Lamm v. . Lamm

ErviN, J. A person cannot be punished for contempt in failing to obey an order issued by a court unless his disobedience is willful. G. S., *250 5-1, subsection 4. One acts willfully when be acts knowingly and of stubborn purpose. West v. West, 199 N. C., 12, 153 S. E., 600; In re Hege, 205 N. C., 625, 172 S. E., 345. Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. As no testimony was presented at the hearing upon the rule to show cause tending to negative the truth of the explanation made by defendant, or to establish as an affirmative fact that he possessed the means wherewith to comply with the order for alimony and counsel fees at any time after the entry of such order, the finding that the defendant willfully disobeyed the order of the court is not supported by the record, and the judgment committing him to imprisonment for contempt must be set aside. Smithwick v. Smithwich, 218 N. C., 503, 11 S. E. (2d), 455; Berry v. Berry, 215 N. C., 339, 1 S. E. (2d), 871; Vaughan v. Vaughan, 213 N. C., 189, 195 S. E., 351; West v. West, supra. It is so ordered. Error and remanded.