Bailey v. Superior Court

CURTIS, J.

This is a proceeding in prohibition begun originally in the District Court of Appeal, Second Appellate District, Division One, which after decision by that court was transferred to the Supreme Court for hearing.

The object of the petition is to restrain the Superior Court of Los Angeles County from enforcing an order adjudging petitioner in contempt in failing to pay the sum of $175 for the support and maintenance of his two minor sons, and directing that he be incarcerated until he complies with said order. In March, 1930, petitioner herein as plaintiff secured an interlocutory decree of divorce from his wife, Lucille McCabe Bailey, on the ground of extreme cruelty. The custody of the two minor children of the couple, both boys, of the ages of approximately six and nine years, was given to the mother with the provision that their father should have their custody during their school vacation season if he provided a suitable place to take them and properly care for them, and the following order with respect to their support was made: “It is further hereby ordered, adjudged and decreed that, until further order of the court, the plaintiff shall pay to the defendant for the support and maintenance of the said children and for their clothes and education the sum of one hundred and seventy-five and 00/100 ($175.00) Dollars per month so long and while the said children are in her custody and care, the first of which payments shall begin on the 1st day of May, 1930, and that while the children shall be in the custody of the plaintiff, he

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shall pay for the maintenance of the home for the children the sum of Eighty-seven and 50/100 ($87.50) Dollars per month on the 1st day of each month, and also he shall pay all reasonable bills for medical services and dental services for said children which may be required in their proper care.” In May, 1930, the court reduced the payment to $150 per month, and in November, 1930, further reduced the payment to $125 per month. In April, 1931, the final decree of divorce was entered. Since the entry of the interlocutory decree the children have been residing with their mother in the city of Los Angeles with the exception of the months of July and August in 1930, and July and August in 1931 when, pursuant to said decree, the two children visited their father and remained with him on a ranch which he had leased at Arvin, Kern County, California. Petitioner has refused to pay to his divorced wife the sum of $87.50 for each of the months of July and August, 1931, the period of time during which the children were in his care. Thereafter, his divorced wife sought to have him declared in contempt of court for his failure to pay the total sum of $175. At the hearing upon the charge for contempt, the failure to pay was admitted by petitioner, but he attempted to excuse such failure upon the ground that he did not have the present ability to make such payments. In this behalf he testified that he had been engaged in farming operations at Arvin, California; that he had leased a ranch of about 350 acres and had planted it in seed potatoes, cantaloupes and Persian melons; that due to a cloudburst which occurred in August, 1931, his crops had been wholly destroyed; that he was in debt to the extent of $90,000, of which he owed $32,000 to his sister and her husband and the rest to general creditors; that his only assets consisted of a new Auburn automobile which had been bought under a conditional sales contract, a pipe-line which had cost him $2,377 and was situated on leased property, and some trucks used in his farming operations. He also testified that he had employed a foreman for $250 per month and that he had paid him for July but not for August. The wife testified that the house rent, which included water and garden care, cost her $45 per month; that she paid for the lights and gas in addition; that she had been working at a circulating library for $15 per week for a few months; that her mother sent her