Download Civil Contempt - North Carolina Child Support Council

The Role of the
Defendant’s Attorney in a
Contempt Proceeding
Wendy C. Sotolongo
Parent Representation Coordinator
Indigent Defense Services
Right to Counsel

Statute


(G.S. 7A-451)
N.C. Constitution
 (Art.

I, §23)
NC Case Law
 (McBride
(1993))
v. McBride, 334 N.C. 124, 130
Establishment Cases

There is no statutory right to counsel for
an indigent defendant in a civil paternity
suit and the Supreme Court of North
Carolina has held that there is no per se
constitutional right to counsel in such a
proceeding. Wake County, ex rel.
Carrington v. Townes, 306 N.C. 333, 335,
293 S.E.2d 95, 97 (1982).
Establishment Cases

However, the Supreme Court also held
that “due process affords . . . a qualified
entitlement to appointed counsel as
determined by the trial court on a case-bycase basis.” Id.
Establishment Cases




When a motion for appointment of counsel
is made, the trial court should:
evaluate the interests at stake for both sides
the complexity of the case, and
the nature of defendant’s problems in
representing himself.
Id. at 340-41, 293 S.E.2d at 100.
Establishment Cases

IDS Policy: If a judge concludes that due
process requires appointment of counsel for a
particular indigent defendant in a civil paternity
case, IDS will pay for the representation...In
such a case, the Court must enter an Order
specifically finding a constitutional right to
appointed counsel, and that Order must be
attached to counsel’s fee application.
http://www.ncids.org/Rules%20&%20Procedures/ChildSupPat/Appoint
CounselCivilPaternity.pdf
Examples?
Diminished capacity
 Potential criminal charges
 DSS CPS involvement
 Legal/bio fathers

Enforcement Cases
G.S. 7A-451(a)(1) provides that an
indigent is entitled to appointment of
counsel in any case in which the person is
likely to be imprisoned or fined $500 or
more. Thus, an indigent is entitled to
counsel in a plenary proceeding for
criminal contempt.
 State v. Wall, 49 N.C. App. 678 (1980)

Enforcement Cases
An indigent defendant who is going to be jailed
for civil contempt is presumed to be entitled to
appointed counsel.
 “The private interest at stake in the present case
[civil contempt for failure to pay child support] is,
perhaps, the most fundamental interest
protected by the Constitution of the United
States – the interest in personal liberty.”
McBride v. McBride, 334 N.C. 124, 130 (1993)

Modification Cases
We….reject the notion that an indigent party is
entitled to appointed counsel at a motion for
modification of child support, as there is no
liberty interest at stake. Furthermore, we hold
that this does not violate the party's due process
rights.
King v. King, 144 N.C. App. 391, 394 (2001)

Right to Counsel
[The] right to counsel has long been
recognized as an entitlement to the effective
assistance of counsel. State v. Vickers, 306
N.C. 90, 291 S.E. 2d 599 (1982)
Responsibilities
As a representative of clients, a lawyer performs various functions.
 As advisor, a lawyer provides a client with an informed
understanding of the client's legal rights and obligations and
explains their practical implications.
 As advocate, a lawyer zealously asserts the client's position
under the rules of the adversary system.
 As negotiator, a lawyer seeks a result advantageous to the
client but consistent with requirements of honest dealing with
others.
 As evaluator, a lawyer acts by examining a client's legal affairs
and reporting about them to the client or to others.
Preamble, Rules of Professional Conduct
Responsibilities


Interview Client prior to Court
Investigate allegations
client’s payment record
 court file
 IV-D worker



Conduct discovery if appropriate
File motions*
Client Interview



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


Education
Job history
Efforts to become employed/improve employment
Medical conditions
Hospitalization
Incarceration
Living Situation and Expenses
Assets including “Luxury items” (cable, cell phones,
cigarettes, tattoos, jewelry)
Direct payments or purchase of items for child
Custodial status of child
The Court File

Order establishing paternity


Order establishing child support obligation


County of Durham v. Roberts, 749 S.E.2d 110 (N.C. Ct. App.
2013)
Order to show cause


Corey v. Hardison, 236 N.C. 147, 72 S.E.2d 416 (1952)
Watkins v. Watkins, 136 N.C. App. 844 (N.C. Ct. App. 2000)
Return of service

Hamilton v. Johnson, 747 S.E.2d 158 (N.C. App., Aug. 6, 2013).
Discovery

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
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
Non-Parties (custodial parent)
deposition
subpoena
Parties (IV-D)
interrogatories
requests for production of documents
requests for admissions
Motions

(4) Child Support Contempt and Other Contempt
Cases:
If the contractor or public defender has identified a
motion that, if successfully litigated, would
constitute a defense in the contempt proceeding,
such as a Rule 60 motion or a motion to challenge
paternity, the contractor or public defender has an
obligation to file such motion(s)…
Motions

(4) Child Support Contempt and Other Contempt
Cases, con’t…
The contractor or public defender shall also give
the client limited advice and guidance on how the
client can address other related matters, including
recommending other motions such as motions to
modify a child support obligation
Length of Representation

Resolution of the Order to Show Cause
 Order
of Civil Contempt
 Order of Criminal Contempt
 Order of Dismissal
Examples
1.
2.
3.
4.
The Respondent is in contempt and the contempt may
be purged by paying $300 this Friday and $300 next
Friday. Review in 30 days.
The Respondent is ordered to pay $300 this Friday and
$300 next Friday. Review in 30 days.
Continued for 30 days. Respondent to pay $300 this
Friday and $300 next Friday.
“As long as an arrearage exists, the show cause will
continue until dismissed by the county attorney or
judge.”
Appeals
Screening
 Assignment
 Timeline

Screening-Civil or Criminal?
“[T]he character of the relief is dispositive
of the distinction between criminal and civil
contempt.”
Hancock v. Hancock, 122 N.C. App. 518,
522, 471 S.E.2d 415, 418 (1996),

Screening-Civil or Criminal?
Criminal Contempt
 Purpose is
punishment for past
non-compliance
 Imprisonment, fine
or combination
 Appeal is de novo to
Superior Court
Civil Contempt
 Purpose is to obtain
compliance with
order
 Purge (“keys to
jailhouse door”)
 Appeal is to the
Court of Appeals
Examples
1.
2.
3.
4.
AOC-CV-603 (Commitment Order For Civil Contempt
Child Support) states 30 days, appeal bond of $10,000.
“Defendant is in criminal contempt. She may purge
herself of this contempt by…”
“Defendant is in criminal contempt. Pay $26,000 by
next Friday.”
Civil contempt; incarcerated 30 days. Can be released
upon payment of $585. Must also pay regular monthly
payments and an extra $50 before coming back to
court in 45 days.
Civil Contempt-Motion to Stay

Motion to Stay. The judge can set an
appeal bond according to Rule 62 of the
NC Rules of Civil Procedure and
G.S. 1-289 made applicable to child
support cases pursuant to Clark v. Cragg,
171 N.C. App. 120, 614 S.E.2d 356
(2005)
Criminal Contempt-Bail
§ 5A-17. Appeals; bail proceedings.
(b) Upon appeal in a case where the judicial official imposes confinement, a
bail hearing shall be held within a reasonable time period after imposition of the
confinement. The judicial official holding the bail hearing shall be:
… (2) A superior court judge if the confinement is imposed by a district court
judge.
(3) A superior court judge other than the superior court judge that imposed
the confinement.
(c) A person found in contempt and who has given notice of appeal may be
retained in custody not more than 24 hours from the time of imposition of
confinement without a bail determination being made by a judicial official as
designated under subdivisions (1) through (3) of subsection (b) of this section.
If a designated judicial official has not acted within 24 hours of the imposition of
confinement, any judicial official shall act under the provisions of subsection (b)
of this section and hold the bail hearing.
Notice of Appeal-Civil Contempt

For civil contempt, a written notice of
appeal must be filed with the clerk of
superior court, addressed to the North
Carolina Court of Appeals, within 30 days
of the entry of the order
Notice of Appeal-Criminal
Contempt

For criminal contempt, the notice of appeal
may be given in open court or in writing to
the clerk of superior court within 10 days
of the entry of judgment.
Assignment
Specialized roster
 Appellate Entries

Appeals



A court-appointed attorney is not a free attorney.
The trial attorney might not represent the defendant at
the next stage.
 If it’s a civil contempt, the appeal will be assigned to
an appellate attorney through the OPR.
 If it’s a criminal contempt, the appeal should stay with
the same attorney if that attorney can handle cases in
superior court.
An appeal in the court of appeals is not a new trial and
that it usually takes at least a year to be resolved.
Appellate Entries
Appeal Numbers
Appeals
Civil Contempt
2011-2015
18
Outcomes
Reversed
5
Affirmed
1
Partially Affirmed
1
Withdrawn-Settled
4
Dismissed
4
Pending
3
The Future




Both House and Senate versions of 2015 Appropriations Act
direct a study titled “Study Future of Indigent Defense Services
Commission”
Directive is to study “[t]he Office of Indigent Defense Services
and determine whether changes should be made to the ways in
which appropriated funds are used to provide legal assistance
and representation to indigent persons”
Senate version also directs JPS Oversight to study “the
creation and implementation of fee schedules . . . to
compensate private assigned counsel representing indigent
defendants”
Study is to be completed and any recommendations reported
by the 2016 legislative session
Questions?
Wendy C. Sotolongo
123 W. Main Street, Suite 308
Durham, NC 27701
919-354-7230
[email protected]