Opinion
A148802
06-20-2017
T.P., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; M.P., Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RF07358175)
Petitioner T.P. (wife) sought a writ of review (certiorari) following a judgment of contempt entered against her for failure to comply with family court visitation and custody orders. At the direction of the California Supreme Court, we consider five specific questions concerning the timeliness of wife's application for relief in this court and whether her claims are meritorious. We conclude the petition is timely and the contempt judgment must be annulled.
I. BACKGROUND
A. Charges
In November 2013, real party in interest M.P. (husband), filed an order to show cause and affidavit for contempt against wife, alleging three counts of contempt for violating court orders pertaining to the custody of the couple's son. Count 1 alleged wife failed to return the child to husband after her two-week summer vacation, and counts 2 and 3 alleged wife failed to pick up the child from husband at the location provided in the court's orders on two separate occasions.
A trial was held on May 19, 2014. Husband was the only witness at trial. B. Evidence
1. Count 1
The parties' joint custody and visitation order allowed each parent to take a vacation for up to 14 days once a year and provided vacation time may only interfere with one week of the parties' parenting time. Count 1 alleged wife failed to return the child to husband on June 28, 2013 and retained custody of the child until July 12, 2013 before she was willing to exchange him.
Wife took the child on vacation from June 14 to June 28, 2013. Wife had booked a return flight for the child, then 11 years old, to fly alone from Texas to San Francisco. At the contempt trial, husband testified he agreed to pick the child up at the San Francisco airport at 8:45 a.m. on June 28, 2013, but the child was not there. Husband tried to call wife and sent her text messages when the child did not arrive, but he did not receive a response until 1:57 p.m., when wife sent him a text saying, " '[Child] is confirmed for the flight landing at 3:20 at sfo tomorrow pick him up.' " Husband testified he was unable to pick up the child the following day because he had to go to Bakersfield for a religious event.
Husband was later cross-examined about the child's refusal to board the flight to San Francisco on June 28. Husband admitted wife sent him a video of the child crying because he did not want to go alone on the airplane. Husband testified he would have objected had he known wife was intending to send the child on a flight alone. Husband conceded no court order stated the child could not fly alone.
Husband also testified on direct he asked wife to exchange the child on July 5, but wife refused over his objection. On cross-examination, husband said he authorized his attorney to send wife a letter offering her a choice of July 5 or July 12 to exchange the child. In two separate e-mails, both admitted as evidence at the contempt trial, husband's attorney asked wife to confirm whether she would return the child on July 5 or July 12. One of the e-mails contains a response from wife indicating the child would like to return on July 12. Husband further testified that after he left the airport on June 28, he went to Bakersfield and was there for the next nine days attending a religious event and wife did not return the child during those nine days because husband was unavailable.
2. Count 2
The custody and visitation order required wife and husband to exchange the child every Friday at 3:00 p.m. during summer; when transitioning from husband, the child was to be picked up at a Chevron station in Oakland. As to count 2, husband alleged he attempted to exchange the child at the Oakland Chevron station on August 16, 2013 at 3:00 p.m., but wife did not show up.
At trial, husband testified wife sent him several text messages after she failed to appear, which were admitted as evidence. Wife's initial text message to husband states, "Im stuck in traffic so i will not make it there till abt 415 or so." Husband responded, "If you are not going to be here by 4:15 then im going to leave." Further text messages show wife asked husband to drop the child in Millbrae, where wife lived, told husband he could keep the child until school starts, or said wife could pick the child up later that day (August 16).
3. Count 3
Count 3 alleged wife sent husband an e-mail on August 28, 2013, informing him that she would be out of town and unable to pick the child up on Friday, August 30. Husband further alleged wife failed to pick the child up on August 30 and he had to drive the child back to school on Tuesday.
At trial, husband testified wife sent him an e-mail saying if he was not able to drop the child off at school on the first day, she would have a family friend pick him up from Stockton. Husband did not agree to keep the child until the first day of school and wife did not show up for the exchange on August 30. When counsel asked husband, "As far as you know, was [wife] present and able to pick the child up?" Husband responded, "From what I know, I don't think she was there. Because of her movement as far as how she was avoiding picking him up, that told me that she is not there." The court then noted "the way [husband] answered the question made it seem as though [he wasn't] clear whether [wife] was available on the 30th." When the court asked whether husband understood from his communications with wife that he would take the child to school on the 30th and would not take him to the Chevron station, husband testified: "The 30th was a Friday. School started Monday, the following Monday. And since she avoided picking him up, that kept telling me that she wasn't there. So I wanted her to pick up on the day that it was supposed to be, August 30th. So I went there and she didn't show up." Husband then testified he wanted wife to pick the child up because he was concerned if she did not, wife might leave town and leave the child with someone else. Husband testified wife was "not back" until Friday of the following week, but he does not remember if he had any communications with her. C. Judgment , Sentencing , and Writ Review
The trial court found wife guilty on all three counts of contempt. In announcing the judgment, the court stated as follows:
"Upon consideration of the evidence, both the written pleadings and the allegations and the documentary evidence presented and received into evidence today and the testimony as presented by [husband] in [husband's] case in chief, the Court finds [wife] guilty on Count One, failure to return the child as required from a two-week summer vacation on June 28th, 201[3].
"The Court finds by clear and convincing evidence beyond a reasonable doubt that this Count One has been proven that the child did not return to the Bay Area on June 28th, 201[3]. The reasons why, I think the Court has some understanding of what the allegation is, that the child did not or refused to get on a plane. That's one allegation that was referenced through the testimony of [husband]. But the fact of the matter is that this seems like an awfully young child to be traveling alone on a plane. There was evidence credibly presented by the witness that the child had never flown alone on a plane before and might have very well been frightened or refused to fly for whatever reasons. But be that as it may, [wife] was responsible.
"[Wife] took the child outside of the nine Bay Area counties on a plane trip, and there was no evidence presented to this court that [husband] was aware that there would be solo travel by the child. And in fact, there was evidence to the contrary that had [husband] known, he would not have allowed it. Who knows. Maybe there would have been an ex parte order filed or request or whatnot for some sort of different travel orders. But the fact remains [wife] is the parent, she is responsible. She took the child outside of the county. It's your job to bring the child back to the county and, in fact, you did not. Count One, guilty.
"Count Two, the Court finds [wife] guilty of Count Two. The Court find[s] that the evidence was presented beyond a reasonable doubt that [wife] failed to show up and exchange the child as per the parenting custody timeshare plan on August 16th, 2013.
"As to Count Three, the Court finds [wife] guilty. That child was not exchanged as per the parenting plan and, in fact, I'm not quite sure what's been going on about the history, the long history of who is supposed to pick up the child and who is not. But the only orders that the Court has before it are that the parents exchange the child. They are very specific and clear orders to the Court that on certain dates at certain times there is to be an exchange of the child either at the In-N-Out Burger or at the Chevron station. And on August 28th or August 30th that did not happen as required; therefore, the Court finds [wife] guilty as to Count Three."
The order after hearing did not contain any written findings of fact, but stated wife was guilty of each of the three counts of contempt.
At the sentencing hearing the following month, wife was sentenced to 15 days in county jail, 10 days suspended. The court placed wife on probation for three years, and ordered wife to serve 60 hours of community service at an approved nonprofit in Alameda County.
Because the record does not indicate otherwise, we assume the court ordered wife placed on summary probation, not formal probation. (Pen. Code, § 1203, subd. (a) ["conditional sentence" is suspension of sentence and revocable release in the community subject to conditions established by court without supervision of a probation officer]; People v. Glee (2000) 82 Cal.App.4th 99, 104 ["A grant of informal or summary probation is a 'conditional sentence.' "].)
On July 18, 2016, wife filed a petition for review in this court, which we summarily denied.
The California Supreme Court granted review and transferred the matter to us with instructions to issue a writ of review to the Alameda County Superior Court in accordance with Code of Civil Procedure sections 1070 and 1071, and to decide the following questions upon return of the writ: "(1) Was the petition for writ of certiorari timely filed in the Court of Appeal? (2) Did sufficient evidence support petitioner's convictions on count 1 and 2 of the Order to Show Cause and Affidavit for Contempt filed November 14, 2013, in Alameda County Superior Court No. RF07358175? (3) Did the superior court improperly find petitioner guilty using a strict liability standard? (4) Did the superior court make the findings required for a judgment of contempt? (5) Did the superior court have the authority, statutory or otherwise, to place petitioner on probation?"
Wife's petition also asks us to remand this matter to the trial court for reconsideration of an October 2016 order, imposing $2,500 in attorney fees sanctions pursuant to Family Code section 271 for unnecessarily increasing the costs of litigation. Because wife did not raise the issue in her petition for review to the Supreme Court and the Supreme Court did not direct us to decide it, we do not address this claim.
II. DISCUSSION
A. Timeliness
As an initial matter, we consider whether the writ was timely filed in this court.
The order finding wife guilty of contempt was entered on June 20, 2014. Wife was sentenced on July 29, 2014. Almost two years later, on July 18, 2016, she filed her petition for review in this court.
In California, contempt proceedings are not appealable and are reviewable only by extraordinary writ. (Code Civ. Proc., §§ 904.1, subd. (a)(1)(B), 1222; People v. Gonzalez (1996) 12 Cal.4th 804, 816.) When a contemnor is in actual or constructive custody, review of the contempt judgment is appropriate either by writ of habeas corpus or writ of certiorari. (In re Buckley (1973) 10 Cal.3d 237, 240, fn. 1, 259 [contempt judgment may be reviewed by certiorari, or where appropriate, by habeas corpus]; Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1165 ["habeas corpus is obviously the appropriate remedy for an imprisoned contemnor"]; In re Lake (1924) 65 Cal.App. 420, 423 [scope of inquiry upon habeas corpus or certiorari is the same]; In re Wessley W. (1981) 125 Cal.App.3d 240, 246 [habeas corpus relief available to petitioner in constructive custody because "he may later lose his liberty and be eventually incarcerated"].) Here, the court suspended 10 days of wife's 15-day sentence and placed her on summary probation for three years. Because wife is still subject to the court's conditional sentence and faces potential incarceration, we treat her petition as one seeking a writ of habeas corpus. (See In re Buckley, at p. 240, fn. 1 [treating petition as one praying for writ of habeas corpus]; Babb v. Superior Court (1971) 3 Cal.3d 841, 850 [treating petition for writ of prohibition as one for mandate].)
Timeliness requirements for filing a writ of habeas corpus are less stringent than under the 60-day rule generally applicable to extraordinary writs. (Compare In re Clark (1993) 5 Cal.4th 750, 765, fn. 5 [petition for writ of habeas corpus should be filed "as promptly as the circumstances allow"] and Walker v. Martin (2011) 562 U.S. 307, 311 [California courts " 'appl[y] a general "reasonableness" standard' " to determine timeliness of habeas petitions] with Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701 [writ petition should be filed within 60-day period applicable to appeals absent extraordinary circumstances].) "[A] petitioner seeking relief on habeas corpus need only file a petition without substantial delay, or if delayed, adequately explain the delay." (In re Harris (1993) 5 Cal.4th 813, 828.)
Husband contends wife's writ must be denied because she delayed almost two years in bringing her claims. In response to this argument, wife's counsel filed a declaration with his reply, explaining the delay in filing was due to difficulty he experienced locating documents in support of the appeal, including the exhibits in the contempt file. Because wife's appellate counsel did not represent her in the contempt proceedings, he had to contact two of wife's prior attorneys numerous times to try to obtain the case file and other documents. In addition, because the matter had been transferred from Alameda County Superior Court to San Mateo County Superior Court, counsel had to work with multiple individuals in both courts to search for the exhibits, experiencing communication delays due to the transfer of files and court staff's inability to locate the exhibits.
We take judicial notice a virtually identical declaration was filed by wife's counsel with her reply in the Supreme Court which is a part of this court's file. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
We are not persuaded by husband's arguments as to the untimeliness of wife's petition. First, husband relies on the rules for timely filing of appeals, which, as explained above, are inapplicable here because contempt proceedings are not appealable as a matter of law. Second, husband argues that wife was represented by three different attorneys at trial, after trial, and postincarceration, raising "a reasonable inference . . . that she had adequate notice and opportunity to raise her objections to the order, and failed to do so." Husband does not provide supporting facts about the changes in representation, however, and it is unclear how wife's representation by four different attorneys (including present counsel) in connection with this proceeding may have impacted the timeliness of her petition.
In light of petitioner's obligation to provide an adequate record for review (see Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187) and the policy disfavoring piecemeal presentation of habeas claims (In re Clark, supra, 5 Cal.4th at pp. 768-770), we find wife's explanation for the delay sufficient for purposes of filing a petition for writ of habeas corpus and consider her claims on the merits. B. Standard of Review
We express no opinion on the timeliness of the petition as one for a writ of certiorari.
In California, contempt proceedings are quasi-criminal in nature, and accordingly, the accused must be proven guilty beyond a reasonable doubt. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256 (Mitchell).) When, as here, the contempt occurs outside the presence of the trial court, the contempt is "indirect." (Koehler v. Superior Court, supra, 181 Cal.App.4th at pp. 1159, 1169.)
The sole question before this court on review is one of jurisdiction of the trial court to render the order or judgment. (Coursey v. Superior Court (1987) 194 Cal.App.3d 147, 154.) Our review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court; we do not reweigh the evidence. (Ibid.)
A court may find an accused guilty of indirect contempt for failure to comply with a court order only if it is proven the order was issued, the accused knew of the order, the accused had the ability to comply, and the accused willfully disobeyed. (Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1169.) In reviewing a contempt judgment, "the charge, the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation.] If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order [of contempt] must be annulled." (Hotaling v. Superior Court (1923) 191 Cal. 501, 506; see In re Donovan (1950) 96 Cal.App.2d 693, 698 ["a conviction of contempt should not be allowed to stand unless it appears from the record beyond question that the trial court found all the facts to exist which constituted the offense"].) C. Strict Liability Standard
Wife first argues her conviction on all three contempt counts must be reversed because the trial court improperly used a "strict liability" standard in adjudicating her guilt. In support of her argument, wife references two specific statements made by the court during the contempt trial suggesting the court may have applied a "strict liability" analysis. Wife asserts the court erred because it found her guilty without determining she intended to violate the court's orders. (See Uhler v. Superior Court (1953) 117 Cal.App.2d 147, 154 ["In contempt proceedings an intent to commit a forbidden act is as essential to guilt as in the case of a criminal offense."].)
In criminal law, strict liability offenses eliminate the requirement of mens rea ("guilty mind") with respect to an element of a crime. (People v. Rubalcava (2000) 23 Cal.4th 322, 331.)
As wife's counsel was cross-examining husband about wife's communication regarding the child's refusal to board the return flight alone, the court interrupted questioning with the following: "Counsel, move on. . . . I think the issue is, if I understand it, your client tried to put the child on the flight alone. The child for whatever reason, maybe that was one of them, had a meltdown and allegedly wouldn't return home. [¶] . . . [¶] . . . The issue is really going to turn on was that good decision-making and at the end of the day did she violate the court order. And what the behind the scenes scenario was, whether she exhibited extremely poor judgment or good judgment, that's not really the issue. It's strict liability. If she's supposed to be back on this day, was she back on this day? I know you are trying to in [sic] facts for mitigation, but . . . [¶] . . . [¶] . . . [i]t's not going to come through this witness, I don't think." Later, when wife's counsel was cross-examining husband about whether any court order prevented wife from sending a third person to exchange the child, the court again stopped counsel, stating: "It's really a strict liability issue. I look at the order and what it says. I hear the evidence. And sort of what they thought about third parties and whatnot, there's no evidence that there was ever an agreement or an order in place about third parties."
As discussed further below, the court's written order and oral findings do not expressly state wife willfully or intentionally failed to comply with a court order, nor does the evidence adduced at trial show wife's failure to comply with court orders was intentional. (Cf. Hanson v. Superior Court (2001) 91 Cal.App.4th 75, 81 [judgment will be upheld in case of indirect contempt if substantial evidence supports finding of willful violation even if court fails to state evidentiary facts supporting its judgment].) The court's statements during trial regarding strict liability suggest the court evaluated only whether there had been violations of the court order. For example, as to count 1, the court said: "It's strict liability. If she's supposed to be back on this day, was she back on this day?" Because the court made repeated statements during trial about "strict liability," and failed to make any findings supported by substantial evidence regarding wife's willful disobedience of the custody and visitation order, it appears the court found wife guilty without deciding the element of intent on each count. In so doing, the court exceeded its jurisdiction by effectively treating contempt as a type of "strict liability" offense. D. Findings Required for Judgment of Contempt
Husband's arguments to the contrary are unavailing. Husband contends wife's claim lacks merit as evidenced by the trial transcript, but husband fails to cite or discuss any portion of the transcript. (Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support references to matter in record by citation to volume and page number]; see Williams v. Williams (1971) 14 Cal.App.3d 560, 565 ["It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made."].) Husband's reliance on People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4, for the principle contempt is a general intent crime, not a specific intent crime, is likewise misplaced. Wife argues the court's findings effectively eliminated the intent requirement, not that specific intent to do some further act was required.
Wife asserts the contempt judgment was improper because the trial court made no findings she had the ability to comply with the court orders or her failure to comply was willful. "[W]hile an indirect contempt judgment need not recite the court's factual findings as a jurisdictional prerequisite, those findings should be specifically recited orally or in the judgment to assist a reviewing court in determining if the evidence is sufficient to support the judgment of contempt." (Moss v. Superior Court (1998) 17 Cal.4th 396, 404, fn. 3.) When the order and judgment fail to state the court's express factual findings, the court is forced to examine the record to determine if the evidence supports any of the possible bases for a contempt finding reflected in the factual recitals of the initiating affidavit. (Ibid.)
Neither the written order after hearing nor the court's oral ruling state facts showing wife had the ability to comply with the orders or that she willfully disobeyed. The order after hearing simply states wife is "guilty" on counts 1, 2, and 3. In its oral ruling as to count 1, the court found "by clear and convincing evidence beyond a reasonable doubt that this Count One has been proven that the child did not return to the Bay Area on June 28th, 201[3]." The court acknowledged the "reasons why" the child did not return "is, that the child did not or refused to get on a plane." The court nonetheless stated "[wife] was responsible" and noted that husband likely would not have allowed the travel had he known about it. The court remarked: "But the fact remains [wife] is the parent, she is responsible. She took the child outside of the county. It's your job to bring the child back to the county and, in fact, you did not. Count One, guilty." As to count 2, the court found "that the evidence was presented beyond a reasonable doubt that [wife] failed to show up and exchange the child as per the parenting custody timeshare plan on August 16th, 2013." As to count 3, the court noted the "very specific and clear orders" that required exchange on certain dates at certain times and places, and that "on August 28th or August 30th that did not happen as required; therefore, the Court finds [wife] guilty as to Count Three."
Facts showing wife's ability to comply and willful violation were essential to the court's jurisdiction as to each count. (See Mitchell, supra, 49 Cal.3d at p. 1256 [evidence must show ability to comply with court order]; Little v. Superior Court (1968) 260 Cal.App.2d 311, 317 [judgment of contempt requires showing of contemptuous and willful refusal to obey court order].) Because the court did not state evidentiary facts in support of its judgment, we must review the record to determine if sufficient evidence exists to support the required findings. (Hotaling v. Superior Court, supra, 191 Cal. at p. 506 ["While the writ of certiorari is not a writ of error, it nevertheless extends to the whole of the record of the court below and even to the evidence itself where necessary to determine jurisdiction."].)
With respect to count 1, the initiating affidavit alleged wife failed to return the child on June 28, 2013 and retained custody until July 12, 2013 before she was willing to exchange the child. At the contempt hearing, husband testified he agreed to pick the child up at the San Francisco airport on June 28. Husband admitted wife sent him a video of the child crying and saying he did not want to fly alone. Indeed, the court commented, "There was evidence credibly presented by the witness that the child had never flown alone on a plane before and might have very well been frightened or refused to fly for whatever reasons." Husband presented no evidence wife knew the child would refuse to fly alone, had the ability to force the child to board the plane, or could otherwise make alternative arrangements to send him back to San Francisco on June 28.
Nor does the evidence show wife refused to return the child until July 12. The e-mail sent from husband to wife on June 28 states wife had confirmed the child on a flight to San Francisco the following day but husband was unavailable to pick the child up. In fact, husband testified he was unavailable to receive the child for the next nine days because he was in Bakersfield attending a religious event. Husband's attorney offered wife a choice whether to return the child on July 5 or July 12, and the child was exchanged on July 12.
In sum, husband's testimony shows wife attempted to return the child on June 28 but the child refused to fly home alone, husband was unavailable to pick him up for the next nine days, and husband agreed wife could return the child on July 12. Such facts do not support a finding wife had the ability to return the child on June 28 and willfully refused to return him until July 12. (See Coursey v. Superior Court, supra, 194 Cal.App.3d at pp. 154-157 [order of contempt annulled because there was no substantial evidence mother had ability to comply and willfully violated visitation order].)
Husband's argument the court's order was proper because wife never provided the full itinerary for the child's flight and husband was not aware the child would be traveling alone is meritless. Though the court noted husband likely would not have allowed such travel had he known and shared its own opinion the child was "awfully young" to be traveling alone, the contempt charges were not based on violation of a court order prohibiting solo air travel or requiring wife to provide a full itinerary.
As to count 2, the evidence is similarly infirm. The text messages exchanged between husband and wife on August 16 showed wife was unable to meet husband at the exchange location because she was stuck in traffic. At trial, husband offered no evidence as to what time wife left to pick up the child, how long it should take her to travel, or what traffic conditions were like. There was no evidence wife had the ability to arrive at the Chevron station by 3:00 p.m. as required by the court's order, or that her failure to do so was intentional.
Husband's testimony as to count 3 was confusing and uncertain. Husband stated wife e-mailed him on August 28 to say she was going out of town and would not be able to pick the child up on Friday, but could send friends to Stockton to retrieve the child. Husband testified he wanted wife to pick the child up at the Chevron station on August 30 because he was concerned she was out of town and he did not want the child left with someone else. The court's order, however, did not require wife to pick the child up, but mandated only a licensed and insured driver transport the child.
Furthermore, when husband was asked, "As far as you know, was [wife] present and able to pick the child up?," he responded, "From what I know, I don't think she was there. Because of her movement as far as how she was avoiding picking him up, that told me that she is not there." While husband arguably testified he went to the Chevron station on August 30, he did not say he went at 3:00 p.m., the court-ordered time for exchange.
Although count 3 presents a closer question than the other counts, the court may not draw inferences in favor of the judgment of contempt and must construe the evidence and findings strictly in wife's favor. (Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1166.) Husband's vague testimony about wife's availability and his own desire to have wife (rather than someone else) pick the child up though not required by the court's order is insufficient to show wife willfully and contemptuously disobeyed the court order.
It was the husband's burden to prove all facts essential to the court's jurisdiction beyond a reasonable doubt. (Mitchell, supra, 49 Cal.3d at p. 1256.) Because the findings must be construed strictly in favor of wife and we can draw no inferences in support of their sufficiency, we cannot determine husband met his burden to prove wife's ability to comply with the court's orders and that her failure to comply was intentional as to counts 1, 2, and 3. E. Sufficiency of the Evidence
Wife separately claims the evidence was insufficient to convict her of contempt as to counts 1 and 2. For the reasons discussed above, we agree. As to count 1, the evidence showed the child refused to board the airplane on June 28 and husband agreed wife could return the child on July 12. As to count 2, the evidence showed wife did not pick the child up at the time and location specified in the court order because she was stuck in traffic. There was no showing of ability to comply and willful disobedience sufficient to support a judgment of contempt. F. Probation
Finally, wife contends the trial court's imposition of probation was erroneous because it was not statutorily authorized. Since we conclude the findings and evidence do not support the contempt judgment, there was no basis to impose punishment, and thus, probation was not authorized in this case. Because it is not necessary to our decision, we decline to exercise our discretion to reach the question whether probation could ever be imposed when the findings do support a contempt judgment. (See Young v. Three for One Oil Royalties (1934) 1 Cal.2d 639, 647-648 [declining to determine whether statute of limitations barred action where decision would be dictum]; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, 715-716 [appellate court will not determine question that will have no effect on the parties].)
An amicus curiae brief was filed May 18, 2017, contending imposition of probation or a conditional sentence in a contempt proceeding is unauthorized as a matter of law. Because we reverse the contempt findings, we do not address this argument concerning punishment. On May 24, 2017, wife filed a request for judicial notice, asking the court to take judicial notice of an opinion issued by the Commission on Judicial Performance, admonishing a judge for effectively imposing a one-year probation term in a contempt proceeding. We deny the request for judicial notice because it is unnecessary to our decision.
III. DISPOSITION
The judgment of contempt is annulled. Assuming arguendo costs are available under California Rules of Court, rule 8.493(a)(1), the parties are to bear their own costs.
Husband's request for fees and costs, unaccompanied by any citation to authority or a proper motion, is denied.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.