Upton v. Upton, 12 N.C. App. 579 (1971)

Oct. 20, 1971 · North Carolina Court of Appeals · No. 7116DC615

12 N.C. App. 579

CHARLES ELTON UPTON v. MARY ROBERTS UPTON

No. 7116DC615

(Filed 20 October 1971)

Contempt of Court § 7— child support violation — imposition of punishment

The trial court ordered a father to deliver his truck to a court-appointed commissioner so that the truck might be sold and the proceeds applied to the father’s child support obligations. The father refused to deliver the truck, contending that his attorney told him not to and that he needed the truck to make a living. Held: The sentencing of the father to ten days in j ail for • contempt of court was proper.

Appeal by plaintiff from Gardner, District Judge, 26 April 1971 Session of District Court held in Robeson County.

On 28 August 1967 a judgment was entered granting the plaintiff a divorce from defendant. On the same date an order was entered requiring him to pay defendant certain sums for the support of two minor children born of the marriage. On several occasions thereafter orders were entered requiring the plaintiff to show cause why he should not be punished for contempt for failure to comply with the judgment. On 16 March 1971 the court found that: Plaintiff’s arrears amounted to $2,225.00 and that plaintiff owned a truck in which he had an equity of more than $1,000.00. The court appointed a commissioner to sell the truck and apply the net proceeds to the sum due by plaintiff. Plaintiff was ordered to pay $800.00 or deliver possession of the truck to the commissioner on or before 29 March 1971. On 29 March 1971 plaintiff filed a motion seeking a reduction in the amounts required to be paid under the order of 28 August 1967. After a hearing on 23 April 1971 the court, on 26 April, entered orders: (1) Reducing the monthly payments of plaintiff for a period of one year, after which period the original amount would be reinstated unless otherwise ordered by further orders of the court; and (2) sentencing plaintiff to ten days in jail for contempt by reason of his wilful failure to deliver possession of the truck. Plaintiff appealed from both orders.

Ottway Burton for plaintiff appellant.

McLean, Stacy, Henry and McLean by William S. McLean for defendant appellee.

VAUGHN, Judge.

The court’s finding that plaintiff wilfully failed to deliver possession of the truck as ordered is supported by the evidence. Plaintiff’s explanation of his refusal to surrender the truck was as follows:

“ ... As to why I didn’t turn that truck over to Mr. McLean as the Court ordered me to do, on the advice of counsel, first of all. And I could not afford to in order to continue on working, to make a living for myself and do what I can. My lawyer advised me not to turn it over to Mr. McLean.”

Plaintiff’s assignments of error directed to the order sentencing him to ten days in jail are overruled.

Plaintiff’s other assignments of error have been duly considered and are overruled. The orders from which plaintiff appealed are affirmed.

Affirmed.

Judges Brock and Graham concur.