Hinman, Application of

• Decision Date: 02 February 1966
• Docket Number: Cr. 11638
• Citation: 49 Cal.Rptr. 162,239 Cal.App.2d 845
• Court: California Court of Appeals Court of Appeals
• Parties: Application of Charles W. HINMAN, Petitioner.

Page 162

49 Cal.Rptr. 162

239 Cal.App.2d 845

Application of Charles W. HINMAN, Petitioner.

Cr. 11638.

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

Feb. 2, 1966.

Hearing Denied March 30, 1966.

Caryl Warner, Los Angeles, for petitioner.

Murray M. Chotiner, Newport Beach, and George Magit, Beverly Hills, for real party in interest.

FRAMPTON, Justice pro tem. ^*

Habeas corpus to review a judgment of imprisonment for contempt.

We will confine this opinion to matters relating to Count III of the order to show cause for the reasons hereinafter stated.

The petitioner's principal point in attacking the validity of the judgment, as it relates to Count III, is that he was charged in a single count with three possible contempts and that by reason thereof he was unable to prepare his defense, that he was not apprised of the precise charge against him and, therefore, would be unable to properly plead double jeopardy in the event a further prosecution was had on the subject of the three separate orders.

Petitioner is the defendant in a divorce action filed by his wife against him on February 13, 1963, entitled 'MARCIA B. HINMAN, Plaintiff, v. CHARLES W. HINMAN, MILDRED E. BATES, JOHN DOE, RICHARD DOE, MARY DOE and SUSAN DOE, Defendants' numbered D625330 in the Superior Court of the State of California for the County of Los Angeles. After trial of the action, and on March 13, 1964, an interlocutory decree of divorce was entered wherein the following order, material to the issues herein, was made. '5. Defendant Charles W. Hinman is hereby ordered to pay directly to Plaintiff's attorneys Murray M. Chotiner and George Magit the sum of $4,000 as attorneys' fees in addition to such sums as have heretofore been awarded, payable at the rate of $500 per month on the first day of each and every month commencing February 1, 1964, and further that said defendant is hereby ordered to pay said attorneys' costs in the sum of $448.37 that have been expended in behalf of plaintiff's prosecution of this action.' On June 19, 1964, petitioner filed a notice of appeal from the interlocutory decree of divorce. On July 10, 1964, the court made the following order, 'Re Motion of Plaintiff for attorney fees, costs, and etc.: Defendant is ordered to pay to counsel for plaintiff for and on account of attorney's fees on appeal the sum of $1,500.00, payable $500.00 on August 1, 1964, $500.00 on September 1, 1964 and $500.00 on October 1, 1964, provided, that should the defendant's appeal be dismissed, the defendant will be ordered to pay to plaintiff's attorney the total sum of $250.00 to this date for attorney's fees, payable forthwith. Defendant is restrained from proceeding further with his appeal until he pays the attorney's fees as ordered.'

On April 1, 1965, the plaintiff filed her declaration in support of an order to show cause why the petitioner should not be held in contempt of court for his alleged willful disobedience of the terms of the interlocutory decree of divorce wherein he was directed to pay to his wife's attorneys the sum of $4,000 for their fees and the further sum of $448.37 for their costs incurred in connection with the prosecution of the wife's action. The declaration also set forth the alleged willful violation of the order of July 10, 1964, relating to the payment of attorney's fees on appeal. Portions of the foregoing orders were set forth separately in the declaration and it was further alleged therein that no payments had been made on any of them. After many continuances, the hearing on the order to show cause issued upon the foregoing declaration, was finally heard and submitted for decision on September 24, 1965. On September 28, 1965, the court entered its judgment finding petitioner in contempt of court on three counts. Count I was predicated upon the order contained in the interlocutory decree of divorce to pay the sum of $4,000 attorneys' fees; Count II was predicated upon the order entered in the same decree to pay the sum of $448.37 costs and, Count III was predicated upon the order of July 10, 1964, to pay the sum, as alleged in the declaration, of $1,500 attorney's fees on appeal. The trial court imposed a sentence of five days in the Los Angeles County Jail as to each of the three counts and ordered the sentences to run consecutively. The court then suspended the execution of the sentences to 10 a. m. on November 1, 1965, to enable the defendant to purge himself of the contempts by complying with the orders. The judgment further provided that, 'If defendant does not comply with said orders on or before said hour and date, said jail sentences shall be forthwith executed, and defendant shall then be remanded to the custody of the Sheriff of Los Angeles County on proper application by plaintiff supported by affidavit that said orders have not been complied with.'

On November 15, 1965, one of the attorneys for the plaintiff made an application for execution of the foregoing judgment on the grounds that the defendant had not complied with the orders of court and had made no effort to purge himself of the contempts. An order to show cause was issued on the application and a hearing thereon was held on December 7, 1965. At this hearing the court found that the defendant had failed to purge himself of the contempts and ordered the defendant committed in accordance with the judgment theretofore pronounced. On December 16, 1965, while serving his sentence, the defendant filed his petition for a writ of habeas corpus, which this court granted on December 17, 1965. The writ was made returnable in this court on January 19, 1966. Pending the hearing on the writ the defendant was ordered released from custody without bail. It is clear from the foregoing summary of events that when this court granted the petition the defendant had already served the sentences pronounced on Counts I and II. This leaves for consideration the validity of the judgment pronounced as to Count III.

As heretofore pointed out, the judgment of contempt as to Count III is predicated upon the defendant's alleged willful failure to comply with the order of July 10, 1964, relating to the payment of the wife's attorneys' fees on appeal. This order as entered by the court, directed the defendant to pay the...