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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 404 U.S. 1016

## Text

aig “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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0155%3A1. Public record. Not legal advice.