Bennett v. Bennett

322 S.E.2d 439 (1984)

Julia Mae Douglas BENNETT v. James William BENNETT.

No. 8420DC125.

Court of Appeals of North Carolina.

November 20, 1984.

*440 E.A. Hightower, Wadesboro, for plaintiff-appellee.

Henry T. Drake, Wadesboro, for defendant-appellant.

WEBB, Judge.

The defendant first argues that he was not given proper notice of the hearing. The notice for the 19 July 1983 hearing was served on the defendant's attorney but not on the defendant. Hinnant v. Hinnant, 258 N.C. 509, 128 S.E.2d 900 (1963), holds that this is sufficient notice. There is nothing in the record to show the attorney was relieved after the child support order was entered and before the notice was served on him. We hold the notice was sufficient. The defendant was not, as he contends, deprived of his rights under the United States or North Carolina Constitution.

The defendant next argues that he was not properly in court because a show cause order had not been issued by the Court for the hearing on 19 July 1983. G.S. 50-13.4(f)(9) provides that an order for child support payments is enforceable by proceedings for civil contempt and its disobedience may be punished by proceedings for criminal contempt. In either case the proceedings are commenced by a show cause order issued by the Court. See G.S. 5A-15 and G.S. 5A-23(a). The defendant contends that whether this be a proceeding for civil or criminal contempt there was no order to show cause issued by a court for the 19 July 1983 hearing and he was not properly before the Court. A show cause order had been issued on 25 January 1982 ordering the defendant to appear on 15 February 1982. No action had been taken on this order. We hold that this outstanding show cause order upon which no action had been taken satisfied the statutory requirement that a hearing be held on a show cause order. The plaintiff gave the defendant notice on 27 June 1983 that he would bring the show cause order on for hearing *441 on 19 July 1983. The defendant should not have been in doubt as to what was to be heard.

The defendant next argues that the Court did not find sufficient facts to support an order of contempt. The Court did not say whether it found the defendant in civil or criminal contempt. It punished the defendant as if he was in civil contempt. In order to hold a defendant in civil contempt the Court must find that the defendant presently possesses the means to comply with the order. See Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971). In this case the Court found the defendant is an "ablebodied man, and capable of working, gainfully employed, earning money and capable of making said payments." We hold this constitutes a determination that the defendant has the means to comply with the order of the Court. Reece v. Reece, 58 N.C.App. 404, 293 S.E.2d 662 (1982).

The defendant argues finally that the Court ordered his imprisonment for an excessive period. The Court found that the defendant was in civil contempt. It was not limited by G.S. 5A-12 to imposing a thirty-day sentence for criminal contempt. It could, under G.S. 5A-21(b), have ordered his imprisonment until he purged himself of contempt. It limited the sentence to 180 days or until he complied with the Court's order. In this we find no error.

We hold that the Court could not order the incarceration of defendant for payments which were not yet due. This the Court did by requiring the defendant to make child support payments which accrued after 15 July 1983 in order to obtain his release. We hold that this portion of the Court's order must be deleted. With this exception we affirm the order of the District Court.

Modified and affirmed.

HEDRICK and HILL, JJ., concur.