204.3Civil Contempt
Key Concepts
- Civil contempt applies to a person’s willful failure to comply with a court order when he or she is capable of complying with that order.
- Civil contempt requires plenary proceedings pursuant to statute, which includes receiving notice, the right to counsel, and a requirement that the court make findings of fact.
- Punishment for civil contempt is primarily through imprisonment until the person “purges” the contempt by complying with the order (subject to a statutory maximum total amount of time), but punishment may also include a fine.
Grounds for Civil Contempt
A person may be held in civil contempt (in either a civil or a criminal action) if he or she has willfully failed to comply with a court order and has the present ability to comply with that order. See G.S. 5A-21(a) and Official Commentary. For example, civil contempt may apply if a criminal defendant is ordered to provide a handwriting exemplar to the state or to appear in a lineup, but willfully refuses to do so. Specifically, failure to comply with an order of the court constitutes continuing civil contempt as long as: (i) the order remains in force; (ii) the purpose of the order could still be served by compliance; (iii) the noncompliance is willful; and (iv) the person directed to comply is able to comply, or could take reasonable measures that would enable them to comply. G.S. 5A-21(a).
Hearing Requirements
Unlike criminal contempt proceedings which may be summary, civil contempt always requires a plenary hearing before a judge pursuant to G.S. 5A-23. The concept of “direct” and “indirect” contempt does not apply to civil contempt. The plenary hearing procedure includes the following:
- Order and Notice
The defendant (respondent) must be given five days’ notice of the contempt hearing by order or notice to show cause, which is issued upon a motion and sworn statement or affidavit of the interested party (which may be the judge) and a finding of probable cause to believe that there is civil contempt. See G.S. 5A-23(a); see also AOC-CR-219 (Show Cause Order); G.S. 5A-23(a1) (procedure by which another “aggrieved party” may also initiate proceedings for civil contempt).
- Role of the Prosecutor
The prosecutor may act as “a person with an interest in enforcing the order” and present the case for finding the respondent in civil contempt for failure to comply with the order. See G.S. 5A-23(f).
- Right to Counsel
The right to counsel applies in plenary contempt proceedings if imprisonment, a suspended sentence, or a fine over $500 is likely to be imposed. See G.S. 7A-451(a)(1); Richmond Black Police Officers Ass’n v. City of Richmond, Va., 548 F.2d 123 (1977); Hammock v. Bencini, 98 N.C. App. 510 (1990).
- Findings and Order
A judge must enter finding of facts and specify how the defendant may be “purged” of the contempt finding – that is, clearly state what the defendant must do in order to be in compliance with the order and no longer in contempt. G.S. 5A-23(e); 5A-22(a); see also AOC-CV-110 (Commitment Order for Civil Contempt); AOC-CR-219 (Findings and Judgment – Contempt); AOC-CV-309 (Contempt Order – Domestic Violence Protective Order); AOC-CV-529 (Contempt – No-Contact Order for Stalking, Nonconsensual Sexual Conduct); AOC-CV-545 (Contempt Order – Permanent Civil No-contact Order Against Sex Offender); AOC-J-156 (Contempt Order – Parent/Guardian/Caretaker in Abuse/Neglect/Dependency case); AOC-J-345 (Contempt Order – Parent/Guardian/Custodian of Undisciplined/Delinquent Juvenile).
Who should hear the matter?
Civil contempt proceedings based on order issued by either a magistrate judge or a district court judge are held before a district court judge; if the proceedings are based on an order issued by a higher court, the proceedings are held before that higher court. See G.S. 5A-23(b). The statute contains an exception for matters in which the clerk of superior court has original subject matter jurisdiction and issued the order, or where the general statutes otherwise provide for exercise of contempt power by the clerk of superior court, but this rarely arises in practice. Id.
Additionally, as noted in the preceding entry on Criminal Contempt, if the alleged grounds for contempt at issue in the hearing are based upon acts before a judge which so involve him or her that the judge’s objectivity could be questioned, the proceedings should be conducted before a different judge. See Ponder v. Davis, 233 N.C. 699 (1951)(“the better practice in recusations for prejudice [is] to call upon some other judge whose rulings have not been ignored or disregarded, especially in cases of indirect or constructive contempt").
Punishment
Since civil contempt is a continuing offense, a defendant (respondent) may be imprisoned “as long as the contempt continues” if the civil contempt is for failing to perform an act that does not require the payment of a monetary judgment, or failing to pay child support. See G.S. 5A-21(a), (b2). There are, however, certain statutory limitations on the total amount of time the person may be held in custody for civil contempt. First, a person found in civil contempt may only be imprisoned for an initial period of up to 90 days - after that time, if the person has not yet complied and purged the contempt, he or she may be re-imprisoned for one or more successive periods of 90 days (upon renewed findings by the court that the contempt still exists), but the total of all periods may not exceed 12 months. See G.S. 5A-21(b2). Second, if the contempt is for a violation of a nontestimonial identification order, the maximum imprisonment is 90 days unless the defendant-respondent is arrested.
A defendant must be released when the civil contempt ceases. G.S. 5A-22. A person found in civil contempt may not also be found in criminal contempt for the same conduct. G.S. 5A-21(c).
Pursuant to an amendment added in 2015, "a person who is found in civil contempt under this Article is not subject to the imposition of a fine." G.S. 5A-21(d). Before this subsection was added, the statute was silent as to whether civil contempt could be punished by a fine, and some cases had found that it was permissible. See, e.g., Tyll v. Berry, 234 N.C. App. 96 (2014) (approving trial court’s order that defendant had to pay $2500 to the victim as the “purge” condition for civil contempt after violating a no-contact order); citing to Jolly v. Wright, 300 N.C. 83 (1980) (purpose of civil contempt is “to impose fines or imprisonment” to compel compliance); Oakley v. Oakley, 165 N.C. App 859 (2004) (defendant in civil contempt action may be “fined or incarcerated” after determination that he is capable of complying). The current version of the statute now makes it clear that fines are not a permissible punishment for civil contempt.
Appeal of Civil Contempt Finding
An appeal from a finding of civil contempt is handled in the “manner provided for appeals in civil actions,” which means it goes up to the North Carolina Court of Appeals. G.S. 5A-24; G.S. 1-268 through 1-298; State v. Mauney, 106 N.C. App. 26 (1992) (defendant’s appeal, in nonsupport criminal prosecution, of finding that he was in indirect civil contempt for refusing to submit to blood test was immediately appealable to Court of Appeals).
