Warner v. Superior Court In and For Los Angeles County

• Decision Date: 02 August 1954
• Citation: 273 P.2d 89,126 Cal.App.2d 821
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 20351. District Court of Appeal, Second District, Division 3, California

Page 89

273 P.2d 89

126 Cal.App.2d 821

WARNER v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.

Civ. 20351.

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

Aug. 2, 1954.

Morris R. McLaughlin, Don R. Holt, Ventura, and Caryl Warner, Los Angeles, in pro. per., for petitioner.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel and David D. Mix, Deputy County Counsel, Los Angeles, for respondent.

SHINN, Presiding Justice.

Prohibition to restrain the superior court from executing an order sentencing petitioner to jail for five days on each of three convictions of contempt.

The proceeding in contempt was initiated by affidavit of Jeanne deKolty Warner. It alleged that on April 18, 1950, in an action for divorce between the affiant and petitioner herein, Caryl Warner, petitioner was ordered to pay for the support of Jeanne $20 per week and for support of minor children $30 per week; that on November 1, 1951, the court modified the order by ordering petitioner to pay '* * * $40.00 per week in all, to wit: $10.00 per week for the support of Paul James Warner, $10.00 per week for the support of John Caryl Warner, and $20.00 per week for the support of Carolyn Jean Warner, * * * until the further order of this court, and said payments of $20.00 weekly for the said minor child, Carolyn, shall be contingent upon the compliance by plaintiff with the child visitation provision of this order.' (Petitioner was excused from paying for Carolyn for two weeks following any failure of plaintiff to make Carolyn available for visitation under the conditions specified in the order.) The affidavit stated: 'That said judgment by Judge Clifton of November 1, 1951 is now on appeal.' It was alleged that James was not living with his mother and that the order of April 18, 1950, required the payment of $30 per week for the other children. The affidavit stated that under the April, 1950 order there was a delinquency of $3,235 and that the delinquency under the November, 1951 order was $320. It was averred that petitioner had notice of said orders. The affidavit did not accuse petitioner of having failed or refused to make any specific payment at any specified time under either the order of April, 1950 or the order of November, 1951. Petitioner filed a replication denying that he was in arrears under the 1950 order and alleging that he was paid up in advance under the 1951 order. He also alleged that he had given his children presents of more than $1,000, paid through the court trustee, that he had not willfully disobeyed any order of the court, and he offered to pay any sum found to be due at the earlier possible time. It was further alleged that plaintiff had willfully prevented petitioner from visiting with Caroyln ever since April 4, 1952 except on three occasions, and, in addition, on a shopping tour at Christmas of one hour's duration. The replication further set forth proceedings in contempt which were initiated by plaintiff under the November, 1951 order. On May 26, 1952 the court found in that proceeding that petitioner was in arrears in the sum of $95 under the 1951 order. The clerk's minutes show that upon the court's finding the amount of the arrears petitioner paid the same through the court trustee and the proceeding in contempt was dismissed.

The instant proceeding in contempt was heard and the court announced in writing its decision. Petitioner was declared to be guilty of three violations of the 1950 order, namely, in failing to make the payments of $30 which fell due respectively on January 9th, March 6th and March 20th, 1954. The court's memorandum reads: 'The judgment of the Court will be that for each such offense defendant will serve five days in the Los Angeles County Jail. The sentences as to the last two will be served consecutively. The other is to be served concurrently.' Further the court declared:

'The evidence shows that plaintiff deliberately albeit to suit her own selfish convenience, deprived defendant of his right to have the child Carolyn from June 20 to July 20, 1953.

'This interference with defendant's right to physical possession of the child Carolyn constitutes a contempt. The judgment of the Court will be that for that offense plaintiff will serve five days in the Los Angeles County Jail.' Issuance of commitments was deferred by the trial court.

Petition for a writ of prohibition was filed, plaintiff filed her opposition to issuance of an alternative writ; the writ was issued, staying further proceedings, respondent court has filed its return, and the matter has been submitted.

In the present proceeding the sole question is whether the court acted within its jurisdiction. This brings in question the sufficiency of the affidavit to state facts constituting the offense charged.

It is well established in this state that the affidavit by which a contempt proceeding is instituted, in order to sufficiently support an adjudication of contempt, must state facts constituting the offense; otherwise the court is without jurisdiction. Berger v. Superior Court, 175 Cal 719, 167 P. 143, 15 A.L.R. 373; In re Wood, 194 Cal. 49, 227 P. 908; Doyle v. Superior Court, 113 Cal.App.2d 880, 249 P.2d 298. No intendments or presumptions can be indulged in aid of the sufficiency of the proceedings, Frowley v. Superior Court, 158 Cal. 220, 110 P. 817; it is immaterial as affecting the sufficiency of the affidavit what facts are proved or found by the court, Ex parte Von Gerzabek, 63 Cal.App. 657, 219 P. 479; and the accused is entitled to be clearly and fairly apprised of the particular accusation against him. In re Felthoven, 75 Cal.App.2d 465, 171 P.2d 47.

The facts essential to establish jurisdiction were (1) the making of the order, (2) knowledge of the order, (3) ability of the respondent to render compliance, and (4) willful disobedience of the order. None of these elements could be supplied in the present case except by the affidavit. There is also the requirement that the accused be proceeded against under due process. We have concluded that there was no sufficient showing by affidavit that petitioner had willfully violated either order of the court.

A proceeding in contempt for failure to pay alimony or support money is primarily a method of collecting money that cannot be realized through execution process. It is a coercive measure designed to compel obedience to the court's orders rather that one to vindicate the authority of the court by inflicting punishment. Nevertheless, there is no special procedure prescribed for the enforcement of such orders in domestic relations matters, and there can be no relaxation of the rules which govern the exercise of the...