In re Cardella

TUTTLE, J. Petitioner seeks release from confinement in the county jail through habeas corpus.

In answer to the writ, the sheriff filed his return, which shows that the authority for detaining petitioner is based upon the following order of the court:

“The court orders motion for modification of the divorce decree denied, both as to the custody of the child and the amount of the monthly payments, and further orders that if payment is not made as previously ordered by the court, that defendant is adjudged in contempt of court, as the court finds that he has the present ability to pay and orders him to pay the amount of $185.00 immediately; $105.00 on account of counsel fees, and $80.00 delinquent payments on the $60.00 [330]per month alimony. Defendant is ordered confined in the Merced County Jail until the amount of $185.00 is paid.” The contention of petitioner is that the foregoing commitment is wholly insufficient, in that the court fails to find the facts which are the basis of the finding that “he (petitioner) has the present ability to pay.” Petitioner urges that the language quoted is, in reality, a mere conclusion.

The record of the hearing which resulted in the order is not before us. In 5 Cal. Jur. 952, 953, sec. 48, it is said:

“Since proceedings in contempt are in their nature criminal in character, and the court exercises but a special and limited jurisdiction in such matters, the record of the court upon which the party is adjudged guilty of contempt should show affirmatively upon its face the facts upon which the judicial action is based and upon which jurisdiction depended, the purpose of the requirement being to enable the appellate court to determine by an inspection of the record, whether a contempt has in fact been committed. No presumptions and intendments will be indulged in favor of the order; and the charge and finding thereon, and the judgment of the court, are to be strictly construed in favor of the accused.” In the same volume, page 937, sec. 37, it is stated:

“The facts constituting the contempt must be stated in some appropriate form, either in an affidavit in the case of a constructive contempt, or in the order adjudging contempt, in the case of a direct contempt.”

The affidavit, if there was one, is not in the record. Thus, we have for consideration the commitment alone, which constitutes the judgment. Also, from the same volume, pages 948, 949, see. 44, we quote the following: