Pocoroba v. Gregor
This text of Pocoroba v. Gregor (Pocoroba v. Gregor) 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.
Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-219
Filed 19 November 2024
Wake County, No. 22CVD011221-910
ANDREA POCOROBA, Plaintiff,
v.
PHILLIP JAMES GREGOR, Defendant.
Appeal by defendant from order entered 21 August 2023 by Judge Louis Meyer
in Wake County District Court. Heard in the Court of Appeals 11 September 2024.
No brief filed on behalf of plaintiff-appellee.
Phillip James Gregor for pro se defendant-appellant.
DILLON, Chief Judge.
I. Background
Defendant Phillip James Gregor is a disabled veteran who lives on the property
directly adjacent to Plaintiff Andrea Pocoroba’s home. Their homes are separated by
a fence. In July 2022, Plaintiff obtained a No Contact Order for Stalking or
Nonconsensual Sexual Conduct (“the 50C Order”) against Defendant after Defendant
had purportedly attempted to break into Plaintiff’s home while wearing a bathrobe.
Under the terms of the 50C Order, Defendant is not to come within 100 feet of
Plaintiff, even while on his own property, unless he is inside of his own home.
The following year, on 21 August 2023, the trial court entered an order (the POCOROBA V. GREGOR
Opinion of the Court
“Contempt Order”), finding Defendant to be in civil contempt of the 50C Order. In
its Contempt Order, the trial court found that Defendant on two occasions—one in
November 2022 and the other in May 2023—violated the 50C Order when he was
outside his own home on his own property at a time he knew Plaintiff was at her
home. The trial court determined that Defendant could purge his civil contempt by
paying $500.00 to Plaintiff, which he did in the courtroom at the conclusion of the
hearing. Defendant noticed his appeal from the Contempt Order.
In his brief on appeal, Defendant contests the validity of both orders. We
dismiss his arguments as to the validity of the initial 50C Order, as his Notice of
Appeal does not reference that order and the time has elapsed to appeal that order
and he has not otherwise petitioned our Court for a writ of certiorari to review that
order. We, however, reverse the Contempt Order, as the trial court made no finding
that Defendant was in violation of the 50C Order at the time of the hearing.
II. Standard of Review
A trial court’s conclusions of law in a civil contempt order are reviewed de novo.
Walter v. Walter, 279 N.C. App. 61, 66 (2021). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
district court.” In re Appeal of Greens of Pine Glen Ltd., 356 N.C. 642, 647 (2003).
III. Analysis
In Defendant’s brief, he essentially argues that the trial court erred by finding
him in civil contempt of the 50C Order. For the reasons below, we agree and reverse
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the Contempt Order.
We note Defendant’s arguments that he cannot be held in violation of an
invalid order. Indeed, our Supreme Court has held that one cannot be held in
contempt of an order where the court lacked jurisdiction to enter the order. See Corey
v. Hardison, 236 N.C. 147, 153 (1952) (“When a court has no authority to act, its acts
are void, and may be treated as nullities anywhere, at any time, and for any
purpose.”). Defendant’s contention on this point, however, is not that the trial court
lacked jurisdiction to enter the 50C Order, but rather that the 50C Order itself
contains errors of law, e.g., that it is inappropriate that Defendant could be held in
contempt for being on his own property. See State v. Sams, 317 N.C. 230, 236 (1986)
(stating that a voidable order stands until set aside).
Our General Assembly has provided that one in willful violation of an order
may either be in criminal contempt, see N.C.G.S. § 5A-11 (2024), or civil contempt,
see N.C.G.S. § 5A-21 (2024). However, they are not the same. Mauney v. Mauney,
268 N.C. 254, 256 (1966) (“Civil contempt and criminal contempt are
distinguishable.”).
The purpose of criminal contempt is to punish a party for violating an order,
where the violation may not be ongoing but occurred in the past. See id. (stating that
criminal contempt is appropriate to punish a party for “an act already accomplished”).
Civil contempt, however, “is applied to a continuing act [of disobedience.]”
Rose’s Stores, Inc. v. Tarrytown Ctr., Inc., 270 N.C. 206, 214 (1967). Our Supreme
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Court has explained that “[t]he purpose of civil contempt is not to punish,” but rather
“its purpose is to use the court’s power to impose fines or imprisonment as a method
of coercing [a party] to comply with an order of the court.” Jolly v. Wright, 300 N.C.
83, 92 (1980), overruled on other grounds by McBride v. McBride, 334 N.C. 124, 125
(1993)
And when a party is found to be in civil contempt—that is, to be in current
violation of an order—the trial court must get the contemnor means to purge the
contempt:
A person imprisoned for civil contempt must be released when his civil contempt no longer continues. The order of the court holding a person in contempt must specify how the person may purge himself of the contempt.
N.C.G.S. § 5A-22 (2024).
However, there can be no finding of civil contempt if, by the time of the hearing,
the person is no longer in violation of the order. See Ruth v. Ruth, 158 N.C. App. 123
(2003). For instance, in Ruth, we held it was not appropriate for a mother to be held
in civil contempt of a custody order when it was conceded she had returned the
children to the father as required by the custody order and was, therefore, no longer
in violation of the custody order. Id. at 126.
Here, the trial court made no finding that Defendant was in violation of the
50C Order at the time of the hearing. Rather, the trial court merely found that
Defendant had, in the past, violated the 50C Order because on one occasion he stared
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at Plaintiff through her window from outside of his house, smiling, while she was
administering medication below her panty line, and because, on other occasions, he
had spent time outside of his home to perform various tasks when he should have
known that Plaintiff was at home.
Presuming the 50C Order is otherwise valid, the trial court’s findings may
support a finding of criminal contempt. However, they do not support a finding of
civil contempt, as there was no finding Defendant was in violation of the 50C Order
at the time of the contempt hearing.
However, it is inappropriate for us to modify the contempt order to find
Defendant to be in criminal contempt, as the trial court did not find Defendant in
contempt of the 50C Order beyond reasonable doubt.
Indeed, the burden of proof for finding one in criminal contempt is like any
other criminal proceeding—beyond a reasonable doubt. See N.C.G.S. § 5A-15(f)
(2024) (to hold a party in criminal contempt, “[t]he facts must be established beyond
a reasonable doubt.”). And one found to be in criminal contempt, generally, is subject
to censure, imprisonment for “up to 30 days,” and/or a fine not to exceed $500.00.”
N.C.G.S. § 5A-12(a) (2024).
However, the burden of proof for finding one in civil contempt is lower than
that for criminal contempt—preponderance of the evidence—though the party on
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