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North Carolina v. Mauney4/7/1992
WYNN, Judge.
The State's evidence tended to show that defendant was charged with willfully neglecting or refusing to provide adequate support or maintenance for his illegitimate child pursuant to N.C. Gen. Stat. § 49-2 (1984). On 24 September 1990 and on 18 December 1990, the district court ordered defendant to submit to blood tests, but defendant refused.
The State made a show cause motion, and the district court found that Judge Hodges had entered an order compelling blood tests to determine parentage on 18 December 1990. The order directed defendant to appear at the Caldwell County Health Department on 16 January 1991 to submit to "Red Cell, HLA and any other blood-grouping tests and comparisons which have been developed and adapted for the purposes of establishing or disproving parentage." The district court further found that defendant appeared, but refused to submit to the test because the blood was to be withdrawn by a phlebotomist rather than a nurse or a physician licensed under Chapter 90 of the General Statutes.
The district court concluded, as a matter of law, that defendant, without reasonable cause, had failed to comply with a reasonable court order. The district court further found that defendant was in "Indirect Civil Contempt" and ordered him to submit to the blood test on 17 April 1991 as arranged by laboratory personnel. Finally, the district court named the person to withdraw defendant's
blood, and determined that she was qualified. From the judgment or other Disposition, defendant appealed.
I.
Prior to discussing the merits of this case, we must first address the State's motion to dismiss defendant's appeal. For the reasons which follow, we deny the State's motion.
The State contends that this Court lacks jurisdiction to hear this appeal because, as a criminal action, appeal lies in the superior court. Under N.C. Gen. Stat. § 5A-17 (1986), " person found in criminal contempt may appeal in the manner provided for appeals in criminal actions, except appeal from a finding of contempt by a judicial official inferior to a superior court Judge is by hearing de novo before a superior court Judge." Alternatively, " person found in civil contempt may appeal in the manner provided for appeals in civil actions," id. § 5A-24; specifically, to the Court of Appeals, id. § 7A-27 (1989).
In O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985), our Supreme Court discussed the difficulty of distinguishing between civil and criminal contempt. The Court stated the following: "Where the punishment is to preserve the court's authority and to punish disobedience of its orders, it is criminal contempt. Where the purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil." Id. at 434, 329 S.E.2d at 372 (citing Blue Jeans Corp. v. Amalgamated Clothing Workers of America, 275 N.C. 503, 508-09, 169 S.E.2d 867, 869 (1969)). See also N.C. Gen. Stat. §§ 5A-11, 5A-21 (1986). This Court, in Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988), because of the confusion engendered by discerning the purpose of a given remedy, clarified the O'Briant test. See Note, The Distinction Between Civil and Criminal Contempt in North Carolina, 67 N.C. L. Rev. 1281 (1989). The Bishop Court created a bright-line rule derived from the United States Supreme Court's decision in Hicks ex rel. Feiock v. Feiock, 485 U.S.
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