North Carolina Lawyers Weekly
Even if the trial court’s 2012 contempt order contains legal errors which could have been the bases of a direct appeal if timely brought, the order is not void. Therefore, plaintiff was not entitled to have the order set aside when he filed a motion under N.C. R. Civ. P. 60 in 2018.
We affirm the trial court’s denial of defendant’s Rule 60 motion.
The plaintiff-father argues that a contempt order and a memorandum of judgment (MOJ) entered in 2012 are void because they allowed the trial court the authority to order his arrest for an indefinite time going forward if the defendant-mother ever claimed he missed a child support payment, without giving him the opportunity to be heard on the matter.
The contempt order says, “That [the father] is hereby ordered into custody of the Sheriff of Cumberland County, North Carolina for a period of thirty (30) days which shall be suspended by [the father] abiding by the terms of this child support as herein set above or until such time as he purges himself of contempt.”
The father takes issue with phrase in the contempt order that, if his 30-day suspended sentence was activated, he could shorten the 30-day activated sentence by “purg[ing] himself of contempt.” The father contends that this phrase renders the order void because it does not state how he would purge himself of the contempt.
We disagree that the purge condition renders the order void, for two reasons.
First, the trial court was holding the father in criminal contempt for the arrearage he had accumulated up to 2012, ordering a 30-day criminal sentence. Although the order includes “purge” language, a provision that allows for the possibility of early release does not transform probationary or suspended sentences into civil relief.
The purge condition might have some effect to compel the father’s future obedience, but that effect is limited since the father would have to be set free after 30 days anyway. We construe the trial court’s sentence as a 30-day criminal sentence that was being suspended. The purge provision merely allowed the father to shorten the 30-day sentence, if activated based on a future violation, if he cured the future violation while serving his activated criminal sentence.
The purge provision did not lengthen the 30-day sentence; that is, if the sentence was activated based on a future violation and the father did not cure the violation, he could still only be held for 30 days based on the 2012 order.
Second, even if the purge provision transformed the 2012 order to a civil contempt order, the purge condition is not ambiguous. The trial court in 2012 was clear that if the 30-day sentence was ever activated based on a future violation, it is then that the trial court, in its order activating the sentence, is to state with specificity how the father is in violation and what he must do to purge himself of that future violation.
Affirmed.
Concurrence/Dissent
(Berger, J.) I concur with the majority opinion that Rule 60(b) provides for a one-year statute of limitations for relief from fraud claims, and because no exceptions are set forth in the rule, the father’s claim under Rule 60(b)(3) is time-barred. However, I respectfully dissent from the remainder of the majority’s opinion.
The trial court ordered the father to be taken into custody for 30 days, a sentence that the trial court suspended provided that the father was “abiding by the terms of this child support [order] or until such time as he purges himself of contempt.” Because the father was to be imprisoned unless and until he performed the affirmative act of purging his contempt, the relief imposed by the trial court was remedial. Therefore, the contempt order was civil in nature.
Because the order was civil, the trial court was required to clearly specify how the father could purge himself of contempt. The trial court states that the father may purge himself of contempt but stops there. Without a clearer statement, it is hard to envision how the the father would possibly know how to purge himself of contempt.
Under G.S. § 5A-22, the trial court was without authority to issue an order holding the father in civil contempt without also stating the means by which such contempt could be purged. Because the trial court did not specify how the father might purge himself of contempt as required by § 5A-22, the trial court acted beyond its authority with regard to the contempt order.
Unger v. Unger (Lawyers Weekly No. 011-278-19, 15 pp.) (Chris Dillon, J.) (Philip Berger, J., concurring in part & dissenting in part) Appealed from Cumberland County District Court (Robert Stiehl, J.) Renorda Pryor for plaintiff; no brief filed for defendant. N.C. App.
