Hodges v. Hodges

307 S.E.2d 575 (1983)

Anita HODGES v. Clarence Don HODGES, Jr.

No. 8219DC1051.

Court of Appeals of North Carolina.

October 18, 1983.

*576 Rodney Mason, Asheboro, for plaintiff-appellee.

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

EAGLES, Judge.

Defendant's first assignment of error is that the trial court erred in not appointing counsel for defendant at the civil contempt hearing. We find no error. In reaching this result, we are bound by the North Carolina Supreme Court's holding in Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980), that (1) the Sixth Amendment right to counsel is inapplicable to civil contempt because that right is confined to criminal proceedings and (2) due process does not guarantee *577 appointment of counsel in nonsupport civil contempt proceedings.

The Sixth Amendment right to counsel is guaranteed in any criminal prosecution where the defendant may face imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). A civil contempt proceeding is not a criminal prosecution; its purpose is not to punish, but to compel a defendant to comply with an order of the court. Jolly v. Wright, 300 N.C. at 92, 265 S.E.2d at 142. North Carolina's civil contempt statute requires that the court find that the defendant has the present ability to comply with its order before the defendant can be imprisoned. G.S. 5A-21. A defendant who has not made child support payments because he is actually unable to make the payments does not face a loss of liberty. A defendant in a nonsupport civil contempt proceeding can be imprisoned only if he has willfully violated the court order and has the present ability to make the payments. Henderson v. Henderson, 307 N.C. 401, 408, 298 S.E.2d 345, 350 (1983); Teachey v. Teachey, 46 N.C.App. 332, 334, 264 S.E.2d 786, 787 (1980). He can regain his liberty by doing that which the court has ordered him to do and he has the ability to do; i.e., make the payments. This is consistent with the notion that civil contempt is not criminal punishment, but a civil remedy to be utilized exclusively to enforce compliance with court orders. See Jolly v. Wright, supra.

When a civil proceeding may result in imprisonment, due process requirements are met by evaluating the necessity for appointed counsel on a case-by-case basis. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). The court in Jolly held that since nonsupport civil contempt cases usually are not sufficiently complex to necessitate the assistance of counsel, appointment of counsel for indigents is required only "where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise insure fundamental fairness." Jolly v. Wright, 300 N.C. at 93, 265 S.E.2d at 143; see also, Daugherty v. Daugherty, 62 N.C.App. 318, 302 S.E.2d 664 (1983). A similar approach is utilized in civil paternity cases when determining whether due process requires appointment of counsel. Wake County, Ex. Rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982). The instant case presents no unusually complex issues of law or fact which would necessitate the appointment of counsel.

Defendant next assigns as error the trial court's order that defendant be imprisoned if he did not pay $350.00 because the court made no finding that defendant had the present ability to pay the money. We agree that the trial court erred.

G.S. 5A-21 provides that civil contempt is the failure to comply with an order of a court if the individual "is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order." In order to imprison a defendant found in civil contempt, the trial judge must find that the defendant has the present ability to comply or to take reasonable measures to enable him to comply with the order. Henderson v. Henderson, supra; Teachey v. Teachey, supra.

The trial judge here found that the defendant was "able-bodied at least during the months of January through June 19th of 1982, and was capable of and had the means or should have had the means" to make his child support payments. The court made no findings that defendant had, on 27 July 1982, the present ability to pay all or part of his arrearage or that he owned any real or personal property that he could sell to pay the arrearage. Our Supreme Court has held that a trial court's findings that a defendant was healthy and able-bodied, had been and was presently employed, had not been in ill health or incapacitated, and had the ability to earn good wages, without finding that defendant presently had the means to comply, do not support confinement in jail for contempt. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1968).

This case is unlike Daugherty v. Daugherty, 62 N.C.App. 318, 302 S.E.2d 664 (1983), *578 where, though there was no finding of fact, the evidence plainly showed that defendant was capable of complying with the order. Here, the trial judge made no finding that the defendant presently had the means to comply with the order to make child support payments and the evidence was otherwise insufficient to plainly show that defendant was capable of complying with the court's order.

The order must be vacated and the cause remanded for further proceedings consistent with this opinion.

Vacated and remanded.

WHICHARD and JOHNSON, JJ., concur.