In Re Larrabee

California Court of Appeal Nov 16, 1938 No. Crim. 3153Published

Before: Crail

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Holding. The court denied the petition for a writ of habeas corpus, finding that the petitioner was lawfully committed for contempt for willfully failing to comply with a court order to pay attorney fees and support, despite the subsequent dismissal of the underlying divorce action.

Issues

Whether the court lost jurisdiction to punish for contempt after the underlying divorce action was dismissed.
Whether the petitioner was denied due process regarding representation, court reporting, and the evidentiary basis for the contempt finding.
Whether the contempt order was invalid because the attorney fees were payable to the wife rather than her attorneys.

Disposition. remanded

Quotations verified verbatim against the opinion

“The order for attorney fees which had matured was in the nature of a judgment.”

“the precise question of whether the court lost the power to punish for contempt where a divorce case had been dismissed was decided adversely to petitioner”

“It must be borne in mind that it was neither the wife nor the former attorneys for the wife against whom the contempt was committed, but the court.”

CRAIL, P. J.

This case comes before us on a writ of

habeas corpus,

the petitioner contending that he is illegally held by the sheriff under an order of the superior court finding him guilty of contempt of court.

The sheriff makes his return that the petitioner is held upon the following commitment: “It appearing to the Court that a judgment was entered on the 22nd day of June 1938 in Dept. 8, of the above entitled court, ordering the defendant Arthur F. Larrabee to pay to the plaintiff $200.00, attorney

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fees, $75.00 per month for support of plaintiff and minor children, and $15.00, court costs, and it further appearing that

the defendant was present at the time of trial and heard said order pronounced . .

. and that he had knowledge of the order, and has had ability to comply with the same, but has wilfully refused to do so, and that the same has not been complied with, and the court having ordered the defendant to appear and show cause on Oct. 3rd, 1938, in Dept. 8, why he should not be punished for contempt of court in wilfully failing to comply with the said order of Court, and the defendant now appearing in court, the court finds that the defendant has had the ability to comply with the said order of the court, but has wilfully failed and refused, and still does wilfully fail and refuse to comply with the said order of the court; therefore it is ordered that the said defendant Arthur F. Larrabee be and he is now sentenced to Five days in the' County Jail, commencing forthwith. ’ ’ The return of the sheriff was deemed to be true

(In re Collins,

151 Cal. 340 [90 Pac. 827, 91 Pac. 397, 129 Am. St. Rep. 122] ;

In re Gutierrez,

1 Cal. App. (2d) 281 [36 Pac. (2d) 712]), and the petition for the writ was treated as a traverse.

The first contention of the petitioner is that there was no competent evidence at the hearing of June 22, 1938, to support the finding that the petitioner had disobeyed the prior order of March 17, 1938. The petitioner has failed to set forth either in his petition or in any traverse the evidence taken at the hearing on June 22, 1938. The rule has been stated in the case of

In Re Larrabee

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CRAIL, P. J.

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