Contempt – does it require noncompliance at the time of hearing?

BOYLES V. ORRELL, 2022-NCCOA-916 (unpublished).

Facts: Mother and Father married in 2014 and separated about four months later. The couple had a daughter together, who is eight years old. The parties entered into a consent custody order and the mother had primary physical custody.

In March of 2020, the trial court entered a subsequent consent child custody order where it was ordered that neither parent would abuse alcohol or use illegal drugs, or abuse prescription drugs while with the minor child. It also allowed either party to request up to four random drug tests which would have to be performed within 24 hours.

Mother requested Father undergo a drug test. Father failed to get tested within 24 hours, and when he did test, his results were positive for cannabis. Mother moved for contempt and requested that Father be held in criminal contempt for the failure to undergo the drug test timely, and civil contempt for drug use in the presence of the minor child. The trial court held Father in criminal contempt for his failure to drug test timely, and then held Father in civil contempt for his drug usage.

However, the trial court also made an express finding that Father had ceased using marijuana prior to the contempt hearing, and that he was not in violation of the custody order at the time of hearing because he stopped using as a result of the contempt filings. Father appeals.

Issue: Did the trial court err in holding Father in civil contempt when he was found not to be violating the custody order?

Holding: yes.

Reasoning: Civil contempt is used to coerce disobedient parties into complying with the orders of a court. Therefore, a party who no longer is in violation of a court order at the time of the contempt hearing cannot be held in civil contempt of court for a past violation.

In this case, since the trial court found that Father had ceased smoking marijuana before the hearing date, and was not in violation of the court’s order, it was an error to hold Father in civil contempt.