MERY v. SUPERIOR COURT IN AND FOR ALAMEDA COUNTY (1936)

This is an original proceeding in prohibition wherein the petitioner questions the jurisdiction of the respondent court to punish him for contempt for failure to meet payments of alimony.

The proceedings which the petitioner seeks to enjoin were based upon an affidavit made by his former wife. The vital question raised here is whether this affidavit states sufficient facts to give the court jurisdiction. It states that the original award was made on February 2, 1926, and modified (presumably) on February 14, 1930; that the sum of $10,860 had accrued under the order, of which $8,860 had been paid, leaving delinquent the sum of $2,000. In support of her charge that the petitioner was in contempt because of this delinquency the former wife alleged the petitioner had been able to comply with the order because he “is employed.” No facts were stated showing upon what the affiant's conclusion was based, and no facts were shown at any of the hearings other than that petitioner had obtained United States bonds in payment of the veterans' bonus amounting to about $649, and that he was then employed at a salary of $100 a month.

The settled rule is that an affidavit charging contempt is like a complaint in a criminal case and must charge facts which show that a contempt has been committed. 5 Cal.Jur., p. 938 et seq. Where the ability of the contemner to comply with the order has already been determined by the court, it has been held that it is only necessary that the affidavit allege the making of the order and the refusal to comply with it. In re McCarty, 154 Cal. 534, 98 P. 540; In re Rasmussen, 56 Cal.App. 368, 205 P. 72; 5 Cal.Jur. p. 941. The cases cited in support of the last statement both involved an affidavit filed soon after the order or judgment was entered. In such cases there is every reason for holding that the statement of the entry of the order or judgment is sufficient where the question of the ability to comply with the order was there determined. The unreasonableness of such a rule in a case such as is presented here, where the affidavit in question was filed more than ten years after the order, must be obvious, because an adjudication of the defendant's ability to pay in 1926 is no sound proof of that fact under the conditions existing in 1936. Here the petitioner was charged with contempt for failure to pay the accrued sum of $2,000 with no statement of facts showing his ability to pay other than that he “is employed.” He was not cited to defend the claim that his veterans' bonus was subject to execution to pay this pre–existing debt, nor the claim that, because his second wife was employed, he should look to her alone for his support and use his own wages in payment of the alimony judgment, nor with the claim that an automobile used by him should be dispensed with. He was cited to show why he should not be punished for contempt for the failure to pay the accrued sum of $2,000 and not merely a part of that sum, and the only allegation upon which that citation was based was that he was able to pay that sum because he “is employed.” This falls far short of a statement of facts showing that a contempt has been committed, particularly a contempt justifying the order of commitment which the respondent court threatens to make.

But, if the affidavit is sufficient to initiate the contempt proceedings, the jurisdiction to punish for the alleged contempt hinges upon proof that the defendant has the ability to comply with the order when the adjudication of contempt is made. Following several hearings from which it appeared that the petitioner was without employment and without funds for several years following the depression of 1930, the respondent court found that he was in contempt for failure to comply with the order “he having heretofore had the ability and having failed and neglected to do so.” This finding was made upon evidence showing that the petitioner was then employed at a salary of $100 a month, but with no showing as to how long he had been employed, and that he had received over $600 in veterans' bonus bonds which he had partly used in the payment of other debts. The undisputed evidence is that, for several years after the entry of the original order, the petitioner paid the sum of $100 a month as awarded and that in 1930, by mutual agreement, he paid but $30 a month. This continued until the order to show cause was issued. All the testimony given by petitioner relating to his ability to pay was undisputed. If the trial court did not believe him, then there was no evidence before the court on that issue. Myers v. Superior Court, 46 Cal.App. 206, 189 P. 109; Merritt v. Superior Court, 93 Cal.App. 177, 181, 269 P. 547, 548. If his testimony is taken as true, he has no property with which to comply with the order except his salary of $100 a month, his veterans' bonus, and some stock of unknown value. Since he was cited for failure to pay the sum of $2,000, he cannot be held in contempt except upon evidence of ability to perform that which he is charged with a failure to do. The precise situation was presented in Merritt v. Superior Court, supra, where the court said: “It is quite true that he cannot live luxuriously and thus depreciate his ability to pay, and it is equally true that he must live in such a manner as to be able to earn and draw his salary. The courts have uniformly recognized necessary expenses as legitimate in order to arrive at the net income as a basis for determining one's ability to comply with the order. Snook v. Snook, 110 Wash. 310, 188 P. 502, 9 A.L.R. 262; Holcomb v. Holcomb, 53 Wash. 611, 102 P. 653. The testimony, being insufficient to support a finding that petitioner had the ability to comply with the order of the court, certainly cannot support a recital that such a finding was made, even if the recital were regarded as a finding.” Hence, whether we call the entry pleaded in the return of the respondent court a finding or a recital, the same result follows because neither is supported by any competent evidence.

That prohibition is the proper remedy is another question which was decided adversely to respondent in the Merritt Case, where, 93 Cal.App. 177, on page 182, 269 P. 547, other authorities are cited to the same effect.

There is, therefore, no factual or legal support for the contempt order. The conceded facts are that petitioner is unable to pay the amount demanded. There is no denial of the allegations in the petition that, unless this sum is paid, the respondent court will order petitioner confined in the county jail because of the alleged contempt. It has been suggested that, notwithstanding this failure of proof, the showing was sufficient to support a commitment for failure to make “a substantial payment” on the amount due. The respondent court alleges in the return that on July 17, 1936, an order was entered reading in part: “Defendant is directed to make substantial payments and said matter is ordered continued to July 31st, 1936, at 2 p. m. for further hearing.” If the contempt consists of the failure to make some payments on account of the amount due, the petitioner's answer is that he was not cited on that ground. In re McCarty, supra. The Supreme Court held in the latter case that a refusal to comply with an order made during the hearing requiring partial payments was a separate contempt and required a new affidavit and hearing. If it should appear in another proceeding that he is able to pay some part of that found to be due, the petitioner could then be heard on his defense of waiver and upon the question of the claim of exemption of the bonus bonds, but here we are only concerned with the one issue that, upon the conceded facts, the contempt order exceeded the jurisdiction of the lower court.

The peremptory writ will issue.

I dissent. The respondent court had general jurisdiction to punish for contempt for disobedience of its orders. Code Civ. Proc. § 1209, subd. 5. The conclusion that it was acting or threatening to act “without or in excess of the jurisdiction” in the present case (Code Civ.Proc. § 1102), is based upon alleged insufficiency of the affidavit and the alleged insufficiency of the evidence in support thereof. I find no insufficiency in either.

The affidavit showed that petitioner had disobeyed the order for the payment of $100 per month for the support of his minor children, which order was made in 1930 upon stipulation of the parties. Assuming, for the purpose of this discussion only, that it was necessary to allege that petitioner had been able to comply with the order (see In re McCarty, 154 Cal. 534, 98 P. 540; In re Rasmussen, 56 Cal.App. 368, 205 P. 72), the affidavit contained a direct allegation to that effect. This was the allegation of the ultimate fact and was sufficient. The mere fact that the probative fact, “Defendant is employed,” was also alleged could not affect the jurisdiction of the trial court.

Turning to the evidence, it will also be assumed for the purpose of this discussion only that the burden of proving petitioner's ability to pay was upon his former wife. See In re McCarty, supra; In re Rasmussen, supra. The evidence produced was sufficient to show that petitioner had disobeyed the order over a long period of time when he had the ability to pay more than $30 per month, but paid only that amount. He did not claim to have been unemployed after 1932. Assuming, as testified by petitioner, who was a mechanical engineer, that his personal earnings were but $100 per month and that his present wife's earnings were $35 per week, all of said income was community property. This showed community income of approximately $250 per month. Petitioner's testimony regarding living expenses, including $20 per month for operating an automobile which did not appear to have been required in his business, showed that he could have paid much more than $30 per month in an effort to comply with the court's order. In addition, it appeared that he owned said automobile and also owned a one–fifth interest in the Chico Iron Works. While petitioner testified that this interest in the ironworks produced no income at the time, he did not testify that it was without substantial value. It is unnecessary to consider the disposition of the proceeds of the so–called bonus bonds, amounting to $649. It may be stated, however, that petitioner gave conflicting testimony on this subject at the various hearings, but finally admitted that he had turned the proceeds over to his present wife and could get it back. The foregoing evidence was sufficient to support an adjudication of contempt and to warrant punishment under the provisions of section 1218 of the Code of Civil Procedure. This is all that the respondent court was threatening to do as appears from its finding or recital in the minute order that “he (petitioner) having heretofore had the ability and having failed and neglected to do so.” This is a finding or recital relating to what may be termed a past contempt rather than to a continuing contempt.

The majority opinion proceeds upon the theory that the trial court's jurisdiction “hinges upon proof that the defendant has the ability to comply with the order when the adjudication of contempt is made.” It assumes that, unless the evidence shows a present ability to pay the entire sum of $2,000, then the respondent court has no jurisdiction to proceed to punish for contempt. This might be true if the respondent court was threatening to punish petitioner for a continuing contempt by imprisoning him under section 1219 of the Code of Civil Procedure until he had fully complied with the order. But no such threat is alleged herein and the record indicates that the respondent court has no such intention. In my opinion, the evidence is sufficient to show that petitioner had the ability over a long period of time to pay more than $30 per month for the support of his children and willfully disobeyed the order of the court by failing and neglecting to pay more than that amount. This is all that should be required to show a past contempt punishable under said section 1218, and the question of petitioner's present ability to pay $2,000 or any other amount is not of controlling importance in this proceeding.

It is apparent from petitioner's allegations herein, as well as his alleged defense in the trial court, that he is relying mainly upon an alleged waiver evidenced by a letter written to him by his former wife in 1934. He had apparently written her and claimed that he was unable to pay more than a certain amount per month at that time. She replied by suggesting that they get together, talk it over, and endeavor to straighten things out by themselves without the aid of counsel. She indicated that she would be willing to agree to “a new bases.” In the meantime, the wife suggested that he send what he could, but not less than the amount mentioned in his letter. She further stated: “The old debt we will work out when I see you––I think it can be done painlessly.” It does not appear that the parties met and agreed as suggested, and this letter itself certainly cannot be regarded as a waiver of the rights of the wife under the former order.

In my opinion the trial court was not acting, or threatening to act, without or in excess of its jurisdiction. On the contrary, it appears that, acting within its jurisdiction, it had dealt very fairly with petitioner and had given him every opportunity to show an inclination to obey the lawful order of said court based upon petitioner's own stipulation. The alternative writ should be discharged, and petition for a peremptory writ should be denied.

NOURSE, Presiding Justice.

I concur: STURTEVANT, J.