In re Mancini

SHINN, P. J. The order for the imprisonment of petitioner was made in a divorce action in which petitioner’s husband, Joseph J. Maneini, was found in contempt and sentenced by order which has this day been annulled in 2d Crim. No. 8742. [Ante, p. 54.]

By order of October 19, 1961, petitioner was awarded custody of the minor child, a 12-year-old boy. Both parties were restrained from annoying, harassing or molesting the other, from disposing of property and from discussing their marital relations or making any derogatory remarks to or about the other in the presence of the child; plaintiff was to have the exclusive use and possession of the family residence, but no unrelated persons were to reside therein. The order awarding plaintiff custody of the child provided “with right [58]of reasonable visitation to defendant which includes but is not limited to physical custody on alternate week-ends from 9 AM Saturday to 6 PM Sunday commencing October 21, 1961.” October 22, 1962, defendant filed a certificate which stated “plaintiff has continuously and wholly refused defendant visitations with said minor child either as ordered by the court, as aforesaid, or in any other manner.” It was also stated that in 14 instances the boy had made statements to his father which indicated that plaintiff had probably discussed their marital relations and made derogatory remarks about defendant in the presence of the boy. There was no assertion of any statement made by plaintiff to or in the presence of the boy.

Hearing was had upon an order to show cause why plaintiff should not be found in contempt for violation of the order; on August 31, both plaintiff and defendant testified and the court made an order reading in material part: “The Court interviews the minor child in chambers and counsel waive this discussion. The Court finds that the plaintiff had knowledge of the order of October 19, 1961, that she had the ability to comply with the order of the Court and that she wilfully failed and refused to comply with said order. The plaintiff is found in contempt of Court and is ordered to return to this courtroom on November 1, 1962, 9 AM for sentencing.” Continuances were had until December 27.

It is shown by the sheriff’s return to our writ that on December 27, 1962, the court made an order entitled “Commitment to County Jail,” which stated that by order of October 10, 1961, plaintiff was ordered to allow defendant “visitation per order”; that plaintiff had knowledge of the order, the ability to comply with the same, but had wilfully refused to do so. It was stated that an order to show cause had been issued returnable December 27 and that the court now finds that plaintiff had ability to comply with the order and has wilfully failed to comply with the same. Plaintiff was ordered to surrender herself to the sheriff at 8 p.m. January 4, 1963, to be released at 8 p.m. January 6, 1963. No reference was made to the court’s order of August 31. No order to show cause had been issued for plaintiff’s appearance on December 27. No evidence was received and no hearing was had at that time.