCredibility of the witnesses is for the trial judge to determine, and findings based on competent, evidence are conclusive on appeal, even if there is evidence to the contrary.\u201d Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986) (citations omitted). Because the court\u2019s finding that plaintiff did not turn over the complete coin collection is based on competent evidence and supports the legal conclusion finding plaintiff in contempt of the consent judgment, under our standard of review we are bound to affirm this portion of the contempt order.\nIII. Bias\nLastly, plaintiff contends the contempt order should be reversed because of bias on the part of the trial judge. Plaintiff argues the trial judge\u2019s comments at the end of the evidence shows the judge exhibited bias and prejudice against the plaintiff in such a way that it cannot be said she had a fair trial. We disagree and allow the portion of the order holding plaintiff in contempt for failure to return the complete coin collection to stand.\nAfter all witnesses had testified, the trial judge ordered the minor child to return to the front of the courtroom, accusing him of being \u201ca spoiled brat\u201d and of manipulating his mother, father, and sisters. To the plaintiff the court said:\n[Manipulation] is exactly what\u2019s going on and you don\u2019t have the common sense to see what\u2019s going on and [your daughters] probably don\u2019t have the wisdom to see. But that little boy right there, eleven and a half years old, he got [sic] all of you jumping around like a puppet on a string. No punishment when he disobeys you in terms of going. You\u2019ve not punished him one bit. You\u2019ve not grounded him, you\u2019ve not curtailed any of his privileges and I think you\u2019ve beat this man out of his coin collection .... I don\u2019t know what\u2019s going on in your warped mind, but it ain\u2019t right. I don\u2019t think this Methodist Minister [the defendant] would come in here and swear on the bible, get up here and tell about a valued coin collection . . . and it not be in existence.\nThese and other statements made by the trial judge expressed his personal opinion as well as his decision in the matter. Trial judges are not barred from expressing their opinions in trials conducted without a jury, especially where the comments are consistent with the court\u2019s role as finder of fact. Smithwick v. Frame, 62 N.C. App. 387, 395, 303 S.E.2d 217, 222-23 (1983). The judge\u2019s comments here, while extremely pointed, do not show a preexisting bias against plaintiff or a prejudging of her case.\nThe judge\u2019s comments came at the end of all of the evidence. After announcement of the order holding plaintiff in contempt, plaintiff\u2019s attorney remarked that the trial judge had \u201cheard something I haven\u2019t heard.\u201d In reply the judge said:\nI\u2019ve heard the evidence and I\u2019ve watched the demeanor of the witnesses. ... I heard [the plaintiff] from the first three questions she was asked, she wouldn\u2019t answer that question. It was a contentiousness in her voice, contentiousness in her answers and it set the theme for the whole thing ....\nCounsel then stated the judge had \u201cdrawn a lot of conclusions from evidence not before you.\u201d The court replied: \u201cI didn\u2019t manufacture it, I saw it. I heard it. ... I synthesized it, I must admit.\u201d The record shows the trial judge based his opinions and remarks upon the evidence presented at trial. Therefore, plaintiff has failed to show a personal bias or a prejudging of her case by the trial judge. See Koufman v. Koufman, 97 N.C. App. 227, 234, 388 S.E.2d 207, 211 (1990) rev\u2019d on other grounds, 330 N.C. 93, 408 S.E.2d 729 (1991) (trial judge did not \u201cpre-judge\u201d plaintiffs case when stating in chambers what child support would be appropriate since he had already heard some evidence in the matter).\nFor the reasons stated, the portion of the order holding plaintiff in contempt for failure to comply with the visitation provisions of the consent judgment is reversed. The portion of the order holding plaintiff in contempt for failure to turn over the entire coin collection is affirmed.\nReversed in part, Affirmed in part.\nJudges MARTIN, John C., and JOHN concur.\n. We note that plaintiff has purged herself of this contempt. The order allowed plaintiff to purge the contempt by turning over the collection to defendant \u201cor otherwise consent to a search of her residence.\u201d Plaintiff did in fact consent to this search in open court, thereby purging the contempt. Plaintiff points out in her brief that a search was conducted by deputies of the Lee County Sheriff\u2019s Department and the search found no coins. However, this information is not part of the official record and has no bearing upon our decision.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Love & Love, P.A., by Jimmy L. Love, for plaintiff-appellant.", "Staton, Perkinson, Poster,- Post, Silverman & Adcock, by Norman G. Post, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "EVELYN CAROL S. HANCOCK, Plaintiff, v. CARY GLENN HANCOCK, Defendant\nNo. COA94-1415\n(Filed 4 June 1996)\n1. Contempt of Court \u00a7 39 (NCI4th)\u2014 civil contempt \u2014 appeal properly before Court of Appeals\nSince the contempt order in this case allowed plaintiff to purge the contempt by delivering the parties\u2019 child over to defendant for his scheduled visitation and by turning over a coin collection to defendant or otherwise consenting to a search of her home, the contempt order was actually civil in nature even though the order stated that the court found plaintiff in criminal contempt, and the appeal was therefore properly before the Court of Appeals. N.C.G.S. \u00a7\u00a7 5A-17, 5A-24.\nAm Jur 2d, Appellate Review \u00a7\u00a7 216-218.\nAppealability of acquittal from or dismissal of charge of contempt of court. 24 ALR3d 650.\nAppealability of contempt adjudication or conviction. 33 ALR3d 448.\nContempt adjudication or conviction as subject to review, other than by appeal or writ of error. 33 ALR3d 589.\n2. Divorce and Separation \u00a7 384 (NCI4th)\u2014 willful refusal to allow visitation \u2014 insufficiency of evidence\nThe evidence was insufficient to support a finding that plaintiff willfully refused to allow defendant his visitation with the parties\u2019 child, and the trial court therefore erred in holding plaintiff in contempt, where there was no evidence that plaintiff acted purposefully and deliberately or with knowledge and stubborn resistance to prevent defendant\u2019s visitation with the child; she prepared the child to go, encouraged him to visit with his father, and told him he had to go; the child refused; and plaintiff did everything possible short of using physical force or a threat of punishment to make the child go with his father.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 999, 1011.\nInterference by custodian of child with noncustodial parent\u2019s visitation rights as ground for change of custody. 28 ALR4th 9.\n3. Divorce and Separation \u00a7 384 (NCI4th)\u2014 visitation not prevented but not forced by custodial parent \u2014 order of forced visitation \u2014 insufficiency of findings\nWhere the custodial parent did not prevent visitation but took no action to force visitation when the child refused to go, the proper method is for the noncustodial parent to ask the court to modify the order to compel visitation; however, the trial court\u2019s order in this case, though an attempt at an order of forced visitation because it sentenced plaintiff to jail but allowed her to purge herself of contempt by delivering the child over to defendant each and every time he was entitled to visitation, nevertheless failed because there were no findings that the incarceration of plaintiff was reasonably necessary to promote and protect the best interests of the child.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 999, 1011.\nInterference by custodian of child with noncustodial parent\u2019s visitation rights as ground for change of custody. 28 ALR4th 9.\n4. Divorce and Separation \u00a7 41 (NCI4th)\u2014 failure to return coin collection \u2014 sufficiency of evidence to support finding of contempt\nThe trial court did not err in finding plaintiff in contempt for violating a consent judgment concerning property distribution by failing to return all of a coin collection to defendant where there was evidence to support the court\u2019s finding that plaintiff produced only bits and pieces of the collection.\nAm Jur 2d, Divorce and Separation \u00a7 859.\nDivorce: propriety of using contempt proceeding to enforce property settlement award or order. 72 ALR4th 298.\n5. Judges, Justices, and Magistrates \u00a7 26 (NCI4th)\u2014 judge\u2019s statements to contemnor and child \u2014 no bias by judge\nThere was no merit to plaintiffs contention that the contempt order should be reversed because of bias on the part of the trial judge where, at the close of all the evidence, the judge ordered the minor child to return to the front of the courtroom and accused him of being a \u201cspoiled brat\u201d and of manipulating his parents and sisters, gave plaintiff a tongue lashing about the child\u2019s manipulation and her failure to punish him, accused plaintiff of beating \u201cthis man (defendant) out of his coin collection,\u201d and stated his belief that defendant, a Methodist minister, would not lie about a valued coin collection, since trial judges are not barred from expressing their opinions in trials conducted without a jury; and the record showed that the trial judge based his opinions and remarks upon the evidence presented at trial.\nAm Jur 2d, Judges \u00a7\u00a7 146-151, 170.\nDisqualification of judge for bias against counsel for litigant. 23 ALR3d 1416.\nWaiver or loss of right to disqualify judge by participation in proceedings \u2014 modern state civil cases. 24 ALR4th 870.\nDisqualification of federal judge, under 28 USC sec. 144, for acts and conduct occurring in courtroom during trial or in ruling upon issues or questions involved. 2 ALR Fed. 917.\nAppeal by plaintiff from order entered 29 August 1994 by Judge William A. Christian in Lee County District Court. Heard in the Court of Appeals 28 September 1995.\nAs part of a divorce action, plaintiff-appellant Evelyn Hancock and defendant-appellee Cary Glenn Hancock entered into an agreement resolving all remaining matters in controversy concerning property distribution and custody of the couple\u2019s ten year-old minor son, Andrew. The trial court incorporated this agreement into a consent judgment filed 24 August 1993 in Lee County District Court. The judgment ordered, in part, that: \u201cDefendant shall have as his sole and separate property the coin collection and computer;\u201d and \u201cPlaintiff shall have primary custody of their minor child, Andrew. Defendant shall have reasonable visitation privileges including specific visitations with his son, every other weekend, from 6:00 p.m. on Friday through 6:00 p.m. on Sunday . . . .\u201d\nWhen the defendant, who had relocated to Troy, North Carolina, arrived in Sanford on 18 March 1994 to take Andrew for his regularly scheduled visitation, the child refused to go with him. Instead, Andrew said he had plans to spend the weekend with his grandmother. Defendant testified he did not know whether plaintiff was home at the time. Two weeks later, on 1 April 1994, defendant again drove to Sanford to pick up his son for the weekend. Again, defendant was told Andrew did not wish to go with him.\nDefendant also attempted to take Andrew for the weekend on Easter weekend, April 1994. Defendant was to be remarried on Easter Sunday and had planned for Andrew to be in the wedding. Andrew had been fitted for a tuxedo during his visitation with defendant the weekend of March 4th and his name was listed in the invitations, bulletins, etc. However, when defendant arrived to pick Andrew up on Good Friday, he was again told the child did not want to go. Defendant called the plaintiff before his next scheduled visitation on 15 April 1994 and was told by plaintiff Andrew did not want to go, and therefore, defendant did not drive to Sanford.\nOn 26 April 1994, defendant filed a motion in the cause to hold plaintiff in contempt for violation of the consent judgment. Defendant accused plaintiff of willfully failing and refusing to abide by the terms of the judgment by refusing to allow defendant his scheduled visitation with Andrew and by failing to turn over the complete coin collection. After a hearing on 29 August 1994, the court entered an order holding plaintiff in contempt for failure to abide by the terms of the consent judgment and sentenced her to thirty days in custody. From the judgment of contempt, plaintiff appeals.\nLove & Love, P.A., by Jimmy L. Love, for plaintiff-appellant.\nStaton, Perkinson, Poster,- Post, Silverman & Adcock, by Norman G. Post, Jr., for defendant-appellee." }, "file_name": "0518-01", "first_page_order": 554, "last_page_order": 565 }