In Re Mulford

California Court of Appeal Mar 7, 1946 No. Crim. 4000Published

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Holding. The court held that a trial court lacks authority to order a defendant in a separate maintenance action to provide security for support payments before a judgment or order fixing those payments has been issued. Furthermore, the court held that the order of arrest was invalid because it failed to comply with statutory requirements for civil arrest and deprived the petitioner of his liberty without due process.

Issues

Does a court have authority under Civil Code section 140 to require security for support payments before an order or judgment fixing those payments has been made?
Was the order of arrest in this civil action valid under the Code of Civil Procedure?
Was the petitioner denied due process by being denied counsel during a summary proceeding that resulted in his incarceration?

Disposition. Petitioner discharged and bail exonerated.

Quotations verified verbatim against the opinion

“The court derives no authority from this section to order a defendant in a separate maintenance action to give security by undertaking, or otherwise, for the payment of sums for support, attorney’s fees and costs, in advance of any order or judgment”

“The order for the giving of security was invalid.”

“The order for petitioner’s arrest was likewise invalid and in excess of the jurisdiction of the court.”

[454]

THE COURT.

Upon petition of Louis K. Mulford a writ of habeas corpus was issued, directed to the sheriff of Los Angeles County, and pending the hearing the petitioner was ordered released on bail. Hearing thereon was had this day on the petition and the return thereto and upon certain evidence introduced at the hearing, from all of which it was made to appear to the court that the petitioner is held in custody by said sheriff under and by virtue of an order of commitment to the county jail, made by a judge of the Superior Court of Los Angeles County under the following circumstances:

Elizabeth H. Mulford, wife of petitioner, instituted in said county an action for separate maintenance; upon her application, through her attorney, William Ellis Lady, there was issued on February 26, 1946, an order directing petitioner to appear in said court on March 8, 1946, to show cause why he should not be ordered to pay sums for the temporary support of the plaintiff, and for costs and attorney’s fees; it was stated in the affidavit for the order to show cause that plaintiff was employed by the United States Government at Denver, Colorado, at a salary of $150 per month, but that her health was such that she would not be able to retain her position and it was stated that petitioner herein has an income of $4,000 per month, or thereabouts. Upon application of the plaintiff the court also issued its order, directed to the sheriff, that petitioner be forthwith arrested and brought before said court. Petitioner was arrested on February 28 and brought into court. A summary hearing was had for the purpose, as stated by the court, of determining whether petitioner should post a bond for his further appearance and as security that he would obey any order that the court might make in the action for the support of his wife. At that time petitioner requested the services of an attorney and objected to proceeding without one, but his objection went unheeded.

From the evidence taken it appeared that the wife is 51 years of age, the husband 72; that the parties were married in 1934 and have been separated for the past six years; that defendant is not engaged in business; that he has investments in stocks and bonds and a stamp collection, all of unstated value. There was no evidence that petitioner intends or is about to leave the State of California, or that he does not intend to comply with any order which the court may make in the action.

In Re Mulford

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THE COURT.

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