Brady v. Brady , 24 N.C. App. 663 ( 1975 )

BEITT, Judge.

Plaintiff contends that the court’s determination that he is in willful contempt of the orders of the court is not supported by the evidence and the record. The contention has merit.

G.S. 50-13.4(f) (9) provides that the willful disobedience of an order for the payment of child support shall be punishable as for contempt. Our Supreme Court has interpreted “willful disobedience” as disobedience “ . . . which imports knowledge and a stubborn resistance.” Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E. 2d 391, 393 (1966). “To constitute wilful disobedience there must be an ability to comply with the court order and a deliberate and intentional failure to do so.” Bennett v. Bennett, 21 N.C. App. 390, 393, 204 S.E. 2d 554 (1974).

At the hearing on 27 August 1974, defendant called plaintiff as a witness and she also testified. Plaintiff’s testimony is summarized in pertinent part as follows: He has not paid any money for the children’s support since June of 1973. Prior to December of 1972 he worked for Duke Power Company as a supervisor for 26 years. In December of 1972 Duke required “ . . . all of us to go back to climbing poles. I could not do that and was separated from my job for that reason.” At the time his employment terminated, he had some $300 or $400 in savings bonds and $2,100 in Duke stock. He supported his family until his money ran out. Since May 1973 he has had no job nor money and has lived with his sister. Since that date he has been sick and unable to work, having spent ten months in the Veterans’ Hospital in Salisbury. He has tried to find work but without success/He has been promised a job at a Naval Base in Cuba, doing the same kind of work he did for Duke, and is waiting to be sent there; that is the only kind of work he knows how to do.

Defendant testified that plaintiff drank too much but that he supported his family and made his payments as long as he had money. Defendant also introduced into evidence the clinical record of treatment of plaintiff at the Veterans’ Hospital. This record described plaintiff’s medical problems and extensive treatment for several months following 30 July 1973 and indicated plaintiff’s physical disability along with alcoholism.

We hold that the evidence was not sufficient to show plaintiff’s ability to comply with the support order and his deliberate and intentional failure to do so.

Plaintiff contends the court erred in declaring any sums a lien on the real estate as against Mrs. Putnam. This contention has merit. We do not reach the question of whether a deed can be set aside pursuant to a motion in the cause in a divorce action that has been “tried.” It suffices to say that Mrs. Putnam’s rights were adversely affected by the order appealed from without her having any “day in court.” The order of 29 August 1974 purported to make her a party defendant and required her to appear on 9 September 1974. and show cause why the deed should not be set aside. The order appealed from was entered on 30 August 1974, some ten days before Mrs. Putnam was required to appear and show cause. Clearly, the court erred.

For the reasons stated, the order appealed from is vacated and this cause is remanded for further proceedings not inconsistent with this opinion.

Order vacated and cause remanded.

Chief Judge Brock and Judge Clark concur.