In Re Earl

California Court of Appeal Jun 6, 1933 No. Docket No. 2354.Published

Before: Conrey

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Holding. The court held that an order for the payment of alimony requires an undertaking to stay enforcement pending appeal, and that the trial court's finding of the defendant's ability to pay is sufficient to support a contempt conviction.

Issues

Whether an appeal from an order for the payment of alimony stays proceedings without an undertaking.
Whether the trial court's finding of the defendant's ability to pay supports a contempt order.
Whether a prior order finding no contempt is conclusive against a subsequent contempt order.

Disposition. remanded

Quotations verified verbatim against the opinion

“an order for the payment of alimony falls within the provisions of sections 942 and 946 of the Code of Civil Procedure, since such appeal is from a judgment or order directing the payment of money.”

“We are of the opinion that the facts thus found, taken together with the original order itself, are sufficient to sustain the authority of the court to impose the penalty.”

“Let the, petitioner be remanded to custody.”

CONREY, P. J.

On May 26, 1932, by an order of the Superior Court of Los Angeles County in an action of

Alice Bunch Earl, Plaintiff,

Chaffee Earl, Defendant,

the defendant was ordered to make certain payments of money to the plaintiff on account of attorney’s fees, costs and money for support of the plaintiff. Thereafter in a proceeding wherein defendant was charged with contempt of court by-failure to make payments in accordance with said prior order, the court found that the defendant had wilfully refused to pay certain of the moneys which by said prior order he had been required to pay, and that he had had the ability to pay the same at the time of such failure and refusal to comply with the order; whereupon it was ordered that the defendant serve two days in the county jail “commencing forthwith”. This order and the commitment thereon were made and the defendant was committed to the county jail, all on the twenty-seventh day of February, 1933. On the same day in response to a petition for the writ of

habeas corpus

the writ was issued out of this court and the petitioner was released on bail at 1 o’clock A. M. on February 28th.

Substantially the matter thus has come to be of comparatively slight importance. Nevertheless the case is here and must be decided. Therefore it becomes necessary to examine into' the grounds upon which petitioner claims that the court was without authority to impose the sentence.

The first point suggested is that because defendant had appealed from the order of May 26, 1932, the pendency of the appeal operated as a stay of proceedings and entitled the defendant to withhold payment without the giving of any appeal bond. It appears that upon the taking of the appeal application was made for an order of court fixing the amount of an undertaking on appeal, and that the court fixed the amount at the sum of $15,000. From the affidavits used in the contempt proceeding it appears that petitioner

[447]

diligently attempted to obtain such undertaking, but was unable to obtain any surety or sureties on such bond. This fact we think is immaterial, if an undertaking was necessary to stay enforcement of the order. And apparently an undertaking was necessary for that purpose. In

In Re Earl

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CONREY, P. J.

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