Petition for a Writ of Certiorari — Simms v. Superior Court of California

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Supreme Court of the United States...

October Term, 1971

SI cekaicioions

1-488

Petitioner,

MICHAEL §S. SIMMS,

VS.

SUPERIOR CouRT OF Los ANGELES COUNTY,

Respondent,

YUKIKO HARUTA SIMMS,

Real Party in Interest.

Petition for Writ of Certiorari to the Supreme

Court of California.

- SORRELL TROPE,

1901 Avenue of the Stars,

Suite 1451,

Los Angeles, Calif. 90067,

Attorney for Petitioner.

TROPE & TROPE,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

I a es esetucinie 1

CRE TTETR CeS ANTONY oe ae NSE aE 2

Constitutional and Statutory Provisions Involved ae

RII WII iieierccrncincesielicicnietictncncnneicencaicn

Or ue

The Practice of Determining the Number of

Counts for Which Peiitioner Can Be Cited for

Contempt, Based Upon the Number of Times

Per Month That Spousa} Support and Child

Support Payments Were Ordered, Works an

Extreme Hardship Upon the Less Wealthy,

Constituting an Invidious Discrimination in

Violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States

SII fap tiehio i cadietasiasiaidcsdniedencecmenseoeennns

I.

The Evidence Before the Trial Court Was In-

sufficient to Sustain Its Jurisdiction Constitut-

ing a Denial of Due Process Under the Four-

teenth Amendment to the United States Con-

RE SPURTE Pee Sea EAE Sct sr ET

SERIES Roe aos eae he Ae eo Wn aT

2

INDEX TO APPENDICES

Appendix A. Constitutional and Statutory Provi-

SY MIDE ics taceierscqtaenecisebstntnicsicsunseteoied App. p.

Appendix B. Portion of Record Setting Forth

Timely Raising of Federal Question That Peti-

tioner Has Been Deprived of Equal Protection

and Due Process Under the Fourteenth Amend-

ment to the Constitution -....................... App. p.

PRE G.I isis App. p.

Appendix D. Stipulation for Continuance and Ex-

tension of Support Order and Order ........ App. p.

Appendix E. Minute Order of February 2, 1971

ssclalabceila bsctcbanlieeaaa eau cekiciantaintasidlaslbelencebiatllenen App. p

Appendix F. Petition for Writ of Review Denied

siihiieiipiuiciaidecamiadambanaadpiihcnanuulbnein. App. p

Appendix G. Petition for Hearing Before Supreme

Court of California denied on July 7, 1971

Page

9 ema NER RRR IRE PUB HO RT IeIE 84 oY

TABLE OF AUTHORITIES CITED

Cases Page

Antazo, In re, 3 Cal. 3d 100 ...........000... 7, 9, 10, 11

Blaze,.In re, 271 Cal. App. 2d 210 -................... 15

Brautigan v. Brooks, 227 Cal. App. 2d 547 .. 15, 16

Butler v. Superior Court, 178 Cal. App. 2d 763

<slacssceabliatininsisiiniaiacenlaicale eea nO aad acca temic 15

Cardella, In re, 47 Cal. App. 2d 329 ................. i3, 14

Castro v. State of California, 2 Cal. 3d 223 ............ 11

Gottlieb v. Superior Court, 168 Cal. App. 2d 309

sissies laeesaSisasasstlelcuesecabeesiiigatalaiecelesirestdnseiiecsninnaics 14

Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891 .... 11

Loeb v. Loeb, 84 Cal. App. 2d 141 ...................... 15

Man Wo Chan Estate, 87 Cal. 155 -...........222....... 15

Mattos v. Superior Court, 30 Cal. App. 2d 641

isi ieileau dad eaapedbcaabacoat eda icsacesdial ea obdedisiasiis dio 13

Purdy and Fitzpatrick v. State of California, 3 Cal.

ee I aiineciceterneeetinins- 11

Shackelford, In re, 116 Cal. App. 2d 864 .............. 14

Shapiro v. Thompson, 394 U.S. 618 .................... 11

Sullivan v. Kantel, 164 Cal. App. 2d 723 ............ 12

Walbergh v. Moudy, 164 Cal. App. 2d 768 ............ 12

ssjiiesaliiaiecsdiaiaslcdamnsiessiclibeieadamasaiciaenabaidaiakcabaemaiiatiningia 12

Williams v. Illinois, 399 U.S. 235, 26 L. Ed. 2d

PE Bs etiiciddnineinenannanane 7, 9, 10

Statutes

Code of Civil Procedure, Sec. 1218 -.......0.000..... 2, 9

Code of Civil Procedure, Sec. 1958 ...................... 16

Code of Civil Procedure, Sec. 1960 -................... 16

United States Code, Title 28, Sec. 1257(3) ........ 2

United States Constitution, Fourteenth Amendment

scree ahaceain ucibichachated aati aananial 2, 6, 7, 9, 10, 11, 12

United States Constitution, Fourteenth Amendment

SI ‘Sb sccitiainniciubceibvashiegensaiiaiasaieianaeshiiddeiannaeneaaaiacsiandiaiatealiniis

AOE ne AD be RON OE bee OIBBNENE Ao

IN THE

supreme Court of the United States

October Term, 1971

ey Sipicciiies

MICHAEL S. SImMs,

Petitioner,

vS.

SUPERIOR CourRT OF Los ANGELES CouNnTY, .

Respondent,

YUKIKO HARUTA SIMMS,

Real Party in Interest.

Petition for Writ of Certiorari to the Supreme

Court of California.

To the Honorable Chief Justice Warren E. Burger and

to the Honorable Associate Justices of the Su-

preme Court to the United States:

Petitioner respectfully prays a Writ of Certiorari be

issued to review the denial of the Supreme Court of

California of petitioner’s Petition for hearing in the

Supreme Court, on July 7, 1971, after the denial of

petitioner’s Petition for Writ of Review by. the District

Court of Appeal, on June 9, 1971.

Opinions Below.

There have been no opinions, either reported or un-

reported, other than the Minute Order of February 2,

1971, reproduced herein as Appendix E.

_

Jurisdiction.

Petitioner’s Petition for hearing before the Supreme

Court of California was denied on July 7, 1971 (Ap-

pendix G, infra p. 17). The jurisdiction of this Court

is involved under 28 U.S.C. Section 1257(3).

Constitutioral and Statutory Provisions Involved.

The constitutional and statutory provisions involved,

to wit: Section 1 of the Fourteenth Amendment of the

United States Constitution, and California Code of

Civil Procedure, Section 1218, are set forth in the

Appendix A, page 1.

Questions Presented.

I.

Does the practice of determining the number of

counts for which petitioner can be cited for contempt,

based upon the number of times per month that spousal

support and child support payments can be ordered,

work an extreme hardship upon the less wealthy, con-

stituting an invidious discrimination in violation of the

equal protection clause of the Fourteenth Amendment

to the United States Constitution?

II.

Does the complete absence of evidentiary support in

the record to sustain the finding of petitioner’s ability

to pay spousal support and child support constitute a

denial of due process in violation of the Fourteenth

Amendment to the United States Constitution?

Statement of the Case.

This Petition for Certiorari is based upon the Order

to Show Cause re Contempt heard on January 29,

1971, and on February 2, 1971, before the Honorable

“~

ee

-

Hyman O. Danoff, Judge Pro Tem., Department 19,

Superior Court of the State of Catifornia, County of

Los Angeles. The events which preceded and upon

which these hearings revolved were as follows:

On or about June 25, 1968, pendente lite, Petitioner

was ordered to pay the Real Party in Interest the sum

of $200.00 per month per child and $350.00 per

month spousal support. Petitioner was thus obligated

to pay to the Real Party in Interest the sum of $750.00

per month, payable half on the Ist and half on the

15th of each month. A copy of said Order is attached

hereto, marked Appendix C, and incorporated herein

by this reference as though set forth at length.

On March 12, 1969, by Stipulation, the matter was

set for trial on July 15, 1969. four months hence, and

by Stipulation support payments due from Petitioner

were increased from $750.00 to $1,000.00 per month

[R.T. pp. 6-7],’ for that four month period of time

only and only until first day of trial.

On July 1, 1969, a Stipulation was entered into

continuing the date of trial from July 15, 1969 to

September 24, 1969. The Stipulation further provided

that the Order of March 12, 1969, increasing the sup-

port payable by Petitioner from $750.00 a month to

$1,000.00 a month, was extended to and including the

24th day of September, 1969, (the precise date set for

the first day of trial in the event it was subsecuently

continued). Said sum was payable one haif on the Ist

and one half on the 15th day of each month, com-

mencing July 15, 1969. A copy of said Stipulation and

Order is attached hereto, marked Appendix D, and in-

‘R.T. refers herein to Reporter’s Transcript on Appeal.

—

corporated herein by this reference as though set forth

at length.

Trial commenced on January 12, 1970, and was

heard on January 12, 13, 14, 20, 21 and 22, 1970.

The Court granted an Interlocutory Judgment of Dis-

solution, made provisions as to custody of the children,

and issued Restraining Orders.

On April 15, 1970, the Court made an Order that

required that Petitioner pay $200.00 per month per

child, pay all medical and dental expenses for the mi-

nor children which cost $75.00 or more per occurrence,

provided that he be consulted in advance, and spousal

support in the amount of $250.00 per month, for a

period of 36 months, for a total of $650.00 per month.

When the Order to Show Cause re Contempt was

heard January 29 and February 2, 1971, the Court

found that there was a valid Order based upon the

Stipulation of July 1969, and that the total support

was $1,000.00 per month until the date of trial. The

Court likewise found that the Order remained in effect

until. April 15, 1970, the date on which the Trial

Court issued its Order, which, in effect, was a Mem-

orandum of Decision which, among other things, re-

duced support to a total of $650.00 per month. The

Court determined. in spite of the fact that it ruled in

its Minute Order that the $1,000.00 per month Order

was effective until date of trial, that the period during

which Petitioner could be held in contempt was be-

tween September 1, 1969 and April 15, 1970. A copy

of said Order is attached hereto, marked Appendix C,

and incorporated herein by reference.

At this hearing, the issue before the Court was

whether or not there was sufficient evidence of Peti-

tioner’s income and financial ability at the time of

—

each of the alleged dates of contempt. At the hearing,

the only evidence before the Court, presented with re-

spect to the ability to pay issue, was given by Ivan

Levitan, Petitioner’s accountant, called to testify by the

Real Party in Interest. Through Mr. Levitan’s testimony

[R.T. pp. 20-55] and the introduction into evidence

of a financial statement that he had prepared for Peti-

tioner, it was demonstrated without any controverting

evidence whatsoever, that Petitioner had available for

his personal use during the period of time involved ap-

proximately $620.00 per month, and that during this

same period of time he paid approximately $365.00 per

month to the Real Party in Interest to satisfy whatever

portion that he could of his support obligation, leaving

a balance of only $255.00 per month for himself to

pay all of his living expenses [R.T. pp. 71, 72].

Following the testimony of Mr. Levitan, the court

made the following statement, which reflected the basis

for Petitioner’s being held in contempt:

“THE COURT: Mr. Tropes, the court heard the

testimony. I don’t like to make this type of state-

ment, but I was not impressed by the financial

statement. I was not impressed by the testimony

of Mr. Levitan. If you were to quote the phrase,

‘to make the punishment fit the crime’, Mr. Lev-

itan made the financial statement to fit what he

wanted to present. Ii was very obvious from

the questions the court asked him that he orly

knew what he wanted to know, and I was not im-

pressed by the statement at all.

The court feels, from what I have seen here,

that the Respondent has sufficient assets to meet

all of these orders if he wants to do so.” [R.T.

pp. 91-92].

—_

This statement by the Court is reflective of the fact,

however, that absolutely no evidence was presented.

Certainly the Real Party in Interest presented no in-

dependent proof to indicate that Petitioner possessed

greater assets than testified to by Mr. Levitan. The

Court merely believed there were greater assets, the

source or location of which there was no proof and

of which he was totally unable to indicate.

Notwithstanding the fact that there was no evidence

as to the ability of Petitioner to pay at the times charged,

and that there is no evidence at the present time to

reflect the fact of Petitioner’s ability to make pay-

ments of $2,800.00 per month, Petitioner was ordered

to pay $2,800.00 per month for three months and

$1,000.00 per month thereafter, or to face a 60 day

jail sentence in County Jail on 16 counts on contempt.

Therefore, it is Petitioner’s contention that without

any evidence of his ability to make payments of $1,-

000.00 on each of the contended dates of contempt,

by engaging in speculation as to financial ability with-

out any evidentiary support and by conditioning the

contempt sentence on payments not reflecting present

ability to pay, the Court acted in excess of jurisdiction.

Further, the Court, in finding Petitioner guilty of 16

counts of contempt rather than 8 counts of contempt,

violated Petitioner’s rights to equal protection under

the laws under the Fourteenth Amendment.

Petitioner therefore urges that the Court exceeded

its jurisdiction and that the imposition of either the fine

or the jail sentence will result in irreparable injury and,

therefore, respectfully submits that said order of con-

tempt be annulled.

—

ARGUMENT.

A Petition for Writ of Review was timely taken to

the District Court of Appeal of California, Second Ap-

pellate District, said court denying the Petition without

hearing. The Petition was then timely presented to the

Supreme Court of California, which court denied the

Petition without hearing. This Petition is presented at

this time by petitioner seeking a hearing in the Supreme

Court of the United States. This Petition is presented

in order to secure uniformity of decision and the settle-

ment of important questions of law. In light of the

recent decisions of Williams v. Illinois, 399 U.S. 235,

26 L. Ed. 2d 586, 90 S. Ct. (1970) and In re Antazo,

3 Cal. 3d 100 (1970), special and important reasons

exist why this Honorable Court should review the con-

tempt citation below.

I.

The Practice of Determining the Number of Counts for

Which Petitioner Can Be Cited for Contempt,

Based Upon the Number of Times Per Month That

Spousal Support and Child Support Payments Were

Ordered, Works an Extreme Hardship Upon the

Less Wealthy, Constituting an Invidious Discrimi-

naticn in Violation of the Equal Protection Clause

of the Fourteenth Amendment to the United States

Constitution.

It is the practice of trial court judges in Los Angeles

County, as well .as elsewhere, to determine the

frequency that a man will be required to pay spousal

and child support, based upon his financial status [See

arguments of counsel, R.T. pp. 87, 88]. The husband

will be ordered to pay a certain sum per month for

support, and the Court will direct the sum to be paid

on certain dates, normally determined by the method

won

he tussvaut « compensated by his employer. Thus, an

Mdivvmiua <saTumg & margmal income will be required

© Tae Daymen: once a week: a better situated individ-

lai wreee i montr: anc the wealthy only once a month.

Tas Iracim*e « mot criticized as an improper method de-

SQ MM assuT+ Payment to the wife while the money is

walaDe 1 & Tecogmzedc that an individual with a low

Mewme mit’ t™ wuarc pressed to make payments at

he <ut © tm montn and thus needs the discipline of

veexit wu D-mrumtni, payments to insure that the wife

wil 1 was Tus. sound reasons exist for requiring

itfetmg irsuucucres of payment, and the State has a

unamMizd micres. m recognizing these differences.

-o™ers. 1 mus be recogmzed that the order is for

i <<"aim amroun: pey month. payable on certain dates.

wut ui i ceTiam amount on certain dates for a total

w # Tuam coliar: per month. By way of clarification.

he muSvaut ma’ pe ordered to pay $500.00 per month

unut. “1 Tour: upon determining that the hus-

Jama & Dat ouce < week. will order the $500.00 paid

nm mstwlmemt omce « week. When the husband is paid

wicz i Tuuntr tue Cour: will order the $500.00 paid

wic= i Tuumtr it tne mstant case, the Court did not

wher SSUL.UL payabie on the Ist and 15th of each

mamt. im <z rota of $1,000.00 per month, but rather

3. JVL.UL pe month. payable on the Ist and 15th

las vw <actr montn The order must be considered

a =«Tuontr oDingation. and any breakdown of

he tavyneent m tm mstan: case is for the convenience

w tavmenm aut mo: tne ordering of support on a bi-

namtinv vasx. An other imterpretation would result in

i ‘Yomi o Petiicners equal protection under the

ar

cxitilitinie

Thus, when these different schedules for payment

become the basis upon which an individual is held in

contempt for non-payment, an invidious discrimination,

solely upon the basis of wealth exists. This constitutes

a violation of the Fourteenth Amendment to the United

tates Constitution, which provides that, “No State

shall deny to any person within its jurisdiction the equal

protection of the laws.”

Here, Petitioner was found not to have made payments

on 16 occasions. Haviag previously been ordered to

make payments twice each month, he was found in

contempt for not having made payments for

eight months. Each occasion for which Petitioner was

found not to have made full payment constituted one

count of contempt. On the 16 counts, Petitioner was

sentenced to serve 60 days in County Jail. Had

Petitioner been a more wealthy individual and been or-

dered to make monthly payments for the same perind,

the maximum jail time to which he could have been

sentenced would have been 40 days, pursuant to Cali-

fornia Code of Civil Prodecure, §1218. If Petitioner

had earned less money than he did, it is conceivable

that he could have been sentenced to serve 160 days

in jail. Therefore solely on the basis of earning capacity,

an individual can be sentenced to serve 120 more days

than a wealthier person in the same position and of

equal fault. Here, solely by virtue of his

earning capacity, Petitioner would be required to spend

an additional one-third period of time, or more, in jail.

Two recent decisions, Williams v. Illinois, 26 L. Ed.

586, 90 S. Ct. ...., and In re Antazo, 3 Cal. 3d 1%0

(1970), have focused national attention on the ques-

tions of ordering imprisonment for the non-payment

—

of fines and increased imprisonment on the basis oi

wealth.

_ The landmark Antazo decision is of specific interest

here. In Antazo, an indigent defendant was confined

to county jail because he was unable to raise a fine

which the court ordered him to pay as a condition of

probation. The court held that absent any compelling

state interest necessitating it, an order that defendant

be jailed for default of a fine constitutes an invidious

discrimination on the basis of wealth, in violation of

the equal protection clause of the Fourteenth Amend-

ment.

The court began its analysis on the basis that while

imprisonment for non-payment of fines has been a long-

established tradition, such longevity “does not foreclose

its reassessment in the light of the continued evolution

of fundamental precepts of our constitutional system,

for neither the antiquity of a practice nor the fact of

steadfast legislative and judicial adherence to it through

the centuries insulates it from constitutional attack.

An abiding concern for equality in all areas of today’s

society has not spared established practices from ex-

posure under the spotlight of equal protection prin-

ciples.”

In re Antazo, 3 Cal. 3d 100 (1970);

Williams v. Illinois, supra.

Secondly, the court went on to note that the nature

of the penalty actually inflicted depends upon the de-

fendant’s financial ability (at p. 190). This, specifi-

cally, is the effect of the frequency of payments dis-

parity in the present case.

In its analysis of the Fourteenth Amendment, the

court stated that based upon the fundamental prin-

TF , a ser eee

|

ciple of Griffin v. Illinois, 351 U.S. 12, 100 L. Ed.

891 (1956), justice must be administered to all per-

sons equally. As stated in Purdy and Fitzpatrick v.

State of California, the:

“concept of equal protection of the laws compels

recognition of the proposition that persons similar-

ly situated with respect to the legitimate purpose

of the law receive like treatment.”

The court next went on to discuss the relationship

the statute (here practice) must bear to some legitimate

State end. Where the nature of the case involves

“suspect classifications” or touching on “fundamental

interests”, the court has adopted an attitude of active

and critical analysis, subjecting the classification to

strict scrutiny.

3 Cal. 3d at p. i11, citing Shapiro v. Thomp-

son, 394 U.S. 618, 638, and other cases.

Therefore, under the application of this strict stand-

ard, the State “bears the burden of establishing not

only that it has a compelling interest which justifies

the law, but that the distinctions drawn by the law are

necessary to further its purpose.”

3 Cal. 3d at p. 111, citing Castro v. State of

California, 2 Cal. 3d 223, 234-236 (1970).

Therefore, relative to the present case, Antazo stands

for the proposition that, absent a compelling State in-

terest, the State cannot condition the amount of time

an individual can be jailed solely on the basis of

wealth. Assuming, arguendo, that Petitioner was in con-

tempt for the period specified, the Fourteenth Amend-

ment requires that he be sentenced consistent with in-

dividuals possessing both greater and lesser wealth.. In

nti:

this way, the purpose of the State, that disregard of its

lawful orders shall not go unpunished, and the consti-

tational imperative of equal protection are satisfied.

Thus, all orders for the payment of spousal and child

support must be treated as monthly orders. broken

into Segments to insure payment, if necessary, the viola-

tion of which constitutes one count of contempt per

month.

Il.

The Evidence Before the Trial Court Was Insufficient

to Sustain Its Jurisdiction Constituting a Denial of

Due Process Under the Fourteenth Amendment to

the United States Constitution.

The only evidence upon which the court made the

determination that Petitioner had the ability to pay

$1,000.00 per month for support was that the court

did not believe the testimony of Petitioner’s account-

ant. Such disbelief on the part of the court in the face

of no countervailing evidence to support the contention

of Petitioner’s ability to pay the $1,000.00 per month

constituted a gross abuse of authority for which no

contempt order could be imposed.

Where no evidence, or insufficient evidence. is intro-

duced on an issue, the finding on that issue should

be against the party who has the burden of proof. A

finding in his favor cannot stand.

Walbergh v. Moudy, 164 Cal. App. 2d 768

(1958);

Sullivan v. Kantel, 164 Cal. App. 2d 723

(1954).

When the record fails to show that the court has

jurisdiction or when it affirmatively appears that it

lacked jurisdiction of the party or proceedings, upon

= =

certiorari the order adjudging an accused person to be

guilty of contempt should be annulled.

Mattos v. Superior Court, 30 Cal. App. 2d 641

(1939).

The following language from In re Cardella, 47

Cal. App. 2d 329 (1941), represents the attitude of

the courts toward the care which the court must exer-

cise with respect to a contempt proceeding to assure

that an individual’s due process rights are not violated:

“Since proceedings in contempt are in their na-

ture criminal in character, and the court exercises

but a special and limited jurisdiction in such mat-

ters, the record of the court upon which the party

is adjudged guilty of contempt should show af-

firmatively upon its face the facts upon which the

judicial action is based and upon which jurisdic-

tion depended, the purpose of the requirement

being to enable the appellate court to determine

by an inspection of the record whether a contempt

has in fact been committed. No presumptions and

intendments will be indulged in favor of an order;

and the charge and finding thereon, and the judg-

ment «i the court, are to be strictly construed in

favor of the accused.” (Emphasis added).

47 Cal. App. 2d at p. 330.

Here the record is bare as to the facts upon which

the court determined that Petitioner had the present

ability to make support payments. The bare assertion

of the court that Petitioner had the ability to make

the payments, and that he wilfully and intentionally

either made none of the payments or made payments

in the amounts lesser than the amounts ordered while

he had the ability to do so [R.T. pp. 84-85, February

—

2, 1971] without stating any reasons other than that

he disbelieved the accountant is wholly inadequate

proof to deprive an individual of his liberty or prop-

erty.

In like respect see:

Gottlieb v. Superior Court, 168 Cal. App. 2d

309 (1959);

In re Shackelford, 116 Cal. App. 2d 864

(1953).

Furthermore, the order of the court of February 2,

1970, is internally inconsistent. The court recognized

the order of the trial court, that the $1,000.00 per

month payments were to continue only until the date

of trial. Trial commemed on January 12, 1970, and

ended on January 26, 1970. Despite this fact, the court

found Petitioner to be in contempt through April 15,

1970, nearly three months later. Furthermore, despite

the fact that the court recognized that the $1,000.00

per month order expired at the date of the trial, the

court, in this hearing, ordered Petitioner to comply

with its order and to pay $1,000.00 per month

. for support, an order identical with the expired order

of $1,000.00 per month support, as a condition of

staying execution of the jai! sentence.

Clearly, ambiguities existed, in that the court failed

to properly understand the orders in existence, and

there was, in fact, no order of support in existence.

How, we must ask, can the Petitioner understand his

liabilities and responsibilities, and be subject to con-

tempt, if the court misconstrues the fact that the prior

order ceased on the day trial commenced, on January

12, 1970. To be an enforceable order, enforceable by

=

contempt, the order must be so clear as not to have

any ambiguities whatsoever.

In re Blaze, 271 Cal. App. 2d 210 (1969);

Butler v. Superior Court, 178 Cal. App. 2d 763

(1960).

Disobedience of an order of court is not contempt

where it is due to the inability of the accused to comply

with the order and where such inability is not due to

voluntary and fraudulent conduct on the part of the

person adjudged in contempt. Accordingly, it is an

essential ingredient of an adjudication of contempt that

it appear in the commitment that the party found guilty

had the ability to perform.

In re Cardella, supra, at p. 330.

A support award must be based both on the wife's

needs and the husband’s ability to pay. An award

which does not take account of the financial ability

of the husband is improper.

Loeb v. Loeb, 84 Cal. App. 2d 141, 146

(1948).

The only “evidence” upon which the trial judge

found Petitioner’s ability to make support payments

and upon which the contempt order is based was his

disbelief of the testimony of Petitioner's accountant.

It is axiomatic that the judge may not arbitrarily reject

evidence, or consider facts that were not presented at

the trial.

Man Wo Chan Estate, 87 Cal. 155.

In Brautigan v. Brooks, 227 Cal. App. 2d 547

(1964), the court discussed the degree of proof re-

quired to sustain a claim of a party and of the weight

and sufficiency to be given to the evidence presented.

—_— =

The court stated that an inference cannot be based

upon mere possibility and cannot flow from the non-

existence of a fact; it.can be drawn only from a fact

actually established. (C.C.P. §§1958, 1960).

An inference may not be based on suspicion alone,

os an teins lati ition, io.

conjecture or guess work. 227 Cal. App. 2d at p. 556.

Where the existence of an essential fact upon which

a party relies is left in doubt or uncertainty, the party

upon whom the burden rests to establish that fact

should suffer, and not his adversary.

Therefore, a contempt proceeding based upon a find-

ing of the husband's ability to pay $1,000.00 per

month for support, where there is no substantial evi-

dence in support of such finding, is void and as such

should be annulled.

Conclusion.

For the foregoing reasons, it is respectfully submitted

that this Petition for a Writ of Certiorari should be

granted.

SORRELL TROPE,

Attorney for Petitioner.

Trope & TRopPe,

Of Counsel.

APPENDIX A.

Constitutional and Statutory Provisions Involved.

1. The Fourteenth Amendment of the Constitution

provides: Section 1, “All persons born or naturalized

in the United States and subject to the jurisdictfon

thereof, are citizens of ihe United States and of the

State wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty or prop-

erty, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the

laws.” ,

2. Section 1218 of the Code of Civil Procedure of

California, provides:

“Upon the answer and evidence taken, the court or

judge must determine whether the person proceeded

against is guilty of the contempt charged, and if it be

adjudged that he is guilty of the contempt, a fine may

be imposed on him not exceeding Five Hundred Dol-

lars ($500.00), or he may be imprisoned not exceeding

five days, or both, . . . the conviction, specifying par-

ticularly the offense, and the judgment thereon, must

be entered in the docket.”

=

APPENDIX B.

>wrien @ Kecord Settmg Forth Timely Raising of

privet of Equa) Protection and Due Process Under

fe: Fuurteenth Amendment to the Constitution.

] BOUVAL PROTECTION

tewore « Transcript on Appeal, January 29, 1971:

septua™ =. 1971.

tei T+. page £7. imes 2 through 8:

Wr “Tope “! feel that though I don’t know what

he ~vur disposition would be in terms of the length

@ te eemicuce. the 60 day sentence based on what I

am awou « static. but | do feel that the Defendant's

<umtitutinona nights are being violated in that from an

=<wmemc pom of view. he is being deprived of due

Iricces: misOia’ as Demg found in contempt of Court on

i <wumt auc | wil! state my basis therefore.”

tet 7: page &7. limes 21 through 28, page 88, lines

teroug: 2%. page 89, lines 1 through 3:

Wr. rope “Now, | will state that which I am re

ming i

mer «ar pasicaliy three types of orders that this

“wut tuaxs: msofar as support. There are those month-

v wreer: tmos semi-monthly orders and there are

tuwe weexis orders and these orders are predicated for

fe mes par upon the economic status of the in-

tivemua. Tix iabor or the working man who has the

‘cre «or: wno makes, gets paid weekly is generally

wresr « pas $57.50 on Friday of each week or some

siccr wres: thie firs: four Fridays. The individual who

Tat" 1% m Dusmess m a better economic status is ‘or-

i=<r<t | pa’ & Certamm sum monthly and it is made in

—_

two, the first and 15th. In the very well-heeled upper

echelon, he is ordered to make the payments of support

—this is catagorized. He is ordered to pay so much

dollars a month on the first day of each month. If Mr.

Simms was unfortunate enough to be one of his em-

Ployees, payable on a weekly basis instead of winding

up with 16 counts of contempt, he would have wound

up with 32 days of contempt. On the other hand; if he

was in a more affluent condition, he would have

wound up with 8. I state that the Courts’ orders are

really monthly orders. It is really a fiction when we

talk about the payment on the first and the payment on

the fifteenth. That is simply a bookkeeping classifica-

tion for the convenience and ease to the party to whom

the order is directed and it is not in truth or in fact a

computation of the order. The order is, for all intents

and purposes, a monthly order and if we will examine

the order, we will see that the order was a $1,000 a

month. That’s what the order was then. It talks about

he is ordered to pay it half on the Ist and half on

the 15th and I think it is a violation of his due process

or any individual’s due process, who may be ordered

to pay in more modest installments, because of his eco-

nomic level in society. It is a prejudice to that individ-

ual who has sufficient amount of money with which to

pay any particular sum of money on the first day of

each month and theoretically, you could go to all types

of extremes in this regard and for that reason, if the

Court feels that Mr. Simms is in contempt, which he

obviously does, I would say that he is in contempt of

Court of eight counts and not on 16 counts and I

think it will be critical during the course of this situa-

tion.”

—+--

II DUE PROCESS

Rep. Tr. page 71, lines 16 through 28, page 72, lines

1 through 28, page 73, lines 1 through 28, page 74,

lines 1 through 28, page 75, lines 1 through 4:

Mr. Trope: “Then he hasn’t made the order. But

there is one part of the order that he did rule on from

the bench and I am sure Mr. Picone would be willing

to stipulate and that is that Mr. Simms was not given

credit as to that September 8, 1969 order for an ad-

ditionai $326 accounting for the total $3600. That was

specifically raised in my objections to findings and the

Court specifically did rule on the fact that Mr. Simms

was entitled to another $325, approximately, in credit.

Now, using those figures, I would like to call the fol- .

lowing to the Court’s attention by way of an accounting

of this total matter. If we take the $2600 which Mr.

Simms actually, in direct payments, paid by way of

stipulation and we add to it the $325 which the Court

actually concedes and acknowledges that Mr. Simms is

entitled to for credit during that time, we had a total

that he should be entitled to credit for, for that eight-

month period of time, of $2,925. That amounts to a

payment to Mrs. Simms of $325 a month for that

eight-month period of time that we are talking about.

Now, let’s look at Mr. Simms’ income. The only

testimony pertaining to Mr. Simms’ income is the testi-

mony by Mr. Levitan and it reflected, for an eight-

month period, though we don’t have the same eight

months, but it does cover four of the months that we

are concerned about, from January 1, 1970, through Au-

gust 31, 1970, for that eight-month period, a net

cash available, he called it for personal use, of $3,221.

However, included in amounts for other cash paid out.

a

_

he has listed child support, $1,770. So, we have to

add those two together to know what he actually had

as a net income during that period of time and if

you add those two figures together, the evidence showed

that during that eight-month period of time of which

four of the months that we are talking about and that’s

the best we can show, because we did have this over-

lapping problem until we got to Court to know what

dates the Court considered critical of $620 that Mr.

Simms had as income.

Now, we have added back the child support, back

to what he showed as a net, which we must, in order

to deduct now, therefore wiat was paid and we have

available to him during this critical period of time,

$620 a month for personal use and we have got evi-

dence of the fact that he paid out, during the same

critical period of time, $365 a month to his wife, re-

gardless of whether for child support or not.

If you deduct the $365 from the $620, that leaves

Mr. Simms remaining, during his own personal time,

$255 for his own living purposes. I think the Court

has to take judicial notice of the fact that Mr. Simms

has to eat. He has to have clothing on his body. There

are just certain things that one must have in order to

even subsist or exist in this world and certainly $255

left remaining on a monthly basis is no great future.

It certainly is not proper to say that a man should be

put in a position of contempt or an attitude of contempt

or found in contempt. Now, the figures don’t lie. These

are the only figures that have been introduced before

this Court and they do clearly show a total $620 a

month available for living expenses and $365 out to

Mrs. Simms and I say, with that type of performance,

Rt th en

SS, SY SY esses sete

aor tm

it is inconceivable to me that we could consider

that Mr. Simms is in contempt during that particular

period of time.

Now, as to these records that have been introduced

that show bank statements to Midtown Plumbers, I

think the Court recognizes, first of all, that those state-

ments are from January 2), 1970 th:ough the end of

October, 1970, and we are only concerned with the first

actually three months of that period because it starts

with February to April and I think the Court can like-

wise recognize that even from Mr. Simms’ statement,

that Mr. Levitan testified to, that he had sales during

periods of time, $7,718.30. When he talks about sales,

that much service that he’s performed and collected,

you can’t look at what a man’s business actually flows

in terms of gross sales or gross revenues as having

money or cash available. That would be absolutely ridic-

ulous. There are businesses which operate to a one

percentile of profit margin in terms of total sales or

total revenues produced and to look at the total reve-

nues and to say, “therefore, you have earned a profit,”

or “you have got money available,” is ridiculous. It’s

from an accounting point of view and it’s ridiculous

from a legal point of view to simply show the bank state-

ments of Midtown Plumbers, which actually shows the

flowing in of revenues from the sale that comes from

the business. That doesn’t show anything. As a matter

: of fact, I state to the Court that a business could have

sales of $100,000 a year and be losing $20,000 a

year to such a point that it can only lose, for some

reason, and the business fails and it still might generate

saies and the generation of sales and that flow of profit

simply, by showing the bank statements of Midtown

Plumbers, shows us absolutely nothing.

i

—

Now, the fact that in late 1970, in September and

October of 1970, that Mr. Simms made deposits in. a

Savings account, are first of all, it’s not material to the

issues at hand because we are concerned about that

which took place between September, 69, and April,

1970, and which, as your Honor well knows from the

file, it was a very critical period of time and it theo-

retically could be explained by saving for taxes or ac-

cumulating or the other thing. And it is not necessarily

reflective of cash and it certainly cannot be reflective of

cash available during the critical period of time, because

of its many months thereafter.

And based un those reasons that have been present-

ed, the evidence of the income, the evidence of the

payments, I contend to the Court that Mr. Simms

Should not be found in contempt for the counts that

the Court is considering at this time.” =

Rep. Tr., page 89, lines 4 through 13:

Mr. Trope: “Now, I don’t know that with regard

to the Court’s terms and conditions of the Stay, though

this may not be the proper time to raise this particular

point. I contend to the Court that there is absolutely no

conceivable evidence of the human ability of this in-

dividual to pay $2,800 a month at this particular time.

It is absolutely beyond the scope of any evidence that

has ever been presented in this particular case, that

this man would have the ability to pay $2,800 in sup-

port, in any given month, and that is precisely what

the Court has in effect ordered.”

Rep. Tr., page 90, lines 18 through 28, page 92,

line 1:

The Court: “Mr. Trope, the Court heard the testi-

mony. I don’t like to make this type of statement, but

LA EN AUS cht ARIE ict tlhen inl

—

I was not impressed by the financial statement. I was

not impressed by the testimony of Mr. Levitan. If you

were to quote the phrase, “to make the punishment fit

the crime”, Mr. Levitan made the financial statement —

to fit what he wanted to present. It was very obvious

from the questions the Court asked him that he only

knew what he wanted to know and I was not im-

pressed by the statement at all.

The Court feels, from what I have seen here, that

the Respondent has sufficient assets to meet all of these

orders if he wants to do so.”

~~

APPENDIX C.

Superior Court of the “tate of California, for the

County of Los Angeles.

Date: June 25, 1968.

Honorable Robert A. Wenke, Judge.

Yukiko Haruta Simms vs. Michael S. Simms, et al.

D727165.

Counsel for Plaintiff, Robert B. Smith.

Counsel for Defendant, Carl J. Mooslin, esq.

NATURE OF PROCEEDINGS:

Plaintiff's OSC re attorney fees, costs, alimony, child

support, custody, and restraining orders.

Defendant is sworn and testifies in his own behalf.

Custody of the infants Ethel, born August 26, 1963:

and Helene, born January 9, 1965 is awarded to

plaotiff pendente lite.

Pursuant to stipulation the declarations are received

into evidence subject to the right to cross examination

and the right to offer additional evidence. Defendant

resumes the stand and tesiifies in his own behalf. De-

ELE ee

=——S

fendant is ordered to pay the plaintiff, as and for child

support, $200.00 per month per child, a total of

$400.00 per month support for children, together with

$350.00 alimony per month which defendant is ordered

to pay to the plaintiff, a total child support payment

and alimony of $750.00 per month, payable one half

on the Ist day and one half on the 15th day of

every month commencing July Ist, 1968 and continu-

ing until further order of court. Defendant is ordered

to pay to counsel for the plaintiff, attorney fees as

follows: $1,000.00 forthwith; $500.00 on July 15,

1968; $500.00 on August 15, 1968; and $300.00 on

September 15, 1968 with the provision that Attorney

R. Smith is continuing service to the plaintiff as coun-

sel of record on the dates that payment, as herein set,

fall due. Defendant is allowed visitation with the chil-

dren on alternate weekends from (9:00 AM Saturdays

through 6:00 PM Sundays and on alternate Mondays

from 4:00 PM through 8:00 PM, provided it does not

interfere with school. Weekend visitation to commence

on June 29, 1968 and Monday visitation on July 8,

1968. The court declares it is not necessary for the de-

= =

APPENDIX D.

Stipulation for Continuance and Extension of

Support Order and Order.

Superior Court of the State of California, for the

County of Los Angeles.

Yukiko Haruta Simms, Plaintiff and Cross-Defend-

ant, vs. Michael S. Simms, Defendant and Cross-

Complaint. No. D 727 165.

IT IS HEREBY STIPULATED by and between

plaintiff, YUKIKO HARUTA SIMMS, and defendant,

MICHAEL S. SIMMS, through their respective coun-

sel as follows:

1. That the trial of this action presently scheduled

for July 15, 1969 at 8:30 in Department 2 of the

above-entitled court be continued to September 24,

1969, commencing at the hour of 8:30 A.M. in De-

partment 2 of said court.

2. That the order heretofore made on March 12,

1969 for the support of the plaintiff and the minor

children of the parties in the sum of $1,000.00 per

month shall be extended to and including September

24, 1969, or any continued date thereafter payable as

heretofore ordered, namely, one-half on the Ist and one-

half on the 15th day of each month, commencing with

July 15, 1969.

3. Further notice of trial is waived.

Dated: July ........ , 1969.

LAW OFFICES OF

SAMUEL B. PICONE

By /s/ Samuel B. Picone

Attoiney for Plaintiff

TROPE AND TROPE

By ..

Attorney for Defendant

$$

—

ORDER

IT IS SO ORDERED.

Dated: July ........, 1969.

Judge of the Superior Court

conten:

APPENDIX E.

Superior Court of the State of California, for the

County of Los Angeles.

Date: Feb. 2, 1971.

Honorable Wm. P. Hogoboom, J udge.

Honorable Hyman O. Danoff, Judge Pro Tem.

T. Lipka, Deputy Sheriff.

E. Wallin, Deputy Clerk.

M. C. Quattrocchi, Clerk.

Jerry Levine, Reporter.

Simms, Yukiko Haruta, Petitioner and Simms, Mich-

ael S., Respondent D 727165.

Counsel for Petitioner Samuel B. Picone.

Counsel for Respondent Sorrell Trope & Trope By:

Sorrell Trope.

NATURE OF PROCEEDINGS.

Cause continued from January 29, 1971, in this De-

partment again resumes hearing.

The matter is argued.

The Court finds that on March 12, 1969, after hear-

ing, the Court made an order which was thereafter re-

duced to writing and signed and filed as a written

order on September 19, 1969, which order provided

that the respondent pay $1,000 per month for the sup-

port of the petitioner and the two minor children of the

parties payable $500 on the Ist and 15th of each

month commencing March 15, 1969, and continuing

for a period of 4 months only. Thereafter, to wit:

on July 2, 1969, pursuant to stipulation of the parties

an order was made which in effect provided that the

said payments were to continue until the date of trial.

Ce

wititin

~z= our ima: tmat the said orders were valid orders

4ii tua tum respondent had knowledge thereof.

ren ue tesimmons presented to the Court, the Court

ims «tua or cacr and every Ist and 15th day of the

mont: commencmg September 1, 1969, through April

= ‘'©7C tae respondent did not make a payment

S5UL ‘71 some of the said dates no payment was

Tete auc or otner dates sums of $250, $200, or $100

wer mueik

“yw “our imas tha: the respondent had the ability to

Taax: tut payments of $500 on the ist and 15th of

<<a © sa months commencing Sept. 1, 1969, through

-ueti 5 '©7(C. and that he wilfully and intentional-

* <ttwe mage mone of the payments or made payments

mo tm amount iesser than the amounts ordered while

% ual ti avillty io do so.

~w Tour fmas that on the ist and 15th of eack

munt: commencing September 1, 1969, through April

- ‘©7C « wotal of 16 days, the respondent failed

oc mTuaxe sucr payments in the amount of $500 per

waymen auc the Court finds respondent guilty of con-

enm or cach of the said dates, being: September 1,

(yt Seprember 15. 1969, October 1, 1969, October

<= ‘t¥et November 1, 1969, November 15, 1969,

lacome- «61. «1969. December 15, 1969, January 1,

7 jganuary 15. 1970, February 1, 1970, February

<= t©7l. March 1, 1970, March 15, 1970, April 1,

7. gmc April 15. 1970.

ticrpomesn' 1 sentenced to serve a total of 60 days

o al o the sarc 16 counts in the County Jail.

Sxcculror of the sentence is stayed on the following

cuutiizon: ° The only valid order in existence this

uze concerning the payment of child support and

— =

spousal support is the sum of $1,000 as previously

ordered. Respondent is ordered to comply with the

existing Court order. The payments shall be made pay-

able at the rate of $500 forthwith and, thereafter, $500

on the Ist and 15th of each month commencing Feb.

15, 1971. 2) Respondent shall pay the petitioner the

arrearage as stipulated to by the parties and their coun-

sel which for the purposes of this particular hearing is

$5,400. Said arrearage shall be payable as follows:

$1,800 on or before February 15, 1971; $1,800 on or

before March 15, 1971; and $1,800 on or before April

15, 1971;. Said payments shall be made to petitioner

through the office of her counsel, Samuel Picone.

In the event the respondent fails to make any child

Support payments or any of the payments of $1,800,

this matter may be brought before this Court for impo-

sition of sentence.

nities

APPENDIX F.

Los Angeles, June 9, 1971

TITLE: :

Simms vs. Superior Court, L.A. Co. No. 38386.

The Court: Petition for writ of review denied.

Prior to hearing procedure for next step, if any. Pro-

cedure—to directly to U.S.

Clay Robbins, Clerk

= =

APPENDIX G.

Clerk’s Office Supreme Court

4250 State Building

San Francisco, California 94102

July 7, 1971

Dear Sir: I have this day filed Order Writ other than

cert. in S. Ct. Hearing Denied.

In re: 2 Civil No. 38356 Simms vs. Superior Court.

Respectfully,

G. E. Bishel

Clerk