Oliver v. Superior Court of Los Angeles County

• Decision Date: 22 November 1961
• Court: California Court of Appeals Court of Appeals
• Parties: Evan D. OLIVER, Petitioner, v. SUPERIOR COURT of LOS ANGELES COUNTY, Respondent. Civ. 25943.

Page 474

17 Cal.Rptr. 474

197 Cal.App.2d 237

Evan D. OLIVER, Petitioner, v. SUPERIOR COURT of LOS ANGELES COUNTY, Respondent.

Civ. 25943.

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

Nov. 22, 1961.

Evan D. Oliver, in pro. per.

Harold W. Kennedy, County Counsel and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.

FRAMPTON, Justice pro tem.

Petitioner seeks a review of the proceedings in the lower court and an annulment of the judgment holding him in contempt on four counts for his alleged wilful refusal to comply with an order of such court, made on May 3, 1961, in a divorce action filed by plaintiff-wife, wherein petitioner became obligated to pay the sum of $65 of the 10th day of each month commencing May 10, 1961, for the support of the minor child of the marriage, such payments to be made through the office of the court trustee.

The order to show cause in re contempt was issued September 11, 1961, at the instance of the court trustee and hearing thereon was set for October 27, 1961. The affidavit of the court trustee in support of the order showed that petitioner had failed to make any payments to and including August 10, 1961, and that petitioner was in arrears on August 31, 1961, in the sum of $260.

The record further shows that on July 15, 1961, the custody of the minor child was given to petitioner by his wife as the result of a mutual agreement between them and that petitioner assumed the obligation of support from that time. On August 9, 1961, petitioner filed an order to show cause in re modification of the order of custody made on May 3, 1961, and hearing thereon was had on August 22, 1961. As a result of this hearing the custody of the minor child was awarded to petitioner and the support payments were ordered terminated. The court, nevertheless, in the contempt proceeding, found petitioner had wilfully and knowingly disobeyed the order of May 3, 1961, for his failure to pay the child support due August 10, 1961.

Respondent contends that 'The mere fact that a modification order was entered does not wipe out all arrearages in support payments. Modification as to alimony and support orders operates prospectively not retroactively. Steele v. Steele, 108 Cal.App.2d 595, 596, 239 P.2d 63; Moore v. Moore, 133 Cal.App.2d 56, 62, 283 P.2d 338.' These cases simply reiterate the rule that the judgment for alimony is final and cannot be modified as to accrued installments. They relate exclusively to a civil judgment which may be entered for the amount shown to be due for the accrued and unpaid installments under an alimony judgment or order of the court. We are not dealing here with a civil judgment based upon a debt arising out of a judgment or order to pay support money. A hearing on an order to show cause in re contempt is in its nature a criminal proceeding (Uhler v. Superior Court, 117 Cal.App.2d 147, 255 P.2d 29, 256 P.2d 90; Foust v. Foust, 47 Cal.2d 121, 302 P.2d 11), and intent to commit the forbidden act is as essential to guilt as in the case of a criminal offense. There must be substantial evidence that the contemner wilfully and contemptuously refused to obey the order of the court. (Uhler v. Superior Court, supra; City of Vernon v. Superior Court etc., 38 Cal.2d 509, 241 P.2d 243.)

Where, as here, the custody of the minor child was with petitioner and he had been supporting such child in his home for a period of 26 days prior to the date upon which the next support payment became due, there is a lack of substantial evidence to sustain the court's finding that petitioner's failure to comply with the order of May 3, 1961, requiring him to pay the installment due August 10, 1961, was wilful and contemptuous.

The record shows that both the affidavit of the court trustee and the return by petitioner were received in evidence. The wife did not testify. Petitioner was called to the witness stand by the deputy district attorney under the provisions of section 2055 of the Code of Civil Procedure and was subjected to cross-examination concerning his financial ability to comply with the order. This procedure was in error as the deputy district attorney had no right to call petitioner under the above section. This section applies to parties in a civil action and its provisions may not be invoked in favor of a person prosecuting a contempt proceeding as against the contemner. Contemner stands in a position similar to that of a defendant in a criminal action and he may not be compelled to give testimony against himself.

While the record discloses that the court advised petitioner of his constitutional right to refuse to testify, it concluded such advice with the following admonition: ...