concurring in result: I agree that the cause should be remanded for necessary findings of fact relating to the alleged contempt and also to defendant’s motion first made in his affidavit of September 30,1957, that the amount of the payments previously ordered should be reduced.
Moreover, I accept as correct the broad distinction between civil contempt and criminal contempt set forth in the per curiam opinion in Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157, and cases cited; but I deem it appropriate to indicate what I consider a further distinction of importance in this and similar cases.
In my opinion, to the extent the defendant is presently able to pay, but wilfully fails or refuses to pay, the amount now overdue, imprisonment would be for civil contempt. In such case, the limitations of G.S. 5-4 would -not apply; but the defendant could be lawfully confined for such length of time as such wilful contempt continued. To the extent the defendant is not presently able to pay the amount now overdue, a different question is presented. In such case, the question is whether he was able to pay at the time the payments became due and then wilfully failed or refused to make such payments. In the latter case, the punishment would be for “an act already accomplished,” that is, a past rather than a present and continuing contempt. His wilful disobedience in the past to the order of the court,- as distinguished from his present wilful disobedience to the order of the court, would, in *303my opinion, constitute a criminal contempt for which the permissible punishment would be that prescribed by G.S. 5-4.
It is noted that in Dyer v. Dyer, supra, the court found as a fact that defendant’s “continued refusal to pay alimony was wilful.”
Johnson, J., joins in concurring opinion.