In Re Ellery

California Court of Appeal Aug 10, 1937 No. Crim. 1963Published

Before: Spence

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Holding. The court held that an affidavit for contempt is sufficient if it alleges the defendant's knowledge of the court order and their ability to comply, even without formal service of the order or highly specific factual averments.

Issues

Whether an affidavit for contempt is insufficient if it fails to allege formal service of the underlying court order upon the defendant.
Whether an allegation that a defendant is 'able and capable' of complying with a court order is a sufficient allegation of ultimate fact.
Whether the trial court had jurisdiction to adjudge the petitioner in contempt for failing to pay alimony.

Disposition. remanded to custody

Quotations verified verbatim against the opinion

“the disobedience of a lawful order of a court by one who has knowledge thereof constitutes contempt.”

“an affidavit charging the commission of a contempt need not be more specific in its averments of the facts than a complaint or an information charging a crime”

[275]

SPENCE, Acting P. J.

Petitioner was committed to the county jail pursuant to an order adjudging him guilty of contempt for failure to pay alimony. He seeks his release on

habeas corpus.

On June 15, 1933, the trial court made its order directing petitioner to pay the sum of $250 per month for the support and maintenance of his wife. In March, 1937, the wife filed an affidavit showing that petitioner had failed to comply with said order and that petitioner was in arrears in a sum in excess of $5,000. The affidavit further showed that the wife was in dire need of money and that she needed $150 immediately for the purpose of a necessary operation. An order was issued directing petitioner to show cause why he should not be adjudged guilty of contempt for failure to make the payments ordered. Several hearings were had and while said proceedings were pending, the trial court made a further order on April 6, 1937, directing petitioner to pay to his wife “forthwith the sum of $150 on account of money due her under said judgment”. Upon the second hearing following the making of the last-mentioned order, an order was made adjudging petitioner guilty of contempt and directing that petitioner be committed to the county jail to be there imprisoned until he paid said sum of $150.

Petitioner has filed three memoranda of points and authorities in this proceeding. In the first, the only heading found is “Second Contention”. In the second, there are no headings whatever. In the third, the sole heading is “Pacts”. While, section 2 of rule VIII of the Rules for the Supreme Court and District Courts of Appeal may not apply in express terms to a memorandum filed in an original proceeding as provided in section 2 of rule XXVI of said rules, we believe it to be the duty of counsel to assist the court in ascertaining the points to be considered by discussing each point separately under an appropriate heading in any memorandum filed in such original proceedings.

As we understand petitioner’s argument, he contends that the affidavit of the wife was insufficient and that the trial court was therefore without jurisdiction to adjudge petitioner guilty of contempt. (5 Cal. Jur. 938, sec. 38.) We find no merit in this contention.

The first attack made upon the affidavit is that while it was alleged therein “that said defendant knew of and was

In Re Ellery

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