Jones v. Jones

303 S.E.2d 583 (1983)

Faye R. JONES v. Donnie Ray JONES.

No. 825DC921.

Court of Appeals of North Carolina.

June 21, 1983.

*584 Julia Talbutt, Wilmington, for plaintiff, appellee.

W.G. Smith and Bruce H. Jackson, Jr., Wilmington, for defendant, appellant.

HEDRICK, Judge.

In Teachey v. Teachey, 46 N.C.App. 332, 334, 264 S.E.2d 786, 787 (1980), this Court, speaking through Martin, Judge (Harry C.), said:

For civil contempt to be applicable, the defendant must be able to comply with the order or take reasonable measures that would enable him to comply with the order. We hold this means he must have the present ability to comply, or the present ability to take reasonable measures that would enable him to comply, with the order. (Citation omitted).

In the present case, the defendant excepted to the following finding of fact made by the trial judge: "That Defendant has had and now has the present means and ability to comply with the provisions of the Judgment of 3 February 1975. That Defendant's failure to comply with said Order is without just cause or excuse." The question thus presented is whether the evidence in the record supports the finding of fact that the defendant possesses the present means of paying the arrearage of $6,540.00. We hold it does not.

While the evidence tends to show that defendant was gainfully employed as a construction worker at an hourly wage of $5.75 and that he lives with his second wife who also is gainfully employed with an average take-home pay of approximately $406.00 per month and that the defendant and his wife reside in a trailer situated on some "land" given to defendant by his present father-in-law and that the trailer is heavily mortgaged and that monthly mortgage payments are $250.00 and that the mortgage will be paid in six years and that defendant owns an automobile which is "broken," there is no evidence in this record that defendant actually possesses $6,540.00 or that he has "the present ability to take reasonable measures that would enable him to comply, with the order." Id.

We are familiar with the popular conception among members of the bench and bar that a defendant can raise more money in jail in an hour than he can outside in a year, but we cannot substitute popular conception for evidence to support a critical finding of fact. The order must be reversed and the cause remanded for further proceedings.

Reversed and Remanded.

WELLS and PHILLIPS, JJ., concur.