concurring.
The character of the relief ordered by the trial court is the ■dispositive distinction between criminal and civil contempt, and because the trial court ordered defendant incarcerated, but provided for defendant’s release from jail upon payment of the amount of arrearage owed, I agree with the majority that the proceeding was one for civil contempt. See Bishop v. Bishop, 90 N.C. App. 499, 504-05, 369 S.E.2d 106, 108-09 (1988) (contempt order is remedial and coercive and thus civil in character if the contemnor may avoid or terminate his imprisonment by performing some act required by the court). I write separately to emphasize that the trial court failed to make a finding that • defendant has the present ability to comply with the court order, and there is no evidence in the record to support such a finding. Under these circumstances, the lack of the required finding is reversible error. See Adkins v. Adkins, 82 N.C. App. 289, 293, 346 S.E.2d 220, 222 (1986) (trial court in civil contempt proceeding must find that the alleged con-temnor has the present ability to comply with the court order); Hodges v. Hodges, 64 N.C. App. 550, 553, 307 S.E.2d 575, 577-78 (1983) (failure to make finding that alleged contemnor has present ability to pay reversible error when there is no evidence in the *55record to support such a finding). However, defendant has failed to properly preserve this issue for appeal, see N.C.R. App. P. 10 (1992) (scope of appellate review confined to a' consideration of those assignments of error properly set out in the record on appeal), and I respect the majority’s decision not to exercise its discretion under N.C.R. App. P. 2 to suspend the rules in order to address the issue.