The North Carolina Court of Appeals took a moment in a recent opinion to caution trial judges throughout the state about the pitfalls of firing off incomplete orders.
Judge Donna Stroud stressed that any “written, signed, and filed document which claims to be an order is an order, so it must include the elements required of an order.”
She made that finding after Durham County District Court Judge Fred Battaglia issued a cursory civil contempt order that sent Omega Hodges to jail for 90 days for nonpayment of child support, despite what his trial attorney says was ample evidence to prove that he had a medical disability that prevented him from working.
That attorney, Adam Hopler of Durham, immediately filed an appeal after Battaglia issued his original contempt order, which included no factual findings. Three days after handing down the first order, Battaglia filed a second, more detailed order which found that because Hodges lived rent-free with his parents he had “in-kind” income that could be used to pay the more than $7,200 he owed in child support.
But the Court of Appeals vacated the second order, finding that it was invalid because a final valid order had already been filed and was under appeal. The court went on to reverse the first order because it was incomplete.
Hopler said in an interview that he was “just trying to do what was right for Mr. Hodges” when he appealed the first order and didn’t realize at the time that his speedy reaction would help pave the way for an appellate victory.
He added that many nonpayment hearings are straightforward, but said Hodges’ case was different because he had the testimony of doctors and brought medical documents to show that he was unable to work and pay child support. He said it was “shocking” that Hodges’ evidence of his inability to pay was disregarded because he lived with his parents.
“Unfortunately, many times we’re dealing with scenarios where fathers aren’t living up to their expectations,” he added. “But it’s not fair to make that assumption about every father who walks in through the doors of the courtroom.”
In the decision, Stroud noted that the original contempt order had “no language to indicate the trial court anticipated entry of another more detailed order, despite the absence of any findings of fact; on its face, it is a final order which addresses the only issue presented, which was whether defendant was in civil contempt of the prior child support order. “
The order had been issued on a standard form and had no boxes checked and only a few blanks filled in that identified the county, file number, defendant’s name, date and had the judge’s signature. Also, “Purge $1000.00 or serve 90 days” was written in the section for “additional findings.”
Bare bones orders are “not atypical,” said Hodges’ appellate attorney, Mary Reece of Reece & Reece in Smithfield.
“I have certainly seen these types of orders,” she added. “What the Court of Appeals is saying is that it needs to be very clear that it’s going to be that type of temporary order, that it needs to be very clear that’s what the court is doing.”
Stroud suggested in the opinion that Battaglia had handed down the hasty order because he “simply wanted to ensure that defendant could be immediately placed into custody at the conclusion” of the hearing in which he was found in contempt.
“We understand the trial court’s dilemma,” she wrote. “Since District Court judges in North Carolina have no staff to assist them in preparation of orders despite the urgent need for many orders each day, our judges have to find ways to get the work done.”
Still, Stroud concluded that a signed order is still a valid order and must be treated as such, which means it needs to contain findings of fact.
The 18-page decision is County of Durham v. Hodges (Lawyers Weekly No. 011-002-18). An opinion digest is available at nclawyersweekly.com.
Follow Phillip Bantz on Twitter @NCLWBantz