Summary
noting that a "court could ... infer that the defendant, having agreed to pay, had the ability to pay"
Summary of this case from People v. N. River Ins. Co.Opinion
Rehearing Granted Oct. 21, 1937.
Petition by Burr A. Brown for a writ of prohibition against the Superior Court of Los Angeles County, Hon. Fred. Miller, Judge, and another, wherein an alternative writ was issued.
Alternative writ discharged, and writ denied.
COUNSEL
Burr A. Brown, of Encinitas, in pro. per.
Everett W. Mattoon, Co. Counsel, and Beach Vasey, Deputy Co. Counsel, both of Los Angeles, and Mark L. Taylor, of Long Beach, for respondents.
OPINION
DORAN, Justice.
In this petition for a writ of prohibition to prevent the superior court from punishing petitioner herein for contempt for failure to comply with an order of the court for the payment of alimony, said petitioner contends, in substance, that there can be no contempt for the failure to comply with the order because: First, such order embraces only the approval of a property settlement agreement and is not an order for the payment of alimony based upon a preliminary hearing as to petitioner’s ability to pay; and, second, that the evidence heard upon the examination of the petitioner at the hearing on the contempt proceedings conclusively shows that at no time since the signing of such order for the payment of alimony has the petitioner had the financial ability to comply with the same. An alternative writ was issued on such petition.
It appears from the record herein that petitioner was the defendant in an action for divorce, in connection with which a property settlement agreement was executed by the parties; that the interlocutory judgment in said action, dated February 17, 1932, following the default of defendant, provided as follows: "It is further Ordered, Adjudged and Decreed that that certain Property Settlement Agreement of the date of January 14, 1932, between Burr A. Brown and Elma L. Brown, parties to this action, be, and the same is hereby ratified, confirmed and approved; It is further Ordered, Adjudged and Decreed that Defendant pay to Plaintiff the sum of Thirty Dollars ($30.00) United States Legal Tender per week on Monday of each week beginning February 22, 1932, during and for the lifetime of plaintiff; provided, however, that payment by defendant to plaintiff of said sum of Thirty Dollars ($30.00) per week during and for the lifetime of plaintiff shall not be in addition to the payment of the Thirty Dollars ($30.00) per week which defendant has agreed to pay to plaintiff in accordance with the terms of said Property Settlement Agreement of date of January 14, 1932, between the parties to this action."
It will be seen from the foregoing that, although reference is made in the court order to the property settlement agreement, nevertheless the order for the payment of the alimony is unqualified and, in effect, is independent of any reference to the property settlement agreement. In re Leet, 99 Cal.App. 788, 279 P. 466, and other cases relied upon by petitioner, are not in point, and therefore furnish no authority in support of petitioner’s contention that the order in question constituted merely an approval of a property settlement agreement. It is not disputed by petitioner that the property settlement agreement was executed, but--if petitioner’s argument is understood--it is urged that the order for the payment of alimony is invalid because it was decreed in the absence of evidence of the defendant’s (petitioner’s) ability to pay. In this connection, it appears that at the time the original order for the payment of alimony was made the court had proper knowledge of the property settlement agreement. It cannot be said, therefore, that the order was made in the absence of knowledge of the defendant’s ability to pay, for the court could, and probably did, infer that the defendant, having agreed to pay, had the ability to pay.
The claim that petitioner was adjudged guilty of contempt "notwithstanding the uncontradicted testimony of petitioner as to his inability to make the payments under said Order," as well as the further claim that it was conclusively shown that at no time since the signing of the order for the payment of alimony has petitioner had the ability to pay, lacks support in the record. In this connection it should be noted that respondents’ answer to the petition herein for an alternative writ of prohibition alleges, in substance, that at the hearing on the order to show cause Elma L. Brown, the former wife of petitioner, upon whose affidavit the order to show cause was issued, testified that petitioner was receiving between $100 and $150 per month as city attorney of the city of Seal Beach and received additional sums from said city for the examination and approval of bond issues; that in addition thereto he received his income from the general private practice of law; that petitioner had recently purchased a new Dodge automobile; that at said hearing petitioner himself testified that the expenses sought to be deducted included taxes and expenses of operating petitioner’s ranch and the support of his present wife and family, and that some months his income was far in excess of $200 per month; also, that he was the owner of a ranch located in the county of San Diego. Petitioner herein made no reply to the aforesaid answer.
The situation in the instant case is analogous to the case of Bailey v. Superior Court, 215 Cal. 548, 11 P.2d 865, wherein the court held the evidence to be sufficient to support the finding of ability to pay.
From the limited record presented in connection with the petition herein for a writ of prohibition, it is evident that in the contempt proceedings the issue as to petitioner’s ability to pay was determined upon conflicting evidence, under which circumstances prohibition is not available for the purpose of reviewing the findings or judgment.
For the foregoing reasons, the alternative writ of prohibition heretofore issued is discharged and a writ of prohibition is denied.
I concur: YORK, Acting P. J.