• Right to Counsel in Civil Contempt Proceeding for Violation of Custody Order

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    When a court is considering whether to hold a party in civil contempt for the failure to comply with provisions in a child custody order, must the court inform that parent that he has the right to a court-appointed attorney if he wants an attorney and is unable to afford one?

    The court of appeals recently held that the answer to that question must be determined on a “case-by-case basis” with appointed counsel being required only “where assistance of counsel is necessary for the adequate presentation of the merits, or to otherwise insure fundamental fairness.”

    Wilson v. Guinyard (NC App June 20, 2017)

    Mother Ms. Wilson initiated civil contempt proceedings against father Mr. Guinyard for alleged violations of visitation provisions in custody order. Father lived in Charleston, South Carolina and mother lived in Durham, North Carolina. The custody order called for exchanges for visitation to be made at South of the Border on specified times on certain Fridays and Sundays. Mother alleged father was habitually late for these exchanges.

    Two months before the contempt hearing, father signed a consent to the withdrawal of his counsel and one week before the hearing, he requested a continuance to retain new counsel. The trial court denied his request and proceeded with the contempt hearing. The trial court held father in civil contempt and provided he could purge the contempt by picking up and dropping the child off at the mother’s home for the next three weekend visitations. The order specified that if father was more than 30 minutes late for any of these three exchanges, his next visitation would be forfeited and he would be jailed for 72 hours.**

    On appeal, father argued the trial court erred in failing to inquire into his desire and eligibility for court appointed counsel, stating:

    “The rule of this State is that “[w]here a defendant faces the potential of incarceration if held in contempt, the trial court must inquire into the defendant’s desire for and ability to pay for counsel to represent him as to the contempt issues.” D’Alessandro v. D’Alessandro, 235 NC App 458 (2014); King v. King, 144 NC App 391 (2001). He can waive his right to representation but the record must reflect that he was advised of his right and he must voluntarily waive it.” Id.

    The court of appeals rejected father’s argument and held he had no right to counsel under the circumstances of this case. The court acknowledged that Due Process requires that “a defendant should be advised of his or her right to have appointed counsel where the defendant cannot afford counsel on his own, and ‘where the litigant may lose his physical liberty if he loses the litigation’ [citations omitted].” However, the court held that it is up to the litigant facing contempt to show “(1) he is indigent, and (2) his liberty interest is at stake,” and explained that the determination of whether a liberty interest is at stake “is a determination made on a case-by-case basis.” Citing Hodges v. Hodges, 64 NC App 550 (1983), the court of appeals further explained that when a civil proceeding may result in imprisonment, “appointment of counsel for indigents is required only where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise insure fundamental fairness.” In this case, the court of appeals held appointment of counsel was not necessary because defendant had the ability to comply with the purge conditions as imposed and the case presented no “unusually complex issues of law or fact.” The court offers no additional guidance on what type of issues would be sufficiently complex to require the appointment of counsel.

     What about McBride v. McBride?

    The North Carolina Supreme Court held in Jolly v. Jolly, 300 NC 83 (1980), that Due Process does not require the appointment of counsel in civil contempt proceedings arising out of the nonpayment of child support as the impact on a respondent’s liberty interest is slight. Because a court is required to determine the respondent has the actual present ability to comply with any purge condition imposed in a civil contempt order, the respondent “holds the keys to the jail” in that he simply needs to comply with the court order to avoid imprisonment.

    However, when the court revisited the issue in the case of McBride v. McBride, 334 NC 124 (1993), the North Carolina Supreme Court determined that the focus in Jolly was “misplaced,” at least in the context of civil contempt proceedings arising out of the nonpayment of child support. According to the court, “experience” showed that respondents in these civil contempt proceedings often are incarcerated without the trial court first determining they have the ability to pay the amount ordered as a purge. The court reasoned that because respondents do not “hold the keys to the jail” if they do not have the actual ability to pay the purge, assistance of counsel is necessary to insure that they do not go to jail unless they actually have the ability to pay.

    The McBride court therefore held that “absent appointment of counsel, indigent contemnors may not be incarcerated for failure to pay child support.” The court instructed trial courts to “assess the likelihood of incarceration” at the outset of the contempt hearing and, if incarceration is likely, “inquire into the [respondent’s] desire for counsel and the ability to pay.”

    Does McBride apply in custody cases?

    While McBride spoke directly to concerns arising in child support enforcement cases, the court of appeals has applied the holding in McBride to vacate a civil contempt order arising out of the violation of a custody order. In D’Alessandro v. D’Alessandro, 235 NC App 458 (2014), the court of appeals broadly held that “when a defendant faces the potential of incarceration if held in contempt, the court must inquire into defendant’s desire for and ability to pay for counsel to represent him as to the contempt issues.” Because the trial court failed to conduct this inquiry in this case, the court of appeals “reversed both the contempt of the custody order and the contempt of the child support order.” The court did not explicitly address the issue of whether McBride was limited to the child support enforcement proceedings.

    However, in the recent Wilson v. Guinyard opinion, the court of appeals held that McBride applies “specifically to civil contempt proceedings for nonsupport” and adopted the standard in Jolly for determining whether appointed counsel is required in other types of civil contempt proceedings. Even though the court in Wilson cited the D’Alessandro case, the court nevertheless states that the holding in McBride has not been applied outside of the context of contempt for failure to pay child support.

    So until the supreme court tells us otherwise, it appears that respondents facing civil contempt arising out of the failure to comply with the terms of a custody order are not entitled to court-appointed counsel, at least absent the existence of “unusually complex issues of law or fact.” Be sure to read the comments posted below, especially the one from my colleague John Rubin. I agree with John that the court of appeals clearly was influenced in this case by the belief that father was not indigent, and I also have wondered why GS 7A-451 has not been applied to civil contempt cases by our appellate courts.

    **According to Reynolds v. Reynolds, 356 NC 287 (2002), adopting dissent in court of appeals, 147 NC App 566 (2001), this contempt order appears to be criminal contempt rather than civil contempt. In Reynolds, the dissent from the court of appeals adopted by the supreme court explained that when the court imposes a specific period of incarceration that is “suspended” upon the contemnor’s compliance with conditions, the order is more in the nature of criminal rather than civil contempt. In this case, the father was at risk for a 72-hour confinement until he completed the three visitation exchanges as ordered; it was in essence a 72-hour sentence suspended on the condition that he comply with the conditions of the next three visitations. Appointment of counsel always is required for indigent respondents in criminal contempt cases. GS 7A-451(a)(1); State v. Wall, 49 NC App 678 (1980). The issue of whether the contempt order in Wilson actually was an order for civil contempt was not addressed by the court.





    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    4 thoughts on “Right to Counsel in Civil Contempt Proceeding for Violation of Custody Order”

    • Robert. L. Inge says:

      In reading this I am confused as to how this was “civil contempt” as the reapondent was not in continuing contempt when the court date rolled around. My understanding is that in custody cases if a parent wrongfully holds a child and this continues to the court date then civil contempt would be appropriate. However if a parent wrongfully keeps a child in violation of the order but returns the child prior to the hearing, civil contempt no longer applies and criminal contempt is then the appropriate remedy. I think this was discussed in the Ruth case. So I would think being habitually late etc.. would be criminal contempt but not civil.

    • John Rubin says:

      I don’t think this decision settles an indigent defendant’s right to appointed counsel in civil contempt cases that do not involve child support. In McBride v. McBride, 334 N.C. 124 (1993), the North Carolina Supreme Court recognized that an indigent defendant has the right to appointed counsel in a civil contempt case if the court intends to imprison the defendant. Observing that McBride involved a civil contempt proceeding for nonsupport, the Court of Appeals stated in this decision that in other civil contempt contexts, such as contempt for a violation of a custody order, the right of an indigent defendant to appointed counsel is not automatic and instead depends on the complexity of the issues and is decided on a case-by-case basis even if the court imprisons the defendant. The Court of Appeals found that this case did not present unusually complex issues of law or fact requiring the appointment of counsel. Sl. op. at 7-8.

      The court did not stop there, however, and gave other grounds for its decision. The court found that the defendant had retained a lawyer, that he requested that his retained lawyer withdraw, that he knew that the court had denied his motion to continue to retain new counsel, and that he “never represented he was indigent nor requested the trial court to appoint him an attorney prior to or during the hearing.” Sl. op. at 8-9. These findings may make the discussion about the reach of McBride unnecessary to resolution of the case. The defendant wasn’t entitled to counsel because he wasn’t indigent (the court observed that he owned his own business and spent money for a Super Bowl party), didn’t ask for appointed counsel, and arguably gave up any right to counsel by releasing his retained lawyer knowing that the court was not going to grant him a continuance.

      Reading the decision as depending on these other grounds may avoid a possible conflict with North Carolina law. Although McBride involved a nonsupport case, the Supreme Court appeared to base its decision as much on the nature of the punishment as on the violation alleged, observing that “jail is just as bleak no matter which label is used.” 334 N.C. at 130. Thereafter, in D’Allessandro v. D’Allessandro, 235 N.C. App. 458 (2014), the Court of Appeals held that McBride applied when the defendant was jailed for a violation of a custody order as well as a child support order. In addition, G.S. 7A-451(a)(1) provides that an indigent person is entitled to counsel in any case “in which imprisonment . . . is likely to be adjudged.” Although not discussed in McBride, this statute may provide additional support for the principle articulated in McBride that a person is entitled to be represented by counsel before being jailed.

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