{
  "id": 8522179,
  "name": "BETTY DAUGHERTY v. FREDERICK DAUGHERTY",
  "name_abbreviation": "Daugherty v. Daugherty",
  "decision_date": "1983-05-17",
  "docket_number": "No. 8228DC421",
  "first_page": "318",
  "last_page": "320",
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      "cite": "62 N.C. App. 318"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "reporter": "S.E.2d",
      "year": 1966,
      "opinion_index": 0
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    {
      "cite": "268 N.C. 254",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8561177
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    {
      "cite": "265 S.E. 2d 135",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "pin_cites": [
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          "page": "143"
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    {
      "cite": "300 N.C. 83",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559792
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      "year": 1980,
      "pin_cites": [
        {
          "page": "93"
        }
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      "opinion_index": 0,
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        "/nc/300/0083-01"
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  "analysis": {
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  "last_updated": "2023-07-14T22:38:59.213578+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges ARNOLD and Becton concur."
    ],
    "parties": [
      "BETTY DAUGHERTY v. FREDERICK DAUGHERTY"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\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 inquiries about and resolve these matters was manifest prejudicial error as a matter of law. We disagree.\nThough due process does require appointment of counsel for indigents in some nonsupport, civil contempt proceedings, in other such proceedings counsel need not be supplied. Counsel must be furnished indigents only in those proceedings \u201cwhere assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise ensure fundamental fairness.\u201d Jolly v. Wright, 300 N.C. 83, 93, 265 S.E. 2d 135, 143 (1980). This was not such a proceeding. Instead, it was about as simple a proceeding of this kind as ever arises. The District Attorney did not participate in it; the failure to pay as directed could not be disputed; no formal evidentiary processes, complicated or otherwise, were involved; no witness appeared against the defendant, who was afforded the opportunity to present any information that he wanted to to the judge, and did so without interference. Had a lawyer been there he would have had no occasion to cross-examine anyone or object to anything. The only thing that the situation permitted or required was for the defendant to explain his failure to pay. The record shows that he did that about as well as anyone could have under the circumstances that existed. What his explanation amounted to was that: His gross monthly earnings of $835 were all needed by his subsequently-acquired family, which included a wife, two new children, and his wife\u2019s child by a former marriage, and he was therefore unable to pay $80 a month toward the support of the child of his first marriage as the court had directed. Neither the record not appellant\u2019s brief contains anything that causes us to even suspect that this old, familiar, and unavailing story could have been improved upon, or presented any better, if the defendant had had counsel. Thus, the court\u2019s failure to determine whether he needed, wanted, or could afford to employ counsel was neither erroneous nor legally harmful to the defendant.\nBut even if the proceeding had been more complex and defendant needed the assistance of counsel in connection with it, under the circumstances that existed here, the judge\u2019s failure to raise and answer the ability to employ counsel question on his own initiative would not have been error, in our opinion. Since the defendant\u2019s earnings were somewhat above the poverty level and he had been before the court on several prior occasions because of his delinquencies in making the payments, the judge had a right to assume, we think, that if the defendant thought he was eligible for the court\u2019s assistance in obtaining counsel and wanted it, that he would inform the court accordingly. Relative thereto, it is perhaps not without significance that in appealing to this Court, defendant obtained counsel on his own initiative and that the appeal is not in forma pauperis.\nThe defendant\u2019s other contention, that the Court erred by failing to explicitly find that the defendant was capable of complying with the order, is likewise without merit. Though, in matters of this kind, such a finding is always appropriate and under some circumstances necessary, Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966), when the evidence plainly shows, as it does here, that the defendant was capable of complying with the order, the absence of such a finding is immaterial. Lee v. Lee, 37 N.C. App. 371, 246 S.E. 2d 49 (1978). The defendant\u2019s capacity to comply with the order was clearly established by his own evidence, which showed that his gross monthly earnings were ten times the amount of the small payments required of him and that he had no legally acceptable excuse for not making them. Thus, the conclusion that defendant\u2019s failure to comply with the order was wilful was not only justified, it was inevitable.\nThe order appealed from is therefore\nAffirmed.\nJudges ARNOLD and Becton concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney John W. Lassiter, for the State.",
      "Whalen, Hay & Cash, by Gary S. Cash, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BETTY DAUGHERTY v. FREDERICK DAUGHERTY\nNo. 8228DC421\n(Filed 17 May 1983)\nDivorce and Alimony \u00a7 24.4\u2014 failure to pay child support \u2014 civil contempt proceedings \u2014 failure to find whether defendant able to employ counsel \u2014 no error\nThe trial court did not err in failing to find whether defendant desired and was able to employ counsel in a civil contempt proceeding where defendant was found to be in arrears in child support payments since (1) the proceeding was simple and uncomplicated, (2) defendant had an opportunity to carefully -explain his position, and where (3) the record clearly showed the defendant\u2019s earnings were somewhat above the poverty level and that he had been before the court on several prior occasions because of his delinquencies in making the payments.\nAPPEAL by defendant from Israel, Judge. Order entered 11 December 1981 in District Court, BUNCOMBE County. Heard in the Court of Appeals 8 March 1983.\nIn this reciprocal child support, civil contempt proceeding, the defendant was ordered to show cause why he should not be held in contempt for disobeying a previous order to pay $80 a month toward the support of his minor child by his first marriage. At the hearing, upon defendant\u2019s admission that he had been regularly employed at wages of $835 a month, but had made no support payment at all for five months, and only partial payments many other months, the judge found him in contempt and entered an order confining him to jail for thirty days, unless the defendant purged himself before then by paying the arrearage due.\nAttorney General Edmisten, by Associate Attorney John W. Lassiter, for the State.\nWhalen, Hay & Cash, by Gary S. Cash, for defendant appellant."
  },
  "file_name": "0318-01",
  "first_page_order": 350,
  "last_page_order": 352
}