Forte v. Forte

Court of Appeals of North Carolina

Forte v. Forte

309 S.E.2d 729, 65 N.C. App. 615, 1983 N.C. App. LEXIS 3563

CourtCourt of Appeals of North Carolina

DecidedDecember 20, 1983

Docket8220DC1104

StatusPublished

Cited by12 cases

This text of 309 S.E.2d 729 (Forte v. Forte) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Forte v. Forte, 309 S.E.2d 729, 65 N.C. App. 615, 1983 N.C. App. LEXIS 3563 (N.C. Ct. App. 1983).

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Opinion

PHILLIPS, Judge.

The only question presented by defendant’s appeal is whether the order deeming plaintiff not to be in contempt of court was erroneous. Since the evidence clearly indicates that plaintiff was able to make the payments ordered but chose not to do so, the defendant contends that we should remand the case to the trial court with instructions to find him in contempt of court. The law does not permit us to do that, however, for wilfulness is also a requisite of contempt, Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), and the record does not establish that plaintiffs failure to comply with the order was wilful.

Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law. Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966); West v. West, 199 N.C. 12, 153 S.E. 600 (1930). The trial judge’s finding of fact that plaintiff stopped making payments, not in defiance of authority, but in a good faith reliance on defendant’s agreement to support the child if he would waive his visitation rights, is supported by competent evidence, and is thus conclusive on us. Clark v. Clark, 294 N.C. 554, 243 S.E. 2d 129 (1978). This finding supports His Honor’s conclusion that plaintiffs failure to pay was not wilful and the determination that plaintiff was not in contempt. Jarrell v. Jarrell, 241 N.C. 73, 84 S.E. 2d 328 (1954). The order was also in accord with sound legal principles. Most jurisdictions in this country follow the just rule that disobedience to a court order that results from the advice or agreement of the complainant should not be punished at the complainant’s behest. 17 C.J.S. Contempt § 39, p. 103 (1963). We know of no North Carolina decision to the contrary. The order appealed from is affirmed.

*617 Affirmed.

Chief Judge VAUGHN and Judge Whichard concur.

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PHILLIPS, Judge.

The only question presented by defendant’s appeal is whether the order deeming plaintiff not to be in contempt of court was erroneous. Since the evidence clearly indicates that plaintiff was able to make the payments ordered but chose not to do so, the defendant contends that we should remand the case to the trial court with instructions to find him in contempt of court. The law does not permit us to do that, however, for wilfulness is also a requisite of contempt, Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), and the record does not establish that plaintiffs failure to comply with the order was wilful.

Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law. Mauney v. Mauney, 268 N.C. 254, 150 S.E. 2d 391 (1966); West v. West, 199 N.C. 12, 153 S.E. 600 (1930). The trial judge’s finding of fact that plaintiff stopped making payments, not in defiance of authority, but in a good faith reliance on defendant’s agreement to support the child if he would waive his visitation rights, is supported by competent evidence, and is thus conclusive on us. Clark v. Clark, 294 N.C. 554, 243 S.E. 2d 129 (1978). This finding supports His Honor’s conclusion that plaintiffs failure to pay was not wilful and the determination that plaintiff was not in contempt. Jarrell v. Jarrell, 241 N.C. 73, 84 S.E. 2d 328 (1954). The order was also in accord with sound legal principles. Most jurisdictions in this country follow the just rule that disobedience to a court order that results from the advice or agreement of the complainant should not be punished at the complainant’s behest. 17 C.J.S. Contempt § 39, p. 103 (1963). We know of no North Carolina decision to the contrary. The order appealed from is affirmed.

*617 Affirmed.

Chief Judge VAUGHN and Judge Whichard concur.

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309 S.E.2d 729, 65 N.C. App. 615, 1983 N.C. App. LEXIS 3563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forte-v-forte-ncctapp-1983.

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