Sheldon v. Superior Court of L.A. Cty.

California Court of Appeal Dec 28, 1967 No. Civ. 32436Published

Before: McCOY

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Holding. The court annulled the contempt order because the underlying support obligations for an adult child were contractual rather than court-ordered, and the trial court failed to conduct a formal hearing or make necessary findings regarding the defendant's ability to pay.

Issues

Whether a failure to pay child support for an adult child pursuant to a property settlement agreement incorporated into a divorce judgment is punishable by contempt.
Whether a contempt order is valid when no formal hearing was held and no evidence was introduced to support the findings of arrearages or the defendant's ability to pay.

Disposition. annulled

Quotations verified verbatim against the opinion

“defendant’s failure to make any payments for the support of William after June 6, 1966, was no more than a breach of contract which cannot be punished as a contempt”

“no formal hearing was had on the order to show cause, no witnesses were called and no evidence was introduced to prove the charges made in plaintiff’s declaration”

“nor is there any finding that, on October 2, the day he was adjudged to be in contempt of court, or at any other time, defendant had the ability to pay the amounts set forth in plaintiff’s declaration.”

[542]

McCOY, J. pro tem.

—This is a proceeding to review an order of the Superior Court for Los Angeles County adjudging the defendant, petitioner here, guilty of contempt of court. The order was made October 2, 1967, in action number NO D 146, entitled Frances Helen Sheldon v. William Millard Sheldon. We have taken judicial notice of the file in that action pursuant to section 459 of the Evidence Code.

Plaintiff filed her action for a divorce in May 1963. Defendant defaulted and the matter was heard on November 25 of that year at which time the court found that plaintiff was entitled to an interlocutory judgment of divorce, approved the property settlement agreement, and ordered the executory provisions of the agreement incorporated in the judgment. So far as we are concerned here, the interlocutory judgment filed December 9 and entered December 11, 1963, awarded to plaintiff custody of William Frank Sheldon, born June 6, 1945, and Geoffrey Nelson Sheldon, born February 26, 1948, and provided for their support as follows: “Defendant is ordered to pay plaintiff as and for the support of said minor children the sum of $230.00 per month per child, or a total of $460.00 per month, payable $230.00 on the 5th day of each month and $230.00 on the 20th day of each month, commencing on the 5th day of December, 1963, and pursuant to said property settlement agreement said payments are to continue until the oldest child, William Frank Sheldon, shall have reached the age of 25 years and the youngest child, Geoffrey Nelson Sheldon, shall have reached the age of 23 years, or until said child dies or until further order of this Court."

The final judgment of divorce, filed February 23, 1965, at the request of defendant makes no change in the provisions of the interlocutory judgment.

On May 8, 1967, the court heard defendant’s order to show cause why the interlocutory judgment should not be modified, and after a “conference in chambers, pursuant to stipulation,” the interlocutory judgment was modified to provide a

[543]

Sheldon v. Superior Court of L.A. Cty.

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