COUNTY OF DURHAM, by and through DURHAM DSS, EX REL: SELEMA ALSTON caretaker SHARON Y. BREWER mother, Plaintiffs,
OMEGA HODGES, Defendant.
in the Court of Appeals 16 May 2017.
by defendant from orders entered 14 June 2016 and 17 June
2016 by Judge Fred Battaglia in District Court, Durham County
No. 87 CVD 3689.
of the County Attorney, by Senior Assistant County Attorney
Geri Ruzage, for plaintiffs-appellees.
& Reece, by Mary McCullers Reece, for
Omega Hodges ("defendant") appeals from the trial
court's civil contempt commitment order entered 14 June
2016 and petitions for certiorari as to the trial court's
order entered 17 June 2016. On appeal, defendant argues that
the trial court erred by finding that he had the ability to
comply with the child support order and purge condition
because the trial court's findings were not supported by
competent evidence. Because defendant timely appealed from
the trial court's 14 June 2016 order, the trial court was
divested of jurisdiction to enter the 17 June 2016 order.
Thus, for reasons explained in more detail below, we vacate
the 17 June 2016 order and reverse the 14 June 2016 order.
entered into a voluntary child support order in 1987. On 23
November 2015, the Durham County Child Support Enforcement
Office filed a motion for order to show cause on behalf of
plaintiff Selema Alston. The motion noted that defendant was in
arrears of $7246.88 and that the last payment was received in
July 2014. An order to appear and show cause was subsequently
signed that same date, 23 November 2015.
February 2016, a hearing was held, and the trial court
inquired into defendant's current employment and medical
conditions that may interfere with his ability to obtain and
maintain employment. Defendant testified that he was
currently unemployed and that he had last held employment in
June 2014 at Church's Chicken, but it ended because of
his disability. Defendant presented a letter dated for the
previous day, 24 February 2016, from his primary care
physician, Dr. Kristin Ito, describing defendant's
medical issues. Defendant's counsel asked for a
continuance in order to obtain a subpoena for Dr. Ito in
order to verify the contents of the letter. The trial court
granted the request.
hearing resumed on 14 June 2016. The transcript of that
hearing has not been provided on appeal because the
recordings were found to have no discernible audio, but a
reconstruction of the testimony presented at that hearing is
in the record. The reconstruction states the following:
Reconstruction of testimony presented 14 June
Dr. Eugenia Zimmerman practiced at Triangle [Orthopedic]
Associates. She testified by telephone.
Dr. Zimmerman evaluated [defendant's] condition on 31
October 2014. [Defendant] presented with shoulder pain,
degeneration of the cervical intervertebral disc, and
cervical myelopathy. He had no feeling in his hands and was
unable to hold things or stand up for prolonged periods of
time. As of the time of the visit, [defendant's]
condition prevented him from maintaining gainful employment.
When asked to consider whether [defendant] could hold a
position such as greeter at Walmart if Walmart were willing
to accommodate his medical condition, Dr. Zimmerman testified
that the requirement of standing for extended periods of time
would likely pose a problem. Surgery might have slowed the
worsening of the condition, but could not have alleviated the
problem. [Defendant] did not have medical insurance at the
time of his visit.
Dr. Kristin Ito had a general medical practice at Lincoln
Community Health Center. She evaluated [defendant] on 24
February 2016. Dr. Ito also testified by telephone.
Dr. Ito testified that her 24 February 2016 letter and notes
were based largely on Dr. Zimmerman's previous diagnosis.
When she saw [defendant], his condition had worsened.
[Defendant] was in constant pain and took numerous
medications that interfered with his ability to function. He
was not able to maintain gainful employment. [Defendant]
testified that he did not have feeling in his hands, that he
had trouble standing, and that his medications made it hard
for him to function. His last job had been at Church's
Chicken in 2014. He had been able to work there for only five
hours per week because of his medical condition. He was
terminated from Church's and had not been able to perform
even basic janitorial services since that time. [Defendant]
had little education and had never held any type of work
other than janitorial. He had applied for jobs, but had not
been offered employment anywhere.
[Defendant] lived with his parents. He had no income. He did
not smoke or drink and relied on friends to drive him to
appointments and court. He "could not remember" the
last time he had any money. [Defendant] lived on food stamps
and got his clothes from a local clothing closet. Only in
2016, he had gotten back on Medicaid and begun seeking
medical treatment again.
Ito's letter, dated 24 February 2016, notes that she saw
defendant on that date as a follow up for his chronic neck,
back, and shoulder pain. She explained his prior diagnosis
through Triangle Orthopedics and noted that their evaluation
found his issues were likely to progress and concluded that
defendant "is not able to maintain gainful employment as
a result of this disability." Dr. Ito referred defendant
back to the orthopedic doctor for further treatment.
presented no evidence other than the records of
defendant's missed support payments.
June 2016, the same day as the hearing, the trial court
signed and filed a "Commitment Order for Civil Contempt
Child Support, " directing the sheriff to take defendant
into custody immediately and "remain in custody until
he/she purges himself/herself of contempt by paying into the
office of the Clerk of Superior Court" the sum of $1,
000.00. This order is a form order, AOC-CV-603, Rev. 3/03.
None of the boxes on the form are checked. The court order
upon which contempt was based is not identified. All
additions to the form are handwritten. The only blanks filled
in are the county, Durham; the court file number; the
defendant's name; the date; the trial judge's
signature; and "Purge $1000.00 or serve 90 days"
which appears in the ...