It is a common question: when the court issues an order to show cause for contempt, how is that order served on a respondent? Is the order required to be served pursuant to Rule 4 of the Rules of Civil Procedure (generally meaning personal service by the sheriff or certified mail) or is Rule 5 service sufficient (generally meaning regular mail to the party or party’s attorney)? Unfortunately, the answer to that question is a bit murky.
Civil Contempt
As with most legal questions involving contempt, the analysis will differ based on whether the proceeding is for civil contempt or for criminal contempt.
G.S. 5A-23(a) states that a show cause order for civil contempt “must be given at least five days in advance of the hearing unless good cause is shown.” See Smith v. Smith, 247 N.C. App. 166, 785 S.E.2d 434 (2016) (the trial court had good cause to require father to appear at a hearing for civil contempt two days after issuance of a show cause order when the underlying order had been entered more than a month earlier and father had ample time to prepare a defense to enforcement of that order); and M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988) (court authorized to shorten notice period when alleged contemnor had known of charges against him for several months and had had ample time to prepare, witnesses and parties were present, and defendant’s attorney acknowledged ample time to discuss charges with defendant).
However, G.S. Chapter 5A does not specify how the show cause order for civil contempt must be served.
Rule 5(b) of the Rules of Civil Procedure applies in civil proceedings to regulate how service is made of orders and documents following initial Rule 4 service of process. Rule 5(b) provides:
“With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service shall be made upon the party’s attorney of record and, if ordered by the court, also upon the party. If the party has no attorney of record, service shall be made upon the party.”
That statute then provides that service may be accomplished by personal delivery by anyone to either a party or the party’s attorney, by regular mail, and by email or electronic filing in certain circumstances. The Rule also allows for service by any of the methods authorized by Rule 4 but does not require Rule 4 service for any order or document.
As Rule 5 will apply in a civil matter unless another statute specifically provides otherwise, it appears that a show cause order for civil contempt issued in a pending civil proceeding can be served in several ways, including by mailing by regular mail to the respondent.
Criminal Contempt
Chapter 5A indicates that some sort of personal service is required for a show cause order for criminal contempt. G.S. 5A-15(a) states that “a copy of the show cause order must be furnished to the person charged.” There is no clarification as to the meaning of the word ‘furnished’, but the term implies that Rule 5 service by regular mail may not be sufficient.
Child Support
G.S 50-13.9 is titled “A procedure to insure the payment of child support” and section (d) states:
“Upon affidavit of an obligee, the clerk or a district court judge may order the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both. …The order may be signed by the clerk or a district court judge and shall be served on the obligor pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure.”(emphasis added).
The statute makes no distinction between criminal and civil contempt. It also does not indicate that it is the exclusive method of enforcing a child support order.
What happens when a party does not appear as required by a show cause order for civil contempt?
Unlike in criminal contempt cases as discussed below, Chapter 5A does not authorize the issuance of an order for arrest for the failure to appear as required by a show cause order for civil contempt. In addition, G.S. 15A-305 is the statute setting out the court’s authority to issue orders for arrest. Section (b)(8) of that statute authorizes an order for arrest for failure to appear in a criminal contempt proceeding but it makes no reference to civil contempt proceedings.
The court may lack the authority to issue an immediate order for arrest in a civil proceeding because the civil contempt proceeding, like all civil trials, can go forward to trial without the presence of the respondent. If the respondent has notice of the trial or hearing, there is no requirement that the respondent be present. See e.g. Tigani v. Tigani, 256 NC App 154 (2017)(civil contempt proceeding was tried without the presence of the respondent but the trial court erred in holding respondent in contempt without evidence introduced regarding his ability to comply with the underlying order).
If the court finds the respondent in civil contempt, the court may then order the immediate arrest of the respondent. G.S. 5A-21 (the only remedy for civil contempt is imprisonment until compliance with purge condition); AOC CV-110 (Commitment Order for Civil Contempt).
The court also has the option of initiating a separate criminal or civil contempt proceeding based on the respondent’s failure to comply with the order to show cause.
What happens when a party does not appear as required by a show cause order for criminal contempt?
In a proceeding for criminal contempt, Chapter 5A authorizes the court to order the respondent’s arrest if the court finds, based on a sworn statement or affidavit, probable cause to believe that the respondent will not appear in response to the show cause order or if the respondent fails to appear as required by the show cause order. [See G.S. 5A-16(b) and 15A-305(b) (8), (9); Form AOC-CR-217, Order for Arrest; see also Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984) (court had power to have plaintiff wife arrested and held until she posted bail to assure her appearance but the order for arrest will be reversed when the court fails to make a probable cause finding that plaintiff would not appear.).]