Opinion
No. COA12–1264.
2013-07-16
STATE of North Carolina v. Jane Brawley JORDAN.
Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Peter Wood for defendant-appellant.
Appeal by defendant from judgment entered 7 June 2012 by Judge Jesse B. Caldwell in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 April 2013. Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Peter Wood for defendant-appellant.
Jane Brawley Jordan, pro se.
Panel consisting of: Judges BRYANT, HUNTER, JR., ROBERT N., and McCULLOUGH.
PER CURIAM.
Because Jane Brawley Jordan (“defendant”) failed to comply with the trial court's order for a forensic examination to determine her mental competency, we affirm the trial court's order holding her in contempt.
Facts and Procedural History
In 2011, Elizabeth Towne's Homeowner's Association, Inc., and Elizabeth Towne's Board of Directors filed a complaint against defendant and her parents, Betty M. Brawley and Bobby P. Brawley. During this litigation, on 9 May 2012, in Mecklenburg County Superior Court, Judge Jessie Caldwell entered an order for forensic examination to determine the mental competency of defendant.
The 2011 complaint sought injunctive relief against defendant “from a pattern of malicious prosecution, abuse of process, and defamation, monetary damages in excess of $10,000.00, and a gatekeeper order [to prevent] Defendant Jordan from filing further legal actions with the Court.” Defendant's parents are alleged to have executed a limited Power of Attorney, which granted defendant the authority to act as their attorney-in-fact concerning property located at 9510 Elizabeth Townes Lane in Charlotte, North Carolina. The complaint alleged that since 2005, defendant had
engaged in a pattern of activity which has constituted a nuisance and harassment to [the Elizabeth Towne's Homeowner's Assocation, Inc., and Elizabeth Towne's Board of Directors], including countless emails and letters, many of which have been copied and distributed to public officials, including North Carolina senators, President Barack Obama, various state agencies, and others.
The complaint further alleged that on 5 March 2011, defendant verbally abused the president of Elizabeth Towne's Board of Directors, using profane and derogatory language. The trial court found that at the hearing on pre-trial motions, defendant and her parents “appeared somewhat disoriented, distracted, and unresponsive to the Court's inquiries.” Based on the foregoing, “particularly the behavior, demeanor, and conduct of [defendant and her parents] in open court” the trial court “expressed concern about the mental state, capacity, and competency” of defendant. The 9 May 2012 order specified that defendant was to submit to a forensic screening examination by a healthcare professional on 15 May 2012.
On 16 May 2012, the trial court entered an order for defendant to show cause as to why she should not be held in contempt for not complying with the 9 May 2012 order by failing to appear at the 15 May 2012 scheduled examination. Following a hearing held on 7 June 2012, the trial court entered an order finding defendant to be in willful and deliberate criminal contempt of the 9 May 2012 order. Defendant was sentenced to 30 days imprisonment to be suspended pursuant to the following terms: (1) defendant was to be incarcerated for 5 days; and (2) defendant was to be placed under supervised probation for 18 months. Defendant appeals.
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Defendant's sole issue on appeal is whether the trial court erred by finding her in criminal contempt.
Defendant first argues that a defendant may only be held in criminal contempt for violating a valid court order. Defendant asserts that because the 9 May 2012 order for defendant to submit to a forensic screening examination was not a “lawful” order, the trial court erred by entering the 14 June 2012 Order holding defendant to be in contempt. We disagree.
“In determining whether one may be held in contempt for violating a court order, a distinction must be made between erroneous and void orders.” 17 Am.Jur.2d Contempt § 127 (2004).
An order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored. In contrast, a voidable order stands until it is corrected. It may only be corrected by a direct attack; it may not be attacked collaterally. An irregular order, one issued contrary to the method of practice and procedure established by law, is voidable.
State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182–83 (1986) (citations omitted). “An order duly issued by a court having subject matter jurisdiction over the case or controversy before it and personal jurisdiction over the parties to that case or controversy must be obeyed, regardless of the ultimate validity of the order.” 17 Am.Jur.2d Contempt § 127 (2004) (emphasis added).
Section 1A–1, Rule 35(a), of the North Carolina General Statutes provides that
[w]hen the mental or physical condition ... of a party ... is in controversy, a judge of the court in which the action is pending ... may order the party to submit to a physical or mental examination by a physician[.] The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
N.C.G.S. § 1A–1, Rule 35(a) (2011) (emphasis added).
The 9 May 2012 order specified that defendant “[was] to appear at the Gaston County Jail at 425 N. Marietta Street to meet with Andrew Berger, Forensic Examiner on Tuesday, May 15, 2012, at 10:30 a.m., at which time and place she will submit to a forensic screening examination by said healthcare professional.” The order also stated that defendant was “not to be incarcerated, but is there for the limited purpose of meeting with the forensic examiner, and following the completion of said examination, will be free to leave the jail facility.” This order was served upon defendant on 13 May 2012.
Specifically, defendant argues that the order had no legal effect because the trial court failed to “assert that Berger is a physician” as required by statute.
Assuming arguendo that the 9 May 2012 order issued by the trial court was an erroneous order for failure to specify that Berger was a physician as required pursuant to N.C.G.S. § 1A–1, Rule 35, it would be a voidable order rather than a void order. Defendant does not argue lack of subject matter jurisdiction or lack of personal jurisdiction by the trial court to enter the 9 May 2012 Order. Therefore, defendant was required to obey the 9 May 2012 Order, “regardless of the ultimate validity of the order.” 17 Am.Jur.2d Contempt § 127 (2004) (emphasis added). We overrule defendant's argument which amounts to a collateral attack on the trial court's order.
Next, defendant argues that the trial court erred by entering the 9 May 2012 order because she did not willfully violate the order.
It is well established that
[a] contempt hearing is a non-jury proceeding. The standard of appellate review for a decision rendered in a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment. Findings of fact are binding on appeal if there is competent evidence to support them, even if there is evidence to the contrary.
State v. Simon, 185 N.C.App. 247, 250, 648 S.E.2d 853, 855 (2007) (citation and quotation marks omitted). In addition, the trial court's unchallenged findings of fact are binding on appeal. State v. McLeod, 197 N.C.App. 707, 711, 682 S.E.2d 396, 398 (2009) (citation omitted).
Defendant challenges finding of fact number 5 and conclusion of law number 2 which provide the following:
5. That [defendant's] failure to appear at the said forensic screening examination was without good cause and constitutes willful and deliberate contempt of this Court's order of May 9, 2012, and that she is in willful violation and disobedience of the Court's said order, in violation of GS 5A11.
...
2. That the [defendant] is in willful and deliberate contempt of this Court's order of May 9, 2012, by willfully disobeying the court order of May 9, 2012, in that she failed to appear at the forensic screening examination with Andrew B[e]rger on May 15, 2012, at 10:30 a.m., in Gaston County Jail, in violation of G.S. 5A–11.
Criminal contempt is “[w]illful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.” N.C. Gen.Stat. § 5A–11(a)(3) (2011). “In order for an act to be ‘willful’ as the term is used in criminal law, it must be done deliberately and purposefully in violation of law, and without authority, justification or excuse.” State v. Chriscoe, 85 N.C.App. 155, 158, 354 S.E.2d 289, 291 (1987) (citation omitted).
A review of the record indicates that finding of fact number 5 is supported by competent evidence and conclusion of law number 2 is supported by the trial court's findings of fact. On 13 May 2012, defendant was served with the order for forensic examination. On 15 May 2012, defendant sent a fax to Andrew Berger and a letter to Judge Caldwell. The content of these communications indicate that defendant understood the requirements of her forensic screening examination but refused to comply with the order because she was “not given enough notice to re-arrange [her] schedule,” that the order was “extremely inconsiderate,” and that she had a funeral to attend the day before the ordered examination. Furthermore, defendant argued at the contempt hearing that she did not comply with the trial court's order because she was “very stressed out” and “didn't feel prepared mentally for a mental evaluation.” The foregoing evidence strongly supports the finding and conclusion that defendant's failure to comply with the trial court's order was “deliberately and purposefully in violation of law, and without authority, justification or excuse.” Chriscoe, 85 N.C.App. at 158, 354 S.E.2d at 291. Defendant's argument is overruled.
Lastly, defendant contends that “[i]f contempt was warranted, the court should have found [defendant] in civil contempt, not criminal contempt.”
[C] ontempt in this jurisdiction may be of two kinds, civil or criminal, although we have stated that the demarcation between the two may be hazy at best. Criminal contempt is generally applied where the judgment is in punishment of an act accomplished tending to interfere with the administration of justice. Civil contempt is a term applied where the proceeding is had to preserve the rights of private parties and to compel obedience to orders and decrees made for the benefit of such parties.
File v. File, 195 N.C.App. 562, 565–66, 673 S.E.2d 405, 408 (2009).
Here, the trial court's findings of fact regarding defendant's conduct in its contempt order fits squarely within section 5A–11(a)(3) of the North Carolina General Statutes (Criminal contempt is the “[w]illful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.”):
1. That on or about May 9, 2012, the undersigned entered an order for a forensic examination of mental competency of [defendant][.]
2. That the said order was lawfully served upon [defendant].
3. That [defendant] failed to appear at the appointed hour and place for the said forensic examination[.]
4. That [defendant's] explanation for not having done so included the fact that she received short notice, that she had questions about the nature of the examination, that she was concerned about the cost, and that she was awaiting a transcript of the March 26, 2012, Superior Court hearing in the civil matter. That the notice [defendant] received was legally sufficient; that the court order did not dictate she had to pay for the examination; and that the examination could take place before the forensic examiner reviewed said transcript, and that a review of the transcript is not necessary to render an opinion of [defendant's] mental competency.
5. That [defendant's] failure to appear at the said forensic screening examination was without good cause and constitutes willful and deliberate contempt of this Court's order of May 9, 2012, and that she is in willful violation and disobedience of the Court's said order, in violation of GS 5A–11.
The trial court also stated during the contempt hearing that “[i]n addition to punishing [defendant] for the contempt, I hope this will help her or give her some structure, some guidance, and I hope it will curtail some of the problems that have arisen in the civil case.” This statement supports the purpose of criminal contempt, “where the judgment is in punishment of an act accomplished tending to interfere with the administration of justice .” File, 195 N.C.App. at 565, 673 S.E.2d at 408. For the foregoing reasons, the trial court did not err in finding defendant to be in criminal contempt and the order of the trial court is affirmed.
Affirmed.
Report per Rule 30(e).