{
  "id": 8525512,
  "name": "SYLVIA McMILLER v. ROMIE McMILLER",
  "name_abbreviation": "McMiller v. McMiller",
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  "casebody": {
    "judges": [
      "Judges Arnold and Wells concur."
    ],
    "parties": [
      "SYLVIA McMILLER v. ROMIE McMILLER"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nCivil contempt proceedings are a proper method of enforcing orders for payment of child support. Smith v. Smith, 248 N.C. 298, 103 S.E. 2d 400 (1958). The purpose of civil contempt is not to punish but to coerce a defendant into compliance with the support order. See, e.g., Jolly v. Wright, 300 N.C. 83, 265 S.E. 2d 135 (1980). Although the power of a court to hold a violator of a court order in contempt is inherent, e.g., Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E. 2d 577 (1948), it is limited somewhat by the requirements of G.S. 5A-21 thru 5A-25.\nGeneral Statute 5A-21 provides that a person may not be imprisoned for civil contempt unless \u201c[t]he person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order.\u201d G.S. 5A-21(a)(3). General Statute 5A-22 provides that the order of a court holding a person in contempt must specify how the person may purge himself of the contempt. Because these statutes relate to the same subject matter, they must be construed in pari materia. Carver v. Carver, 310 N.C. 669, 314 S.E. 2d 739 (1984). When so construed, these statutes require that a person have the present ability to comply with the conditions for purging the contempt before that person may be imprisoned for civil contempt. Bennett v. Bennett, 71 N.C. App. 424, 322 S.E. 2d 439 (1984).\nIn the instant case, the trial judge found as fact only that defendant \u201chas had the ability to pay as ordered.\u201d This finding justifies a conclusion of law that defendant\u2019s violation of the' support order was willful, Teachey v. Teachey, 46 N.C. App. 332, 264 S.E. 2d 786 (1980); however, standing alone, this finding of fact does not support the conclusion of law that defendant has the present ability to purge himself of the contempt by paying the ar-rearages. See Brower v. Brower, 70 N.C. App. 131, 318 S.E. 2d 542 (1984).\nTo justify conditioning defendant\u2019s release from jail for civil contempt upon payment of a large lump sum of arrearages, the district court must find as fact that defendant has the present ability to pay those arrearages. The majority of cases have held that to satisfy the \u201cpresent ability\u201d test defendant must possess some amount of cash, or asset readily converted to cash. For example, in Teachey, supra, defendant could pay $4825 in ar-rearages either by selling or mortgaging mountain property in Virginia. Accord Jones v. Jones, 62 N.C. App. 748, 303 S.E. 2d 583 (1983) (defendant could not pay $6540 in arrearages because land he owned was already heavily mortgaged).\nIn the case at bar, there was no finding relating to defendant\u2019s ability to come up with $4320.50 in readily available cash. The only finding by the trial court related to defendant\u2019s past ability to pay the child support payments. No finding was made as to appellant\u2019s present ability to pay the arrearages necessary to purge himself from contempt.\nThe scope of review in contempt proceedings is limited to whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment. Cox v. Cox, 10 N.C. App. 476, 179 S.E. 2d 194 (1971). The findings of fact made by Judge Bencini in this case do not support the judgment of imprisonment for civil contempt. The record before this court is unclear as to what evidence if any was taken to show defendant\u2019s present ability or lack of present ability to pay the arrearage. Therefore, the judgment is vacated and the action remanded to the district court for further proceedings not inconsistent with this opinion.\nVacated and remanded.\nJudges Arnold and Wells concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Gregory L. Gorham for plaintiff appellee.",
      "Central Carolina Legal Services, Inc., by Stanley B. Sprague for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "SYLVIA McMILLER v. ROMIE McMILLER\nNo. 8518DC463\n(Filed 19 November 1985)\nDivorce and Alimony \u00a7 24.4; Contempt of Court \u00a7 7\u2014 arrearage in child support\u2014 imprisonment for civil contempt \u2014 findings inadequate\nThe trial court\u2019s findings of fact did not support a judgment of imprisonment for civil contempt for arrearages in child support where there was no finding relating to defendant\u2019s ability to pay the amount required to purge himself of contempt. G.S. 5A-21(a)(3), G.S. 5A-22.\nAppeal by defendant from Bencini Judge. Order entered 28 March 1985 in District Court, GUILFORD County. Heard in the Court of Appeals 31 October 1985.\nOn motion of the plaintiff, Sylvia McMiller, a hearing for civil contempt was held before Judge Bencini. Plaintiff alleged defendant was in arrearage for child support payments and that he had not made a payment since September 1982. Defendant acknowledged signing a voluntary support agreement in October 1977 requiring him to pay the sum of $99.00 per month for the support of one minor child. Defendant claimed, despite being gainfully employed at all times since signing the support agreement, that he did not willfully fail to comply with the support order.\nThe court found that defendant owed $8,641.00 in arrearages and ordered him jailed for civil contempt for willful failure to comply with a court order requiring support payments. The court further ordered that defendant could purge himself of the contempt only by paying one-half the arrearages, or $4,320.50. Defendant was to be given work-release to enable him to continue to work to pay this amount.\nThis Court issued a writ of supersedeas on 2 May 1985 staying the execution of the sentence for contempt pending the outcome of this appeal.\nGregory L. Gorham for plaintiff appellee.\nCentral Carolina Legal Services, Inc., by Stanley B. Sprague for defendant appellant."
  },
  "file_name": "0808-01",
  "first_page_order": 840,
  "last_page_order": 842
}
