{
  "id": 8525344,
  "name": "KENNETH EUGENE FORTE v. NANCY BOGER FORTE",
  "name_abbreviation": "Forte v. Forte",
  "decision_date": "1983-12-20",
  "docket_number": "No. 8220DC1104",
  "first_page": "615",
  "last_page": "617",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "294 N.C. 554",
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      "year": 1930,
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      "cite": "199 N.C. 12",
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      "cite": "150 S.E. 2d 391",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1966,
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    {
      "cite": "268 N.C. 254",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "278 S.E. 2d 260",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "opinion_index": 0
    },
    {
      "cite": "52 N.C. App. 104",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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        12170028
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      "year": 1981,
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  "analysis": {
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  "last_updated": "2023-07-14T21:11:09.312138+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge VAUGHN and Judge Whichard concur."
    ],
    "parties": [
      "KENNETH EUGENE FORTE v. NANCY BOGER FORTE"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nThe only question presented by defendant\u2019s appeal is whether the order deeming plaintiff not to be in contempt of court was erroneous. Since the evidence clearly indicates that plaintiff was able to make the payments ordered but chose not to do so, the defendant contends that we should remand the case to the trial court with instructions to find him in contempt of court. The law does not permit us to do that, however, for wilfulness is also a requisite of contempt, Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), and the record does not establish that plaintiffs failure to comply with the order was wilful.\nWilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law. Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966); West v. West, 199 N.C. 12, 153 S.E. 600 (1930). The trial judge\u2019s finding of fact that plaintiff stopped making payments, not in defiance of authority, but in a good faith reliance on defendant\u2019s agreement to support the child if he would waive his visitation rights, is supported by competent evidence, and is thus conclusive on us. Clark v. Clark, 294 N.C. 554, 243 S.E. 2d 129 (1978). This finding supports His Honor\u2019s conclusion that plaintiffs failure to pay was not wilful and the determination that plaintiff was not in contempt. Jarrell v. Jarrell, 241 N.C. 73, 84 S.E. 2d 328 (1954). The order was also in accord with sound legal principles. Most jurisdictions in this country follow the just rule that disobedience to a court order that results from the advice or agreement of the complainant should not be punished at the complainant\u2019s behest. 17 C.J.S. Contempt \u00a7 39, p. 103 (1963). We know of no North Carolina decision to the contrary. The order appealed from is affirmed.\nAffirmed.\nChief Judge VAUGHN and Judge Whichard concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Hopkins, Hopkins & Tucker, by William C. Tucker, for plaintiff appellee.",
      "D. D. Smith and Henry C. Doby, Jr. for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "KENNETH EUGENE FORTE v. NANCY BOGER FORTE\nNo. 8220DC1104\n(Filed 20 December 1983)\nDivorce and Alimony \u00a7 24.4\u2014 nonsupport of child \u2014 no contempt \u2014 willfulness element missing\nIn an action in which defendant sought the court to find plaintiff in contempt of court for nonsupport of his child pursuant to a support order, the trial judge\u2019s finding of fact that plaintiff stopped making payments, not in defiance of authority, but in a good faith reliance on defendant\u2019s agreement to support the child if he would waive his visitation rights, was supported by competent evidence, supported the conclusion that plaintiffs failure to comply with the order was not willful, and is conclusive on appeal.\nAppeal by defendant from Huffman, Judge. Order entered 12 June 1982 in District Court, Stanly County. Heard in the Court of Appeals 19 September 1983.\nUnder a separation agreement entered into in 1969, defendant was given custody of their minor child, then four years old, and plaintiff was accorded the right to visit the child only at the times mutually agreeable to the parties in defendant\u2019s home and upon at least twenty-four hours advance notice of the intended visit. In December, 1971, the parties were divorced, and at the same time a judgment was entered settling their various property claims and requiring plaintiff to pay $75 a month toward the child\u2019s support.\nThe next activity in the case was a motion in the cause filed by the defendant March 2, 1982, alleging that plaintiff was more than $9,000 in arrears in making the payments ordered and requesting that he be adjudged in contempt of court as a consequence. The plaintiff, answering the motion, admitted that he had not made the payments ordered for nearly ten years, but alleged that he was justified in doing so, because the defendant repeatedly refused to let him visit the child and agreed that if he would leave her and the child alone she would waive the support payments.\nAfter hearing the evidence of the parties, upon findings and conclusions that plaintiffs failure to pay as directed was not wilful, but was in \u201cgood faith reasonable reliance\u201d upon defendant\u2019s oral agreement to waive the payments in exchange for plaintiff foregoing his visitation rights, the trial court adjudged the plaintiff not to be in contempt. It was also adjudged that plaintiff is indebted to defendant in the amount of $9,075 because of the missed payments and he was ordered to pay the remaining support installments as they became due.\nHopkins, Hopkins & Tucker, by William C. Tucker, for plaintiff appellee.\nD. D. Smith and Henry C. Doby, Jr. for defendant appellant."
  },
  "file_name": "0615-01",
  "first_page_order": 647,
  "last_page_order": 649
}