Petition for a Writ of Certiorari — Pace v. Pace

ge

| Supreme Court of the U ited States

Petition for a Writ of Certiorari to the

California Supreme Court.

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

SUBJECT INDEX

Cases Page

Citations to Opinions Below |.......0...00... |

Rt RETRAIN CTE Te a |

III 30 2

Constitutions, Statutes and Rules Involved .......... 3

wees oF he Cee... 4

Federal Questions Raised in Pleadings ................ 7

Reasons for Granting the Writ AE ECTS OOM 8

1. California Civil Code Sections 4506-4509

Are Unconstitutional Per Se and as Applied,

in Violation of the Fourteenth Amendment

to the United States Constitution ........... 8

a. The California Divorce Law Is Vague

and Standardiess .................................. 10

b. The California Divorce Law Abridges

Guaranteed Liberties _.....000.00..o... 13

c. The California Divorce Law Denies

Equal Protection of the Law ................ 13

d. Action by the United States Supreme

a, Re NRE SAIS ETON Caen EE 15

2. The United States Supreme Court Decision

in National Union v. Arnold, 348 U.S. 37

(1954), Should Not Extend to Family Law

Per Se and as Applied 2.222... 16

3. The Concept of “Petty Offense” Should Not

Extend to Imprisonment, and the Loss of

Marriage, Family and Community Property,

Without Trial by Jury ................................ 18

ii.

Page

4. The Commissioner Who Presided at the OSC

Re Contempt Hearing, Lacked Jurisdiction

and Denied Adjective Due Process Within

the Prohibitions of the United States and

California Constitutions ............................0 18

a. Commissioner Lacked Jurisdiction to

Preside at the OSC Re Contempt Hear-

ing Under California Constitution Arti-

i ei , eee eee eee 18

b. The Interlocutory Judgment, Which the

Commissioner Enforced by Contempt,

Was Void Under California Law for

His Errors That Arose After Trial ...... 19

c. The Commissioner Was Not an “Un-

ERR Seater eanen eee 23

d. Denial of Right to Confrontation ........ 23

Time to Prepare Defense .................... 26

f. Prohibition Against Imprisonment for

REE ENS ERE Re OA erat OR OE 26

5. The California Court of Appeai Lacked

Jurisdiction and Denied Adjective Due Proc-

ess Within the Prohibitions of the Fourteenth

Amendment to the United States Constitu-

INDEX TO APPENDICES

Page

Appendix A. Constitutions, Statutes and Rules

Appendix B. Order of the California Supreme

Court and Orders of the California Court of Ap-

peal, Second Appellate District ......000000 5

EYP LAR Pe. Oe ere ae whe, ” -

iv.

TABLE OF AUTHORITIES CITED

Cases Page

Baggett v. Bullit, 377 U.S. 360 (1964)...

Bloom v. Illinois, 391 U.S. 194 (1967) ...... y A Sy

Bradley v. Superior Court, 48 Cal. 2d 509, 310 P.

ht cas casbnastenpinasaniosiion

Brown v. Board of Education, 349 U.S. 294 (1954)

Cheff v. Schnackenberg, 384 US. 373 (1966) .

Cook v. United States, 267 U.S. 517 (1925) ........

Cooper v. Aaron, 358 U.S. 1 (1958) ....0.0...0.0....

Cooper, Estate of, 11 Cal. App. 3d 1114, 98 Cal.

BS Ie ID cobsncckasccksdtces cinshscssercseraivensca 19,

Gould, In re, 195 Cal. App. 2d 172, 15 Cal. Rptr.

BN I illness Caictaceck dia ica cavaetioestoeatvetenacoguvian

Hovey v. Elliott, 167 U.S. 409 (1897) .00...

Howe, Estate of, 88 Cal. App. 2d 454, 199 P. 2d

i NS oar abn tedasies erimaeieectaCincerrsanciecnsasbieuesenees

Illinois v. Allen, 397 U.S. 337 (1969} 000... adele

Jackson v. Mississippi, 403 U.S. 212 (1970) ........

Loving v. Virginia, 388 U.S. 1 (1966) ..................

Meyer v. Nebraska, 262 U.S. 390 (1923) ............

aikceacceatbdkcdcg aiasactabinctaeaameleaiaieem iZ, 13, 14, 15

National Union v. Arnold, 348 U.S. 37 (1954)...

SEALE Ae AE ee a ee PN 2, 16, 17, 18, 28

People v. Tijerina, |,Cal. 3d 41, 459 P. 2d 680

I i ctihtndascnstecinbakbkastsicdieasiaiiteanspsibatneieidtanbaiiieeds 18

Plumer v. Superior Court, 50 Cal. 2d 631, 326 P.

BR _: RRR OSES. coco ere er mera 26

Pointer v. Texas, 380 U.S. 400 (1965) ....0..00000...... 23

Williams v. Rhodes, 393 U.S. 23 (1968) ............. 14

Wisely v. Wisely, 178 Cal. App. 2d 181, 2 Cal. Rptr.

I ecaanscicsenccnsaianevengsestesstaiesalannnianvenkietsbns 12

ere ORIN RTT Gy Ry RAE AON GIR Berk A mT SRN PERSE EOL ne EES UI PRCT LOIS 1 SCG

V.

Rules Page

California Rules of Court, Rule 23 ...0000.000.0000......

California Rules of Court, Rule 23(a)

California Rules of Court, Rule 23.4

California Rules of Court, Rule 41 ......................

California Rules of Court, Rule 232

California Rules‘ of Court, Rule 232(h) ......: aw 3

Statutes

American Bar Association Canon, Code DR 5-102

California Civil Code, Sec. 4506(1) .....00000000......

California Civil Code, Secs. 4506-4509 ..2, 4, 8,12 14

California Civil Code, Sec. 4507 .0....00.ccceec. 1]

California Civil Code, Sec. 4509 200.00... 11

California Civil Code, Sec. 4600

California Civil Code, Sec. 5102

California Code of Civil Procedure, Sec. 664

California Code of Civil Procedure, Sec. 1222 ....

shai suaisialinesadmacubsdapehgaeanamabiasicniguclerdsueccadd 4, 16, 17, 28

California Constitution, Art. 1, Sec. 3 ............ 10, 13

California Constitution, Art. I, Sec. 15 ............ 3, 26

California Cohstitution, Art. VI, Sec, 21. .......... 3, 18

California Corporations Code, Sec. 25102(h) ...... 21

United States Code, Title 28, Sec. 2101(c) |

United States Constitution, Sixth Amendment ....3, 23

United States Constitution, Fourteenth Amendment

a LOANED a I a 3, & 1 &, 13, 23, 27

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Textbooks Page

California Continuing Education of the Bar, (1970)

The Attorney's Guide to Family Law Act Prac-

tice,, M. A. Freeman, W. P. Hogoboom, W. F.

MacFaden and L. E. Olsen, Sec. 2.2 .................. 10

California Continuing Education of the Bar, (1970)

Attorney's Guide to Family Law Act Practice,

6 California Practice (1968), p. 43:5 «0.0... 21

IN THE

— Supreme Court of the United States

October Term, 197i

Ne

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DEAN FRANCIs PACE, b ;

\ Petitioner,

vs.

MARION ELENA PACE,

Respondent.

Petition for a Writ of Certiorari to the

California Supreme Court.

Petitioner, Dean Francis Pace, prays that a writ of

certiorari issue to review the order of the California

Supreme Court, entered in the above case on December

29, 1971.

Citations to Opinions Below.

There never has been an opinion by any Court.

The petition to this Court is predicated upon the fol-

lowing order transmitted to Petitioner by postcard, as

yet unreported:

Order of the California Supreme Court, entered on

December 29, 1971, to wit: “Hearing Denied.”

Jurisdiction.

The order of the California Supreme Court was

made on and entered on December 29, 1971. The ju-

risdiction of this Court is invoked under 28 U.S.C. Sec-

tion 2101(c).

— eee OTIS MORE i

_—

Questions Presented.

1. Is the California Family Law, Civil Code Sec-

tions 4506-4509, unconstitutional per se and as applied,

in violation of the Due Process and Equal Protectio:

clauses of the Fourteenth Amendment to the United

States Constitution?

2. Does The United States Supreme Court decision

in National Union v. Arnold, 348 U.S. 37 (1954), ex-

tend:

a. To family law: dissolution of marriage, family

and community property?

b. To an incomplete hearing where the judgment

was rendered void after trial?

c. To denial by a state of any appeal of a con-

tempt conviction, whereas in National Union v. Arnold,

348 U.S. 37 (1954), there was an appeal, hearing and

opinion by the State Supreme Court?

d. To force a marital partner to violate an in-

junction, or to bankrupt the community, in order to

obviate the filing of a supersedas bond?

e. To denial of appeals on multiple causes of dis-

solution of marriage and custody as a result of con-

tempt on an unrelated community property cause?

3. Does the concept of “petty offense”, definea by

the United States Supreme Court ir Cheff v. Schnack-

enberg, 384 U.S. 373 (1966), extend to family law, so

1 that the convicted is placed in jeopardy of imprison-

i ment, and the loss of his marriage, family and com-

munity property, without trial by jury?

IE sak $e ABs Ad chit aha ae caitlin aa tet

4. Did the Commissioner who presided at the OSC

re Contempt hearing lack jurisdiction and deny ad-

jective due process within the prohibitions of the United

fc Yuta 9

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~~

States and California Constitutions, so as to render

the contempt conviction void?

a. Did the Commissioner lack jurisdiction to pre-

side at the OSC re Contempt Hearing under Califor-

nia Constitution Article VI, Section 21?

b. Was the interlocutory judgment, which the Com-

missioner enforced by contempt, was void under Cali-

fornia law for his errors that arose after trial?

c. Was the Commissioner an “unbiased judge?”

d. Did the Commissioner deny the right to con-

frontation?

e. Did the Commissioner deny the accused time

for preparation of his defense?

f. Did the Commissioner violate the prohibition

against imprisonment for debt?

5. Did the California Court of Appeal lack ju-

risdiction and deny adjective due process within the

prohibitions of the Fourteenth Amendment to the

United States Constitution, whereby:

a. The contempt conviction was then pending in

the trial court?

b. No trial court record whatsoever had been cer-

tified to the Court of Appeal, so that it ruled on con-

tested hearsay contained only in an appellate brief?

¢. “Appeals” were dismissed without identification

or limitation?

Constitutions, Statutes and Rules Involved.

The United States Constitution provisions involved

are the Sixth and Fourteenth Amendments. The C alifor-

nia Constitution provisions involved are Article I, Sec-

tion 15, and Article VI, Section 21. The California

-

hee ayes ey

a

Statutes involved are California Civil Code Sections

4506-4509, and California Code of Civil Procedure,

Section 1222. The California Rules of Court involved

are Rules 23, 41, and 232. These provisions are print-

ed in Appendix A hereto, beginning at Page 1.

Statement of the Case.

On November 24, 1970, a petition was filed by

Marion Elena Pace in the Superior Court in and for

the County of Los Angeles, California, Case Number

D 779053, for dissolution of marriage pursuant to

California Civil Code Section 4506(1).

On June 3, 1971 an interlocutory hearing was held

before Commissioner James N. Reese, of said Superior

Court. An interlocutory judgment of dissolution of

marriage was entered on June 17, 1971 to adjudicate

(1) dissolution of the marriage, (2) custody, (3)

support, (4) community property, (5) attorneys fees,

and (6) costs. On July 19, 1971, Petitioner filed no-

tice of appeal of said interlocutory judgment.

On July 19, 1971, a OSC re Contempt hearing was

held before Commissioner James N. Reese of said Su-

perior Court; Petitioner was found guilty of contempt

on three counts, to wit: (1) failure to pay forthwith

the sum of $2,200 to William E. Walkup, the father

of Respondent, (2) $1,000 in additional attorneys fees,

and (3) $317.68 in costs. Thereupon, Commissioner

Reese sentenced Petitioner “to serve on each count

five days in the county jail, said days to all run con-

secutively, for a total of 15 days,” and fined Petitioner

$1,500. Appeal was filed by Petitioner on July 20,

1971.

Writs of habeas corpus were denied by the Califor-

nia Court of Appeal on July 29, 1971, and by the

_—

California Supreme Court on August 13, 1971. A Writ

of Certiorari was denied by the California Court of

Appeal on August 30, 1971.

On August 30, 1971, Petitioner filed and appeared

before Judge J. Wesley Reed in said Superior Court on

his Motion to Set Aside and OSC re Modification of

the interlocutory judgment. Judge Reed denied all

motions, without hearing, on the grounds that the judg-

ment had been appealed and that Petitioner was in

contempt. Thereupon, Judge Reed forthwith executed

sentence, and Petitioner was confined to jail for five

days, from August 30, 1971 through September 3,

1971, when Judge Reed “on the Court’s own motion”

restored the matter to the calendar and had Petitioner

returned the court from the county jail. Judge Reed

then suspended the remaining ten days of the contempt

sentence unti! November 3, 1971, in order for Peti-

tioner to use his best efforts to earn sufficient funds to

pay all obligations and to obey all judgment and or-

ders. On the Court’s own motion, the November 3,

1971 hearing was continued to November 15, 1971,

whereupon, inter alia, Judge Reed ordered:

Execution of the remaining sentence for contempt

for the term of ten days is indefinitely stayed,

the Court finding that the respondent has made

a good faith effort to comply with the Court's

order.

The orders of said Superior Court, dated August

30, 1971, September 3, 1971, and November 15-16,

1971 have all been appealed by Petitioner.

Meanwhile, on September 24, 1971, Respondent

filed “Notice of Motion to Dismiss on Appeal” in the

California Court of Appeal, Second Appellate District,

I PTA OS BOT. a

a

set for November 4, 1971. The motion was gran.2d on

November 4, 1971 by postcard notice stamped: “Motion

Granted: Appeal Dismissed”; followed on November

16, 1971, by a nunc pro tunc order, to wit: “Motion to

Dismiss Appeals Granted: Appeals Dismissed.” On De-

cember 6, 1971, said Court of Appeal ruled by post-

card: “The Court: Request for findings on appeal de-

nied.” On December 14, 1971, Petitioner filed a Pe-

tition for Hearing in the California Supreme Court,

which denied the Petition by postcard notice dated

December 29, 1971, stamped: “Hearing Denied.” Said

orders of the California Supreme Court and Court of

Appeal are printed in Appendix B, hereto beginning

at Page 1.

The Clerk of the California Court of Appeal, Sec-

ond Appellate District, filed a remittitur on January

5, 1972, with the Clerk of the Superior Court in and

for the County of Los Angeles, California, whereby the

appeals by Petitioner, Dean Francis Pace, from the

interlocutory judgment, entered June 17, 1971, and

the contempt of court order, dated July 19, 1971, are

dismissed.

The instant Petition for a Writ of Certiorari relates —

solely to the “Motion to Dismiss an Appeal” granted

by the California Court of Appeal, Second Appellate

District, and not to the merits of the six appeals from

the interlocutory judgment and subsequent orders by

the Superior Court in and for the County of Los An-

geles, California.

Federal Questions Raised in Pleadings.

In order to comply with Rule 23.4 of this Court,

Petitioner cites the federal questions raised in the

headings of his Petition for Hearing to the California

Supreme Court, pending certification of the record to

this Court.

At line 17, page 2: “The Court of Appeal Denied

Due Process in Its Dismissal of ‘Appeals.’ ”

At lines 7-8, page 3: “Denial of Due Process by

The Use of A Criminal Conviction as a Sanction to

Deprive the Criminal of a Civil Appeal.”

At lines 24-25, page 9 “The Superior Court lacked

jurisdiction by violation of the Fifth and Fourteenth

Amendments to the United States Constitution, and

Article I, Section 3 of the Constitution of the State

of California;” with subheadings to wit: “Confronta-

tion,” “Time to Prepare Defense,” “Privilege Against

Self-Incrimination,” and “Adjective Due Process.”

At lines 5-6, page 14: “California Civil Code, Sec-

tion 4506, et seq. is Unconstitutional Per Se And As

Applied in Pace v. Pace, D 779053.”

The constitutionality of the California Family Law,

per se and as applied, has been consistently attacked,

beginning with a motion to dismiss for lack of juris-

diction denied at the interlocutory hearing on June 3,

1971, by the Superior Court in and for the County

of Los Angeles, California.

— ~? LIAL OE LOR IOV

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—_

REASONS FOR GRANTING THE WRIT.

1. California Civil Code Sections 4506-4509 Are

Unconstitutional Per Se and as Applied, in Viola-

tion of the Fourteenth Amendment to the United

States Constitution.

Marriage and divorce are within the Police Power

of the State, subject, however, to the United States

Constitution, Loving v. Virginia, 388 U.S. 1 (1966).

In May 1966, California Governor Edmund G.

Brown established a commission to begin “a concerted

assault on the high incidence of divorce in our society

and its often tragic consequences.” The result was the

Family Law Act of 1969, California Civil Code 4600

et seq., which became effective on January 1, 1970.

Far from alleviating “the high incidence of divorce”,

the new California law has made the “tragic conse-

quences” of divorce more acute. During the first year

of the new liberal divorce law, divorces in California

rose 39.02 percent. The State Department of Health

reported 114,000 divorces in 1970, up sharply from the

82,000 recorded in 1969. The Los Angeles County

Marriage Records Bureau confirmed the precipitous

rise in divorces filed and final divorce judgments grant-

ed after a relative plateau during the preceding years.

Year Divorces Filed Final Judgments

1968 39,539 26,513

1969 39,465 28,704

1970 45,681 39,664

In Los Angeles County alone, the Marriage Records

Bureau reports that 58,581 children were involved in

the 39,664 divorces granted in 1970. The impact of

divorce on the children is emphasized in the Los An-

geles Conciliation Court brochure.

It is a distressing fact that 74% of all young

people in Juvenile Hall are the product of homes

broken by the dissolution of marriage.

Not only are crime, delinquency and insurrection

prevalent among youth today, but the social and eco-

nomic stresses are emphasized by the Los Angeles Con-

ciliation Court in regard to both divorce and remar-

riage.

As a resuit, in nearly three-fourths of all dissolu-

tions the wife must seek employment to help sup-

port herself and the children. The husband does

not earn enough to pay all the bills for two homes.

When the wife works during the formative years

of children, they are either neglected or reared

under the guidance of strangers. Remarriage is

not only difficult, but the problems a person runs

away from in one marriage haunt him in the next.

Other complications are added; for example, the

wife’s new husband may resent secretly or openly

contributing to the support of another man’s chil-

dren; quarrels may arise when he attempts to dis-

cipline them; children born to the new union be-

come embroiled in accusations of favoritism which

may keep the family in turmoil . . . The percent-

age of second-marriage failures where children

are involved is high.

The sociological school of jurisprudence which per-

vades the decisions of the United States Supreme

Court may be succinctly stated to be: the greatest good

— =

for the greatest number consistent with the social in-

terest. The California Legislature apparently consid-

ered that the greatest good for the greatest number is

to concede that divorce is inevitable, and consequently,

to make divorce available as painlessly as possible and

without fault. Is that concession, however, consistent

with the social interest whereby the family is “the foun-

dation of society”?

The problem created by liberal divorce law is still

more insidious. If a state, as California, makes divorce

available simply for the asking, the motivation for hus-

band and wife to work at a successful marriage is

lost; on the contrary, the incentive is to use the liberal

California divorce law for convenience, experimenta-

tion, adventure, promiscuity or whatever, so that mar-

riage becomes a charade for the adventurers and a

millstone for the children.

a. The California Divorce Law Is Vague and Standardless.

The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution, and through it,

Article I, Section 3 of the Constitution of the State

of California, requires that a state statute have a “le-

gally fixed standard” of conduct. The Attorney’s Guide

to Family Law Act Practice, California Continuing Edu-

cation of the Bar, 1970, authored by Judges M. A.

Freeman, W. P. Hogoboom, W. E. MacFaden and L. E.

Olsen of the Superior Court, states at Section 2.2:

Six of the seven grounds previously set forth in

CC 92 (adultery, extreme cruelty, willful deser-

tion, willful neglect, habitual intemperance, and

conviction of a felony) have been eliminated and

the new ground of irreconcilable differences has

been substituted . . . the seventh former ground

(incurable insanity) is retained but the require-

ments have been reduced...

Ra Te a a a

icles

California Civil Code Section 4507 (set forth in

Appendix A hereto) legislates a “standardless” defini-

tion of irreconcilable differences as “those grounds

which are determined by the court to be substantial

reasons for not continuing the marriage and which

make it appear that the marriage should be dissolved.”

That definition “leaves judges and jurors free to decide,

without any legally fixed standards”, as further mani-

fested in California Civil Code, Section 4509 (set forth

in Appendix A hereto), which provides that “evi-

dence of specific acts of misconduct shall be improper

and inadmissible.” The Judges of the Superior Court

added emphasis in the Attorney’s Guide to Family

Law Act Practice, supra at 2.28:

The view propounded in Assembly J, Aug. 8,

1969, P 8058, was that the law is based on the

Status of the marriage, and that apparently the

only proof needed for dissolution, even if one

party wishes to continue the marriage, is that the

other party refuses.

For example, absolute refusal on the part of one

spouse to live with the other, despite a concilia-

tory attitude and effort on the part of the latter,

was thought by the great majority of the legis-

lators and witnesses considering the question to be

a sufficient reason for dissolution. In that situa-

tion the court could hardly justify a refusal to

grant an order of dissolution since the marriage

certainly has broken down. Refusal would amount

to a legal perpetuation of (a) relationship which

ceased to exist in fact (emphasis added).

RADII ENE RS

ei ex

California has made divorce so automatic that the

prevalent attitude among the Bar is: why bother to

=o

contest it? Prior to the 1970 Family Law Act, the Cali-

fornia Supreme Court consistently held that the court

has no power to grant a wife a divorce unless she

proved grounds therefor. Wisely v. Wisely, 178 Cal.

App. 2d 181; 2 Cal. Rptr. 886 (1960).

The vagueness of the California Civil Code Sec-

tions 4506-4509, is aggravated in that it inhibits the

exercise of the freedoms and liberties “to marry, es-

tablish a home and bring up children,” Meyer v. Ne-

braska, 262 U.S. 390, 399 (1923), guaranteed by the

Fourteenth Amendment. The vice of unconstitutional

vagueness is aggravated where the statute in question

operates to inhibit the exercise of individual freedoms

affirmatively guaranteed by the Federal Constitution.

Baggett v. Bullit, 377 U.S. 360, 372 (1964).

Respondent, Marion Elena Pace, in the instant case,

deserted on November 13, 1970. As evidence that

grounds for divorce did not exist, Respondent, who

is represented by one of the largest law firms in Los

Angeles, did not avail herself of California Civil Code

Section 5102 (set forth in Appendix A), to wit: ;

. . . the court may order the temporary exclu-

sion of either party from the family dwelling or

from the dwelling of the other upon a showing

that physical or emotional harm would otherwise

result, until the final determination of the pro-

ceeding.

Instead, Respondent took the extraordinary step of

disrupting her six months old child and deserting while

Petitioner was on a business trip in Washington, D.C.

Respondent deserted and now seeks divorce under the

liberal California law, which allows divorce without

ground or standard.

a

b. The California Divorce Law Abridges Guaranteed Liberties.

In regard to whether a state “statute as construed

and applied unreasonably infringes the liberty guar-

anteed by the Fourteenth Amendment”, the Court held

in Meyer v. Nebraska, supra at 399:

Without doubt it denotes not merely freedom from

bodily restraint but also the right of the individual

to contract, to engage in any of the common oc-

cupations of life, to acquire useful knowledge, to

marry, establish a home and bring up children,

to worship God according to the dictates of his

own conscience and generally to enjoy those priv-

ileges long recognized at common law as essential

to the orderly pursuit of happiness by free men

(emphasis added).

The United States Supreme Court has recognized

that the Fourteenth Amendment guarantees not only

the right to marry but also the right to “establish a

home and bring up children.” California, by the state

action of the legislature and the courts, destroys not

only the marriage but the home and the right to bring

up children.

c. The California Divorce Law Denies Equal Protection of

the Law.

The Equal Protection clause of the Fourteenth

Amendment to the United States Constitution, and

through it, Article I, Section 3 of the Constitution of

the State of California, extends to all state action deny-

ing equal protection of the laws, whatever agency of the

state takes the action or whatever the guise in which

the state action is taken.

The command of the Fourteenth Amendment is

that no “State” shall deny to any person within its

oe ALLEN TIE EN AE EIR TS PLE MONTANE

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jurisdiction the equal protection of the laws. “A

State acts by its legislative, its executive, or its

judicial authorities. It can act in no other way.

The constitutional provision, therefore, must mean

that no agency by whom its powers are exerted,

shall deny to any person within its jurisdiction the

equal protection of the laws. Cooper v. Aaron,

358 U.S. 1, 16-17 (1958).

California Civil Code Sections 4506-4509, discrim-

inate against a marital party in that it takes away

not only his marriage but also his liberty to “establish

a home and bring up children” recognized by the

United States Supreme Court in Meyer v. Nebraska,

supra at 399. State action has deprived Petitioner of

his home and the liberty to bring up his child. Thus

state action has disrupted not only the marital rela-

tion economically and socially, but of greater impor-

tance, the family institution dedicated to the welfare

and education of children.

In determining whether or not a state law violates

the equal protection clause, the Supreme Court

must consider the facts and circumstances of the

law, the interests which the state claims to be

protecting, and the interests of those who are

disadvantaged by the classification. Williams vy.

Rhodes, 393 U.S. 23, 30 (1968).

If the state concedes that divorce is inevitable, then

the legislative purpose may be valid in making divorce

available automatically, painlessly and without fault.

In doing so, however, the state discriminates against

husbands, within the class of marital partners threat-

H

;

Dieitseeees THR ST oS ORE e Pe a RT en

—

ened with divorce, who treasure family life, the home,

the love, care and welfare of their children. The chil-

dren, within the class of helpless victims of divorce

actions, are discriminated against in the deprivation of

the parent who is devoted to the home, the love, care

and welfare of his child. Petitioner urges that it is not

constitutionally sufficient to hold that the only legisla-

tive alternatives in California are (1) two separate

households, or (2) mandatory custody in the mother,

in light of the liberty of the father to “establish a home

and bring up children” recognized in Meyer v. Ne-

braska, supra at 399. Suffice it to say that a father

can hardly “establish a home and bring up children”

alone.

a

d. Action by the United States Supreme Court.

It may be accurately contended, that if this Court

should sustain the contention that the California Di-

vorce Law is unconstitutional, the legal status of all dis-

solved marriages since January 1, 1970 would be

placed in doubt. Petitioner respectfully urges that this

Court adopt a policy comparable to the segregation de-

cision in Brown v. Board of Education, 349 U.S. 294

(1954), only applicable to future contested divorce

cases. Thereby, defaulted divorce actions would serve

the interests of those in need, as well as those interested

in convenience, experimentation, adventure, or what-

ever. Then let the California State Legislature establish

constitutional standards or grounds for contested di-

vorces.

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2. The United States Supreme Court Decision in

National Union v. Arnold 348 U.S. 37 (1954),

Should Not Extend to Family Law Per Se and as

Applied.

a. Relevance to Family Law. Nationai Union v.

Arnold, 348 U.S. 37 (1954) involved judgment of a

dollar amount certain, and not the dynamic, evolving

nature of marital relationship, even after divorce.

Matters of custody, support, attorneys fee, and costs

are under the continuing jurisdiction of the courts. In

the instant case, the California Court of Appeal dis-

missed all appeals without identification or limitation

in time. Moreover, the trial court by order dated No-

vember 16, 1971 “indefinitely stayed” execution of the

remaining sentence for contempt. Thus, Petitiuner has

been effectively deprived of access to the courts forever.

b. Incomplete Hearing. National Union v. Arnold,

distinguished Hovey v. Elliott, 167 U.S. 409 (1897),

where the defendant was deprived unjustly of a hear-

ing on the theory that he was guilty of contempt. The

term “hearing” should extend to the filing and entry

of the judgment. In the instant case, Petitioner urges

(at paragraph 4, b, pages 18-22, herein) that there was a

prima facie violation of the California Rules of Court,

Rule 232 (set forth in Appendix A herein) so as to

render the judgment void, and consequently, the “hear-

ing” incomplete.

c. Denial of Contempt Appeal. In National Union

v. Arnold, there was an appeal, hearing and opinion

by the State Supreme Court. California Code of Civil

=

Procedure, Section 1222 (set forth in Appendix A,

herein) renders all contempt convictions “final and con-

clusive” so that there is no appeal even where there

are allegetions that the trial Commissioner denied ad-

jective due process and constitutional rights (as argued

in paragraph 4, pages 16-29 herein).

d. Inability to file a Supersedeas Bond. National

Union v. Arnold established the condition of filing a

supersedeas bond in order to avoid dismissal of appeal.

California requires a bond of one and one-half times

the amount of the judgment appealed. At the time of

the OSC re Contempt hearing to the present, Petitioner

never h2s had the ability to post a supersedeas bond.

His only recourse would have been bankruptcy; more- ;

over, all of his financial resources were restrained by ¢

an ¢€X parte injunction issued on July 14, 1971, by :

the Superior Court for the County of Los Angeles, Cali-

fornia, and still in full force and affect.

v

Nets

e. Denial of multiple causes of action. National

Union v. Arnold involved a judgment for a dollar

amount certain. The instant case involved: (1) dis-

solution of marriage, (2) custody, (3) support, (4) ;

community property, (5) attorneys fees, and (6) court |

costs, all of which could be separate causes of action ;

under California law. The contempt involved one com-

munity debt, to the father of Respondent, attorneys fees

and costs. To deprive Petitiorer all access to the court

in perpetuity for contempt, would be a significant ex-

tention of Nationa! Union v. Arnold, 348 US. 37

(1954).

a EON SECT LOLI MDOP | _ ENE TE YON IS ATS TAREE aan

3. The Concept of “Petty Offense” Should Not Extend

to Imprisonment, and the Loss of Marriage, Family

and Community Property, Without Trial by Jury.

In Cheff v. Schnackenberg, 384 U.S. 373 (1966),

this Court defined “petty offense” as six months im-

prisonment. In the instant case, the contempt sentence

was 15 days imprisonment; nevertheless, Petitioner

urges the rationale of Mr. Justice Black, dissenting in

National Union v. Arnold, supra at 46, wherein he

wrote that “dismissal was punishment.” If a state ex-

tends punishment for the “petty offense” of contempt

to dismissal in a family law action, the marital partner

should have the protection of trial by jury, to prevent

the due process abridgements argued in paragraph 4,

pages 16-29 herein.

4. The Commissioner Who Presided at the OSC Re

Contempt Hearing, Lacked Jurisdiction and Denied

Adjective Due Process Within the Prohibitions of

the United States and California Constitutions.

Commissioner James N. Reese, Department 2-G, Su-

perior Court in and for the County of Los Angeles,

California, presided at both the interlocutory hear-

ing on June 3, 1971, and the OSC re Contempt Hear-

ing on July 19, 1971.

a. Commissioner Lacked Jurisdiction to Preside at the OSC

Re Contempt Hearing Under California Constitution Article

VI, Section 21.

California Constitution Article VI, Section 21 (set

forth in Appendix A hereto) provides that there must be

a written stipulation of the parties in order for a “tem-

porary judge” (commissioner) to preside at a civil or

criminal trial. People v. Tijerina, 1 Cal.3d 41, 49,

459 P. 2d 680 (1969). Petitioner herein, Respondent

| ——r PETE ANT TIME IM OY es

—

at the OSC re Contempt Hearing on July 19, 1971,

refused to so stipulate; the objection was acknowledged

by opposing counsel, Latham and Watkins, in a pleading

filed for hearing on November 15, 1971, to wit:

At 8:30 A.M. on July 19, 1971, I appeared in

Department 2-G for the scheduled hearings. At

that time, Respondent refused to sign the appro-

priate documents necessary so that Commissioner

Reese could hear the matter. The case was there-

fore returned to Department 2, where Judge Hogo-

boom, after requesting that Respondent state his

position with respect to Commissioner Reese,

ordered the parties back to Department 2-G for

hearings on the Orders to Show Cause ( emphasis

added).

Commissioner Reese proceeded with the OSC re Con-

tempt hearing on July 19, 1971 with full knowledge

that Petitioner herein, had refused to stipulate in writ-

ing to a judge pro tem. as required by the California

Constitution. A question remains whether Commission-

er Reese derived jurisdiction on July 19, 1971 from

the stipulation signed for the interlocutory hearing on

June 3, 1971. The California Court of Appeal has

held that contempt is essentially punitive and separate

from the cause out of which it arises. Jn re Gould, 195

Cal. App. 2d 172. 15 Cal. Rptr. 326 (1961).

b. The Merlocutory Judgment, Which the Commissioner

Enforced * by Contempt, Was Void Under California Law

for His Errors That Arose After Trial.

Petitioner urges that the interlocutory judgment,

which the Commissioner enforced by contempt, was

premature, prejudicial and void within the meaning of

Estate of Cooper, 11 Cal. App. 3d 1114, 98 Cal. Rptr.

es

a

=— =

283 (1970), and California Rule of Court 232(h) (set

forth in Appendix A). The dissolution of marriage pro-

ceedings below were tried by Commissioner James N.

Reese, Department 2-G, without jury on June 3, 1971.

On Friday, June 11, 1971, counsel for Respondent,

transmitted a proposed interlocutory judgment to Com-

missioner Reese, with a copy to Petitioner, received on

Monday June 14, 1971. On Tuesday, June 15, 1971,

Commissioner Reese issued a nunc pro tunc order,

signed and filed the interlocutory judgment, which was

entered by the Clerk on Thursday, June 17, 1971.

Commissioner Reese precluded time (10 days) for

objections to the interlocutory judgment as provided in

California Rule of Court 232(h):

Any party affected by the judgment may, within

10 days after service of the proposed judgment on

him, serve and file objections thereto. The court

shall, within 10 days after expiration of the time

for filing objections to the proposed judgment or,

if a hearing is held, within 10 days after such

hearing, sign and file its judgment (emphasis

added).

So premature was Commissioner Reese that he signed

and filed his interlocutory judgment in two business

days (four elapsed days) after it was maiied. Thereby,

Commissioner Reese placed the heavy burden upon

Petitioner (a burden which Commissioner Reese knew

Petitioner could ill afford)’not only to prove violation

of California Rules of Court, Rule 232(h) but to

prove prejudice within the meaning of Estate of Cooper,

supra at 1121:

While a Rule of Court phrased in mandatory

language is generally binding on the courts and

————

nice

parties as a procedural Statute, it is seldom juris-

dictional and ordinarily departure from it is not

reversible error unless prejudice is shown (em-

phasis added).

Departure from California Rule of Court 232(h) is

evident on the face of the interlocutory judgment and

the record; specifically, the proposed judgment was

mailed on Friday, June 11, 1971, signed and filed by

the Court four (4) days later on Tuesday, June 15,

1971, and entered by the Clerk six (6) days later on

June 17, 1971. The interlocutory judgment, therefore,

was signed and filed prematurely under California

Rule of Court 232(h) and Section 664 of the Code of

Civil Procedure; moreover, it gravely prejudiced peti-

tioner herein, to wit:

Alteration of Community Property Stipulation. A

judgment of the Court changing a stipulation accepted

in open Court is a violation of California law. 6 Cal.

Practice 43:5 (1968); Estate of Howe, 88 Cal.App.2d

454, 458, 199 P. 2d 59 (1948).

The interlocutory judgment, which Commissioner

Reese knowingly signed and filed, altered ex parte the

community property stipulation by the addition of the

words: “corporations that have not yet issued any se-

curities.” (lines 25-26 at page 3 of the interlocutory

judgment). No agreement in the stipulation was made

that the corporations had not issued securities; that

alteration was new, contested and technically incor-

rect, in that the California Commissioner of Corpora-

tions had granted permits for issuance of securities

pursuant to Subdivision (h) of Section 25102 of the

California Corporations Code in 1969 and 1970.

Po De LES RE NATTA PE oT

_-— =

A second ex parte alteration of the stipulation (last

two lines at page 3 of the interlocutory judgment) was

$5,500 as the separate property of Petitioner.

A third ex parte alteration of the stipulation (lines

20-23 at page 4 of the interlocutory judgment) was

introduced, to wit:

Pursuant to stipulation, and in order to provide

for the support and benefit of respondent and the

minor child of the parties, the court also makes

the following awards and orders:

One of the “following awards and orders” (lines 8-10

at page 5 of the interlocutory judgment) was payment

of $2,200 forthwith to William E. Walkup, the father

of Respondent. The ex parte attempt by Commissioner

Reese to tie the $2,200 payable to William E. Walkup

to the “benefit of respondent,” Petitioner herein, was

erroneous and reprehensible. None of the “following

awards and orders” provided “for the support and bene-

fit of respondent.” In charity, one may attribute that

defective judgment to oversight or negligence, were it

not for the fact that Commissioner Reese willfully and

deliberately relied upon that altered stipulation to sen-

tence Petitioner to prison for contempt (the ultimate

in prejudice).

Of significant importance is the ex parte alteration

of the stipulation into six “stipulations” instead of one

integrated stipulation as it was derived and read in

open Court by opposing counsel, Bruce R. Lederman

Esq. of Latham and Watkins himself. Thereby, the

Court bootstraped its isolation of the $2,200 debt to

William E. Waikup for a contempt citation and im-

prisonment (again the ultimate in prejudice).

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c. The Commissioner Was Not an “Unbiased Judge.”

The United States Supreme Court has held that a

judge may be so enmeshed as to make it most appro-

priate for another judge to sit. Trial before “an unbiased

judge” is essential to due process. Jackson v. Missis-

sippi, 403 U.S. 212, 215-216 (1970); Bloom y. Illi-

nois, 391 U.S. 194, 205 (1967).

At the July 19, 1971 OSC re Contempt hearing,

when his interlocutory judgment was challenged, Com-

missioner Reese became indignant, and immediately

ruled before any evidence was admitted:

“MR. PACE: Object to the question on the i

grounds it’s irrelevant. No foundation has been

laid that the order in question is a lawful order.

THE COURT: The court finds it is a lawful

order. What else do you wish to argue?”

Thereupon, the transcript will reflect that the Com-

missioner Reese continuously interrupted as witness,

prosecutor, judge, and jury.

d. Denial of Right to Confrontation.

In a contempt proceeding, the accused should be en-

titled to be confronted by the witnesses against him.

The United States Supreme Court has held:

The Confrontation Clause of the Sixth Amend-

ment to the United States Constitution provides

that: “In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with

the witnesses against him . . .” We have held that

the Fourteenth Amendment makes the guarantee<

of this clause obligatory upon the States. I/linois

v. Allen, 397 U.S. 337, 338 (1969): Pointer y.

Texas, 380 U.S. 400 (1965).

ene VE BO

Since the original OSC re Contempt hearing on July

19, 1971, there have been five (5) hearings for which,

Marion Elena Pace, petitioner below and declarant in

the OSC re Contempt petition, has been summoned

for one hearing, subpoenaed for another hearing, pres

ent in court before trial for the original hearing on

July 19, 1971, but in all occasions was instructed b,

her counsel to go home and to ignore the summons and

subpoena, so that the only person present at the five

(5) hearings was opposing counsel Bruce R. Leder-

man, Esq., of Latham and Watkins, who acted as

counsel, prosecutor and witness, in violation of Amer-

ican Bar Association Canon, Code DR 5-102.

The transcript of the July 19, 1971 OSC re Contempt

hearing (beginning at line 18, page 19, and ending at

line 2, page 22) evidence the confusion of Commis-

sioner Reese with regard to confrontation. After deny-

ing the right of the accused to be confronted with the

declarant, Marion Elena Pace, in the OSC re Contempt

trial, Commissioner Reese ruled:

THE COURT: No. You don’t have the right:

not on a motion. This is a motion.

If you have subpoenaed her, you have the right.

You see, counsel, in a motion, it is not neces-

sary that the court hear any evidence. It’s discre-

tionary. Either one of the parties, the moving par-

ty or the responding party, can submit their case

based upon the declarations in writing.

You could have filed a counteraffidavit, if

you wish, and not testified and not been here.

You can make a motion without any testimony

whatsoever.

MR. PACE: So. by a declaration—

THE COURT: This is not a trial and—

—

MR. PACE: The opposing party can enter

hearsay, inadmissible evidence, and in a crim-

inal matter—

THE COURT: You have a right to object to it.

MR. PACE: I do object to it.

THE COURT: You can object specifically—

MR. PACE: I object to the entire declaration of

Marion Elena Pace.

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THE COURT: Upon what grounds? é

MR. PACE: That it’s hearsay.

THE COURT: Which portion is hearsay? f

MR. PACE: The entire matter is hearsay un- :

less I have a right to cross-examine.

Commissioner Reese concluded (at lines 5-6, page

23 of the transcript): “It will be overruled and the

court is not entertaining any further argument.”

The misconception of Commissioner Reese, that a

OSC re Contempt proceeding is a “motion” and “is

not a trial”, conflicts with the decisions of this Court

in Bloom vy. Illinois, 391 U.S. 194, 205 (1967) citing

Cook v. United States, 267 U.S. 517, 537 (1925):

Due process of law, therefore, in the prosecution of i

contempt, except that committed in open court,

requires that the accused should be advised of the

charges and have a reasonable opportunity to meet

them. by way of defense or explanation. We think

this includes the assistance of counsel, if requested,

and the right to call witnesses to give testimony,

relevant to either the issue of complete exculpa- f

tation or in extenuation of the offense and in miti- ;

gation of the penalty to be imposed (emphasis x

added). :

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—_26—

e. Time to Prepare Defense.

On July 19, 1971, Commissioner Reese denied a mo-

tion by Petitioner to continue the contempt proceeding

until the return of the Superior Court reporter, Alvin

Henry C.S.R., who was on vacation from July 2,

1971 (the day of the OSC re Contempt was filed) to

August 2, 1971, in order that Petitioner could obtain

a transcript of the stipulation made in open court at

the interlocutory hearing on June 3, 1971, to prepare

his defense that the stipulation has been altered to his

prejudice, and consequently, the interlocutory judgment

was prejudicial, premature and void. Petitioner should

have the right to adequate time to prepare a defense and

to obtain evidence necessary to a defense. Bloom v.

Illinois, 391 U.S. 194, 205 (1967).

f. Prohibition Against Imprisonment for Debt.

“If the obligation sought to be enforced is con-

tractual and negotiated, as distinguished from mariial

and imposed by law, even though the contract relates

to marriage obligations,” the enforcement of debt pay-

ments by contempt proceedings is forbidden by Cali-

fornia Constitution, Article I, Section 15; Bradley v.

Superior Court, 48 Cal.2d 509, 310 P. 2d 634,

(1957); Plumer v. Superior Court, 50 Cal.2d 631, 326

P.2d 193 (1958). The debt of $2,200 to William E.

Walkup was “contractual and negotiated”; there was

never a demand for payment, even during his testimony

at the interlocutory hearing on June 3, 1971, eighteen

months after the debt was contracted. William E.

Walkup is not an attorney, but is the father of Marion

Elena (Walkup) Pace, petitioner in the dissolution ac-

tion, and Chairman of the Board of Signal Companies,

one of the largest clients of Latham and Watkins,

counsel for Respondent.

~_

5. The California Court of Appeal Lacked Jurisdic-

tion and Denied Adjective Due Process Within the

Prohibitions of the Fourteenth Amendment to the

United States Constitution.

Of the six appeals filed by Petitioner from the in-

terlocutory judgment and subsequent orders of the Su-

perior Court in and for the County of Los Angeles,

California, four appeals were pending when the Court

of Appeal, Second Appellate District, took a “Motion

to Dismiss an Appeal” under submission on November

4, 1971, and on the same day, filed a postcard rubber

stamped: “Motion Granted: Appeal Dismissed.”

When this petitioner inquired of the Clerk of the Court

of Appeal, which “appeal” was dismissed, he was re-

warded for his efforts by a nunc pro tunc order which

simply read: “Motion to Dismiss Appeals Granted;

Appeals Dismissed.” In order to permit clarification: to

identify what appeals were dismissed and upon what :

grounds the appeals were dismissed, petitioner filed,

pursuant te California Rules of Court, Rule 23 (a)

(set forth in Appendix A, herein), a request for find-

ings on appeal, which again by postcard was denied

by said Court of Appeal on December 6, 1971. Said

orders are printed in Appendix B. '

a. Contempt Conviction Pending in the Trial

Court. When said Court of Appeal dismissed appeals

or. November 4, 1971, the contempt action was still

pending in the trial court, which found on November

16, 1971, that Petitioner “has made a good-faith effort

to comply with the Court’s order.” That determination

by the trial court is hardly consistent with dismissal of

civil appeals for contempt, if indeed, that was the reason

for the dismissal, there being no opinion by said Court

of Appeal.

ORDA PR ERLE LIDS RF ~ —— OER SARO LAP De tee

—

oti

b. No Certified Record. Said Court of Appeal dis-

missed appeals on November 4, 1971, based upon con-

tesied hearsay contained in Respondent’s appellate

brief. True, the Clerk of the Superior Court had certi-

fied the contempt order, dated July 19, 1971, to said

Court of Appeal, but as argued previously, the con-

tempt action was still pending in the trial (Superior)

court, which found that Petitioner “has made a good-

faith effort to comply with the Court’s order” on No-

vember 16, 1971.

The trial record for the OSC re Contempt hearing

has never been transmitted to said Court of Appeal.

The trial record for the first appeal from the inter-

locutory judgment was not certified to said Court of

Appeal until March 8, 1972.

Petitioner earnestly urges that adjective due process

should require appellate review of a contempt convic-

tion, if said conviction is to be the basis for the dis-

missal of civil appeal, as distinguished from appellate

review of the criminal conviction for contempt itself.

In National Union v. Arnold, 348 U.S. 37 (1954), this

Court did not reach the issue of a contempt conviction

by the trial court that is “final and conclusive” by the

state law: California Code of Civil Procedure, Section

1222 (set forth in Appendix A).

c. Appeals Were Dismissed Without Identification

or Limitation. The nunc pro tunc order by said Court

of Appeal on November 16, 1971, reads: “Appeals

Dismissed” without identification or limitation. On

December 6, 1972, said Court of Appeal denied a

request for findings to identify the appeals. As a con-

sequence, Petitioner has been denied in perpetuity, ad-

jective due process by said Court of Appeal, which

|,

—— 29,

has dismissed appeals not within its jurisdiction, and

thereby, has deprived Petitioner of his right to civil ap-

peal guaranteed by the Constitution and Statutes of

the State of California. If the order of said Court of

Appeal is to be taken literally, Petitioner shall forever

be at the mercy of the California family law trial

courts.

Conclusion.

Petitioner earnestly pleads, on behalf of the social

interest, that this Honorable Court restore the rule of

law, not of men, to Family Law in the State of Cali-

fornia.

Dated: March 24, 1972.

Respectfully submitted,

DEAN FRANCIS PACE,

Petitioner.

APPENDIX “A.”

Constitutions Involved in This Proceeding.

1. United States Constitution, Sixth Amendment,

U.S.C.A. Const., provides in pertinent part:

“In all criminal prosecutions, the accused shall en-

joy the right . . . to be confronted with the witnesses

against him .. .”

2. United States Constitution, Fourteenth Amend-

ment, U.S.C.A. Const., provides in pertinent part:

“. .. mor shall any state deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction, the equal

protection of the laws.”

3. California Constitution, Articie I, Section 15,

West's Annotated California Codes, Cal. Const., Art.

1-4 (1954), provides:

“Sec. 15. No person shall be imprisoned for debt in

any civil action, on mesne or final process, unless in

cases of fraud, nor in civil actions for torts, except in

cases of wilful injury to person or property; and no

person shall be imprisoned for a militia fine in time of

peace.”

4. California Constitution, Article VI, Section 21,

West's Annotated California Codes, Cal. Const., Art.

5-11, Cumulative Pocket Supplement (1971) provides:

“Sec. 21. On stipulation of the parties litigant the

court may order a cause to be tried by a temporary

judge who is a member of the State Bar, sworn and em-

powered to act until final determination of the cause.”

—

—2—

Statutes Involved in This Proceeding.

1. California Civil Code, Sections 4506-4509, West's

Annotated California Codes, Volume 12A (1970),

provides in pertinent part:

Ҥ 4506. Grounds for dissolution or legal separation

A court may decree a dissolution of the marriage or

legal separation on either of the following grounds,

which shall be pleaded generally:

(1) Irreconciliable differences, which have caused

the irremediable breakdown of the marriage.

(2) Incurable insanity.”

Ҥ 4507. Irreconcilable differences defined

are determined by the court to be substantial reasons

for not continuing the marriage and which make it ap

pear that the marriage should be dissolved.”

Ҥ 4508. Irreconcilable differences; findings; order; con-

tinuance for reconciliation; consent to legal

Separation

(a) If from the evidence of the hearing and con-

tained in the confidential questionnaire, the court finds

that there are irreconcilable differences, which have

caused the irremediable breakdown of the marriage, it

shall order the dissolution of the marriage or a legal

separation. If it appears that there is a reasonable pos-

sibility of reconciliation, the court shall continue the

proceeding for a period not to exceed 30 days. During

the period of the continuance, the court may make any

order for the support and maintenance of the parties,

the custody, support, maintenance, and education of

the minor children of the marriage, attorney fees, and

for the preservation of the property of the parties. At

=

any time after the termination of such 30-day period,

either party may move for the dissolution of the mar-

riage or a legal separation, and the court may enter

its judgment decreeing such dissolution or separation.

(b) The court may not render a judgment decreeing

the legal separation of the parties without the consent

of both parties unless one party has not made a gen-

eral appearance and the petition is one for legal sepa-

ration. A judgment decreeing, the legal separation of

the parties shall not bar a subsequent judgment de-

creeing the dissolution of the marriage rendered pur-

suant to a petition for dissolution filed by either party.”

Ҥ 4509. Evidence of specific acts of misconduct

In any pleadings or proceedings for legal separation

or dissolution of marriage under this part, including

depositions and discovery proceedings, evidence of spe-

cific acts of misconduct shall be improper and inadmis-

sible, except where child custody is in issue and such

evidence is relevant to that issue, or at the hearing

where it is determined by the court to be necessary to

establish the existence of irreconcilable differences.”

2. California Civil Code, Section 5102, West’s An-

notated California Codes, Volume 12A, (1970), pro-

vides in pertinent part:

“Sec. 5102. Separate Property; Dwelling.

. . . the court may order the temporary exclusion of

either party from the family dwelling or from the dwell-

ing of the other upon a showing that physical or emo-

tional harm would otherwise result, until the final de-

termination of ine proceeding.”

3. California Code of Civil Procedure, Section

1222. West's Annotated California Codes, Volume 19

(1955). provides:

Sn Se eee . Se: SEER dies

—

“Sec. 1222. Conclusiveness of Judgments and Orders.

The judgment and orders of the court or judge made

in cases of contempt, are final and conclusive.”

Rules of Court Involved in This Proceeding.

1. California Rules of Court, Rule 23, West’s An-

notated California Code, Volume 23, Part 1 (1955),

provides in pertinent part:

Rule.23. Findings and Additional Evidence on Appeal

(a) |Request for findings| A request that the re-

viewing court make findings of fact shall contain a

draft of the proposed findings, and may be made in a

brief, or a separate application may be served and

filed. If opposing counsel has not had an opportunity

in his brief to object to the request he may serve and

file written opposition thereto.”

2. California Rules of Court, Rule 232, West’s

Annotated California Code, Cumulative Pocket Part,

Volume 23, Part 2, (1971), provides in pertinent part:

“(h) . . . The court, in its discretion, may notify

counsel for the prevailing party to prepare, serve and

submit such proposed judgment to the court within 10

days after such notice. Any party affected by the judg-

ment may, within 10 days after service of the proposed

judgment on him, serve and file objections thereto.

The court shall, within 10 days after expiration of

the time for filing objections to the proposed judgment

or, if a hearing is held, within 10 days after such hear-

ing, sign and file its judgment. The judgment so filed

shall constitute the decision upon which judgment shall

be entered pursuant to Section 664 of the Code of

Civil Procedure.”

— =

APPENDIX “B.”

Order of the California Supreme Court.

Clerk’s Office Supreme Court

4250 State Building

San Francisco, California 94102

Dec. 29, 1971

Dear Sir: I have this day filed Order

HEARING DENIED

In re: 2 Civ. No. 39147. Pace vs. Pace.

Respectfully,

G. E. BISHEL

Clerk

Order of the California Court of Appeal,

Second Appellate District.

eee eo

Los Angeles, Cal. Nov. 4, 1971

TITLE: Pace vs. Pace. No. 39147.

MOTION GRANTED, APPEAL DISMISSED.

Clay Robbins, Clerk

ee ed m~ ilk a

=

Order of the California Court of Appeal,

Second Appellate District.

In the Court of Appeal of the State of California,

Second Appellate District, Division Two.

Marion Elena Pace, Petitioner and Respondent

vs.

Dean Francis Pace, Appellant. 2nd Civil 39147

SC # D779 053

ORDER

THE COURT:

The minute order of November 4, 1971 dismissing

the above entitled case is corrected “Nunc Pro Tunc”

to read as follows:

Motion to Dismiss Appeals Granted; Appeals Dis-

missed.

Roth

Presiding Justice

Filed: Nov. 16, 1971.

Order of the California Court of Appeal,

Second Appellate District.

Los Angeles, Cal. Dec. 6, 1971

TITLE: Pace vs. Pace. No. 39147.

The Court: Request for findings on appeal denied.

Clay Robbins, Clerk