Opinion
Rehearing Denied Nov. 20, 1973.
Page 1351
John C. Lafferty, Grand Junction, for plaintiff-appellant.
Charles A. Buss, Grand Junction, for defendant-appellee.
COYTE, Judge.
Robert L. Knox brings this appeal from an order which found him guilty of contempt of court for violation of the custody and visitation provisions of a divorce decree and imposed a fine of $166.99 and three days imprisonment. We affirm.
The divorce decree was entered on September 7, 1971. On May 9, 1972, appellee filed a motion to cite appellant for contempt of court for violation of the custody and visitation provisions in the divorce decree. The affidavit filed in support of the motion alleged that appellant 'willfully' violated the provisions of the divorce decree. The court then issued a citation for appellant to show cause why he should not be held in contempt of court.
A hearing was held and evidence was introduced indicating that appellant's counsel in the divorce proceeding received the rough draft of the final decree on August 27, 1971. That draft indicated that custody of the son Michael was to be awarded to appellee. The 16-year-old daughter of the parties testified that at the request of appellee she went to appellant's residence on August 27, 1971, and informed him that the court had awarded custody of Michael to appellee. She asked to take Michael back with her to appellee's residence, but appellant refused and requested that she leave the premises. She further testified that on the same day she observed appellant put his belongings into his automobile and depart with Michael and the older son. Appellant testified that a copy of the rough draft of the final divorce decree was forwarded to him at El Paso by neighbors, and he received the copy three weeks after he left Colorado. However, he denied any knowledge of the contents of the final decree or that it had been entered on September 8, 1971. He further testified that his former attorney represented him throughout the divorce proceedings, received the various motions and orders involved in the case, approved the final decree as to form prior to its entry, and had a copy of the final decree when appellant returned to Colorado in 1972. Appellant admitted that while he was in El Paso he utilized general delivery mail service instead of a postal box, did not have a telephone, placed his older son, with whom appellee had visitation rights, in school 400 miles away from his Texas residence, and did not communicate his wherebouts to appellee. Appellant testified that by taking the children from the state he was preventing the mother from seeing them and, when appellee in effect 'snatched' Michael from appellant in Texas, he then promptly returned permanently to Colorado.
The court found that appellant contemptuously left the state of Colorado in order to avoid the effect of the order awarding custody of Michael to appellee, and imposed penalties of a $166.99 fine and three days imprisonment. The money was to be paid over to appellee to reimburse her for the expense incurred in retrieving Michael from Texas. On appeal appellant contends that the court lacked jurisdiction to issue a contempt citation, that the evidence was insufficient to establish contemptuous conduct, and that the court improperly imposed both a fine and imprisonment as punishment for contempt.
I.
Appellant asserts that the court lacked jurisdiction to issue a contempt citation because the affidavit filed in support of the motion failed to allege that appellant had knowledge or notice of the divorce decree. To invoke the jurisdiction of the court in cases of constructive contempt, the affidavit supporting the motion for citation for contempt must state allegations of fact which, if established, constitute the offense. Wyatt v. People, 17 Colo. 252, 28 P. 261; See Urbancich v. Mayberry, 124 Colo. 311, 236 P.2d 535. The affidavit initiating a proceeding for contempt for violation of an order or decree of a court is fatally defective unless it alleges that the contemnor had notice or knowledge of the existence of the order at the time he is claimed to have violated it. Phillips v. Superior Court, 22 Cal.2d 256, 137 P.2d 838; Jones v. Jones, 91 Idaho 578, 428 P.2d 497; State ex rel. Oregon State Bar v. Lenske, 243 Or. 477, 405 P.2d 510, 407 P.2d 250. The ultimate aim of such requirements is to notify the alleged contemnor of the nature of the charge so that he may prepare a proper defense. Eatchel v. Lanphere, 170 Colo. 545, 463 P.2d 457.
In the instant case, the affidavit alleged that appellant 'willfully' violated the order of the court. One acts 'willfully' when he acts voluntarily, knowingly and with conscious regard for the consequences of his conduct. Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403; See McCulloch v. Industrial Commission, 109 Colo. 123, 123 P.2d 414; Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038. Thus, we conclude that the element of knowledge of the order was subsumed in the allegation that appellant 'willfully' violated the order. Accordingly, the motion and supporting affidavit were sufficient to invoke the jurisdiction of the court.
II.
Appellant maintains that the evidence introduced at the hearing was insufficient to establish that he had knowledge of the divorce decree. This contention is without merit. Appellant testified that he was represented by the same attorney throughout the divorce proceedings and his attorney did receive the final divorce decree. The final decree of divorce reveals on its face that appellant's then-attorney approved the form of the decree and that a copy of the decree was mailed to him on September 8, 1971.
Proof of service of an order upon a party's attorney raises a presumption that the attorney performed his duty and communicated his knowledge of the order to his client. People v. Superior Court, 239 Cal.App.2d 99, 48 Cal.Rptr. 445. See Tibbetts v. Terrill, 44 Colo. 94, 96 P. 978. Here, as evidence contrary to that presumption, appellant testified that he did not receive the final divorce decree nor know its contents until he returned to Colorado; however, the credibility and weight to be accorded that testimony was an issue for the trial court. Thus, the evidentiary posture is such that there is support for the finding of the trial court that appellant knew of the contents of the order and contemptuously violated it. See Freeman v. Superior Court, 44 Cal.2d 533, 282 P.2d 857.
Moreover, courts will not countenance conduct of a party who is subject to the jurisdiction of a court and who goes into hiding or leaves the jurisdiction for the purpose of thwarting or frustrating orders of that court. See In Re Rice, 5 Cir. 181 F. 217; Shibley v. Superior Court, 202 Cal. 738, 262 P. 332.
III.
Finally, appellant contends that the court cannot impose both a fine And imprisonment to vindicate the dignity of the court. This contention is also erroneous. C.R.C.P. 107(d) authorizes the imposition of a fine or imprisonment, or both, to vindicate the dignity of the court. See Murley v. Murley, 124 Colo. 581, 239 P.2d 706.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.