Freeman v. Superior Court, San Diego County

• Decision Date: 29 April 1955
• Court: California Supreme Court
• Parties: Chester Lee FREEMAN, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF SAN DIEGO, and Bessie Meriam Freeman, Respondents. L. A. 23643.

Page 857

282 P.2d 857

44 Cal.2d 533

Chester Lee FREEMAN, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF SAN DIEGO, and Bessie Meriam Freeman, Respondents.

L. A. 23643.

Supreme Court of California, In Bank.

April 29, 1955.

Vincent Whelan, San Diego, for petitioner.

Edgar B. Hervey and James Edgar Hervey, San Diego, for respondents.

SPENCE, Justice.

Petitioner seeks to annul the order of respondent court adjudging him guilty of contempt for failure to pay the sum of $195 theretofore ordered to be paid by him as counsel fees and court costs. He contends that his conviction of contempt was an act in excess of jurisdiction because there was no evidence to show that he had knowledge or notice of the provisions of the order which he allegedly disobeyed. However, the record in the contempt proceeding does not sustain his contention, and his conviction of contempt must be affirmed.

On July 9, 1954, petitioner was ordered to pay said sum in an action for divorce filed against him by respondent Bessie Meriam Freeman. Payment was not made. On September 10, 1954, the attorney for Mrs. Freeman initiated the contempt proceeding by an affidavit alleging in part, upon information and belief, that petitioner '* * * had full knowledge of the provisions of said order * * *.' Petitioner filed an answering affidavit denying that he had 'knowledge of the making or provisions of' the order at any time prior to September 16, 1954, when a copy was served upon him. He further alleged that he 'was not in court at the time said order was made and believed that his obligation to pay attorneys' fees was based upon a written stipulation which he signed on a date which he (did) not remember but which he believe(d) was approximately August 16, 1954.' On the hearing of the contempt proceeding, petitioner was not present, but was represented by his attorney. No testimony was introduced, and the matter was submitted upon the record in the divorce action, together with the above-mentioned affidavits. The court found that petitioner had at all times 'full knowledge of the provisions of the order,' had the ability to comply with its terms, and that his failure to do so was willful and contumacious. Petitioner was thereupon convicted of contempt.

Respondents do not question the rule that certiorari lies to review and annul a contempt order rendered without or excess of jurisdiction. 12 Cal.Jur.2d § 80, p. 101; Weber v. Superior Court, 26 Cal.2d 144, 148, 156 P.2d 923; Wilson v. Superior Court, 31 Cal.2d 458, 459, 189 P.2d 266. A contempt proceeding is not a civil action but is of a criminal nature even though its purpose is to impose punishment for violation of an order made in a civil action. Phillips v. Superior Court, 22 Cal.2d 256, 257, 137 P.2d 838. Accordingly, no presumptions of validity may be indulged in support of judgments in contempt, as would be the case with respect to ordinary judgments. 12 Cal.Jur.2d § 79, p. 101; In re Wells, 29 Cal.2d 200, 201, 173 P.2d 811; In re Du Bois, 120 Cal.App,2d 890, 892, 262 P.2d 340. But an examination will be made of the whole record before the trial court to determine whether there was any substantial evidence before it to sustain its exercise of jurisdiction. Bridges v. Superior Court, 14 Cal.2d 464, 485, 94 P.2d 983; City of Vernon v. Superior Court, 38 Cal.2d 509, 517, 214 P.2d 243.

In a prosecution for constructive contempt the affidavit on which the proceeding is based constitutes the complaint, Frowley v. Superior Court, 158 Cal. 220, 222, 110 P. 817; Mitchell v. Superior Court, 163 Cal. 423, 424, 125 P. 1061, the affidavit of defendant constitutes the answer or plea, Hotaling v. Superior Court, 191 Cal. 501, 505, 217 P. 217 P. 73, 29 A.L.R. 127, and the issues of facts are thus framed by the respective affidavits serving as pleadings. 12 Cal.Jur.2d § 67, p. 89; Uhler v. Superior Court, 117 Cal.App.2d 147, 151, 255 P.2d 29, 256 P.2d 90. A hearing must be had upon these issues. Hotaling v. Superior Court, supra, 191 Cal. at page 505, 217 P. 73. While the affidavit initiating the contempt proceeding may be based upon information and belief, Golden Gate Con. H. M. C. v. Superior Court, 65 Cal. 187, 190-191, 3 P. 628; Ex parte Brown, 66 Cal.App. 534, 537, 226 P. 650, it is insufficient as evidence to sustain a contempt conviction, under the hearsay rule. Gay v. Torrance, 145 Cal. 144, 152, 78 P. 540.

The parties agree that the alleged contemnor's notice or knowledge of the order that he is charged with violating is a jurisdictional prerequisite to the validity of a contempt order. 12 Cal.Jur.2d § 25, p. 41; Phillips v. Superior Court, supra, 22 Cal.2d 256, 257, 137 P.2d 838. Thus, the initiating affidavit is fatally defective if it fails to allege that the accused had notice or knowledge of the existence of the order at the time he is claimed to have violated it. Phillips v. Superior Court, supra, 22 Cal.2d at page 258, 137 P.2d 838, disapproving Ex parte Grigoris, 99 Cal. App. 455, 456, 278 P. 873, and Mattos v. Superior Court, 30 Cal.App.2d 641, 647, 86 P.2d 1056, insofar as they indicate that the recital of the jurisdictional fact in the affidavit is not necessary. The dispute here does not concern the sufficiency of the initiating affidavit, but rather the sufficiency of the evidency to sustain the contempt order. Petitioner contends that there was no showing of the essential fact that he had notice or knowledge of the order. He claims that the initiating affidavit is the only evidence bearing on this jurisdictional point and argues as follows: the recital there was on information and belief; his defense affidavit controverted this material allegation; and the hearsay evidence of the initinting affidavit on this essential point was not competent to sustain the contempt adjudication. The fact that one is a party to litigation does not, of itself, charge him with knowledge of an order or judgment made in connection with it. 12 Cal.Jur.2d § 25, p. 42; Phillips v. Superior Court, supra, 22 Cal.2d at page 258, 137 P.2d 838.

But contrary to petitioner's claims, the record is not devoid of competent evidence to support the trial court's finding. It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order. The general rule of agency, that notice to or knowledge possessed by an agent is imputable to...