Earnhardt v. Earnhardt

175 S.E.2d 744, 9 N.C. App. 213, 1970 N.C. App. LEXIS 1315

• Court: Court of Appeals of North Carolina
• Decided: August 5, 1970
• Docket: No. 7026DC333
• Status: Published

Opinion

Campbell, J.

The evidence before Judge Gatling as shown by the record in this case amply supports the findings of fact, and the conclusions of law based thereon are proper, with the exception of the provision (Paragraph No. 4) quoted above providing for the arrest of Earnhardt.

In the instant case the court made numerous findings of fact and incorporated all of the findings of fact previously made by Judge Clarkson, but there was no evidence to support a finding that Earnhardt “presently possesses the means to comply” and, therefore, the order of arrest was improperly entered. The Supreme Court in Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966) stated:

“The court entered judgment as for civil contempt, and the court must find not only failure to comply but that the defendant presently possesses the means to comply. The judgment committing the defendant to imprisonment for contempt is not supported by the record and must be set aside.”

To the same effect, see Willis v. Willis, 2 N.C. App. 219, 162 S.E. 2d 592 (1968) and compare Peoples v. Peoples, 8 N.C. App. 136, 174 S.E. 2d 2 (1970).

The monetary judgment entered against Earnhardt is affirmed. The case is remanded for further hearing and findings of fact with regard to the civil contempt.

Affirmed in Part, and Error and Remanded in Part.

Britt and Vaughn, JJ., concur.