Sorell v. Superior Court of S.F.

By this proceeding in certiorari, petitioner, a practicing attorney, seeks annulment of certain orders of the respondent superior court, dated September 2, 1966, and September 21, 1966, respectively. These orders adjudge petitioner to be in contempt of that court and that he be jailed therefor for five days.

Charles W. Kieser, the real party in interest, also an attorney, represented Ann Sorell, wife of petitioner in a divorce action. On motion of Ann Sorell, following a hearing, the court on December 2, 1963, made an order for temporary support and attorney fees. In this order petitioner here was, among other things, ordered to “pay to Charles W. Kieser, attorney for plaintiff herein, the further sum of $100.00 on account of counsel fees, in addition to the $200.00 ordered paid on July 18, 1963.” Admittedly no part of these sums have been paid.

In July 1966 the real party in interest commenced contempt proceedings against petitioner for nonpayment of the sums so ordered paid. A “Notice of Motion re Contempt” was served and filed together with a supporting declaration made under

Petitioner (defendant below) offered no counterdeclaration or affidavit. At the hearing neither side produced evidence, and argument was confined to legal issues. During the proceedings petitioner admitted that he had said in the presence and hearing of the court that he had no intention of paying any money to Mr. Kieser, regardless of his ability, and that under no circumstances would he pay one cent.

In the ensuing orders the court found that petitioner “has had the ability to comply with the Judgment and Order of this Court made 2nd day of December 1963, together with accrued interest,” totaling $393.50. (Italics added.)

Petitioner’s contentions are two. First, he states that Mr. Kieser, not having been a party to the divorce action in which the order in question was made, has no standing to enforce that order by contempt proceedings. He appears to be in error.

Section 137.5 of the Civil Code has since 1937 provided for payment of such attorney fees directly to the attorney concerned. Until 1951 that section had also provided that such an attorney fee order could be enforced only by way of execution. In 1951 section 137.5 of the Civil Code was amended to refer to the enforcement provision of section 137.3 of the Civil Code which allows enforcement “by the court by execution or by such order or orders as, in its discretion, it may from time to time deem necessary.” This language includes the contempt power. (See Miller v. Superior Court (1937) 9 Cal.2d 733 [ 72 P.2d 868 ]; 3 Witkin, Summary of Cal. Law (1960) Husband and Wife, § 96, pp. 2645, 2646; § 104, p. 2651.)

It is true, generally, that a motion for attorney fees cannot be made by one not a party to the action. (Marshank v. Superior Court (1960) 180 Cal.App.2d 602 , 605 [ 4 Cal.Rptr. 593 ].) An attorney to whom an award of fees has been ordered paid, however, stands in a unique position. While not for other purposes a party to the action, he may move the court to enforce the award made payable to him. (Weil v.

Petitioner next contends, there being no showing of his present ability (in 1966) to make payment as ordered, that the court lacked jurisdiction to make the questioned orders.

In a proceeding for the punishment of constructive contempt, i.e., one committed out of the presence of the court, the affidavit or, as here, the declaration of the complaining party constitutes the basis of the judicial action. (Freeman v. Superior Court (1955) 44 Cal.2d 533 , 536 [ 282 P.2d 857 ] ; Hotaling v. Superior Court (1923) 191 Cal. 501 , 505 [ 217 P. 73 , 29 A.L.R. 127 ]; Uhler v. Superior Court (1953) 117 Cal.App.2d 147 , 151 [ 255 P.2d 29 , 256 P.2d 90 ]; Ex parte Von Gerzabek (1923) 63 Cal.App. 657 , 660-661 [ 219 P. 479 ].) If the affidavit does not recite all the jurisdictional facts by showing a contempt of court on its face, the court is without jurisdiction, and the order of contempt is void. (See, e.g., Phillips v. Superior Court (1943) 22 Cal.2d 256 , 257 [ 137 P.2d 838 ]; Berger v. Superior Court (1917) 175 Cal. 719 , 720 [ 167 P. 143 , 15 A.L.R. 373 ]; Warner v. Superior Court (1954) 126 Cal.App.2d 821 , 824 [ 273 P.2d 89 ]; In re Ny (1962) 201 Cal.App.2d728, 731 [ 20 Cal.Rptr. 114 ].)

In a proceeding to punish for contempt, it is generally not necessary that the complainant allege that the contemner has the ability to comply with the order. (In re McCarty (1908) 154 Cal. 534 , 537 [ 98 P. 540 ]; In re Rasmussen (1922) 56 Cal.App. 368 , 371 [ 205 P. 72 ]; Ex parte Von Gerzabek, supra, 63 Cal.App. 657 , 661; In re Risner (1945) 67 Cal.App. 2d 806 , 809-810 [ 155 P.2d 667 ].)

In the McCarty case, the court stated that it is not necessary for the wife to allege her spouse’s ability to comply with the original order granting alimony. “The court had originally found that he had such ability, and the only jurisdictional facts required to be stated in the affidavit were the making of the order and disobedience to it by refusal to

In Risner, supra, ( 67 Cal.App.2d 806 ), no showing of present ability to comply at the time of the contempt hearing was made. The allegation and the proof was to the effect that Nelly had previously had such ability. Accordingly the appellate court there determined (p. 811): “The record in the instant proceeding does not disclose a lack of jurisdiction in the trial court to make the order of commitment adjudging petitioner guilty of contempt. ’ ’

The principle followed in Risner, supra, seems to be the general rule. Volume 17, Corpus Juris Secundum, in its article on Contempt, at page 49, states: “. . . if the order could have been obeyed when made, the party is in contempt, although at the time of the contempt proceedings he could not comply.” Volume 27B of the same work in the article “Divorce,” page 101, sets forth: “Ability to comply at the time of the act of disobedience, and not at the time of the imposition of sentence, is the test of whether a refusal to comply with a decree for the payment of alimony constitutes contempt; ...”

A leading case on this point is In re Clifts Estate (1945) 108 Utah 336 , 340 [ 159 P.2d 872 ], in which the Supreme Court of Utah stated: “ ‘. . . the inability of the defendant, without fault on his part, to render obedience to the judgment would be a complete defense to the charge of contempt for failure to comply with such judgment, . . .’ However, this does not necessarily require ability to comply with the order at the time of the commitment for contempt. Conceivably a person might, while he had the ability to comply therewith, deliberately fail to obey the court's order, and then after his

Accordingly the issue here is not as petitioner contends, whether he has the present ability (in 1966) to pay the amounts ordered paid in 1963 at which time the court found an ability to pay. Instead the question is: Did petitioner, having the ability to pay (at least in 1963) wilfully fail to comply with the court’s order? From the record before us it is clear that he did. Further proof of a present ability to pay would seem to be unnecessary.

For the reasons stated the orders are affirmed.

Molinari, P. J., and Sims, J., concurred.

A petition for a rehearing was denied February 17, 1967. On February 24, 1967, the judgment was modified to read as printed above.