Liu, Application of

Decision Date20 May 1969
Docket NumberCr. 16186
Citation273 Cal.App.2d 135,78 Cal.Rptr. 85
PartiesApplication of David K. LIU for a Writ of Habeas Corpus.
CourtCalifornia Court of Appeals Court of Appeals

John D. Maharg, County Counsel, and Jean Louise Webster, Deputy County Counsel, for respondent, Superior Court of Los Angeles County.

ALARCON, * Associate Justice Pro Tem.

The petitioner, David K. Liu, has filed an application for a writ of habeas corpus to free him from the threat of further incarceration under an order of the Superior Court for Los Angeles County which found him in contempt and ordered his imprisonment until he has complied with certain court orders.

After reviewing the petition, this court issued an order to show cause on January 29, 1969 to be heard on February 20, 1969. The petitioner was ordered released on the posting of bail in the amount of $5,000.

FACTS

Catherine Liu filed an action for separate maintenance on April 1, 1968 against the petitioner in this matter. The complaint prays for custody of the two children of the parties. It is also alleged in the complaint that 'defendant and his father by threat and by force wrongfully has taken or remove (sic) Sue Mann Chiji Liu from her custody, and she is a child of tender year (sic) and now living with defendant and his father at 1344 Kellam Street, Los Angeles, California.' An order to show cause was issued on the same date (April 1, 1968) requiring inter alia that David K. Liu show cause on April 15, 1968 1 why custody of the two children should not be awarded to Catherine Liu during the pendency of the action. On the same date and incorporated in the same document as the order to show cause the court issued a temporary restraining order which provided in pertinent part: 'Pending * * * the hearing on this order * * * you are enjoined and restrained from:

1. Molesting, harassing, annoying or disturbing plaintiff in any manner whatsoever.

2. Removing daughter from the Southern California area.

3. (defendant or his father) removing the physical custody of her son James Chwan Lhyang Liu, who is residing with plaintiff, from the So. Calif. area.' 2

The order to show cause and the temporary restraining order were served on the petitioner, David K. Liu, on April 1, 1968. The affidavit of service contained in the court's record does not indicate the time that personal service was made on the petitioner.

On April 22, 1968 custody of each of the children was awarded to Catherine C. Liu. The petitioner was awarded the right of reasonable visitation. He was restrained from removing the child James from the County of Los Angeles 'without first obtaining a prior order of court or the written consent of plaintiff.'

The petitioner was also ordered to return Sue to the mother's custody in Los Angeles at his expense no later than June 18, 1968.

Testimony was taken at the hearing of April 22, 1968 from Catherine C. Liu, and David K. Liu, however, no reporter was present. The court made no finding that the petitioner had the present ability to return Sue to her mother. The minute order of April 22, 1968 does not indicate whether the evidence heard by the court supported the conclusion that the petitioner had custody of Sue as of April 22, 1968, or that he had had her in his custody since April 1, 1968. The minute order for that date is also silent as to whether the petitioner removed Sue from the Southern California area after service was made of the April 1, 1968 temporary restraining order.

The record shows that on June 18, 1968 the petitioner appeared and testified. The matter was continued to August 19, 1968. Again the proceedings were not reported. The minute order for June 18, 1968 reflects that the matter was continued to August 19, 1968 'at which time' the defendant was ordered to produce Sue 'to the jurisdiction of this court and to the custody of plaintiff.' The minute order is silent as to whether the petitioner complied with the order of April 22, 1968 by producing Sue in court no later than June 18, 1968.

The minute order for August 19, 1968 indicates that the matter was placed off calendar at the request of plaintiff's counsel. Again the record is silent as to whether the petitioner returned Sue to the jurisdiction of the court on August 19, 1968 or to her mother as required by the order of June 18, 1968.

On December 27, 1968, the Superior Court issued an order to the petitioner requiring that he show cause why he should not be found guilty of contempt of court for wilfully disobeying the orders made on April 1, 1968, April 22, 1968, and June 18, 1968 based on the declaration filed by Catherine Liu. The declaration was incorporated in a form required to be used 'exclusively upon all applications for Order to Show Cause in Re Contempt in domestic relations cases.' The declaration alleges: 'That defendant was enjoined from removing daughter Sue Mann Chiji Liu from Southern California area and did so remove her on April 1, 1968. That defendant was restrained from removing son James Chwan Sh Yang from custody of plaintiff and defendant di (sic) so remove him on November 7, 1968. That defendant was ordered to return daughter Sue Mann Chiji Liu to custody of plaintiff and defendant has failed and refused to do so and has in fact removed him (sic) from Southern California area. The Defendant had the ability to comply with each of the aforementioned orders but has wilfully failed or refused to do so.' The declaration also alleges that the order was audibly pronounced in the presence of the petitioner. 3

On January 27, 1969 the petitioner was adjudged in contempt of court and ordered sentenced to the county jail to remain there until such time as he purged himself of contempt by 'complying with said orders.' The court found that the defendant violated the orders of April 1, 1968, April 22, 1968, and June 18, 1968, and that such violation 'is a continuing contempt.' The court expressly found that 'the defendant has the ability to comply with said orders and further that the defendant continues to have the ability to comply with said orders.' The contempt proceedings were not reported.

DISCUSSION

A trial court when faced with a wilful refusal to obey a court order can take action to punish such disobedience under section 1218 of the Code of Civil Procedure. Section 1218 provides: 'Upon the answer and evidence taken, the court or judge must determine whether the preson proceeded against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars ($500), or he may be imprisoned not exceeding five days, or both; provided, however, that in justice courts the judge may punish by fine or imprisonment or both, such fine not to exceed, in any case, one hundred dollars ($100), and such imprisonment one day; the conviction, specifying particularly the offense, and the judgment thereon, must be entered in the docket. No party, who is in contempt of a court order or judgment in a divorce or separate maintenance action, shall be permitted to enforce such order or judgment, by way of execution or otherwise, either in the same action or by way of a separate action, against the other party. This restriction shall not affect nor apply to the enforcement of child support orders.' Under certain circumstances the court has the power to compel obedience to its orders by imprisoning the contemnor until he has complied. Section 1219 of the Code of Civil Procedure provides: 'If the contempt is omission to perform any act, the person may be imprisoned until performance. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he has performed it, and in that case the act must be specified in the warrant of commitment.'

Here the trial court attempted to compel performance of the orders of April 1, 1968, April 22, 1968, and June 18, 1968, under section 1219 by imprisoning the petitioner indefinitely until he complies with these orders.

SUFFICIENCY OF THE DECLARATION

A proceeding for an adjudication for constructive contempt is initiated by the filing of an affidavit or declaration. Such affidavit or declaration must set forth the facts constituting the alleged contempt in order to confer jurisdiction upon the court to exercise its contempt powers (Warner v. Superior Court, 126 Cal.App.2d 821, 824, 273 P.2d 89). The accused is entitled to notice of the particular accusation against him (In re Felthoven, 75 Cal.App.2d 465, 468--469, 171 P.2d 47).

The facts essential to jurisdiction for a contempt proceeding are '(1) the making of the order; (2) knowledge of the order; (3) ability of the respondent to render compliance; 4 (4) wilful disobedience of the order.' (Warner v. Superior Court, 126 Cal.App.2d 821, 824, 273 P.2d 89, 91; see also In re Ny, 201 Cal.App.2d 728, 731, 20 Cal.Rptr. 114.)

On the face of the declaration in this matter sufficient facts were set forth to give the court jurisdiction to punish the petitioner for contempt by imposition of a fine or a definite jail term under section 1218 of the Code of Civil Procedure. The declaration alleges that the petitioner wilfully disobeyed certain court orders pronounced in his presence although he Had the ability to perform the acts required of him.

The petitioner was given notice of the fact that he faced punishment for contempt under section 1218.

Unfortunately, the trial judge chose not to punish the petitioner for his past violations of specific court orders, but to imprison him to enforce future compliance with these orders. However, section 1219 can only be invoked to compel obedience to a court order where the desired act is 'yet in the power of the person to perform.' The declaration does not allege that the petitioner has the present ability to...

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