197 S.E.2d 61 | N.C. Ct. App. | 1973
Marlene INGLE, Petitioner,
v.
Garrie McDean INGLE, Respondent.
Court of Appeals of North Carolina.
*62 Atty. Gen. Robert Morgan by Ann Reed, Associate Atty. Gen., Raleigh, for the State.
Davis, Koontz & Horton by Clarence E. Horton, Jr., Concord, for respondent appellant.
BRITT, Judge.
The first question for our consideration is whether respondent was given sufficient notice of the purpose of the 28 September 1972 hearing. We hold that he was not. Prior to the hearing, respondent was served only with a subpoena which ordered him to appear "to testify in the above entitled action." At the hearing, the court made an informal inquiry as to why respondent had failed to make support payments in compliance with a prior court order and then, in effect, adjudged him in contempt.
Failure to comply with a prior court order would amount to an act committed outside the presence of the court, at a distance from it, which tends to degrade the court or interrupts, prevents or impedes the administration of justice and would be classified an indirect contempt. In re Edison, 15 N.C.App. 354, 190 S.E.2d 235 (1972). When the contempt is indirect, the procedure prescribed by G.S. § 5-7 providing that an order issue directing an offender to appear within a reasonable time and show cause why he should not be attached for contempt must be followed. In the instant case respondent received no such notice.
Respondent next assigns as error the court's failure to make findings of fact *63 as to his present ability to comply with the previous court order and his ability to pay during the period of the alleged default. This assignment also has merit. An order, entered pursuant to a contempt hearing, which confines a person to jail until he complies with a support order must find not only that his failure to comply with the support order was willful but also that he presently possesses the means to comply with the order. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966); Upton v. Upton, 14 N.C.App. 107, 187 S.E.2d 387 (1972); Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971). In the case at bar the court made no such findings of fact.
For the reasons stated, the order appealed from is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.
Remanded.
MORRIS and PARKER, JJ., concur.