In re Zitterman

SHINN, P. J. A writ of habeas corpus was heretofore issued upon a petition asserting invalidity of petitioner’s confinement under a commitment following two adjudications of contempt for failure to comply with certain orders for the payment of money made in a pending action for divorce in which he is the defendant. When the matter came on for hearing it was submitted upon the petition and the return, the petition, upon stipulation being deemed a traverse to the return. The only questions for decision are whether the commitment is legally sufficient and whether, in the prior proceedings, the court acted within its jurisdic[82]tion. The following is a summary of the proceedings. On September 14, 1948, petitioner was ordered to pay $15 per week for the support of his wife, beginning September 20, 1948; $150 attorney’s fees and $15 court costs payable at $15 per month beginning October 15, 1948. By stipulation any further award of attorney’s fees and court costs was to be fixed at the time of trial. On December 29th, the order was changed to $25 per week for the wife and children, payments to commence January 1, 1949; defendant was also ordered to forthwith surrender possession of the home to plaintiff. On February 24, 1949, the court found defendant not in default with respect to the payments ordered on September 14th but in default in the sum of $150 under the order of December 29th. He was adjudged in contempt for failure to make such payments and his refusal to vacate the premises. He was sentenced to five days in the county jail and was ordered to pay a fine of $500, $2.00 of which was suspended, the fine or the unpaid portion thereof to be satisfied by confinement in the county jail at the rate of $2.00 per day. Defendant was ordered to pay an additional $50 as attorney’s fees and execution of sentence was stayed until February 25th. On February 25th, the court granted a further stay of execution to March 25th but ordered defendant to keep up the payments for support and to pay $5.00 per week on the arrearage of $150. On March 25th, execution of sentence-was stayed until June 27th “on condition that defendant comply with all orders in this matter. ’ ’ Thereafter petitioner was cited to show cause why he should not be adjudged in contempt for failure to comply with the order of March 25th which, indirectly ordered him to keep up his payments. On May 31st, defendant was found to be in arrears in the amount of $67.50 as of May 9th, and $117.50 as of May 31st. It was ordered that the “contempt matter be continued to June 24th.” The divorce trial commenced on June 24th, and on June 29th, the court made a further order that defendant pay plaintiff the sum of $100 per month for the support of the children “payable as in the former order of court”; also $150 attorney’s fees at the rate of $15 per month. It was ordered that plaintiff have a judgment of divorce and temporary custody of the children but the matter was continued to July 8th, for the purpose of making an investigation with respect to the matter of custody. The contempt matter that had been heard on May 31st, was continued to June 24th, and again to the 29th for further hearing. On the latter date