McDowell v. Orsini

• Court: California Court of Appeals
• Writing for the Court: POTTER; ALLPORT, Acting P.J. and COBEY
• Citation: McDowell v. Orsini, 54 Cal.App.3d 951, 127 Cal.Rptr. 285 (Cal. App. 1976)
• Decision Date: 28 January 1976
• Parties: Carolyn A. McDOWELL, Petitioner and Appellant, v. Joseph ORSINI, Respondent. Civ. 46666.

Page 285

127 Cal.Rptr. 285

54 Cal.App.3d 951

Carolyn A. McDOWELL, Petitioner and Appellant, v. Joseph ORSINI, Respondent.

Civ. 46666.

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

Jan. 28, 1976.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Gen., Crim. Div., S. Clark More, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for petitioner and appellant.

Jack D. Scott and Marcus Crahan, Jr., Los Angeles, for respondent.

POTTER, Associate Justice.

This is an appeal by petitioner Carolyn A. McDowell from an Order re Child Visitation and Support made in a proceeding initiated under the revised Uniform Reciprocal Enforcement of Support Act of 1968 (Code Civ.Proc., § 1650, et seq.) Said order dealt with the right of respondent Joseph D. Orsini, a California resident, to reasonable visitation with the minor child of the parties and with his obligation to support said child. Both the petitioner and the child reside in the State of Pennsylvania, and the current proceeding was initiated by a Verified Complaint for Support filed January 16, 1974, in that state. The petition sought enforcement of a prior support order of August 23, 1971, made by the Superior Court of California for Los Angeles County, requiring respondent to pay $55 per month for the support of said child. The petition stated that from the date of said order respondent had only paid $110 for the support of the minor child and sought a continuation of the existing support order plus an order for payment on arrearages.

Examination of the records of the Superior Court of Los Angeles County relating to the matter of enforcement of respondent's obligation to support said child discloses two reciprocal enforcement of support files. ¹ One of them, No. RESL 74321, was initiated by petition filed July 1, 1971, at a time when petitioner resided in the State of New York. The original petition was supported by a declaration setting forth the basis for the existence of an obligation under the law of California, pursuant to Code of Civil Procedure section 1655, ² including the facts (1) that petitioner and her child had been abandoned by respondent, (2) that respondent had failed to contribute to their support, and (3) that petitioner's gross earnings were $115 per week. In response to this petition, respondent filed a questionnaire disclosing his weekly salary was $107 from which he had $84 as take-home pay. The questionnaire also claimed that respondent had $386.50 regular monthly expenses. A minute order of August 23, 1971, recited that all the above described documents had been received in evidence and considered, and that the court found (1) the minor child of the parties was partially dependent upon respondent for support, and (2) a reasonable amount to be contributed by respondent for the support and maintenance of said minor in view of his present ability was $55 per month. Said order of August 23, 1971, further provided that the payments be made to the office of the Court Trustee for the County of Los Angeles for transmittal to the Family Court of petitioner's county of residence in New York.

On March 14, 1973, a Certificate in re Contempt was executed by the office of the Trustee, stating that the total which had been paid pursuant to said order of August 23, 1971, was $54.90, and that.$935.10 remained unpaid and was delinquent. Eight counts of contempt based on payments accruing the 23d of each month from July 23, 1972, through February 23, 1973, which were delinquent, were charged. An Order to Show Cause re Contempt was issued based upon such certificate. Attempts to serve the Order to Show Cause were unsuccessful, and on May 16, 1973, a new Certificate and Order to Show Cause, showing $1,045.10 delinquency and specifying eight counts of contempt in respect of payments due September 23, 1972, through April 23, 1973, was issued. Service of this Order to Show Cause was effected, and a hearing thereon took place on November 7, 1973. At this hearing respondent was found guilty of eight counts of contempt. He was sentenced to serve five days in the county jail on each count, the sentences to run consecutively. The sentences were suspended for a period of one year, and respondent was placed on summary probation upon the condition that he comply with his representation to the court that he would keep current 'without fail hereafter plus pay $10 per month on the arrears.' The minute order of that date also indicated the following:

'Respondent represents to the Court the petitioner is interfering with his rights of reasonable visitation and does not allow him communication. It is requested that the initiating state make an investigation concerning this matter and report to the District Attorney of Los Angeles County.'

The concluding entry in the file in proceeding No. RESL 74321 is an order of April 15, 1974, as follows: 'RESL 74321 is dismissed in favor of RESL 86495. Any arrears accruing under RESL 74321 is to be transferred to RESL 86495.'

It appears, therefore, that the August 238 1971 order of the superior court of California referred to in the initiating complaint for support in proceeding No. RESL 86495 was the August 23 order in No. RESL 74321. The new complaint, which indicated that the petitioner had moved from New York to Pennsylvania, alleged that the marriage had been dissolved by a decree of divorce. ³ After a bench warrant had been issued for the apprehension of respondent, a hearing in No. RESL 86495 was conducted July 2, 1974. There is no record of the proceedings on that date except a minute order as follows:

'Counsel is with the court in chambers.

'Counsel for the Respondent is ordered to prepare an attorney order and submit to Counsel for the Petitioner for approval as to form and submit to the court.'

Though a reporter's transcript of the proceedings was requested, none was produced inasmuch as there was no testimony and apparently no exhibits were received.

Pursuant to the court's direction, counsel for respondent prepared the Order for Child Visitation and Support which is the subject of this appeal. The original of the order was served upon the District Attorney's office with a request for approval as to form on July 9, 1974. On July 12, 1974, the District Attorney advised by letter of that date that he could not approve the proposed order. As far as pertinent to this appeal, the reason given therefor was the following: 'we do not Stipulate to the order or to lack of arrearage.' This was a reference (1) to the recitation in the order that: 'It is stipulated by counsel that Respondent, JOSEPH D. ORSINI is ordered to pay as and for child support the sum of $55.00 per month for the benefit of the minor child of the parties, ROBERT, born November 2, 1966' and (2) to the failure of the order to deal with the arrearage. Said letter of July 12 shows a copy to 'Clerk of the Superior Court, Department 2.'

By letter of July 25, 1974, counsel for respondent also advised the court of the District Attorney's refusal to sign the order and requested that the court 'sign it unless the District Attorney's Office takes the necessary steps within the statutory time.' Thereafter, on August 9, 1974, the court signed the order in the form submitted.

The order recited that the court and counsel had conferred in chambers and that it was 'based upon representations of counsel, stipulated facts and the papers, files and pleadings.' The portions of the order to which exception is taken are as follows:

'Respondent is given the right of reasonable visitation with the minor, ROBERT, and said right of reasonable visitation is defined as, at least, including the right to the physical possession of the minor for the month of August, or such other period as the parties may mutually agree, in each year beginning in 1974 with said visitation to be in the State of California, if Respondent so desires and pays the complete air fare, both ways, for the minor.

'The support heretofore ordered shall be allocated as follows:

$5.00 per month as 'basic support'.

$50.00 per month as 'additional support'.

'All support shall be payable on the 15th day of each month commencing July 15, 1974, and continuing thereafter until said child reaches majority, becomes self-supporting or further order of Court.

'IT IS FURTHER ORDERED, pursuant to Civil Code Section 4702(a) that the basic child support payments ordered shall be made through the office of the Court Trustee and that to each monthly payment of $5.00 there shall be added the service charge of 2% As required by law, amounting to .10 cents, making a total monthly payment of $5.10.

'As additional child support, Respondent is ordered to pay into a blocked account at BANK OF AMERICA, 1602 West 25th, San Pedro, California, the sum of $50.00. Respondent shall deposit same in Respondent's name as Trustee for said minor in BANK OF AMERICA and shall deliver to said depository two copies of the Order To Deposit Money, which Order is being signed contemporaneously herewith. Respondent shall make no withdrawal from said account without first obtaining an order of this Court authorizing same. Bond is hereby waived. The amount so impounded to be paid by Respondent to Petitioner as additional child support on September 1 of each year commencing September 1, 1974, only if the Respondent has enjoyed the physical possession of the child in August of each year or such other period as may be selected by the parties, provided the Respondent desires to have said child and pays the expense for same and that Petitioner does nothing to prevent the Respondent from enjoying the physical possession of the child and cooperates in seeing that the child is transported to Respondent as herein provided.

'If Petitioner has refused to allow the visitation and physical custody as set forth herein, then Respondent may, on September 1, of each year, withdraw said sum and use it for his own benefit.'

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