Toussaint v. King, COA19-851 (2020) (unpublished).
In North Carolina, a court has the ability to incarcerate a party for not following a court order. This procedure is called civil contempt. In order to send a party to jail for noncompliance, the court first must find specific facts. For one case of civil contempt for failure to make child support payments, the court did incarcerate the father.
a) Facts: Defendant father and Plaintiff mother had custody and child support Orders. The Orders granted Plaintiff primary physical custody of the child, and also ordered Defendant to pay $759.00 for child support and arrearages. Defendant tried to modify child support, but his motions were dismissed by the trial court, and he was ordered to pay for Plaintiff’s attorney fees. In addition, Plaintiff successfully modified the custody order that terminated Defendant’s unsupervised visitation and was awarded her attorney’s fees. Plaintiff filed motions for contempt based on all the unpaid fees and support. At the hearing for contempt, Defendant did not appear, and was thus held in civil contempt and committed him to the Sheriff for 30 days, or upon purging the contempt by paying $3,500.00 toward child support. Defendant appealed.
b) Issue: Did the evidence support holding Defendant in contempt?
c) Holding: Yes.
d) Rationale: Four elements must be met for civil contempt: 1) the order is still in force, 2) the order’s purpose may still be served through compliance, 3) the party not following the order is willfully doing so, and 4) the party not complying is able to comply or is reasonably able to take measures to ensure compliance. While it is possible for a party to be imprisoned for as long as the contempt continues, a Court should only do so if that party is willfully disobeying a Court’s order, meaning that the party can comply, but is intentionally not. For child support and contempt, the test is to see whether the party has the ability to pay, looking not at whether a party can pay all of the support, but rather, if the party had the ability to pay even a partial amount and decided to not pay it. The Court applies this test to the time period in which the party was ordered to pay, and the ability to pay at the time of hearing. The evidence presented to the trial court did not show an inability to pay the support during the relevant time periods. Financial statements showed numerous deposits during the time period, father’s dining and drinking habits, his purchase of an expensive paddleboard (which he posted to social media), a deposit on a vehicle, his rent, and his fees for opening a new business.
e) Lessons and Observations:
a. The purpose of contempt in a civil case is not to punish a party but rather to encourage them to comply with the Court’s Order. As part of that coercion, a court can send you to jail until you meet the purge conditions. But before doing so, they need to find evidence that you had the ability to comply with the order and intentionally failed to do so.
b. Follow a court’s order, especially if you know you have the ability. All of Defendant’s financial statements showed an ability to pay. Defendant’s posting of a new paddleboard on social media showed an ability to pay and the intentional decision to not pay and to buy himself a new item instead. c. Participate in your case. Many of this Defendant’s consequences also stem from his own negligence. He failed to show up to more than one hearing, which included the hearing where Plaintiff modified custody, and to his own contempt hearing.
c. Participate in your case. Many of this Defendant’s consequences also stem from his own negligence. He failed to show up to more than one hearing, which included the hearing where Plaintiff modified custody, and to his own contempt hearing.