In re Laham

NOURSE (Paul), J. pro tem.* Petitioner, having been found in contempt of an order of the Superior Court of the State of California, in and for the County of Los Angeles, and sentenced to serve a term of five days in the county jail, seeks a release from custody upon the ground that the judgment of contempt was void and beyond the jurisdiction of the superior court. His specific attacks upon the legality of the order will be hereinafter mentioned.

Petitioner is the defendant and cross-complainant in an action for divorce commenced by his wife, Nadia. On March 9, 1956, by stipulation of the parties and in the presence of petitioner, an order was made and entered that “both parties are restrained from annoying or molesting the other in any manner. ’ ’ On July 30, 1956, Nadia filed in the divorce action her affidavit charging, among other things, that on or about July 6 and on July 21, 1956, petitioner willfully and without cause violated the court’s order by going to the home of [111]plaintiff and trying to by force take the minor children of the plaintiff, who had been awarded to her, from her.

Upon the basis of this affidavit an order to show canse was issued and served upon the defendant requiring him to show cause why he should not be held in contempt of the order of March 9. The matter was heard before a commissioner of the court who found that petitioner did molest and annoy Nadia on July 3 by, through force, taking one of the children of the parties from the custody of Nadia and by engaging in an argument with her. At the hearing before the commissioner both petitioner and his wife fixed the time of this occurrence as July 3.1

The commissioner recommended that the defendant be found in contempt of court for having willfully violated the order of March 9 on Tuesday, the 3d day of July, and again on Saturday, the 21st day of July, and that the matter be continued to September 21, 1956, for hearing before Judge Pox for the purpose of sentence. The findings and recommendations of the commissioner were approved by Judge Evans, and on September 21 petitioner was sentenced by Judge Pox.

Petitioner attacks the judgment of contempt upon two grounds. His first ground is that the affidavit and order to show cause charged him with contempt of the order restraining him from annoying and molesting his wife, but that the commissioner found that he was in contempt for violating an order as to custody of the children.