Bennett v. Bennett

204 S.E.2d 554 (1974)

21 N.C. App. 390

Matilda C. BENNETT v. William F. BENNETT.

No. 743DC180.

Court of Appeals of North Carolina.

May 1, 1974.

*555 Beaman, Kellum & Mills by James C. Mills, New Bern, for plaintiff appellee.

Robert G. Bowers, New Bern, for defendant appellant.

BALEY, Judge.

Defendant contends that the facts found by the court were not sufficient to support the conclusion that he had wilfully failed to comply with the order for child support. He further maintains that there must be a specific finding by the court that he presently possesses the means to comply with the court order before he can be committed as for contempt.

G.S. § 50-13.4(f)(9) provides:

"The wilful disobedience of an order for the payment of child support shall be punishable as for contempt as provided by G.S. 5-8 and G.S. 5-9."

Wilful disobedience has been interpreted by our court as disobedience "which imports knowledge and a stubborn resistance." Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E.2d 391, 393. In Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E.2d 403, 404, the court stated:

"Manifestly, one does not act wilfully in failing to comply with a judgment if *556 it has not been within his power to do so since the judgment was rendered."

To constitute wilful disobedience there must be an ability to comply with the court order and a deliberate and intentional failure to do so.

The facts found by the trial court in the present case showed that defendant was employed during a large portion of the period when the default in support payments occurred at sufficient compensation to permit him to make the payments. Indeed, his employment with a construction company was terminated less than a week prior to the contempt hearing. The court found that defendant had openly stated to the plaintiff that he did not intend to remain employed or to earn sufficient income to make the support payments. Defendant was able to pay at the time payment was required and wilfully failed to comply with the court order. Past contempt cannot be ignored by the court even if at the exact time of the contempt hearing the defendant does not have means to comply. A defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order. The action of the trial court in punishing defendant by commitment for a definite term for past conduct constituting a violation of its order was entirely proper. Cox v. Cox, 10 N.C.App. 476, 479, 179 S.E.2d 194, 197 (Brock, J., concurring).

When a defendant has the present means to comply with a court order and deliberately refuses to comply, there is a present and continuing contempt and the court may commit such defendant to jail for an indefinite term, that is, until he complies with the order. Under such circumstances, however, there must be a specific finding of fact supported by competent evidence to the effect that such defendant possesses the means to comply with the court order. Our Supreme Court has indicated in Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353, as reaffirmed in Gorrell v. Gorrell, 264 N.C. 403, 141 S.E.2d 794, that "the court below should take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and workan inventory of his financial condition"so that there will be convincing evidence that the failure to pay is deliberate and wilful.

The findings of the trial court are sufficient to show wilful failure to comply with its prior order for child support, and its commitment of defendant as for contempt is affirmed.

Affirmed.

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