Reece v. Reece

Court of Appeals of North Carolina

Reece v. Reece

293 S.E.2d 662, 58 N.C. App. 404, 1982 N.C. App. LEXIS 2779

CourtCourt of Appeals of North Carolina

DecidedJuly 20, 1982

Docket8119DC532

StatusPublished

Cited by6 cases

This text of 293 S.E.2d 662 (Reece v. Reece) 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.

Bluebook

Reece v. Reece, 293 S.E.2d 662, 58 N.C. App. 404, 1982 N.C. App. LEXIS 2779 (N.C. Ct. App. 1982).

Pincite

Opinion

WEBB, Judge.

The plaintiff makes two assignments of error to the court’s order; first, that the court erred by denying his motion for a continuance; and second, that the court could not properly confine him in jail for contempt without making a finding of fact that he had the present means to comply with the order. For the reasons stated herein, we affirm the order of the trial judge.

“Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. ... a motion to continue is addressed to the sound discretion of the trial judge, who should determine it ‘as the rights of the parties require under the circumstances.’ ” Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E. 2d 380, 386 (1976). In the case sub judice, the plaintiff was represented by his attorney’s associate. Although the associate was unfamiliar with the case, the hearing involved only the brief testimony of the plaintiff and defendant. There was evidence that it had taken over seven years to get the plaintiff in court. He had already failed to appear in court once after being properly served, having left the state. We believe that under these circumstances, the judge properly denied the plaintiff’s motion for a continuance. The plaintiffs first assignment of error is overruled.

A defendant in a civil contempt action will be fined or incarcerated only after a determination is made that the defendant *407 is capable of complying with the order of the court. Jolly v. Wright, 300 N.C. 83, 265 S.E. 2d 135 (1980). In the instant case, the trial judge found “The plaintiff had resources upon which to call to pay at least a portion of his arrearage and he has not done so.” The court also found that the plaintiff was earning from $11,000.00 to $24,000.00 a year since 1974. These findings were supported by the evidence. We believe this constitutes a determination that the plaintiff has the present means to comply with the order of the court. The plaintiff’s second assignment of error is overruled.

Affirmed.

Judges MARTIN (Robert M.) and WELLS concur.

Free access — add to your briefcase to read the full text and ask questions with AI

WEBB, Judge.

The plaintiff makes two assignments of error to the court’s order; first, that the court erred by denying his motion for a continuance; and second, that the court could not properly confine him in jail for contempt without making a finding of fact that he had the present means to comply with the order. For the reasons stated herein, we affirm the order of the trial judge.

“Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. ... a motion to continue is addressed to the sound discretion of the trial judge, who should determine it ‘as the rights of the parties require under the circumstances.’ ” Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E. 2d 380, 386 (1976). In the case sub judice, the plaintiff was represented by his attorney’s associate. Although the associate was unfamiliar with the case, the hearing involved only the brief testimony of the plaintiff and defendant. There was evidence that it had taken over seven years to get the plaintiff in court. He had already failed to appear in court once after being properly served, having left the state. We believe that under these circumstances, the judge properly denied the plaintiff’s motion for a continuance. The plaintiffs first assignment of error is overruled.

A defendant in a civil contempt action will be fined or incarcerated only after a determination is made that the defendant *407 is capable of complying with the order of the court. Jolly v. Wright, 300 N.C. 83, 265 S.E. 2d 135 (1980). In the instant case, the trial judge found “The plaintiff had resources upon which to call to pay at least a portion of his arrearage and he has not done so.” The court also found that the plaintiff was earning from $11,000.00 to $24,000.00 a year since 1974. These findings were supported by the evidence. We believe this constitutes a determination that the plaintiff has the present means to comply with the order of the court. The plaintiff’s second assignment of error is overruled.

Affirmed.

Judges MARTIN (Robert M.) and WELLS concur.

Cite This Page — Counsel Stack

Bluebook (online)

293 S.E.2d 662, 58 N.C. App. 404, 1982 N.C. App. LEXIS 2779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reece-v-reece-ncctapp-1982.

Opinion

Related

Cite This Page — Counsel Stack