On certiorari to review the order of Read, District Judge, presiding at a Regular Session of the District Court of Durham County on 15 September 1980, said order having been entered on 12 November 1980.
Does an indigent defendant in an action under G.S. 49-2, who receives a sentence of imprisonment suspended on condition that he pay child support, have a constitutional right to appointed counsel? We decline to answer the question posed because it is not properly before us.
Being the father of an illegitimate child is no crime. The only prosecution authorized by Chapter 49 of the General Statutes is grounded on the willful neglect or refusal of any parent to support and maintain his or her illegitimate child -- the paternity itself is no crime. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970). The question of paternity, although a preliminary requisite to conviction, is merely incidental to the prosecution for nonsupport. State v. Robinson, 125 N.C. 408, 72 S.E.2d 857 (1952); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964). The father of an illegitimate child may be convicted of failure to support such child when, and only when, it is established beyond a reasonable doubt that such failure was willful, that is, without just cause, excuse or justification. The willfulness of the failure to support is an essential ingredient of the offense, must be charged in the warrant or bill of indictment and proven beyone a reasonable doubt. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956). Willfulness is not
presumed from a failure to support. State v. Cook, 207 N.C. 261, 176 S.E. 757 (1934).
The ruling of Judge Read on defendant's motion for appropriate relief is not yet ripe for appellate review because the trial court has not determined whether defendant has willfully failed to comply with the 30 March 1978 judgment and has not invoked the four-month suspended sentence. If defendant has not willfully failed to comply with said judgment, that ends the matter. Defendant may not be imprisoned or otherwise punished because he has not been found in contempt. If it be determined that he is in contempt as a result of which the suspended sentence is invoked, defendant may appeal as of right to the Court of Appeals to review that decision, and Judge Read's ruling on his motion for appropriate relief is subject to review as part of that appeal. G.S. 15A-1422(c)(1).
The case is remanded to the trial court for trial of the issue whether defendant has willfully failed to comply with the conditions upon which the four-month prison sentence was suspended and whether the suspended sentence should be invoked.
For the reasons stated, we conclude that certiorari was improvidently granted. The writ is vacated and the case remanded for further proceedings consistent with this opinion.