In Re Fontana

Opinion

BRAY, J.

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Petition for Writ of Habeas Corpus

The sole question presented is: Does the remedy of contempt lie for violation of a court order in a dissolution of marriage action requiring petitioner to make payments on an automobile awarded to his former wife?

Record

In the interlocutory judgment dated March 12, 1971, in the dissolution of marriage action between petitioner and his then wife, Patricia Fontana, now Patricia Curiel, the court, among other distributions, ordered that petitioner pay to Patricia Fontana “$72 per month for the payments on the 1970 Volkswagen automobile which is financed through Wells Fargo Bank, until the said automobile is paid off.” Apparently this order was made pursuant to a property settlement agreement of the parties.

Patricia remarried and then petitioner refused to make any further payments for the automobile. Petitioner was brought before the San Mateo

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Superior Court on an order to show cause re contempt for failure to continue the payments. After a hearing, petitioner was adjudged in contempt of court for failure to make such payments, and sentenced to five days imprisonment. He was remanded to the custody of the sheriff. He then filed this petition for habeas corpus. We issued an order to show cause and a temporary release from custody.

Contempt does not lie.

The court ruled that the order in question was not a support order, but was an order adjudging the property rights of the parties.

Petitioner contends that to imprison one for failure to make payments in accordance with a property settlement agreement pursuant to a court order would violate article I, section 15 of the California Constitution, which prohibits imprisonment for debt. Real party in interest (hereinafter referred to for convenience as “respondent”) contends that newly enacted Civil Code section 4380

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