In Re Lawatch

[647]

THE COURT.

This is a proceeding in habeas corpus through which petitioner seeks release from the custody under which he is held by virtue of a judgment of contempt rendered against him by the respondent court.

Petitioner is a man of the age of 59 years and suffers from diseases of the kidneys, bladder, diabetes and heart trouble. He is the plaintiff and cross-defendant in an action for divorce. By an order entered in the divorce action, he was ordered to pay certain sums per month for alimony and additional sums per month for the support of his minor children. Having failed to pay the full amount of the alimony and child support payments, an order to show cause issued on affidavit of his wife, why he should not be held in contempt of the order of the court. The period covered by the order to show cause was from July 1 to December 15, 1960. During this period petitioner had paid $850 on account of alimony and child support and it was stipulated at the hearing that he was in default on said payments in the amount of $3,350. No differentiation was made between the delinquency in alimony and child support.

At the close of the hearing the court made the following order as reflected by the commitment: “ [T]he Court finds that the plaintiff had the ability to comply with the said order of court, in excess of $850 which plaintiff paid but has willfully failed and refused, and still does willfully fail and refuse to comply with the said order of court; Therefore, it is ordered that the said plaintiff, Rudolf Lawatch be and he is now sentenced to serve three (3) days in the County Jail, commencing forthwith.” The court did not, in the proceedings, distinguish between petitioner’s obligation under the court order to pay alimony and his obligation to pay child support, but as it is evident that no matter how the payments he made were credited, he would be in default on the payments for child support, we treat the judgment of contempt as relating to that portion of the order. It being undisputed that the order in question was made by a court of competent jurisdiction and that the petitioner had failed to comply therewith, a prima facie case of contempt of the order was established (Code Civ. Proc., § 1209.5) and the burden was upon petitioner to prove his inability to comply with the order. We have carefully studied the evidence produced by petitioner at the hearing before the respondent court and that evidence demonstrates that petitioner sustained his burden of proof.