Abernethy v. Abernethy

64 N.C. App. 386 | N.C. Ct. App. | 1983

WELLS, Judge.

Defendant contends the trial court erred in ordering him jailed for contempt when there was no evidence and no finding at the 7 June 1982 hearing that he had a present ability to comply with the previous orders. The civil contempt statute, G.S. 5A-21, does require that “[t]he person to whom the order is directed [be] able to comply with the order or [be] able to take reasonable measures that would enable him to comply with the order.” Our Supreme Court has insisted that the trial court must find “that the defendant presently possesses the means to comply.” (Emphasis in original.) Henderson v. Henderson, 307 N.C. 401, 298 S.E. 2d 345 (1983); Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966). See also Teachey v. Teachey, 46 N.C. App. 332, 264 S.E. 2d 786 (1980).

In the order of 11 March 1982, the trial court made the following finding of fact:

15. Since August of 1981 through the present time, the Defendant had access to monies in excess of $17,000 and has had monies paid to him or has had access to money which would have given him ample opportunity to comply with the Orders of this Court, but the Defendant chose not to comply with the Orders of this Court.

The trial court also made findings on the specific types of income and expenses the defendant had. Thus, the 11 March 1982 order clearly contained a finding as to defendant’s then present ability to pay.

*388The issue of defendant’s present ability to pay the sum ordered was fully litigated in the hearing which culminated in the trial court’s order of 11 March 1982. Defendant not having appealed from that judgment, the findings as to his ability to pay, as set forth in that order, are res judicata on that issue and defendant was estopped from having that issue retried at the 8 June 1982 hearing. At that hearing, the only issue properly before the court was whether defendant had complied with the court’s earlier order. See Real Estate Trust v. Debnam, 299 N.C. 510, 263 S.E. 2d 595 (1980); Bowen v. Iowa National Mutual Insurance Co., 270 N.C. 486, 155 S.E. 2d 238 (1967).

For the reasons stated, the order of the trial court is

Affirmed.

Judges Arnold and Eagles concur.