Lee v. Lee

337 S.E.2d 690 (1985)

Catherine M. LEE v. Leon Henry LEE.

No. 8518DC353.

Court of Appeals of North Carolina.

December 31, 1985.

Gregory L. Gorham, Greensboro, for plaintiff-appellee.

Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for defendant-appellant.

*691 JOHNSON, Judge.

Defendant does not dispute the court's ability to enforce its previous orders. Defendant contends that there is no determination that he has the present ability to comply with the civil contempt order requiring him to pay $1,000.00 of the arrearage. We agree.

In Teachey v. Teachey, 46 N.C.App. 332, 334, 264 S.E.2d 786, 787 (1980), this Court held that:

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. (emphasis ours).

Accord McMiller v. McMiller, 77 N.C. App. 808, 336 S.E.2d 134 (1985); Jones v. Jones, 62 N.C.App. 748, 303 S.E.2d 583 (1983).

G.S. 1A-1, Rule 52(a)(1) provides that "[i]n all actions tried upon the facts without a jury ... the court shall find the facts specially...." The court must make its own determination as to what pertinent facts are established by the evidence rather than merely reciting what the evidence may tend to show. Chloride, Inc. v. Honeycutt, 71 N.C.App. 805, 323 S.E.2d 368 (1984). In the case sub judice, the trial court's finding that "defendant represents to the court he is presently employed ... and earns $5.10 per hour" is not a determination by the court of a fact established by the evidence. At best it is a recapitulation of defendant's testimony. Therefore, we are left with the finding that "defendant has had the ability to comply...." In McMiller, supra, this Court rejected this exact finding as a basis of showing that a defendant has the present ability to purge himself of the contempt order. This Court stated such a finding "justifies a conclusion of law that defendant's violation of the support order was willful (citation omitted) however, [it] ... does not support the conclusion of law that defendant has the present ability to purge himself of the contempt by paying the arrearages." Id., 77 N.C.App. at ___, 336 S.E.2d at 135.

For the reason that there is no evidence in this record that defendant actually possessed the $1,000.00 or that he had the present ability to take reasonable measures that would enable him to comply with the contempt order, the order must be vacated and the cause remanded for further proceedings.

Vacated and remanded.

WEBB and PHILLIPS, JJ., concur.