Penninga v. Travis (Lawyers Weekly No. 012-044-17, 22 pp.) (Linda McGee, C.J.) Appealed from Madison County District Court (Hal Harrison, J.) N.C. App. Unpub.
Holding: Where the trial court’s orders did not specify how and when defendant could purge himself of contempt, the trial court erred by holding defendant in civil contempt of the court’s child support and custody orders.
We vacate the trial court’s contempt order and remand for further proceedings.
With regard to the child support order, the trial court ordered, inter alia, (1) that “Defendant shall not violate any Orders of this Court, including this Order, [and] the [custody and child support orders]”; (2) that “Defendant shall immediately pay … the sum of $250.00 per month as child support”; (3) that if “Defendant violates any of the terms of this Order, or any other Orders, a Show Cause Motion may be filed setting this matter for hearing to determine why an Order for his arrest should not enter as a result of his failure to comply”; and (4) “such other and further relief as this Court deems just and necessary to effectuate the terms of this Order of Contempt.”
As in Spears v. Spears, 784 S.E.2d 485 (2016), the purge condition requiring defendant to begin making monthly payments of $250 “to be credited against the … arrearage owed” is flawed in its failure to provide a definite date by which defendant could have purged himself of the contempt.
It is also unclear from the contempt order as written whether the trial court intended that the $250 payment be made in addition to defendant’s ongoing monthly obligation of $164 under the existing child support order, or whether the court intended to modify defendant’s total monthly obligation. Regardless, even if the trial court intended to modify defendant’s existing child support obligation, it was without authority to do so. An order setting child support only may be modified upon motion in the cause and a showing of changed circumstances by either party.
Furthermore, although the trial court found as fact that “Defendant has had the present ability to pay towards [his past child support obligation],” while such a finding justifies a conclusion of law that a defendant’s violation of the child support order was willful, such a finding, standing alone, does not support the conclusion of law that the defendant has the present ability to purge himself of the contempt by paying the arrearage. The trial court made no finding regarding defendant’s ability to begin “immediately pay[ing]” a monthly sum of $250.
The trial court’s order did not establish a date after which the contemnor’s contempt was purged or provide any other means for him to purge the contempt. Additionally, as plaintiff concedes, the provision for the filing of a show cause motion in the event of defendant’s violation of the contempt order was not a purge condition, but merely a reference to statutory civil contempt procedures.
The contempt order’s final “requirement” permitting any “further relief as this Court deems just and necessary to effectuate the terms of [the contempt order]” is also not a legitimate purge condition, because it “does not clearly specify what [defendant] can and cannot do … in order to purge [himself] of the civil contempt.”
With regard to a prior custody order, the trial court ordered defendant to terminate all cell phone contracts for phones used by the minor children and to retrieve those phones from the children. This part of the order was deficient because it set no definitive date by which defendant needed to complete this action, and the trial court made no determination that defendant had the ability or means to comply.
The trial court also ordered defendant to pay plaintiff’s attorney’s fees, but the court made no findings with respect to either factor required by G.S. § 50-13.6. Even assuming the facts show plaintiff’s good faith in bringing defendant before the court to enforce its prior orders, the trial court made no finding regarding plaintiff’s ability to defray the costs of the action.
Vacated and remanded.