Willis v. Willis , 2 N.C. App. 219 ( 1968 )

162 S.E.2d 592 (1968) 2 N.C. App. 219

Barbara H. WILLIS
v.
Abram L. WILLIS.

No. 68DC192.

Court of Appeals of North Carolina.

August 14, 1968.

Gus Davis, Jr., Morehead City, for defendant appellant.

Hofler, Mount & White, by Richard M. Hutson, II, Durham, for plaintiff appellee.

MORRIS, Judge.

The court found as facts that defendant is a single, thirty-two year old man experienced in and trained as a paint foreman; that he has proven his ability to earn in excess of $90.00 per week in his trade as established by his former employers; that he has no dependents other than his minor daughter, lives with his father who is in the retail seafood business at Salter Path, N. C.; that defendant is not seeking employment but is apparently assisting his father in his business for which he is paid an undisclosed amount; that defendant apparently has an interest in a 73 foot oil screw named "Delores", owned by his father, as evidence disclosed he is personally responsible for part of its financing; that defendant is the owner of and in possession of a 1966 Ford automobile upon which installment payments are $91.31 per month.

Upon these facts the court further found that defendant had willfully failed to comply with the terms of the 23 December 1965 order and "is in contempt of this court". Defendant was ordered to pay the arrearage of $420.00 by 29 February 1968, and if he failed to so do, "the Sheriff of Carteret County is ordered to take the defendant, Abram L. Willis, into custody and deliver him to the Sheriff of Durham County to be placed in the common jail of Durham County until such time as defendant has purged himself of his contempt."

"The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, Royal Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. In re Adams, 218 N.C. 379, 11 S.E.2d 163." Rose's Stores v. Tarrytown Center, 270 N.C. 206, 211, 154 S.E.2d 313, 317.

In order to hold defendant in contempt for failure to pay the sums required by the 23 December 1965 order, there must be particular findings that defendant possessed the means to comply with the order during the time of his alleged delinquency. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867. This is so because a failure to abide by the terms of a court order cannot be punished by contempt proceedings unless the failure is willful, which imports knowledge and a stubborn resistance. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391.

In Mauney v. Mauney, supra, the facts found were these:

"(T)he defendant `is a healthy, able bodied man, 55 years old, presently employed in the leasing of golf carts and has been so employed for many months; that he owns and is the operator of a Thunderbird automobile; that he has not been in ill health or incapacitated since the date of Judge Latham's order entered on the 5th day of October, 1964; that the defendant has the ability to earn good wages in that he is a trained and able salesman, and is experienced in the restaurant business; and has been continuously employed since the 5th day of October, 1964; that since October 5, 1964, the defendant has not made any motion to modify or reduce the support payments.'"

Our Supreme Court held that these findings were not sufficient to support the conclusion that defendant's conduct was willful and deliberate and in contempt and said "* * * the court must find not only failure to comply but that the defendant presently possesses the means to comply."

For the same reasons the judgment here is deficient and must be set aside and the case remanded for further hearing and findings of fact.

Error and remanded.

CAMPBELL and BRITT, JJ., concur.