Right to counsel

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Litigation, Civil Contempt in Family Court

In McBride v. McBride, 431 S.E.2d 14 (N.C. 1993), the North Carolina Supreme Court held that appointment of counsel for indigent defendants was in fact required in a civil contempt case, if the case could result in a loss of liberty for the defendant.


The U.S. Supreme Court's ruling in Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not "especially complex") may have a negative impact on the McBride decision. The McBride court relied on a belief that there was a federal constitutional presumption in favor of counsel when physical liberty is threatened, but Turner put that idea to rest. And given that no independent state ground was provided, the McBride decision is on shaky ground, at least for cases within Turner's purview. 


Subsequent to Turner, in Young v. Young, 736 S.E.2d 538 (N.C. App. 2012), the Court of Appeals cited both Turner and McBride but gave little indication of what it would do on civil contempt cases generally because it found that the defendant had failed to meet his burden of proving that he was indigent. The Young court did say, though, that "Contrary to Plaintiff's assertion, Turner does not stand for the proposition that counsel is not required only when the opposing party is also unrepresented; rather it finds both that in such a scenario, counsel is not required if there are appropriate safeguards in place, and that counsel is not 'automatically require[d]' in all civil contempt hearings for child support from indigent litigants.'"


Then, in Tyll v. Berry, 758 S.E.2d 411 (N.C. App. 2014), the Court of Appeals cited Turner for the proposition that “In civil contempt proceedings, the question whether an indigent, alleged contemnor is entitled to counsel under the Due Process Clause of the Fourteenth Amendment to the United States Constitution is a determination made on a case-by-case basis.”  While the court cited McBride elsewhere, it did not mention McBride’s holding that counsel is required in all contempt cases. 


Several months later, in D'Alessandro v. D'Alessandro, 762 S.E.2d 329, 332 (N.C. App. 2014) the Court of Appeals quoted McBride as authoritatively establishing a right to counsel, did not mention Turner or Tyll, and held, “Where a defendant faces the potential of incarceration if held in contempt, the trial court must inquire into the defendant's desire for and ability to pay for counsel to represent him as to the contempt issues.” 


Then, in Wilson v. Guinyard, 801 S.E.2d 700, 704 (N.C. App. 2017), the court acknowledged the holdings in McBride and D’Alessandro as providing a right to counsel in civil contempt proceedings for nonsupport, as well as its holding in Tyll that came to the opposite conclusion.  It then avoided the issue by concluding, “Here, Defendant was held in civil contempt for his failure to comply with provisions of the custody order regarding the exchange time for weekend visitations. Defendant has the ability to comply with the purge conditions as imposed and the instant case presents no ‘unusually complex issues of law or fact which would necessitate the appointment of counsel.’”

Appointment of Counsel: categorical Qualified: yes