FLOYD v. <<

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District Court of Appeal, Fourth District, California.

Ex parte FLOYD.*

Cr. 1001.

Decided: April 01, 1954

Joseph K. Robbins, San Diego, for petitioner. Edmund G. Brown, Atty. Gen., James Don Keller, Dist. Atty., and Olney R. Thorn, Deputy Dist. Atty., San Diego, for respondent.

Petitioner Denzel Lee Floyd alleges that he is unlawfully imprisoned, detained and confined by the Sheriff of San Diego County pursuant to a Governor's warrant issued at the request of the Governor of Ohio upon a charge of the crime of nonsupport of minor child; that the State of Ohio has adopted the Uniform Support of Dependents Act; that said act is in substance identical with the Uniform Support of Dependents Act adopted by the State of California; that pursuant to section 3115.04 Revised Ohio Code, your petitioner, on February 18, 1954, submitted to the jurisdiction of the Superior Court in and for the County of San Diego, State of California; that said court made its order requiring petitioner to pay as and for the support of his wife and child in the State of Ohio the sum of $125 per month commencing March 20, 1954; that by the express terms of said section of the Ohio Revised Code your petitioner is relieved of extradition during the period of his compliance with the California court order of support; that petitioner has complied with said order and is not in default thereof.

It was stipulated by the respective parties at the hearing in this court that the uniform reciprocal support acts of both the States of California and Ohio are identical in substance; that on March 1, 1954, the Superior Court of San Diego county made its order requiring Mr. Floyd to pay $125 per month as and for the support of his minor child in Ohio; that there is full compliance with that order; that petitioner was in actual custody when the petition herein was filed and that return has been made on the writ.

In 1953 Title 10a of the Uniform Reciprocal Enforcement of Support Act was enacted by the legislature of this state and added to Part 3 of the Code of Civil Procedure, Stats.1953, Chap. 1290. Chapter 2 of that act provides as follows:

‘1660. The Governor of this State (1) may demand from the Governor of any other state the surrender of any person found in such other state who is charged in this State with the crime of failing to provide for the support of any person in this State and (2) may surrender on demand by the Governor of any other state any person found in this State who is charged in such other state with the crime of failing to provide for the support of a person in such other state. The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom. Neither the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or other state.

‘1661. Any obligor contemplated by Section 1660, who submits to the jurisdiction of the court of such other state and complies with the court's order of support, shall be relieved of extradition for desertion or nonsupport entered in the courts of this State during the period of such compliance.’

Chapter 3 of said act provides for the civil enforcement of the duty of support and since no proceedings of that nature were taken in the instant matter, such proceedings are not involved herein.

Section 6 of the Ohio Reciprocal Act for Support of Dependents, Uniform Dependents Act, Ohio General Code 8007–6, contains the same provisions as in section 1661, supra.

The question here presented is whether the petitioner must be relieved of extradition for nonsupport during the period of his compliance with the order made by the Superior Court of San Diego County pursuant to said act. We conclude that the question must be answered in the affirmative.

An obligor, as defined in the act, means any person owing a duty of support and petitioner is such an obligor. Sections 1660 and 1661 of the statute involved relate to criminal enforcement of the act and are not made dependent upon the instigation of proceedings for civil enforcement thereof contained in chapter 3. The purposes of the act, as stated in Section 1652, are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto. There is no ambiguity in the language used in Section 1661 and it plainly provides for relief of extradition upon compliance with the conditions therein specified. Such compliance would result in the accomplishment of the stated purposes of the act and make unnecessary the civil proceedings under Chapter 3.

It is argued that a person whose extradition is demanded upon a criminal charge of failing to provide for dependents cannot defeat extradition by voluntarily submitting himself to the courts of this state and by attempting to invoke the civil remedies provided in the Uniform Reciprocal Enforcement of Support Act. This argument is without merit. Petitioner is not seeking to invoke the civil remedies provided for in the act. Such proceedings are instituted by the obligee (the person to whom a duty of support is owed) in the demanding state. In this case the State of Ohio. No such proceedings were commenced.

In In re Susman, 116 Cal.App.2d 698, 254 P.2d 161, 162, petitioner sought release by habeas corpus proceedings from extradition under the terms of section 1661 of the Code of Civil Procedure. In that case the return was denied for the reason that the New York statute involved made no provision in its uniform support of dependents law in respect to criminal enforcement or the relieving of extradition as provided in Section 1661 of our Code of Civil Procedure. It was there said:

‘The only question is whether New York adopted a similar reciprocal provision to section 1661, C.C.P. in reference to being relieved of extradition. If so, the writ should be granted since it has been stipulated that petitioner has fully complied with the order for payment of support issued in this state. Otherwise, the writ must be denied.’

It appears from the record before us that the petitioner should be discharged from custody. It is therefore so ordered.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.