An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-45
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:    5 August 2014
COUNTY OF FORSYTH by and through the
FORSYTH COUNTY DEPARTMENT OF SOCIAL
SERVICES on behalf of CHILD SUPPORT
RECIPIENT,
     Plaintiff

                                                    Forsyth County
      v.
                                                    Nos. 11 CVD 3167-68

RICKY CANTERBURY,
     Defendant


      Appeal by defendant from order entered 22 October 2013 by

Judge David Sipprell in Forsyth County District Court.                    Heard in

the Court of Appeals 22 May 2014.


      Forsyth County District Attorney James R. O’Neill, by
      Assistant   District   Attorney Theodore Kazakos,  for
      Plaintiff-Appellee (no brief).

      Mary McCullers Reece for Defendant-Appellant.


      ERVIN, Judge.


      Defendant Ricky Canterbury appeals from an order finding

him in civil contempt on the basis of his failure to comply with

previous child support orders and ordering that Defendant be

imprisoned in the Forsyth County Jail pending the making of a
                                         -2-
$467.00 purge payment.           On appeal, Defendant contends that the

orders requiring him to appear and show cause why he should not

be held in contempt did not provide him with sufficient notice

of the manner in which he was alleged to have violated the

existing child support orders and that the trial court failed to

make     sufficient       findings     supported         by    competent    evidence

relating to the issue of whether Defendant had the ability to

pay the required child support.                After careful consideration of

Defendant’s challenge to the trial court’s order in light of the

record    and    the    applicable     law,        we   conclude   that    the   trial

court’s order should be reversed.

                             I. Factual Background

                            A. West Virginia Order

       On 13 August 1982, the Circuit Court of Logan County, West

Virginia, issued a decree granting Donna Williams a divorce from

Defendant,      awarding     custody     of    the      couple’s   five    year     old

daughter to Ms. Williams, and requiring Defendant to pay $300.00

per month in child support.            On 14 July 2010, the West Virginia

child support order was registered in Davidson County.                             On 7

September       2010,    Judge   Wayne        L.    Michael     entered    an     order

confirming      the     registration    of     the      West   Virginia    order    and

requiring Defendant to pay a current support amount of $300.00

per month and an arrearage of $68,394.13.
                                        -3-
      On 17 September 2010, the Davidson County Child Support

Enforcement Office filed a motion seeking the issuance of an

order requiring Defendant to show cause why he should not be

held in contempt for failing to pay required child support.                            On

the same date, the Clerk of Superior Court of Davidson County

entered an order requiring Defendant to appear and show cause

why   he   should    not   be    held   in    contempt       for    failing    to    make

required    child     support     payments.       On     3    November       2010,    the

Davidson County Child Support Enforcement Office filed a motion

seeking the entry of an order requiring Defendant to appear and

show cause why he should not be held in contempt for failing to

pay required child support.                On the same date, the Clerk of

Superior Court of Davidson County entered an order requiring

Defendant to appear and show cause why he should not be held in

contempt for failing to make required child support payments.

On 7 January 2011, Judge Mary Covington entered an order finding

Defendant in civil contempt for failing to make required child

support    payments    and      ordering     Defendant        to    comply    with    the

previous     child     support      orders      and      be        subject    to     wage

withholding.        On 22 April 2011, Judge Rodwell Penry entered an

order changing the venue for the case relating to Defendant’s

obligations under the West Virginia order from Davidson County

to Forsyth County.
                                -4-
                           B. Ohio Order

    On 9 April 2008, Deborah Trickel obtained a judgment in the

Cuyahoga County Court of Common Pleas in Ohio in which Defendant

was ordered to pay $164.37 per month in support for the parties’

minor child.   On 14 July 2010, the Ohio order was registered in

Davidson County.   On 7 September 2010, Judge Michael entered an

order confirming the registration of the Ohio order and ordering

Defendant to pay a current support amount of $167.66 and an

arrearage of $10,421.08.

    On 17 September 2010, the Davidson County Child Support

Enforcement Office filed a motion seeking the issuance of an

order requiring Defendant to show cause why he should not be

held in contempt for failing to make       required child support

payments.   On the same date, the Clerk of Superior Court of

Davidson County entered an order requiring Defendant to appear

and show cause why he should not be held in contempt for failing

to make required child support payments.      On 3 November 2010,

the Davidson County Office of Child Support Enforcement filed a

motion seeking the entry of an order requiring Defendant to show

cause why he should not be held in contempt for failing to pay

required child support.    On the same date, the Clerk of Superior

Court of Davidson County entered an order requiring Defendant to

appear and show cause why he should not be held in contempt for
                                         -5-
failing to make required child support payments.                        On 7 January

2011,    Judge   Covington      entered       an   order    finding     Defendant      in

civil    contempt     for   failing      to    make      required      child    support

payments and ordering that Defendant comply with previous child

support orders and be subject to wage withholding.                        On 22 April

2011, Judge Penry entered an order changing the venue for the

case relating to the enforcement of the Ohio support order from

Davidson County to Forsyth County.

                 C. Consolidated Enforcement Proceeding

    On 5 March 2013, the office of the District Attorney filed

motions     on   behalf     of     the     Forsyth         County      Child    Support

Enforcement Office seeking the entry of an order in the cases

relating    to    the    West    Virginia          and   Ohio     orders       requiring

Defendant to show cause why he should not be held in contempt

for failing to make required child support payments.                       On 16 July

2013, the Clerk of Superior Court of Forsyth County entered

orders    requiring     Defendant     to      appear     and    show   cause     why   he

should not be held in contempt for failing to pay required child

support.     The show cause order relating to the support that

Defendant    owed   under    the    West       Virginia        order   asserted    that

Defendant owed an arrearage of $65,747.42 and that $900.00 was

owed under the “last order,” while the show cause order relating

to the support that Defendant owed under the Ohio order asserted
                                        -6-
that Defendant owed an arrearage of $8,947.77 and that $2,171.00

was owed under the “last order,” with both of these amounts

calculated    as   of   1   July   2013.       In   addition,   both   motions

asserted that:

         The undersigned finds that there is probable
         cause to believe that you are in contempt
         for failure to comply with the order(s) of
         this Court and/or you have failed to comply
         with other provisions of the order indicated
         below.   Your account is now in arrears in
         the amount indicated below.       Additional
         payments may be due prior to the hearing
         date.

    On 1 October 2013, the cases in which Defendant had been

required to show cause why he should not be held in contempt for

failing to make child support payments required under the West

Virginia and Ohio orders came on for hearing before the trial

court.   At    the   beginning     of    the   hearing,   Defendant    made   an

unsuccessful motion to dismiss the show cause orders on the

ground that they failed to “state a time period for which the

Defendant was non-compliant.”             On 22 October 2013, the trial

court entered a consolidated order finding Defendant in wilful

contempt for failing to make the child support payments required

under the West Virginia and Ohio orders and committing Defendant

to the custody of the Sheriff of Forsyth County pending the

making of a $467.00 purge payment.             Defendant noted an appeal to

this Court from the trial court’s order.
                                         -7-
                                II. Legal Analysis

       In   his   second      challenge    to    the     trial    court’s      order,

Defendant contends that the trial court erred by finding him in

contempt on the grounds that the trial court failed to make

required findings of fact and that, had the trial court made the

required    findings,        those   findings    would    have   lacked     adequate

evidentiary support.           More specifically, Defendant argues that

the trial court failed to find that Defendant had the present

ability to comply with the West Virginia and Ohio support orders

and that the record is devoid of any evidence tending to show

that   he   had   either      the    present    ability    to    comply   with    the

provisions of the prior support orders or to take meaningful

steps to come into compliance with those orders.                      Defendant’s

contention has merit.

       “The standard of review for contempt proceedings is limited

to determining whether there is competent evidence to support

the    findings   of    fact     and   whether    the     findings   support      the

conclusions of law.”           Sharpe v. Nobles, 127 N.C. App. 705, 709,

493 S.E.2d 288, 291 (1997) (citing Koufman v. Koufman, 97 N.C.

App.   227,    230,    388    S.E.2d   207,     209   (1990),     rev’d   on    other

grounds, 330 N.C. 93, 408 S.E.2d 729 (1991)).

              Failure to comply with an order of a court
              is a continuing civil contempt as long as:

                  (1)    The order remains in force;
                                        -8-


                 (2)       The purpose of the order may still
                           be served by compliance with the
                           order;

                 (2a) The noncompliance by the person to
                      whom the order is directed is
                      willful; and

                 (3)       The person to whom the order is
                           directed is able to comply with
                           the order or is able to take
                           reasonable measures  that  would
                           enable the person to comply with
                           the order.

N.C.   Gen.   Stat.    §    5A-21(a).         In   other   words,   a   necessary

prerequisite for the entry of an order finding a litigant in

civil contempt is the making of findings and the existence of

evidence that the defendant has “the present ability to comply,

or the present ability to take reasonable measures that would

enable him to comply, with the order.”                Teachey v. Teachey, 46

N.C. App. 332, 334, 264 S.E.2d 786, 787 (1980).                     In light of

this principle, “a trial court’s findings that a defendant was

healthy and able-bodied, had been and was presently employed,

had not been in ill-health or incapacitated, and had the ability

to earn good wages, without finding that defendant presently had

the means to comply, do not support confinement in jail for

contempt.”    Hodges v. Hodges, 64 N.C. App. 550, 553, 307 S.E.2d

575, 577 (1983) (citing Mauney v. Mauney, 268 N.C. 554, 257-58,

150 S.E.2d 391, 394 (1968)).
                                           -9-
    A careful examination of the trial court’s order provides

no indication that the trial court ever found that Defendant had

the present means to comply with the relevant child support

orders.    In its order, the trial court found that “Defendant has

the means and ability to comply with the prior orders in that

during     the     period      of     non-compliance         the     Defendant     was

sporadically      employed     and    even     though     employed    the    Defendant

made no payments toward his child support arrears obligation.”

In focusing upon some not clearly specified period in the past,

the trial court failed to address the extent to which Defendant

currently had the ability to comply with his obligations under

the applicable support orders.                   Moreover, although the record

does contain some evidence tending to show that Defendant had

been sporadically employed in the relatively recent past, the

record    is     totally     devoid   of     any    information      concerning   the

amount that Defendant had earned or the extent of his other

financial obligations.              As a result, the trial court did not

find, and the record does not contain any evidence tending to

show, that Defendant “has the present ability to comply” with

the relevant support orders.

    Although the trial court did find that Defendant had “the

ability to take reasonable measures in order to comply with the

previous       orders   of    the    Court,”       this   finding    lacks    adequate
                                             -10-
evidentiary         support.         According      to    an   unsworn    statement       by

Defendant’s attorney, Defendant was “currently not working.”                             In

addition, Defendant’s caseworker stated Defendant “was working

some       last    quarter     and    no     payments     were     made   when    he    was

working.”           Simply     put,    the    record      before    us    in   this     case

provides no basis for a determination that Defendant had the

ability to either comply with the existing support orders or to

take reasonable steps to come into compliance with those orders.

As a result, given the absence of any evidentiary support for a

determination that “[t]he person to whom the order is directed

is able to comply with the order or is able to take reasonable

measures that would enable the person to comply with the order,”

N.C.       Gen.    Stat.   §   5A-21(a)(3),         the   trial     court      lacked   the

authority to hold Defendant in civil contempt.1

                                      III. Conclusion

       Thus, for the reasons set forth above, we conclude that the

record did not support a determination that Defendant had the

present ability to comply with or to take meaningful steps to

come into compliance with the West Virginia and Ohio support

orders.           As a result, the trial court’s order should be, and

hereby is, reversed.
       1
      In light of our determination that the record did not
support the trial court’s contempt decision, we need not address
Defendant’s challenge to the sufficiency of the notice that he
received in advance of the contempt hearing.
                         -11-
REVERSED.

Judges ROBERT N. HUNTER, Jr., and DAVIS concur.

Report per Rule 30(e).
