Tbis action bas heretofore been before tbis Court. Vaughan v. Vaughan, 211 N. C., 354.
Tbe judgment of Barnhill, J., as to the payment by plaintiff to defendant of $60.00 per month alimony pendente Hie for the support of herself and infant child and reasonable attorney’s fees was sustained. The plaintiff did not comply with the order of the court and the petition now considered is to compel plaintiff to pay the judgment and attorney’s fees or be punished for contempt. In the judgment is the following:
“That the plaintiff, Ross L. Yaughan, is in contempt of court because of his willful failure and neglect to comply with the said order of Judge Barnhill. It is, therefore, considered, ordered, and adjudged by the court that the respondent, Ross L. Yaughan, is sentenced to be committed to and confined in the common jail of Nash County, N. C., until he complies with said order of Barnhill, Judge, of 10 October, 1936.”
N. C. Code, 1935 (Michie), sec. 978: “Any person guilty of any of the following acts may be punished for contempt: . . . Sec. 4. Willful disobedience of any process or order lawfully issued by any court.” In re Odum, 133 N. C., 250 (251-2); West v. West, 199 N. C., 12; Nobles v. Roberson, 212 N. C., 334 (337). In In re Hege, 205 N. C., 625 (630), we find:
“We think that evidence should be taken by the clerk on all the disputed matters and a complete statement of the account made up by him and his conclusion of law found thereon. From the present state of the record we cannot hold that there was a willful disobedience of any process or order lawfully issued by the clerk.”
We think the court below should take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and work — an inventory of his financial condition. From the facts found, determine if plaintiff is financially able to pay the $60.00 per month for his wife and child and attorney’s fees according to the judgment of Judge Barnhill. If his failure to do so was a willful disobedience to the order of Judge Barnhill, then punish him for contempt.
From the record it seems that plaintiff has paid $20.00 each month for the support of his child, but has refused to pay anything for the support of his wife. If he can, and did not, this is evidence of his willful disobedience to the order of Judge Barnhill. From the present state of the record we cannot hold that there was a “willful disobedience of any process or order lawfully issued by any court.”
For the reasons given, the cause is
Error and remanded.
Barnhill, J., took no part in the consideration or decision of this case.