Bills Before North Carolina Senate Seek to Clarify Muddled Contempt Laws

Photo by: James Clayton

This article is part of a series on bills currently under consideration by the North Carolina General Assembly.  You can also read about bills related to selling the Dorothea Dix property and allowing hunting on Sundays here.

The difference between criminal and civil contempt mainly lies in its purpose.  Criminal contempt is punishment for one of the enumerated acts in N.C.G.S. § 5A-11, such as misbehavior in the courtroom or failure to comply with a court order.  Its purpose is to punish the actual act of contempt; a completed act.  That punishment can be a fine, jail time, or both.

In contrast, the purpose of civil contempt is to compel a disobedient party’s compliance with a court order, and remains in effect until that violating party complies with the order.  The party is able to comply with the court order, but needs some encouragement.  As such, the penalty can be for an indefinite period of time.  Until recently, the only sanction for civil contempt was imprisonment.

For example, Husband and Wife get a divorce, and as part of the settlement, Husband is ordered to turn his ninja sword over to Wife.  Husband is quite attached the sword and will not even let people touch it, so he refuses to comply with the order.  “No way,” says Husband, “I need it.”  Wife can bring an action in civil contempt, which would result in Husband’s imprisonment until he decides to give the sword to Wife.

The distinction between criminal and civil contempt was made more vague last year by the North Carolina Court of Appeals’ ruling in Tyll v. Berry.  There, Joey Berry was held in civil contempt for violating a no-contact order under N.C.G.S. § 50C-10.  The court upheld a fine of $2,500 for each violation of the no-contact order, seemingly in perpetuity, paid to the opposing party.  It seemed like Berry was held in criminal contempt, but the court upheld the remedy as one for civil contempt.

The civil contempt statute, N.C.G.S. § 5A-21, only provides imprisonment as a sanction.  While the court cited several North Carolina cases that referred to fines for civil contempt, none of those cases actually imposed such a fine.  What happened was the plaintiff brought this action under the civil contempt statute.  N.C.G.S. § 50C-10 states that violation of an order “is punishable as contempt of court,” but it does not specify criminal or civil.  The court seemed to have held that where a statute does not specify between criminal or civil contempt, it means civil.

The effect of a fine for every violation of a civil no-contact order is actually punishment and does not really jive with the purpose of civil contempt.  House Bill 284 directly clarifies that that the court cannot impose a fine on someone held in civil contempt.  It solidifies the purpose of civil contempt a way to compel a party to comply with a specific court order.  Further, House Bill 79 clarifies that a violation of a civil no-contact order is punishable by criminal or civil contempt.  Both were unanimously passed in the House earlier this year and they are currently in the Senate.

Editor’s Note: HB 79 and HB 284 were referred to the Senate Committee on Rules and Operations of the Senate on March 12, 2015 and April 2, 2015, respectively.  The Committee has no set meeting schedule, so bills are often sent to that commitee in an attempt to avoid a vote.  Therefore, it is unlikely that these bills will be taken up again during this session.