holding that an award of compensatory damages in a contempt proceeding was inappropriate despite the fact that, “when plaintiff took possession of the [residence from the defendant,] it was a ‘wreck’ in that the house was full of garbage, the water pipes had burst, flooding the inside, the yard was overgrown and full of weeds, and part of a bedroom floor was rotted out where rain -16- had come in through an open window”
How later courts described this case
- holding that an award of compensatory damages in a contempt proceeding was inappropriate despite the fact that, “when plaintiff took possession of the [residence from the defendant,] it was a ‘wreck’ in that the house was full of garbage, the water pipes had burst, flooding the inside, the yard was overgrown and full of weeds, and part of a bedroom floor was rotted out where rain -16- had come in through an open window”
- observing that when party has been held in contempt for violating order requiring transfer of property, trial court had authority to order contemnor to transferproperty or its present value as condition of purging contempt
- sustaining an award of attorney’s fees despite having invalidated the trial court’s award of compensatory damages in a case in which the defendant had failed to comply with a provision contained in an equitable distribution order requiring him to clean a house and deliver it to the plaintiff in a tidy condition
- affirming order holding defendant in civil contempt where evidence supported findings that his noncompliance with court order was willful
Written by the judges who cited it.
The opinion
Judge Greene
dissenting.
I disagree with the majority’s conclusion that “since no relief of a punitive nature was ordered, the trial court was not required *394 to afford the defendant all procedural and evidentiary safeguards required for criminal contempt proceedings . . . .” Procedural and evidentiary standards to be applied to the hearing determining contempt cannot be determined ex post facto according to the nature of the relief granted. Rather, they must be determined according to the notice received in the order to show cause.
In Bishop v. Bishop, 90 N.C. App. 499 , 369 S.E.2d 106 (1988), the case on which the majority relies, the only issue before that court was whether the trial court had made the necessary findings to support the order of contempt. Since the findings necessary to support contempt differ depending upon whether the contempt is civil or criminal, to ascertain the adequacy of the trial court’s findings, it was necessary to first decide whether the order entered by the trial court was actually one for civil contempt or one for criminal contempt. The Bishop court did not address the issue now presented as to what procedural and evidentiary standards should apply in the trial of a contempt proceeding when the alleged contemnor has been served with an order to show cause which does not inform him whether he faces a determination of civil contempt or criminal contempt, or both. Here, the order to show cause states “there is probable cause to believe that a civil and/or criminal contempt has occurred and a hearing should be conducted upon these allegations.”
Some of the procedural and evidentiary differences between civil contempt and criminal contempt include:
Civil Contempt
1. Except “in those cases where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise ensure fundamental fairness[,]” an indigent alleged contemnor is not entitled to court-appointed counsel. Jolly v. Wright, 300 N.C. 83, 93 , 265 S.E.2d 135, 143 (1980).
2. The trial court must find that the alleged contemnor has the present ability to comply with the court order. Adkins v. Adkins, 82 N.C. App. 289, 293 , 346 S.E.2d 220, 222 (1986); but see Plott v. Plott, 74 N.C. App. 82, 85 , 327 S.E.2d 273, 275 (1985) (holding the burden is on the alleged contemnor to prove that he is not in contempt).
3. The alleged contemnor can, as in any civil case, be called as an adverse witness. N.C.G.S. § 1A-1, Rule 43(b) (1983).
*395 4. The degree of proof is by the greater weight of the evidence, as in any civil action. See 2 H. Brandis, Brandis on North Carolina Evidence § 212 (1988).
Criminal Contempt
1. Alleged contemnor is entitled, if indigent, to appointment of counsel. Hammock v. Bencini, 98 N.C. App. 510, 512-13 , 391 S.E.2d 210, 211 (1990).
2. Alleged contemnor cannot be compelled to be a witness against himself. N.C.G.S. § 5A-15(e) (Cum.Supp. 1989).
3. Proof must be beyond a reasonable doubt. N.C.G.S. § 5A-15(f) (Cum.Supp. 1989).
4. A movant has the burden of showing that the alleged con-temnor had means to comply with the order “at any time” after its entry. Lamm v. Lamm, 229 N.C. 248, 250 , 49 S.E.2d 403, 404 (1948).
Allowing movant or the trial court to choose between civil contempt or criminal contempt based on evidence adduced during the course of trial does not provide the alleged contemnor reasonable notice and does not give him an adequate opportunity to prepare and defend the action. Use of such procedure violates the very essence of due process recognized in our common law that requires reasonable notice and an adequate opportunity to defend. See Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946) (alleged contemnor “is entitled to due notice of the nature of the proceeding against him — whether of criminal or civil contempt”) (emphasis added).
Because of the substantially different procedural and eviden-tiary standards existing for criminal and civil contempt, the absence of pretrial notification to the alleged contemnor of whether the movant is proceeding specifically with criminal contempt or civil contempt or both, 1 requires that the alleged contemnor be provided all procedural and evidentiary standards appropriate to criminal contempt proceedings. See Bishop, at 505, 369 S.E.2d at 109 ; see also United States v. United Mine Workers of America, 330 U.S. 258, 298 , 91 L.Ed. 884, 915 (1947) (“If the defendants were thus accorded all the rights and privileges owing to defendants in criminal *396 contempt cases, [they cannot complain] . . . because their trial included proceedings in civil contempt”).
This record does not reveal that the alleged contemnor, here defendant, was notified either before or during the trial of whether the proceeding was in criminal contempt or civil contempt or both. The notice he received, “civil and/or criminal contempt,” informed him that he could face either civil contempt or criminal contempt or both. Therefore, defendant was entitled to the full protections of a criminal contempt proceeding. Here, defendant was not granted those protections. Specifically, the trial court allowed movant to call defendant as an adverse witness and noted as a finding in its order of contempt that defendant had “offered no evidence of justification or excuse as regards his failure to comply with the court’s prior judgment.” This reflects a proceeding in civil contempt in which the alleged contemnor can be called as a witness, and his failure to offer evidence arguably can be fatal to his defense. Furthermore, there is no finding in the order of contempt that the trial court entered its findings based on the evidence beyond a reasonable doubt, which is required in a criminal contempt proceeding.
Therefore, I would vacate the contempt order and remand for a new contempt hearing after proper notification.
. A person may be held in both civil and criminal contempt in the same proceeding. N.C.G.S. § 5A-12(d) (1986); N.C.G.S. § 5A-21(c) (1986).