Hudson v. Hudson

230 S.E.2d 188 (1976)

31 N.C. App. 547

Lessie Mae C. HUDSON v. Granger C. HUDSON.

No. 761DC508.

Court of Appeals of North Carolina.

December 1, 1976.

*189 E. Ray Etheridge, Elizabeth City, for plaintiff appellee.

Franklin B. Johnston, Washington, for defendant appellant.

HEDRICK, Judge.

The record before us shows that the parties were unable to agree upon a record on appeal and the court settled the record on appeal pursuant to Appellate Rule 11 by order dated 11 June 1976. The *190 court included in the record on appeal its own "Statement of the Record by the Court," wherein the court attempted to set out in narrative form what had transpired in the case both before and after the hearing held on 3 November 1975. In that "Statement" we find the following: "[T]he defendant paid $300.00 to the plaintiff for the support of his children after motion for contempt was filed by the plaintiff and just prior to the date of said hearing [on 3 November]." The record affirmatively shows that when plaintiff's motion to have the defendant show cause why he should not be held in contempt was made on 6 October 1975, the defendant was delinquent in his support payments in the amount of $250 with another $50 payment due on 9 October 1975. According to the judge's own "Statement" the defendant paid $300 "after motion for contempt was filed by the plaintiff and just prior to the date of said hearing [on 3 November]." Thus it appears the defendant purged himself of any possible contempt between the time of the filing of the motion and the hearing on the motion on 3 November which resulted in his being found in contempt. A careful reading of the findings of fact set out in the judgment dated 20 February 1976 reveals that the court chose to ignore the $300 payment made on 13 October 1975 and attempted to base its conclusion that defendant was in contempt on the finding that he had wilfully failed to make the payments on time in accordance with the court's former order. The purpose of a civil contempt proceeding such as is involved in this case is to force the defendant's compliance with the court's order. To hold the defendant in contempt after that very purpose has been achieved is ordinarily contrary to the concept of the proceeding.

We hold the record before us fails to support the court's conclusion that defendant was in contempt for his wilful failure to comply with the court's order of support dated 23 August 1974. We point out, however, that our decision is based upon the fact that at the time of the hearing on 3 November 1975 defendant was in full compliance with the court's order as of 6 October 1975, the date on which the motion was filed. Whether the defendant has complied with the orders of the court with respect to the payments of support since the payment of $300 on 13 October 1975 and whether the defendant has paid the $200 attorney fee ordered on 3 November 1975 and the additional $200 attorney fee ordered on 20 February 1976 is not before us.

For the reasons stated that portion of the order finding the defendant in contempt and ordering him to be imprisoned for 30 days must be vacated.

The judgment from which defendant appealed requires the defendant to pay plaintiff's attorney a fee of $200 for representing the plaintiff through the hearing on 3 November 1975, and an additional fee of $200 for the hearings thereafter, including the hearing on 16 February 1976. The question of the validity of this portion of the judgment is not specifically discussed in defendant's brief. However, since the appeal itself raises the question of whether the findings support the order, we deem it necessary to point out that the record supports the award of the attorney fees totaling $400.

The result isthat portion of the judgment finding the defendant in contempt and ordering him imprisoned for 30 days is vacated; that portion of the judgment ordering the defendant to pay plaintiff's attorney fee totaling $400 is affirmed.

Vacated in part and Affirmed in part.

BROCK, C. J., and PARKER, J., concur.