Rosin v. Superior Court In and For Los Angeles County

• Decision Date: 31 May 1960
• Citation: 5 Cal.Rptr. 421,181 Cal.App.2d 486
• Court: California Court of Appeals Court of Appeals
• Parties: Charlotte V. ROSIN, Petitioner, v. SUPERIOR COURT of the State of Callfornia, In and for the COUNTY OF LOS ANGELES, Respondent, Victor M. Rosin, Real Party in Interest. Civ. 24549.

Page 421

5 Cal.Rptr. 421

181 Cal.App.2d 486

Charlotte V. ROSIN, Petitioner, v. SUPERIOR COURT of the State of Callfornia, In and for the COUNTY OF LOS ANGELES, Respondent Victor M. Rosin, Real Party in Interest.

Civ. 24549.

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

May 31, 1960.

Rehearing Denied June 24, 1960.

Hearing Denied July 27, 1960.

Hahn, Ross & Saunders, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel; Wm. E. Lamoreaux, Asst. County Counsel; Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent.

Mitchell, Silberberg & Knupp, Los Angeles, for real party in interest.

ASHBURN, Justice.

Through certiorari petitioner seeks to annul a judgment of contempt rendered against her as a consequence of her removal to Florida of the two children of her marriage with Victor M. Rosin, the real party in interest, which removal was made with the intent and effect of depriving the father of the exercise of his own part-time custody and visitation rights.

Interlocutory decree of divorce was rendered in favor of plaintiff wife (petitioner herein) on February 13, 1959. It divides the custody of the two children, boy and girl aged 10 and 8 years, as follows: 'It is further adjudged, ordered and decreed that plaintiff have the care and custody of the two minor children of the parties hereto, namely: Steven V. Rosin, born December 1, 1948, and Benita B. Rosin, born June 6, 1950, with the following reasonable visitation by defendant: he have the children with him on alternate Saturdays and Sundays commencing Sunday, March 1, 1959, from 8:30 A.M. to 7:00 P.M., provided he gives plaintiff 24 hours notice of his intention to have them with him; defendant have said children with him the first two weeks in July and the first two weeks in August of each year commencing in 1959, provided he gives plaintiff 10 days notice in writing of his intention to take the children during said period; defendant be permitted to call said minor children by telephone once each evening.' The parties were then and thereafter residents of California and complied with the terms of the decree until November 14, 1959, some nine months, when petitioner left her home in Los Angeles taking the children with her to Palm Beach where she established a new and permanent home. This was done without the knowledge or consent of the father (herein sometimes referred to as respondent) and with the intent of depriving him of his periodical custody of the children and his right of telephonic visitation with them every evening. Respondent, after locating petitioner and the children and becoming satisfied that this was more than a temporary absence from California, initiated a contempt proceeding against petitioner which resulted, after a hearing which she did not attend in person, in an order of January 28, 1960, containing the following: '* * * The Court finds that plaintiff had knowledge of the order regarding specific visitation rights of defendant with the children; that she had the ability to comply with the Court order; that she failed to comply with the Court order and that said failure was a wilful failure and was done for the purpose of depriving defendant of his rights of reasonable visitation; plaintiff is therefore adjudged in contempt of Court. Continued to April 13, 1960 at 1:30 p. m. for pronouncement of sentence * * *.' Before April 13th, the date set for sentencing, Mrs. Rosin filed her petition for certiorari in this court and same was granted. The matter is now before us for determination of a jurisdictional challenge directed to the contempt judgment.

The affidavit initiating the proceeding is challenged upon the ground that it does not state facts sufficient to show a contempt. Made by Mr. Rosin it alleges the fact of the divorce decree, quotes its custody provisions as above set forth, and alleges that the wife has 'wilfully deprived me of my visitation rights and my rights to communicate with or see my children, Steven, age 11 and Benita, age 9. In the second week of November, 1959, she removed the children from the State of California without my knowledge or consent and with the intent of preventing the exercise of my visitation and communication rights. Since then the children have been kept out of the state. I have been wilfully prevented from having any communication with them, and my visitation and communication rights have been destroyed by the plaintiff.' The affidavit also alleges that petitioner had and has knowledge of the decree and its quoted provisions concerning custody of the children. Of course the contempt affidavit must state facts which unambiguously spell the commission of a contempt. Unless the major point raised by petitioner and hereinafter discussed is upheld this affidavit is sufficient. In other words, if removal of the children to a distant state for the specific purpose and with the intent and effect of depriving the father of his temporary custody and his visitation rights constitutes a contempt, this affidavit sufficiently avers all the constituent facts.

It has been suggested that the allegation of petitioner's intent in removing the children from the jurisdiction is only a conclusion. The authorities are to the contrary. See, Woodroof v. Howes, 88 Cal. 184, 190, 26 P. 111; Hall v. Mitchell, 59 Cal.App. 743, 749, 211 P. 853; 2 Witkin, California Procedure, § 360, p. 1339. The averment in question is that Mrs. Rosin 'removed the children from the State of California without my knowledge or consent and with the intent of preventing the exercise of my visitation and communication rights.' This is an allegation of fact, not a mere conclusion.

The evidence clearly establishes the truth of the allegations of the affidavit and the case resolves itself into a basic question of whether destruction of custody and visitation rights in the manner found here does constitute a contempt, or whether the failure of the interlocutory decree to specifically state that the children shall not be removed from the state without consent or court order, leaves the parent who happens to have custody on a particular day free to completely frustrate and destroy the rights of the other parent,--whether inferences or implications from the language of the judgment must be totally disregarded in a contempt proceeding even though that inference or implication be an inevitable one.

Petitioner's counsel rely upon authorities to the effect that no intendments or presumptions can be indulged in aid of a charge of constructive contempt (e. g., Warner v. Superior Court, 126 Cal.App.2d 821, 824, 273 P.2d 89; Frowley v. Superior Court, 158 Cal. 220, 224, 110 P. 817). This phraseology, which has crept into numerous appellate decisions, has led to a dissecting and segmental interpretation of contempt charges to such a degree that trial courts have been well-nigh denuded of their contempt powers, a tendency which should not be fostered or furthered. Of course there is no presumption of contempt, but intendments are quite another thing. Ordinarily that word connotes 'true meaning.' 'Intendment. True intention or meaning: specifically used of a person, or a law, or of any legal instrument.' 46 C.J.S. p. 1102. But the term as used in the Warner and like decisions seems not to have that signification. 'A word,' says Mr. Justice Holmes on Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372, 'is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' The word 'intendment' may have an archaic and technical meaning which is thus defined in Detroit, L. & N. R. Co. v. McCammon, 108 Mich. 368, 66 N.W. 471, 473: 'The meaning of intendment is that, allowing an averment to be true, but that at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such case shall be presumed, unless specifically excluded by particular averment.' If that technical meaning be attributed to the word 'intendment' as used in the Warner and similar opinions, there can be no objection to the assertion that no intendments can be indulged in favor of a contempt charge. That is likewise true if given the meaning which Ballentine's Law Dictionary attributes to 'intendment of law,' viz.: 'A presumption of law; legal meaning; meaning peculiar to the law.' (P. 668.) The rule seems to be more aptly phrased in Plummer v. Superior Court, 20 Cal.2d 158, 164, 124 P.2d 5, 8, wherein it is said that the rights of the parties 'should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby.' This language was adopted in Foust v. Foust, 47 Cal.2d 121, 124, 302 P.2d 11. Its true import seems to be found in the following quotation from Terminal Railroad Ass'n of St. Louis v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 8, 69 L.Ed. 150: 'In contempt proceedings for its enforcement, a decree will not be expanded by implication or intendment beyond the meaning of its terms when read in the light of the issues and the purpose for which the suit was brought, and the facts found must constitute a plain violation of the decree so read.'

Katenkamp v. Superior Court, 16 Cal.2d 696, 699, 108 P.2d 1, phrases the matter as one of ambiguity. Indeed, Selowsky v. Superior Court of Napa Co., 180 Cal. 404 at page 407, 181 P. 652, at page 654, says: '[A]n affidavit charging the commission of a contempt need not be more specific in its averments of the facts constituting the contempt than a complaint or an information charging a crime,' And at page 408 of 180 Cal., at page 654 of 181 P.: 'The allegations of Kelton's affidavit that he knew of his own knowledge that the premises in question were in the possession of the...