# Rosin v. Superior Court > California Court of Appeal · May 31, 1960 · 181 Cal. App. 2d 486 URL: https://www.frixlaw.com/law-library/cases/9734934 ## Case - **Full name:** CHARLOTTE v. ROSIN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; VICTOR M. ROSIN, Real Party in Interest - **Court:** California Court of Appeal - **Decided:** May 31, 1960 - **Citations:** 181 Cal. App. 2d 486; 5 Cal. Rptr. 421; 1960 Cal. App. LEXIS 2019 - **Precedential status:** Published - **Opinion:** Dissent by Kincaid - **Judges:** Ashburn, Kincaid - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734934 ## Opinion text KINCAID, J. pro tem. * I dissent. The principal question presented is whether the respondent court had jurisdiction to adjudge petitioner to be in contempt for violation of the father’s visitation rights where the judgment awarded custody of the children to her but did not specifically prohibit her from removing the children from California. The judgment provided that the father should have certain reasonable visitation rights, namely: to have the children with him on alternate Saturdays and Sundays and during the first two weeks in July and in August of each year, and to telephone the children once each evening. Other than as may perhaps be possibly implied from said provisions relating to the father’s visitation rights, the said divorce decree did not contain any provisions prohibiting petitioner from removing the children from California, nor requiring her to obtain the approval of the court or of the father before so doing. Some nine months after entry of the judgment, petitioner, with the children, moved from California to Florida without seeking approval of the court or of the father, and with the intention of making her permanent residence in Florida. Following petitioner’s removal with the children to Florida, the father sought and secured an order directing petitioner to show cause why she should not be adjudged in contempt for wilfully disobeying the provisions of the judgment granting visitation rights. In the father’s affidavit setting forth the alleged contempt, the only facts averred, disregarding mere conclusory statements and formal matters, were: “In the second week of November, 1959, she [petitioner] removed the children from the State of California without my knowledge or consent and with the intent of preventing the exercise of my visitation and communication rights. Since then the children have been kept out of the state.” The respondent court, after a hearing of the matter and *501 after first finding that petitioner had knowledge of the order relative to the father’s specific visitation rights and that she had the ability to comply therewith, found that petitioner had failed to comply with said order providing for specific visitation rights, that her failure was a wilful failure and was done for the purpose of depriving the father of his right of reasonable visitation. Thereupon, the respondent court adjudged petitioner in contempt of court and the petition to review such contempt order followed. It is clear that the primary act of alleged contempt charged in the supporting affidavit consisted in petitioner’s removal of the children from the state, thereby incidentally hampering or depriving of visitation rights. The crucial question presented is, therefore, whether petitioner committed any illegal act or contempt in moving with the children from California to Florida. Section 213, Civil Code, provides: “Right of parent to determine the residence of child. A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a removal which would prejudice the rights or welfare of the child.” This section has stood without amendment since 1872 and clearly entitled a parent having legal custody of a child to change the place of residence of said child to a location either in or out of the state, subject only to an order of a proper court restraining such a removal. In Dozier v. Dozier, 167 Cal.App.2d 714, 719 [ 334 P.2d 957 ], applying section 213, Civil Code, the court said: “Under ordinary circumstances, a mother having custody of a child should be permitted to move about freely, and any unnecessary or arbitrary restriction on her residence is unreasonable. The fact that by the child’s removal from the state the father may be deprived of his visitation rights is generally not alone sufficient to justify restraint on the mother’s free movement unless the latter is inconsistent with the welfare of the child.” It is the rule in California and the majority modern rule in other jurisdictions that a parent to whom the custody of the children has been awarded commits no illegal act nor contempt in removing the children from the state issuing the custody award, where the divorce decree or order awarding custody does not prohibit said parent from removing the children from said state. (Beabout v. Beam, 119 Cal.App.2d 768, 772 [ 260 P.2d 145 ] ; In re Dowell, 4 Cal.App.2d 688, 689 [ 41 P.2d *502 596 ]; Ex parte Vaughn, 205 Ala. 296 [ 87 So. 792 ]; Barnes v. Lee, 128 Ore. 655 [ 275 P. 661, 663 ]; 17A Am.Jur. § 832, p. 24.) 1 On review of contempt proceedings, “ [t]he question whether jurisdiction was exceeded includes . . . inquiry as to whether a contempt has in fact been committed.” (12 Cal.Jur.2d 99, §77;In re Lake, 65 Cal.App. 420 [ 224 P. 126 ].) It would accordingly appear that the respondent court exceeded its jurisdiction in holding petitioner to be in contempt for the reason that the only act of alleged contempt charged in the affidavit consisted in petitioner’s intentional removal of the children from California, and for the further reason that petitioner committed no illegal act nor contempt in so doing since the divorce decree did not prohibit such removal. It is, however, further urged that, while the interlocutory judgment did not expressly prohibit the removal of the children from California, the provisions relating to the father’s visitation rights by necessary implication prohibited the removal of the children from this state. It seems sufficient to observe that the order at bench is a contempt proceeding, criminal in nature and the prescribed procedural safeguards must be accorded the alleged contemner. (City of Culver City v. Superior Court, 38 Cal.2d 535, 541 [ 241 P.2d 258 ].) The prime purpose of such proceedings is punishment for disobedience of a valid order directing performance of a specified act. A charge of contempt cannot be established for failure to comply with uncertain orders or judgments, or possible implications thereof. Liability should not rest upon implication or conjecture but rather upon an order expressing in clear, specific and unequivocal language the act required. (Foust v. Foust, 47 Cal.2d 121, 124 [ 302 P.2d 11 ].) It may be that the removal of the children from California constitutes a change of circumstances which would justify the superior court on proper petition and showing therefor to make order modifying the interlocutory judg *503 ment, even to the extent of reducing the award of alimony to petitioner. (Williams v. Williams, 103 Cal.App.2d 276, 278 [ 229 P.2d 830 ].) However, a proceeding in contempt is essentially different; and an order adjudging a person in contempt can only be upheld where the acts charged in the affidavit show that a contempt in fact and in law has been committed. Additionally, it is impliedly contended that the order of the respondent court cannot be disturbed because it was averred in the father’s affidavit that petitioner removed the children from California “with the intent of preventing the exercise of my visitation and communication rights” and because the respondent court found that petitioner’s failure to comply with the order relating to the father’s visitation rights “was done for the purpose of depriving defendant [the father] of his right to reasonable visitation.” The majority opinion assumes and relies upon a specific intent upon the part of petitioner to deprive the father of his visitation rights. The finding of the trial court to that effect, however, is based entirely upon the averment in the father’s affidavit that the children were removed from the state “with the intent of preventing the exercise of my visitation and communication rights.” This averment was a mere conclusion and there was no evidence supporting the respondent court’s finding that petitioner’s actions were done for that purpose. In fact, the only evidence relating to petitioner’s intent was her counteraffidavit to the effect that it was necessary for the children's welfare to remove them from California because other children and persons were constantly questioning them about the scandalous charges made in the divorce action between the parties. Granting that the respondent court did not have to give credence to petitioner’s counter averments, there was no other evidence relating to petitioner’s intent in removing the children to Florida. Since petitioner had the legal right to remove the children to a new home in another state she could not be found in contempt for merely harboring or having an intent to deprive or hamper the father in his incidental visitation rights. Further contention is also made that the father’s testimony at the hearing showed that petitioner did not inform him of her Florida telephone number until some six weeks *504 after her removal; that, on one occasion shortly after her removal to Florida, she refused to accept his telephone call; and that there was therefore evidence in support of the court’s finding that petitioner had failed to comply with the order relating to his visitation and communication rights. It appears, however, that petitioner informed the father of her Florida address within a week or two after her removal to Florida, and that thereafter several weeks later she informed him of her Florida telephone number. Excepting for the distance and expense involved there is no further evidence to show that the children may not be visited by the father either personally or by telephone, nor that he may not have them with him in California in July and August as defined in the judgment. More important, the affidavit charging the alleged contempt did not aver or charge any offense for failure to furnish telephone number or to accept telephone call; and it is settled that the affidavit charging the contempt must state the facts constituting the offense, and that its insufficiency cannot be cured by facts proved on the hearing. (Warner v. Superior Court, 126 Cal.App.2d 821, 824 [ 273 P.2d 89 ].) The father contends that, since the custody decree in the ease at bar gave him specific visitation rights, such decree is distinguishable from the custody order in Bedbout v. Beam, supra, 119 Cal.App.2d 768 (wherein the other parent was given the right to visit the children “at reasonable times”); and that the custody order herein can only be construed as prohibiting the removal of the children from California. The claimed distinction is one without any real difference. In Beabout v. Beam , the parent, to whom the custody of the children had been awarded subject to the right of the other parent to visit them at reasonable times, moved with the children from Indiana to California. Such removal obviously impeded and made more difficult the Indiana parent’s right to visit the children at reasonable times in substantially the same way as the removal of the children to Florida in the case at bar impeded and made more difficult the father’s right herein to have the children with him at stated times and to telephone them each evening. It is clear, therefore, that Beabout v. Beam is necessarily based on the fundamental proposition that the parent awarded custody has the right to remove the children to another state where the custody order does not prohibit, even though the *505 visitation rights of the other parent may incidentally he impeded and made more difficult hy reason thereof. Cole v. Superior Court, 28 Cal.App. 1 [ 151 P. 169 ], relied upon by the father and cited in the majority opinion is not in point. The custody order in Cole specifically ordered the mother, who had been awarded the custody of the minor child, to send the child to the father at Stockton during school vacation periods, if the father so requested. The mother wilfully disobeyed said specific order; and it was held that she had properly been adjudged guilty of contempt. There was obviously a clear violation of a specific and definite order commanding the mother affirmatively to perform a stated act. On the contrary, the custody decree in the case at bar did not prohibit the mother from removing with the children from California nor did it affirmatively command her to perform any specific act. As there is no appeal from an order made in a contempt proceeding, it may be reviewed and annulled upon certiorari if it is in excess of jurisdiction. (Freeman v. Superior Court, 44 Cal.2d 533, 536 [ 282 P.2d 857 ]; Weber v. Superior Court, 26 Cal.2d 144, 148 [ 156 P.2d 923 ].) I am satisfied that the act of petitioner in removing the children from the state, although incidentally impeding the father’s visitation privileges, falls short of a direct violation of the terms of the interlocutory judgment and therefore respondent court exceeded its jurisdiction in adjudging her in contempt. The contempt order should be annulled. A petition for a rehearing was denied June 24, 1960, and the petition of the real party in interest for a hearing by the Supreme Court was denied July 27, 1960. Assigned by Chairman of Judicial Council. It is also established that, even where the original decree awarding custody prohibited the removal of the children from the state or required court approval therefor, removal of the children from the state may be authorized and permitted upon proper showing and for sufficient cause. (White v. White, 68 Cal.App.2d 650 [ 157 P.2d 415 ]; Shea v. Shea, 100 Cal.App.2d 60, 63-64 [ 223 P.2d 32]; 154 A.L.E. 552, 564-570.) In the Shea ease, it is questioned whether a court has any power to make an order prohibiting the custodial parent from removing the children from the state, at least in the absence of affirmative finding that removal from the state would prejudice the children’s welfare. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734934. Public record. Not legal advice.