Robinson v. Superior Court In and For Los Angeles County

• Decision Date: 23 November 1960
• Citation: 9 Cal.Rptr. 130,186 Cal.App.2d 644
• Court: California Court of Appeals Court of Appeals
• Parties: Gay ROBINSON, Formerly Gay Humberstone, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Bruce Humberstone, Real Party in Interest. Civ. 25024.

Page 130

9 Cal.Rptr. 130

186 Cal.App.2d 644

Gay ROBINSON, Formerly Gay Humberstone, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent Bruce Humberstone, Real Party in Interest.

Civ. 25024.

District Court of Appeal, Second District, Division 2, California.

Nov. 23, 1960.

Hearing Denied Jan. 18, 1961.

N. E. Youngblood, Beverly Hills, for petitioner.

Edward M. Raskin and Emmet G. Lavery, Jr., Los Angeles, for real party in interest.

NOURSE, Justice pro tem.

This is a petition for a writ of review by means of which petitioner seeks to annul a judgment of respondent court holding her in contempt of that court and imposing certain sanctions upon her because of that contempt.

Petitioner and one Bruce Humberstone, real party in interest here and hereafter called 'Humberstone,' were husband and wife. In May 1957, an interlocutory decree of divorce was entered in an action commenced by petitioner and by which the petitioner was adjudged entitled to a divorce.

A property settlement agreement, by the terms of which Humberstone acknowledged himself to be indebted to the petitioner in the sum of $1,750.75 and agreed to pay her for her support a minimum sum of $250 per month and which gave the custody of the minor child of the parties to petitioner with the right of reasonable visitation in Humberstone, was approved by the court and incorporated as a part of the decree.

Thereafter on February 29, 1960, the respondent court made and entered its order modifying the interlocutory decree and giving the custody of the minor child to Humberstone with rights in the petitioner to reasonable visitation.

On June 21, 1960, the petitioner caused a writ of execution to be issued based upon the monies then due petitioner under the terms of the property settlement agreement. Under this execution the sheriff levied upon and took possession of an automobile of Humberstone's on the 17th of August, 1960. Thereafter, upon application of petitioner, Humberstone was ordered to show cause why the order of February 29, 1960, should not be modified so as to award custody of the minor child to her and with authorization to her to take said minor child to her home in Greenwich, Connecticut. (Final decree of divorce had been entered and petitioner had remarried.) A hearing upon this order to show cause as to custody of the minor child was continued from time to time over the objections of petitioner and finally set for hearing on December 8, 1960. On July 26, 1960, petitioner secured an order for the appearance of Humberstone as a judgment debtor but on the hearing Humberstone refused to testify on the ground that he might incriminate himself and the hearing was continued and the matter was still pending on September 20, 1960, when the court made the order which petitioner seeks to annul here.

On the 8th of September petitioner left the State of California taking the minor child with her and now remains with the child outside of the jurisdiction of the respondent court.

Humberstone them instituted the proceedings in which the judgment of contempt here under review was entered. Upon the cause being called in department 8 of the respondent court and before the Honorable Roger A. Pfaff, counsel for petitioner stated that he was making a special appearance to contest the jurisdiction of the court and he then lodged with the court a written instrument entitled 'Special Appearance and Objection on Behalf of Plaintiff * * * Re Order to Show Cause in Re Contempt * * *.' By this document he not only attacked the jurisdiction of the court over the person of petitioner but attacked the sufficiency of the affidavit upon which the order to show cause re contempt was based and argued the right of petitioner to proceed with the sale under the execution and with her examination of Humberstone as a judgment debtor. In short his appearance was general.

At the hearing, after the respondent court had overruled the objections of petitioner's counsel to its jurisdiction over the person of petitioner and his objections to the sufficiency of the affidavit upon which the order to show cause was based, he presented to the court an affidavit of petitioner which purported to challenge Judge Pfaff for bias and prejudice in accordance with the provisions of subparagraph 5 of section 170 of the Code of Civil Procedure. This affidavit was dated September 6, 1960, and on its face sought to challenge Judge Pfaff as biased and prejudiced in the matter of the hearing of petitioner's application for modification of the custody order of February 29, 1960. Upon the grounds that the affidavit was not filed in good faith in the proceeding before him and had been made by affiant prior to the institution of that proceeding, the court ordered the affidavit stricken from the files. After extended argument relevant to the affidavit of petitioner and the basis for certain facts stated therein, counsel for petitioner then produced and offered to the court and asked that it be filed, his own affidavit as to bias and prejudice of the judge. Upon motion of Humberston this affidavit was likewise stricken upon the grounds that it was filed too late and not filed in good faith.

Evidence was then introduced which conclusively proved that petitioner had surreptitiously taken the child from the state in violation of the order placing the child in the custody of Humberstone. At the close of the hearing the court found petitioner in contempt, ordered a bench warrant to issue for the attachment of her person fixing bail at $2,500. He further ordered that petitioner's order to show cause relative to a modification of the custody order of February 29, 1960, an order to show cause filed September 8, 1960, re temporary custody of the minor and an order to show cause issued on application of petitioner relative to contempt on the part of Humberstone, be dismissed; and that the proceedings for examination of Humberstone as a judgment debtor be vacated and discharged. He further ordered the the writ of execution theretofore issued be quashed; that the levy thereunder by the sheriff upon the automobile of Humberstone be vacated and set aside and instructed the sheriff to release said automobile to Humberstone.

Petitioner attacks the order on numerous grounds. Her first contention is so lacking in merit that it might well be termed frivolous. She asserts that the order for which she was found in contempt was too uncertain and vague to be a basis for the contempt by reason of the fact that it did not restrict her from removing the minor child from the state. She ignores the fact that the order in question granted the custody of the minor child to her exhusband thus precluding any right in her to take over that custody.

She further contends that the...