Tyll v. Berry

NO. COA13-512

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

JENNIFER TYLL & DAVID TYLL,

Plaintiffs,

v. Orange County

No. 12 CVD 755

JOEY BERRY,

Defendant.

Appeal by defendant from orders entered 18 December 2012 by

Judge Joseph M. Buckner in Orange County District Court. Heard

in the Court of Appeals 7 November 2013.

No brief filed on behalf of plaintiffs-appellees.

Mary McCullers Reece for defendant-appellant (appeal from

contempt order).

Joey Berry, pro se, defendant-appellant (appeal from order

dismissing notice of appeal).

GEER, Judge.

Defendant Joey Berry appeals from the trial court's order

holding him in contempt for violating a civil no-contact order

entered pursuant to Chapter 50C of the General Statutes (the

"50C order") and from the trial court's order dismissing his

notice of appeal from the 50C order. With respect to the order

dismissing defendant's notice of appeal from the 50C order,

-2-

defendant contends that the paper he filed was not actually a

notice of appeal, but only a "notice of intent to appeal," such

that it was not untimely filed under the Rules of Appellate

Procedure. We hold that whether the filing was a notice of

appeal or a notice of intent to appeal, the trial court properly

dismissed the filing as either untimely or a nullity.

With respect to the contempt order, defendant primarily

argues that the trial court improperly ordered him to pay a fine

to plaintiffs in order to purge himself of contempt. We hold

that precedent authorizes a purge condition consisting of a fine

payable to the complaining party. However, because the trial

court failed to make findings that defendant had the present

ability to comply with the purge condition, we reverse the fine

and remand for further proceedings.

Facts

On 11 May 2012, plaintiffs Jennifer and David Tyll filed a

verified complaint against defendant seeking a 50C order. David

and Jennifer Tyll are husband and wife, and David Tyll is the

brother of defendant's domestic partner, Michelle Willets.

The complaint alleged that defendant was disrespectful to

Jennifer Tyll, David Tyll, and Michelle Willets' mother, Sharon

Tyll, and as a result, plaintiffs told Ms. Willets that

defendant was not welcome at "upcoming family events."

-3-

Defendant then sent angry emails to plaintiffs and demanded that

they come to South Carolina where defendant and Ms. Willets

lived. When plaintiffs refused, defendant sent an email to

David Tyll's employer "suggesting horrible defamatory things."

Defendant told David Tyll over the phone that the email to David

Tyll's employer was the "'tip of the ice-berg.'" An email from

Ms. Willets to Sharon Tyll stated that defendant, when "'forced

into a fight,'" believed in "'total war'" and would not "'back

down . . . until [his] opponent [was] completely defeated.'"

On 23 May 2012, the trial court entered an order pursuant

to N.C. Gen. Stat. § 50C-7 (2011) in which it found that

plaintiffs "suffered unlawful conduct by the defendant" in that

defendant sent "numerous emails to family members" and to David

Tyll's employer that contained "references to war, death and

never stopping, not following rules until your opponent is fully

defeated," and that made "references to worst case scenarios."

Based upon its findings, the court ordered defendant to, among

other things, "not visit, assault, molest, or otherwise

interfere with the plaintiffs or plaintiffs [sic] family." The

order was effective until 23 May 2013.

On 7 September 2012, defendant, acting pro se, filed a

document captioned "NOTICE OF APPEAL In Forma Pauperis." The

filing stated that defendant "hereby gives notice of intent to

-4-

appeal to the Court of Appeals of North Carolina" from the 50C

order. The filing further stated: "The time for filing an

appeal allowed by the NORTH CAROLINA RULES OF APPELLATE

PROCEDURE having expired, the Defendant in this matter is

preparing to petition the Honorable Court of Appeals of North

Carolina for the writ of CERTIORARI in accordance with RULE 21

at the soonest point practical." Plaintiffs moved to dismiss

defendant's notice of appeal under the Rules of Appellate

Procedure, and the trial court entered an order dismissing

defendant's notice of appeal as untimely on 18 December 2012.

On 11 October 2012, plaintiffs filed a verified motion to

hold defendant in contempt of the 50C order. The motion alleged

that defendant willfully violated the 50C order on 23 June 2012

by emailing plaintiffs' family member, Sharon Tyll. On 22

October 2012, defendant filed a "MOTION FOR PROCEEDING/APPEAL IN

FORMA PAUPERIS," with an attached affidavit, requesting that the

court "issue an order allowing the Defendant to proceed as an

indigent" and appoint him counsel.

It appears that the Orange County Clerk of Superior Court

summarily denied the motion on 23 October 2012 by handwriting

"Motion is denied" on the motion itself and signing and refiling

the motion. On 29 October 2012, defendant timely appealed the

denial of his motion to proceed as an indigent to the district

-5-

court pursuant to N.C. Gen. Stat. §§ 7A-251(b) (2011) and 1-

301.1(b) (2011).

On 2 November 2012, defendant filed a response to the

contempt motion in which he admitted sending the email to Sharon

Tyll, but disputed that the email was harassing and that the 50C

order was specific enough to bar communication with Sharon Tyll.

Defendant's response also argued that the denial of his motion

to proceed as an indigent, which forced him to file his response

without the assistance of appointed counsel, violated his due

process rights under the United States and North Carolina

Constitutions.

Following an 11 December 2012 hearing on the contempt

motion, at which defendant was not present, the trial court

entered an order on 18 December 2012 holding defendant in

contempt. The trial court found that defendant violated the 50C

order by sending Sharon Tyll, a family member of plaintiffs, an

email on 23 June 2012; that "the lawful purpose [of the 50C

order] would still be served with compliance with same, i.e. the

Defendant should continue to be restrained from any contact with

Plaintiffs or their family"; and that "Defendant is in willful

contempt of said order, as he has the ability to comply with

same and refrain from sending the email."

-6-

The court ordered that "[t]o purge himself of [the]

contempt, Defendant shall pay to the Plaintiffs $2500.00 on or

before January 11, 2013" and that "each individual violation of

the May 23, 2012 [order] shall result in at least another

$2500.00 purge for each violation." In addition, the order

"further restrain[ed]" defendant by (1) preventing defendant

from contacting plaintiffs, their employers, or their family

members, other than Michelle Willets, by any means; (2)

preventing defendant from posting any information about

plaintiffs or their family members, other than Michelle Willets,

on the internet; and (3) ordering defendant to remove any

internet posts about plaintiffs or their family members, other

than Michelle Willets, within seven days from entry of the

order. Defendant timely appealed the contempt order to this

Court.

On 22 January 2013, defendant, still acting pro se, filed a

second "MOTION FOR PROCEEDING/APPEAL IN FORMA PAUPERIS," along

with the same affidavit attached to his first motion to proceed

as an indigent, again requesting that the trial court "issue an

order allowing the Defendant to proceed as an indigent." On 23

January 2013, the Orange County Clerk of Superior Court entered

an order allowing defendant to proceed as an indigent "[i]n

-7-

accordance with NCGS § 1-288 and solely for the purposes stated

therein."

Defendant filed a motion for appointment of appellate

counsel on 11 April 2013. On 14 June 2013, the trial court

entered an order appointing appellate counsel for defendant

"with regards to any contempt motion or contempt orders." On 29

July 2013, defendant filed a pro se brief addressing his appeal

from the dismissal of his notice of appeal from the 50C order,

and defendant's appointed counsel filed a brief addressing his

appeal from the contempt order.

I

We first address defendant's appeal from the dismissal of

his "notice of appeal" from the 50C order. Defendant argues on

appeal that the trial court erred in dismissing his notice of

appeal as untimely under the Rules of Appellate Procedure

because the filing was not actually a notice of appeal but was,

rather, only a "notice of intent to appeal" that was not subject

to the Rules of Appellate Procedure. Defendant further argues

that since the trial court's order dismissing the notice of

appeal relied upon the Rules of Appellate Procedure as grounds

for dismissing the appeal, the court was without jurisdiction to

dismiss the filing that, he argues, did not create a valid

appeal and was not, therefore, subject to the appellate rules.

-8-

Defendant's "NOTICE OF APPEAL" purported to give "notice of

intent to appeal" the 23 May 2012 50C order, but recognized that

the time for taking an appeal had already expired. The notice,

therefore, stated defendant was "preparing" to petition this

Court for a writ of certiorari to review the 50C order.

Given that defendant's filing was captioned a "NOTICE OF

APPEAL" and stated that defendant gave "notice of intent to

appeal to the Court of Appeals of North Carolina," the trial

court reasonably treated the filing as a notice of appeal.

Assuming the filing was a notice of appeal, defendant admitted

in the filing itself, and again recognizes on appeal, that the

notice was untimely. See N.C.R. App. P. 3.

Although defendant argues that plaintiffs' motion to

dismiss the appeal was improper since it was not supported by

affidavits or certified copies of docket entries showing

defendant took untimely action as required by Rule 25 of the

Rules of Appellate Procedure, we believe that Rule 25's

requirements for proof of the appellant's untimely action is

satisfied when, as here, the notice of appeal itself expressly

states that the appeal is untimely. The trial court's dismissal

of the notice as untimely was, under these circumstances,

proper. See N.C.R. App. P. 25(a).

-9-

Assuming, as defendant contends, that the filing was not a

notice of appeal but, rather, solely a "notice of intent to

appeal" that did not itself constitute a valid appeal, the trial

court nonetheless properly dismissed the filing as a nullity.

Defendant has pointed to, and we have found, no authority

allowing defendant to file a "notice of intent to appeal" in a

civil case, and no authority limiting the trial court's

jurisdiction to dismiss such an ineffectual filing.

Defendant's contention that the trial court lacked

jurisdiction to dismiss the filing under the Rules of Appellate

Procedure fails to recognize that the trial court already had

jurisdiction over the case due to the proper filing of

plaintiffs' complaint and the issuance of a summons. See N.C.R.

Civ. P. 3(a) ("A civil action is commenced by filing a complaint

with the court."). See Estate of Livesay ex rel. Morley v.

Livesay, ___ N.C. App. ___, ___, 723 S.E.2d 772, 774 (2012)

("Without a proper complaint or summons under Rule 3 of the

Rules of Civil Procedure, an action is not properly instituted

and the court does not have jurisdiction."). The court's

jurisdiction over the case gave it jurisdiction to dismiss a

filing in the case that defendant himself asserts was a nullity.

We, therefore, hold the trial court did not err in dismissing

defendant's notice of appeal from the 50C order.

-10-

II

Defendant next contends that the trial court erred in

failing to consider defendant's request for appointed counsel.

Defendant argues that the trial court's failure to address his

request for counsel violated his due process rights under the

United States and North Carolina Constitutions.

In civil contempt proceedings, the question whether an

indigent, alleged contemnor is entitled to counsel under the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution is a determination made on a case-by-case basis.

See Turner v. Rogers, ___ U.S. ___, ___, 180 L. Ed. 2d 452, 466,

131 S. Ct. 2507, 2520 (2011) (holding that "the Due Process

Clause does not automatically require the provision of counsel

at civil contempt proceedings to an indigent individual who is

subject to a child support order, even if that individual faces

incarceration (for up to a year)").

In contrast, in criminal contempt proceedings, the Sixth

and Fourteenth Amendments to the United States Constitution

generally "require only that no indigent criminal defendant be

sentenced to a term of imprisonment unless the State has

afforded him the right to assistance of appointed counsel in his

defense." See Scott v. Illinois, 440 U.S. 367, 374, 59 L. Ed.

2d 383, 389, 99 S. Ct. 1158, 1162 (1979); Turner, ___ U.S. at

-11-

___, 180 L. Ed. 2d at 461-62, 131 S. Ct. at 2516 (observing that

Sixth Amendment right of an indigent criminal defendant to

appointed counsel "applies to criminal contempt proceedings

(other than summary proceedings)").

Given the differences between an indigent individual's

right to appointed counsel in a civil contempt proceeding and

his right to counsel in a criminal contempt proceeding, we must

initially determine whether the contempt proceeding and order in

this case involved civil or criminal contempt. "Civil contempt

is a term applied where the proceeding is had to preserve the

rights of private parties and to compel obedience to orders and

decrees made for the benefit of such parties." O'Briant v.

O'Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985).

"Criminal contempt is generally applied where the judgment is in

punishment of an act already accomplished, tending to interfere

with the administration of justice." Id.

Here, the contempt order did not specify whether the trial

court held defendant in civil or criminal contempt. The order

simply stated that the court was holding defendant in contempt

based upon defendant's willful violation of the 50C order.

N.C. Gen. Stat. § 50C-10 (2013) provides that "[a] knowing

violation of an order entered pursuant to [Chapter 50C] is

punishable as contempt of court." Accordingly, all Chapter

-12-

50C orders "shall include the following notice, printed in

conspicuous type: 'A knowing violation of a civil no-contact

order shall be punishable as contempt of court which may result

in a fine or imprisonment.'" N.C. Gen. Stat. § 50C-5(c) (2013).

Civil contempt proceedings are initiated, among other ways,

"by motion pursuant to G.S. 5A-23(a1)." N.C. Gen. Stat. § 5A-

23(a) (2013). "Failure to comply with an order of a court is a

continuing civil contempt as long as: (1) The order remains in

force; (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) (2013).

Further, "[i]f civil contempt is found, the judicial

official must enter an order finding the facts constituting

contempt and specifying the action which the contemnor must take

to purge himself or herself of the contempt." N.C. Gen. Stat. §

5A-23(e). With regard to punishment for civil contempt, N.C.

Gen. Stat. § 5A-22(a) (2013) provides: "A person imprisoned for

civil contempt must be released when his civil contempt no

longer continues. The order of the court holding a person in

-13-

civil contempt must specify how the person may purge himself of

the contempt."

Here, plaintiffs initiated the contempt proceeding with a

motion for contempt, pursuant to the procedures for civil

contempt set out in N.C. Gen. Stat. § 5A-23(a1). The trial

court's order likewise indicates the court was holding defendant

in civil contempt, as the order included each of the requisite

findings for civil contempt specified in N.C. Gen. Stat. § 5A-

21(a) and expressed the court's intent to include a "purge"

clause pursuant to N.C. Gen. Stat. § 5A-23(e).

At the contempt hearing, the trial court's statements

indicate it was rendering a civil contempt order in an effort to

force defendant to comply with the 50C order:

[PLAINTIFF'S COUNSEL:] I do want the

Court to be aware that there have been other

emails sent since that one, and we are now

seeking some different relief. We're asking

you to consider to bar him from any Internet

communication about the Tyll family, to or

from them or about them, in any form

including a website.

So, we want him to stay off the

Internet to or from any family member of the

Tyll's, and we want him to stop posting

about this family. We don't want any other

contact, through telephone or personal, and

that's all ready [sic] been ordered, and we

are asking you [sic] consider to allow an

order against him, a monetary order of

$2,500.

-14-

THE COURT: Well, I think that's what's

gonna [sic] be necessary because he's

obviously -- has no boundaries.

Okay. The Court will find him in

contempt, [indecipherable], enter a purge

amount -- a bond amount in the amount of

$2,500 to be doubled each -- for each

violation.

(Emphasis added.)

Finally, construing the order as an order for civil

contempt is consistent with N.C. Gen. Stat. § 50C-10's provision

for contempt sanctions for a violation of a 50C order and N.C.

Gen. Stat. § 5A-25 (2013) general rule that "[w]henever the laws

of North Carolina call for proceedings as for contempt, the

proceedings are those for civil contempt . . . ." The trial

court's order was, therefore, an order for civil contempt. Cf.

Reynolds v. Reynolds, 147 N.C. App. 566, 576-81, 557 S.E.2d 126,

132-35 (2001) (John, J., dissenting) (treating order as one for

criminal contempt based on, among other factors, lack of purge

condition in sanction imposed, trial court's characterization of

contempt as criminal and not civil, and trial court's apparent

desire to punish contemnor as shown by trial court's statements

at hearing and nature of sanctions imposed), rev'd per curiam

sub nom. Reynolds v. Reynolds (now Flynn) for reasons stated in

the dissent, 356 N.C. 287, 569 S.E.2d 645 (2002).

-15-

Turning to defendant's arguments on appeal, after

plaintiffs filed their contempt motion, defendant moved the

trial court to be allowed to proceed as an indigent and attached

an affidavit of indigency to his motion. The clerk of superior

court summarily denied defendant's motion, and defendant

appealed that denial to the district court judge. Defendant

then filed a response to plaintiffs' contempt motion that again

declared defendant's indigency and asserted as an "ADDITIONAL

DEFENSE[]" that the denial of defendant's motion to proceed as

an indigent, forcing defendant to respond to the contempt motion

without appointed counsel, violated defendant's state and

federal constitutional rights to due process.

N.C. Gen. Stat. § 7A-451(a)(1) (2013) provides that "[a]n

indigent person is entitled to services of counsel in . . .

[a]ny case in which imprisonment, or a fine of five hundred

dollars ($500.00), or more, is likely to be adjudged." "The

clerk of superior court is authorized to make a determination of

indigency and entitlement to counsel, as authorized by this

Article." N.C. Gen. Stat. § 7A-452(c)(1) (2013). However, a

"judge of superior or district court having authority to

determine entitlement to counsel in a particular case . . . may,

if he finds it appropriate, change or modify the determination

made by the clerk . . . ." N.C. Gen. Stat. § 7A-452(c)(2).

-16-

Given defendant's appeal to the district court judge from

the denial of his motion to proceed as an indigent, and his

separate request for appointment of counsel in his response to

the contempt motion, the trial court in this case had the

authority to modify the clerk's denial of defendant's motion to

proceed as an indigent, to find defendant indigent, and to

appoint defendant counsel. However, we need not determine

whether defendant was entitled to counsel in this civil contempt

proceeding since defendant failed to seek a ruling from the

trial court on his request for counsel, failed to attend the

contempt hearing where he could have had his motion heard, and

failed to move to continue the matter.

Our Supreme Court has held that "a lawyer cannot properly

represent a client with whom he has no contact." Dunkley v.

Shoemate, 350 N.C. 573, 578, 515 S.E.2d 442, 445 (1999). This

is so because "'North Carolina law has long recognized that an

attorney-client relationship is based upon principles of

agency,' and '[t]wo factors are essential in establishing an

agency relationship: (1) The agent must be authorized to act for

the principal; and (2) The principal must exercise control over

the agent.'" Id. at 577, 515 S.E.2d at 444 (quoting Johnson v.

Amethyst Corp., 120 N.C. App. 529, 532-33, 463 S.E.2d 397, 400

(1995)).

-17-

Here, the trial court could not appoint counsel to

represent defendant at the hearing since defendant was not

present and could neither authorize a particular attorney to be

his agent nor exercise control over that attorney. See id. at

575, 578, 515 S.E.2d at 443, 445 (holding law firm hired by

insurer could not represent defendant insured who had absconded

since insured had never authorized firm to represent him).

Since defendant also failed to move to continue the matter,

there was no relief requested of the court pursuant to which

defendant could be appointed counsel whose representation he

could authorize.

In addition, defendant's argument is not properly preserved

for appeal since, although defendant appealed the denial of his

motion to proceed as an indigent and requested the appointment

of counsel in his response to the contempt motion, defendant

failed to attend the contempt hearing and, therefore, failed to

obtain a ruling on his appeal and request for counsel after the

initial denial of his motion to proceed as an indigent. See

N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for

appellate review . . . [i]t is also necessary for the

complaining party to obtain a ruling upon the party's request,

objection, or motion."); Gilreath v. N.C. Dep't of Health &

Human Servs., 177 N.C. App. 499, 501, 629 S.E.2d 293, 294

-18-

(holding plaintiff failed to preserve argument that court erred

in failing to grant plaintiff's motion to strike paragraphs from

affidavits since plaintiff never obtained ruling on motion),

aff'd per curiam, 361 N.C. 109, 637 S.E.2d 537 (2006). We,

therefore, hold that the trial court did not violate defendant's

due process rights by conducting the contempt hearing, in

defendant's absence, and holding defendant in contempt without

further considering defendant's request for appointed counsel.

III

Defendant additionally argues that the trial court erred in

finding in its contempt order that (1) Sharon Tyll was a member

of plaintiffs' family protected by the 50C order; (2) the 50C

order prohibited defendant from simply "contacting" plaintiffs

or their family; and (3) defendant continued to harass and

interfere with plaintiffs through electronic means following

entry of the 50C order. "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).

The 50C order ordered defendant to, among other things,

"not visit, assault, molest, or otherwise interfere with the

plaintiffs or plaintiffs [sic] family." The trial court found

-19-

that "Sharon Tyll is a family member of the Defendants [sic] who

is protected from harassment and interference by the May 23,

2012 Order." Sharon Tyll testified at the hearing that she was

plaintiff David Tyll's mother and considered herself his family

member.

Defendant, however, argues that he was in a relationship

with Michelle Willets, David Tyll's sister, throughout the life

of this case and that a reading of the 50C order that prohibited

certain contact with Sharon Tyll would be unreasonable because

such an interpretation could just as easily prohibit defendant's

contact with Ms. Willets. Defendant's argument fails to

recognize that the substance of the email he sent to Sharon

Tyll, for which defendant was found in contempt, demonstrates

defendant understood Sharon Tyll to be a member of plaintiffs'

family covered by the relevant provision of the 50C order.

Defendant wrote: "Please stop harassing us. You, David and

Jenny have gotten a court order severing Michelle (and me) from

your family for at least eleven more months. Your attempts to

call us are torturous to Michelle. Under no circumstance is any

form of communication welcome to either Michelle or me."

(Emphasis added.) As an attachment to defendant's response to

plaintiffs' contempt motion, this email was evidence before the

trial court that supported the court's finding that Sharon Tyll

-20-

was considered part of plaintiffs' family for purposes of the

50C order.

Defendant further challenges the trial court's finding that

the 50C order prohibited defendant "from contacting, visiting,

molesting, or otherwise interfering with the Plaintiffs or the

Plaintiff's [sic] family." (Emphasis added.) Defendant asserts

that the relevant provision of the 50C order only ordered him to

"not visit, assault, molest, or otherwise interfere with the

plaintiffs or plaintiffs [sic] family." He argues that he was,

therefore, not barred from merely "contacting" plaintiffs'

family.

Even assuming that the trial court's description of the

underlying order was not completely consistent with the actual

terms of the order, that specific finding, describing the

underlying order, was not necessary to support the trial court's

conclusion that defendant wilfully violated the 50C order by

emailing Sharon Tyll. Defendant does not challenge the court's

finding that "Defendant violated the Order on June 23, 2012, by

sending an email from [defendant's email address] to [Sharon

Tyll's email address]. That email was received by Sharon Tyll

and it bothered her."

This unchallenged finding regarding Sharon Tyll being

"bothered" by the email falls within the undisputed term of the

-21-

50C order that defendant not "interfere with" plaintiffs'

family. Because the finding as to "contacting" was unnecessary

to the trial court's conclusions, any error did not prejudice

defendant. See Blalock Elec. Co. v. Grassy Creek Dev. Corp., 99

N.C. App. 440, 445, 393 S.E.2d 354, 357 (1990) ("[A]ny error

with regard to this finding would not affect the court's

judgment where other findings supported by competent evidence

would be sufficient to support the judgment.").

Defendant also challenges the finding that "Defendant has

continued to harass and interfere with the Plaintiffs through

electronic means since the entry of the May 23, 2012 restraining

order." Having already observed that the trial court was

presented with evidence of the email sent from defendant to

Sharon Tyll, we note that in that email, defendant told

plaintiff David Tyll's mother, Sharon Tyll, to stop "harassing"

defendant, and stated that Sharon Tyll's "attempts to call" her

daughter, Michelle Willets, were "torturous." Defendant further

told Sharon Tyll that "[u]nder no circumstance" was "any form of

communication welcome to" her daughter. Sharon Tyll testified

that the email continued to bother her.

The email also specifically referred to both plaintiffs, by

name, and Sharon Tyll as "hav[ing] gotten a court order severing

Michelle (and [defendant]) from your family for at least eleven

-22-

more months." This evidence permitted a reasonable inference

that plaintiff David Tyll, Sharon Tyll's son, would feel

"harass[ed]" and "interfere[d] with" by defendant's email to his

mother, sent after entry of the 50C order sought by plaintiffs

to prevent just such communications. We, therefore, hold that

the court's finding was supported by competent evidence.

IV

Defendant's final argument is that the trial court erred in

imposing sanctions for civil contempt that exceeded the trial

court's statutory contempt powers. First, defendant contends

that the court erred in requiring defendant to pay a "purge"

amount of $2,500.00 since that sanction actually operated as a

fine or monetary award against defendant, and, he asserts, there

is no legal basis for imposing a fine or monetary award against

a civil contemnor.

The contempt order in this case ordered that "[t]o purge

himself of [the] contempt, Defendant shall pay to the Plaintiffs

$2500.00 on or before January 11, 2013." The order further

provided, with respect to any future violations of the 50C

order, that "each individual violation of the May 23, 2012

[order] shall result in at least another $2500.00 purge for each

violation."

-23-

As observed by defendant, N.C. Gen. Stat. § 5A-21(b)

provides that "[a] person who is found in civil contempt may be

imprisoned as long as the civil contempt continues." However,

defendant's argument that there are no further statutorily

permitted sanctions for civil contempt fails to recognize that

(1) N.C. Gen. Stat. § 50C-10 provides that "[a] knowing

violation of an order entered pursuant to [Chapter 50C] is

punishable as contempt of court"; (2) N.C. Gen. Stat. § 5A-25

provides that "[w]henever the laws of North Carolina call for

proceedings as for contempt, the proceedings are those for civil

contempt"; and (3) N.C. Gen. Stat. § 50C-5(c) provides that all

Chapter 50C no-contact orders "shall include the following

notice, printed in conspicuous type: 'A knowing violation of a

civil no-contact order shall be punishable as contempt of court

which may result in a fine or imprisonment.'" (Emphasis added.)

We believe that these statutes, read together, support the

inference that fines are statutorily permitted sanctions for

civil contempt proceedings based upon violations of Chapter 50C

no-contact orders.

Our Supreme Court has indicated that fines are appropriate

sanctions for civil contempt in North Carolina:

The purpose of civil contempt is not to

punish; rather, its purpose is to use the

court's power to impose fines or

imprisonment as a method of coercing the

-24-

defendant to comply with an order of the

court. . . . Accordingly, defendant in a

civil contempt action will be fined or

incarcerated only after a determination is

made that defendant is capable of complying

with the order of the court. The

imprisonment or fine is lifted as soon as

defendant decides to comply with the order

of the court, or when it becomes apparent

that compliance with the order is no longer

feasible. . . . In the recently enacted

contempt statute, civil contempt is

carefully defined along these lines. G.S.

5A-21, et seq. and Official Commentary.

Jolly v. Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980)

(emphasis added), overruled on other grounds by McBride v.

McBride, 334 N.C. 124, 431 S.E.2d 14 (1993). See also McBride,

334 N.C. at 130, 431 S.E.2d at 18 (observing that "a defendant

in a civil contempt action should not be fined or incarcerated

for failing to comply with a court order without a determination

by the trial court that the defendant is presently capable of

complying").

This Court has similarly referred to the propriety of a

fine as a sanction for civil contempt: "'A defendant in a civil

contempt action will be fined or incarcerated only after a

determination is made that the defendant is capable of complying

with the order of the court.'" Oakley v. Oakley, 165 N.C. App.

859, 864, 599 S.E.2d 925, 929 (2004) (quoting Reece v. Reece, 58

N.C. App. 404, 406–07, 293 S.E.2d 662, 663–64 (1982)).

-25-

Defendant further contends, however, that even if a fine is

a permissible sanction for civil contempt, this Court has held

that a court may not award damages or costs to a private party

in a civil contempt proceeding. In support of his argument,

defendant cites Baxley v. Jackson, 179 N.C. App. 635, 634 S.E.2d

905 (2006) and Green v. Crane, 96 N.C. App. 654, 386 S.E.2d 757

(1990). See Baxley, 179 N.C. App. at 640, 634 S.E.2d at 908

("Because contempt is considered an offense against the State,

rather than an individual party, 'damages may not be awarded to

a private party because of any contempt[.]'" (quoting M.G.

Newell Co. v. Wyrick, 91 N.C. App. 98, 102, 370 S.E.2d 431, 434

(1988))); Green, 96 N.C. App. at 659, 386 S.E.2d at 760

("'[C]ontempt proceedings are sui generis and criminal in

nature. Although labeled "civil" contempt, a proceeding as for

contempt is by no means a civil action or proceeding to which

G.S. 6-18 (when costs shall be allowed to plaintiff as a matter

of course), or G.S. 6-20 (allowance of costs in discretion of

court) would apply.'" (quoting United Artists Records, Inc. v.

E. Tape Corp., 18 N.C. App. 183, 188, 196 S.E.2d 598, 601

(1973))).

"The word 'damages' is defined as compensation which the

law awards for an injury[;] 'injury' meaning a wrongful act

which causes loss or harm to another." Cherry v. Gilliam, 195

-26-

N.C. 233, 235, 141 S.E. 594, 595 (1928). See also Black's Law

Dictionary 445 (9th ed. 2009) (defining "damages" as "[m]oney

claimed by, or ordered to be paid to, a person as compensation

for loss or injury"). "[C]ompensation," in turn, has been

defined as "[p]ayment of damages, or any other act that a court

orders to be done by a person who has caused injury to another."

Id. at 322. "In theory, compensation makes the injured person

whole." Id.

While damages or costs may not be awarded to plaintiffs in

a civil contempt proceeding, this Court has expressly

acknowledged that a person found in civil contempt may be

required to pay a fine to the opposing party. In Bishop v.

Bishop, 90 N.C. App. 499, 505, 369 S.E.2d 106, 109 (1988), this

Court looked to the character of the relief ordered in a

contempt proceeding to determine whether that proceeding

involved civil or criminal contempt. This Court held that civil

contempt could involve a monetary payment "if the monies are

either paid to the complainant or defendant can avoid payment to

the court by performing an act required by the court." Id. The

Court specifically held that civil contempt can involve a fine

"'when it is paid to the complainant'" or if payable to the

court "'when the defendant can avoid paying the fine simply by

performing the affirmative act required by the court's order.'"

-27-

Id. at 504, 369 S.E.2d at 108-09 (quoting Hicks ex rel. Feiock

v. Feiock, 485 U.S. 624, 632, 99 L. Ed. 2d 721, 731, 108 S. Ct.

1423, 1429 (1988)).

In this case, there is no indication in the record that the

award of $2,500.00 payable to plaintiffs for defendant's

contempt, or the possibility of future payments of "at least

another $2500.00" for future violations of the 50C order, were

intended to compensate plaintiffs for loss or injury from

defendant's contempt or to pay the costs of the action incurred

by plaintiffs. The payments were denominated "purge" conditions

in the order, indicating the court intended the payments to

coerce defendant into compliance with the 50C order rather than

to compensate plaintiffs for defendant's contempt. See Cox v.

Cox, 133 N.C. App. 221, 226, 515 S.E.2d 61, 65 (1999) ("A court

order holding a person in civil contempt must specify how the

person may purge himself or herself of the contempt. The

purpose of civil contempt is not to punish but to coerce the

defendant to comply with a court order." (internal citations

omitted)).

Further, at the hearing, in response to plaintiffs'

counsel's request for a "monetary order of $2,500" in response

to defendant's contempt, the trial court stated: "Well, I think

that's what's gonna [sic] be necessary because he's obviously --

-28-

has no boundaries. Okay. The Court will find him in contempt,

[indecipherable], enter a purge amount -- a bond amount in the

amount of $2,500 to be doubled each -- for each violation." The

foregoing indicates that, in this case, the court entered a

monetary award for civil contempt payable to plaintiffs in order

to coerce defendant into compliance with the 50C order and not

in order to compensate plaintiffs for defendant's contempt. The

trial court, therefore, did not err in ordering defendant to pay

a fine to plaintiffs.

Defendant further argues that the sanction imposed for

civil contempt was invalid because there was no effective purge

condition. To hold a person in civil contempt, "the judicial

official must enter an order . . . specifying the action which

the contemnor must take to purge himself or herself of the

contempt." N.C. Gen. Stat. § 5A-23(e). Here, the trial court

ordered that in order "[t]o purge himself of [the] contempt,

Defendant shall pay to the Plaintiffs $2500.00 on or before

January 11, 2013."

Defendant contends that although "this Court has considered

cases involving monetary awards payable on findings of civil

contempt, the instances of such awards are limited to those

cases where the underlying order imposed an obligation of

payment, as in a child support case." He then argues that "[i]n

-29-

the case of the child support obligor, the payment of arrears is

partial compliance with the order being enforced. Thus, the

obligor may avoid incarceration by making payment in compliance

with the underlying child support order."

However, our courts have also held that requiring a

contemnor to pay attorneys' fees in order to purge himself of

contempt may be an appropriate purge condition. These cases do

not involve payments that would have been required by the

underlying order that the contemnor violated. See, e.g., Eakes

v. Eakes, 194 N.C. App. 303, 312, 669 S.E.2d 891, 897 (2008)

("North Carolina courts have held that the contempt power of the

trial court includes the authority to require the payment of

reasonable attorney's fees to opposing counsel as a condition to

being purged of contempt for failure to comply with a child

support order."); Middleton v. Middleton, 159 N.C. App. 224,

227, 583 S.E.2d 48, 49-50 (2003) ("This Court has held that the

contempt power of the district court includes the authority to

award attorney fees as a condition of purging contempt for

failure to comply with an order."). See also Hartsell v.

Hartsell, 99 N.C. App. 380, 392, 393 S.E.2d 570, 577 (1990)

(observing that when party has been held in contempt for

violating order requiring transfer of property, trial court had

authority to order contemnor to transfer property or its present

-30-

value as condition of purging contempt), aff'd per curiam, 328

N.C. 729, 403 S.E.2d 307 (1991).

We see no basis for distinguishing a fine payable to the

moving party from these types of payments. Therefore, the trial

court included a proper purge condition when it required

defendant to pay the fine to plaintiffs in order to purge

himself of contempt.

Defendant next argues that the contempt order's $2,500.00

payments for present and any future violations of the 50C order

were invalid because the trial court made no findings concerning

defendant's ability to pay, at the time of the contempt hearing

or at any point in the future, respectively, the amount of

$2,500.00. We agree.

This Court has held that North Carolina's civil contempt

statutes "require that a person have the present ability to

comply with the conditions for purging the contempt before that

person may be imprisoned for civil contempt." McMiller v.

McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985). We

see no reason why a monetary sanction should be treated

differently. See Jolly, 300 N.C. at 92, 265 S.E.2d at 142

("[D]efendant in a civil contempt action will be fined or

incarcerated only after a determination is made that defendant

is capable of complying with the order of the court.").

-31-

The contempt order in this case contains no findings that

defendant, at the time of the contempt hearing or otherwise, had

the ability to pay a $2,500.00 award to plaintiffs. In fact,

the only evidence in the record regarding defendant's ability to

pay is defendant's affidavit of indigency attached to his two

motions to proceed as indigent. That affidavit stated that

defendant and his partner, Ms. Willets, each have no direct

source of income and receive room and board in exchange for

caring for defendant's mother. The affidavit further stated

defendant owned no real property; defendant owned some personal

property but any requirement to liquidate that property would

"substantially affect[]" defendant's ability to care for his

mother; and the total value of defendant's "cash" was "less than

$2500.00." The trial court, therefore, erred in requiring the

monetary payments without first finding defendant was presently

able to comply with the $2,500.00 fine imposed as a result of

defendant's past contempt or would be able to comply in the

future with any $2,500.00 fines imposed as a result of any

further violations of the 50C order.

Finally, defendant contends that the trial court exceeded

its authority in this contempt proceeding by imposing additional

restrictions on defendant's contact with plaintiffs and others

in the contempt order since defendant was not given notice of

-32-

any request for sanctions beyond those allowed for contempt or

of a hearing to modify the 50C order. We do not agree.

The 23 May 2012 50C order ordered defendant to "not visit,

assault, molest, or otherwise interfere with the plaintiffs or

plaintiffs [sic] family"; to "cease harassment of the

plaintiff"; to "not abuse or injure the plaintiff"; to "not

contact the plaintiffs by telephone, written communication, or

electronic means"; and to "not enter or remain present at the

plaintiff's residence . . . [or] place of employment."

The contempt order contained the following provisions in

the decretal portion of the order:

4. The Court hereby further restrains the

Defendant from the following acts:

a) Defendant, Joey Berry, shall not

contact by phone, internet, mail

or any other means any employer or

family member of Jennifer and

David Tyll, except Michelle

Willets, directly or indirectly or

through a third party, even by

using a pseudonym or by acting as

power of attorney or attorney in

fact for any other person.

b) Defendant, Joey Berry, shall not

post or allow to be posted any

information of any kind whatsoever

referring to, referencing, or

stating the names of the

Plaintiffs or any member of their

family, except Michelle Willets,

on the internet, on any blog,

forum, in any email, in any

electronic newspaper or magazine,

-33-

on any social website such as

Facebook, using his name or any

pseudonym.

c) Within 7 days from the date of

entry of this order, the Defendant

shall remove from any internet

posting, web sites and/or

postings, blogs, social media, and

other communications not limited

to the internet, if these

communications relate to or

reference the Plaintiffs or the

names of the Plaintiffs or any of

their family members other than

Michelle Willets, even if the

communication, posting, blog,

email, ect. [sic], was published

using a pseudonym or by acting as

power of attorney or attorney in

fact for any other person.

We initially note that these provisions do not necessarily

place any further restrictions on defendant beyond those set out

in the original 50C order. They may be viewed as simply

specifying the behaviors that reasonable people would understand

to be subsumed within the terms of the original order -- a

clarification that the trial court likely viewed as necessary

given defendant's apparent intention to try to avoid compliance

with the 50C order by a restrictive reading of the order.

Defendant cites no authority in support of his argument

that the trial court erred by including decretal paragraph 4.

Therefore, he has not properly presented this issue for our

review, and we do not address it. See Horne v. Cumberland Cnty.

-34-

Hosp. Sys., Inc., __ N.C. App. __, __, 746 S.E.2d 13, 18 (2013)

("With regard to her substantive due process claim, plaintiff,

in her brief, fails to cite any legal authority in support of

her contention on this issue. We, therefore, deem this argument

abandoned on appeal pursuant to Rule 28(b)(6) of the North

Carolina Rules of Appellate Procedure.").

Conclusion

In sum, we affirm the trial court's order dismissing

defendant's notice of appeal from the 50C order. We hold that

the court did not violate defendant's right to due process by

not further considering defendant's request for appointed

counsel and that the challenged findings of fact in the contempt

order were either supported by the evidence or unnecessary to

support the court's conclusion that defendant was in contempt of

the 50C order. We also affirm the trial court's decision to

impose a fine payable to plaintiffs, but we reverse as to the

amount and remand for the trial court to make appropriate

findings regarding defendant's present ability to pay the fine.

Affirmed in part; reversed and remanded in part.

Judges STEPHENS and ERVIN concur.