Opinion
Armstrong & Lloyd and Franklin T. Lloyd, Los Angeles, for petitioner.
No appearance for Respondent.
Boyko & Simmons and Michael W. Rotberg, Los Angeles, for Penelope Douglas Lyon.
Retired Judge of the Superior Court sitting under assignment of the chairman of the Judicial Council.
This is a proceeding to review the order of the respondent court in action number D662728 entitled Penelope Douglas Lyon v. Frederick W. Lyon, adjudging defendant guilty of contempt of court by reason of his failure to compy with a previous order to make certain child support payments, and the separate order imposing sentence.
On this review we have taken judicial notice of the file of the respondent court in Lyon v. Lyon, number D662728, pursuant to Evidence Code, § 459.
The complaint for divorce was filed in January 1965. Plaintiff therein alleges that the parties were married in Nevada on June 11, 1951, and ever since then 'have been and now are husband and wife.' She also alleges that there are two minor children of the marriage, Penelope Lyon, born January 17, 1953, and Pamela Lyon, born May 1, 1954. Defendant defaulted and an interlocutory judgment was filed on February 19, 1965. By that judgment custody of the minor children was awarded to plaintiff, and defendant was 'ordered to pay to Plaintiff the sum of $200.00 per month per child, a total of $400.00 per month, for the support of the minor children, payable one-half on the first and one-half on the fifteenth of each month, commencing March 1, 1965, and continuing until further order of court.' He was also ordered to pay plaintiff $200 per month for alimony, payable one half on the 1st and one half on the 15th of each month until further order. The final decree filed April 18, 1966, continued these provisions in effect.
On September 14, 1966, on notice and after a hearing on an order to show cause procured by plaintiff, the court was 'not convinced beyond a reasonable doubt that defendant has had the ability during the period [there] in question to make the payments of child support and alimony as ordered by the Court,' and dismissed contempt proceedings against him. At the same time the court modified to 'order' of February 19, 1965, and ordered defendant 'to make the child support payments and alimony payments through the office of the Court Trustee, child support through Rule 28 of the Superior Court as follows: Beginning with the payments due October 1, 1966: $200 a month for the support of each child: Penelope, born January 17, 1953; and Pamela, born May 1, 1954, a total of $400 The contempt proceeding now under review had its inception with the issuance of an order on May 4, 1967, requiring defendant to show cause why he should not be adjudged in contempt for willfully disobeying the order of September 14, 1966, as described in the certificate of the court trustee attached thereto. That certificate alleged that defendant had been ordered to pay $400 per month for child support payable $200 a month on the 1st and 15th of each month beginning October 1, 1966, and that defendant was in default of those payment in the sum of $200 due on February 1 and 15, March 1 and 15, and April 1 and 15, 1967. Each such default is referred to as a separate 'count.' At the conclusion of the hearing of this matter on June 22 the court made the first order here under review. That order reads: '* * * The Court finds the defendant had knowledge of the order of September 14, 1967; further that Defendant had the ability to pay at least $75 there no February 1 & 15, March 1 & 15, and April 1 & 15, 1967; that he failed to comply therewith; that his failure was wilful. Defendant is therefore adjudged guilty of contempt of Court on 6 counts. The matter of sentencing is continued to June 26, 1967 at 1:30 PM for sentencing. Defendant waives time for sentencing. Defendant is ordered to return at that time without further notice or subpoena. The Defendant is further ordered to forthwith endorse the Government Tax refund Draft in the sum of $634.36. Said draft is ordered delivered to attorney Rothberg, and the latter is ordered to pay from the proceeds the amount due by the Defendant to the government for 1964 income tax; the balance if any is to be given to the Plaintiff, the same to be applied on the arrearages due Plaintiff by Defendant. The Defendant's counsel and the Court is to be notified by Mr. Rothberg by mail of the disposition of this check within three weeks from date.' On June 26 the court made the second order here under review. The order reads: '* * * The Defendant, having been found guilty of contempt of court on six counts on June 22, 1967, is herebye [sic] ordered to serve five days in the County Jail on each count to run consecutively. The Court further orders that this contempt may be paid by the payment of $100.00 for each five days to be served. Pending such payment the Defendant is remanded to the custody of the Sheriff. No Bail is allowed.'
Even though the point is not made by petitioner, it is apparent that the order of June 22 finding him in contempt of court must be annulled for reasons appearing on its face.
The order of May 5, 1967, by which the contempt proceedings were initiated ordered petitioner to show cause why he should not be adjudged in contempt of court for failing to pay plaintiff $200 on each of six days as required by the order of September 14, 1966. The order of June 22 finding him in contempt reads in part as follows: 'The Court finds that the defendant had knowledge of the order of September 14, 1967 [sic]; further that Defendant had the ability to pay at least $75 thereon on February 1 & 15, March 1 & 15, and April 1 & 15, 1967; that he failed to comply therewith; that his failure was wilful.'
'It is essential to the jurisdiction to punish for contempt for disobeying the order of a court that the party charged shall have been able to comply with such order, unless he has voluntarily and contumaciously disabled himself from complying.' (Van Hoosear v. Railroad Commission, 189 Cal. 228, 233, 207 P. 903, 905.) 'The law is well established that it is not a contempt of court for a party to fail to pay a sum, however small, when it is not in his power so to do. A mere recital that such party wilfully failed to pay or wilfully In re McCausland,
In re Michelena, In re Leavitt, Bailey v. Superior Court, In re Scroggin, Nutter v. Superior Court, In re Cowden,Under the rule just stated an adjudication of contempt must be based on an unequivocal finding by the court of the ability of the party to pay the full amount fixed by the order. A finding that he had the ability to pay something less than that amount does not comply with the rule. Where the finding is that he had the ability to pay at least a farthing, but the order required him to pay a shilling, he may not be held in contempt for violating that order. The finding here held that petitioner had the ability to pay 'at least $75' on each of the six days on which he had been ordered to pay $200 is not sufficient to sustain an adjudication for contempt.
Cf. In re Scroggin, 103 Cal.App.2d 281, 282-283, 229 P.2d 489, 491, where it was held that 'a finding of present ability to pay a 'substantial sum' is not a finding of the present ability of petitioner to pay $1,200, or any other definite sum' was not sufficient to support a commitment for contempt; In re Michelena, 150 Cal.App.2d 377, 378-379, 309 P.2d 861, 862, holding that 'A finding of ability to comply 'to a greater extent' with an order requiring payment of specified monthly amounts is not a finding of ability to pay any specific delinquent monthly installment', and is too indefinite to sustain the adjudication of contempt; and In re Spollino, 208 Cal.App.2d 783, 25 Cal.Rptr. 536, in which the court reached the same conclusion on review of an order adjudging petitioner in contempt which was based on a finding 'that he had the partial ability to comply' with the previous order.
In addition to the fact that it is based on the void order of June 22 finding petitioner in contempt, the order of June 26 imposing sentence on petitioner must be annulled for yet another reason appearing on its face.
After sentencing petitioner to serve five days in jail on each count of the alleged contempt to run consecutively, the court further ordered 'that this contempt may be paid by the payment of $100.00 for each five days to be served. Pending such payment the defendant is remanded to the custody of the Sheriff.' The part of the order of June 26 just quoted is meaningless.
Section 1218 of the Code of Civil Procedure provides that, if a party is guilty of the contempt charged, 'a fine may be imposed on him not exceeding five hundred dollars ($500), or he may be imprisoned not exceeding five day, or both; * * *' The order that 'this contempt may be paid by the payment of $100.00 for each five days to be served' is in no sense an order imposing a fine as a part of the punishment as permitted by section 1218. It is more probable that the court meant that the money be paid to Penelope for the support of the children. Nor does the order comply with section 1219 of the Code of Civil Procedure which provides that 'When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act must be specified in the warrant of commitment.' (See 12 Cal.Jur.2d, Contempt, § 45, p. 64.) In the absence of an express finding that petitioner, at the time the order was made, had the ability to comply with the order of September 14, 1966, the court could not order him imprisoned until he complied with that order.
One matter urged upon us by petitioner calls for brief comment, since the question involved may be raised again in the event of further contempt proceedings. Petitioner
Assuming, without deciding, that there is merit to petitioner's contentions with respect to the invalidity of the marriage and of the order requiring him to support the child Penelope (see Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528), this issue was not before the court in the contempt proceeding. 'In a prosecution for constructive contempt the affidavit on which the proceeding is based constitutes the complaint, Frowley v. Superior Court, 158 Cal. 220, 222, 110 P. 817; Mitchell v. Superior Court, 163 Cal. 423, 424, 125 P. 1061, the affidavit of defendant constitutes the answer or plea, Hotaling v. Superior Court, 191 Cal. 501, 505, 217 P. 73, 29 A.L.R. 127, and the issues of fact are thus framed by the respective affidavits serving as pleadings. 12 Cal.Jur.2d, § 67, p. 89; Uhler v. Superior Court, 117 Cal.App.2d 147, 151, 255 P.2d 29, 256 P.2d 90. A hearing must be had upon these issues. Hotaling v. Superior Court, supra, 191 Cal. at p. 505, 217 P. 73.' (Freeman v. Superior Court, 44 Cal.2d 533, 536-537, 282 P.2d 857, 859.) While it is true that the refusal of the respondent court to give the alleged contemner an opportunity to present evidence in his own behalf would constitute a denial of due process on any issue properly raised by the pleadings (Collins v. Superior Court, 145 Cal.App.2d 588, 594, 302 P.2d 805), a hearing is required only on the controverted issues. 'In a constructive contempt proceeding, the issues of fact are framed by the declarations of the parties. The allegations in the moving party's declaration are deemed admitted if not denied in the defense declaration. (In re Larrabee, 29 Cal.App.2d 240, 84 P.2d 224.) A hearing is required only upon the controverted issues. (Freeman v. Superior Court, 44 Cal.2d 533, 536, 282 P.2d 857.)' (Crittenden v. Superior Court, 225 Cal.App.2d 101, 106-107, 36 Cal.Rptr. 903, 907.)
It is true, of course, 'that refusal to obey a void order of court is not a contempt and cannot be punished as such.' (Oksner v. Superior Court, 229 Cal.App.2d 672, 681, 40 Cal.Rptr. 621, 628.) It is equally true, however, that where, as here, it appears that the court had jurisdiction of the parties and the subject matter of the action, and that the interlocutory judgment was within the issues presented by the pleadings, 'however erroneous it may be, the judgment cannot be held to be void, In re Valterza,
The order of June 22, 1967, adjudging petitioner guilty of contempt and the order of June 26, 1967, imposing sentence thereon, are void, and each of the said orders is annulled.
KAUS, P. J., and HUFSTEDLER, J., concur.