Ex parte Brown

• Court: California Court of Appeals
• Writing for the Court: SHINN
• Citation: Ex parte Brown, 288 P.2d 27, 136 Cal.App.2d 40 (Cal. App. 1955)
• Decision Date: 05 October 1955
• Docket Number: Cr. 5483
• Parties: In re Stuart F. BROWN on Habeas Corpus.

Page 27

288 P.2d 27

136 Cal.App.2d 40

In re Stuart F. BROWN on Habeas Corpus.

Cr. 5483.

District Court of Appeal, Second District, Division 3, California.

Oct. 5, 1955.

Robinson & Powers, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Robert C. Lynch, Deputy County Atty., Los Angeles, for respondent.

SHINN, Presiding Justice.

Habeas corpus was issued on petition of Stuart F. Brown who was in custody under sentence of 5 days imprisonment for failure to comply with a judgment which ordered him to pay a monthly sum for the support of his divorced wife. The question for decision in whether his failure to go to work and earn money to be applied on his obligation under the judgment warranted his conviction of contempt of the authority of the court.

The issue was framed by the affidavit of his former wife upon which the citation was issued. The affidavit was in the form of a standard questionnaire used in such matters and its averments consisted of answers to specific questions. The substance of the affidavit was that by judgment of divorce given on March 28, 1952, pursuant to a property settlement agreement, petitioner was ordered to pay his former wife $350 per month; as of March 28, 1955, he was delinquent in the sum of $800, as the balance of sums accrued during January, February and March. In answer to the question 'Has the adverse party sufficient income to comply with the above mentioned order. (State nature and amount of such income. Do not base answers on information and belief.)', the affidavit stated as follows: 'Defendant is a very well educated, healthy man, 45 years of age. Until Cot. 15, 1954, defendant was employed earning in excess of $18,000.00 per year. Defendant claims to have been unemployed since that date. Defendant is remarried and claims that he is supported by his present wife who has substantial property and income, which he claims is her separate property. Plaintiff alleges that defendant will not sincerely attempt to become employed for the reason that he would be required to pay such income to plaintiff under the existing court order.' There were no other statements relevant to the question of defendant's ability to comply with the order.

Considered as the best answers that could be given by the affiant and in the absence of any other pertinent statements of facts except the fact that petitioner had had the ability to comply with the order from the time the judgment was rendered until January 1955, the affidavit must be construed as asserting that petitioner was dependent upon his earnings for ability to make the payments. Although the affiant stated her belief that petitioner would not sincerely attempt to become employed because it would enable him to meet his payments, this clearly was not sufficient to charge him with wilfully refusing to work for the express purpose of evading his obligation of support. It was not alleged that he voluntarily gave up his employment or that remunerative employment was available to him and that he had refused and would continue to refuse to accept it. This is not to intimate that the affidavit would have shown a contempt had such allegations been made. That question is not before us.

A contempt proceeding in a divorce case does not differ in its essentials from other types of prosecution for contempt. The principles and the formalities are the same. The affidavit which forms the basis for the citation will be construed in favor of the accused; its insufficiencies may not be cured by presumptions or inferences as to material facts that are not alleged. Groves v. Superior Court, 62 Cal.App.2d 559, 145 P.2d...