In re Ayala

Filed 4/11/06 In re Ayala CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Petition for writ of habeas corpus after the superior court issued a judgment of contempt. Harry L. Powazek, Commissioner. Judgment annulled.

Edward J. Ayala (Edward) filed a petition for writ of habeas corpus challenging a judgment of the superior court holding him in contempt for failure to pay child and spousal support. (See Code Civ. Proc.,^[1] § 1209, subd. (a)(5).) The court sentenced Edward to 60 days in jail.

Edward requested a stay of his sentence. After reading and considering the petition, this court stayed the sentence, issued an order to show cause and requested a response from Elizabeth Ayala (Elizabeth). No response or return having been filed, we annul the judgment of contempt for the reasons stated below.

FACTUAL BACKGROUND

Elizabeth filed a petition for dissolution of her long-term marriage from Edward after 13 years of marriage. The parties have four children.

In December 1999 the court entered a pendente lite order based on a written agreement of the parties. The order stated that until further order, Edward would pay to Elizabeth $3,000 per month in spousal support and $13,325 per month in child support. In addition to these payments, the order required Edward to pay Elizabeth $700 per week from his business, $700 per month for Elizabeth's car payment and pay family expenses to Elizabeth and the children of no more than $15,000 per month. In April 2000 Edward obtained an order to show cause (OSC) to modify the child and spousal support orders. The court continued the hearing on the OSC several times and eventually took the matter off calendar in January 2002 because of ongoing settlement negotiations between the parties.

In July 2004 the parties entered into a marital settlement agreement (MSA) and the agreement was incorporated into a judgment (2004 Judgment) entered on July 27, 2004. The terms of the MSA required Edward to (1) make an equalization payment to Elizabeth of $1.25 million by August 6, 2004; and (2) pay $5,000 per month in spousal support and $8,000 per month in child support after making the equalization payment. In the event Edward did not make the equalization amount by the required deadline, then Edward's ranch home in Escondido would be listed for sale. In addition to language concerning spousal and child support payments, the MSA stated that "[a]ny previous oral or written agreements between the parties about matters addressed in this Agreement are entirely superseded by this Agreement." By August 6, 2004, Edward had not made the equalization payment nor did he make the payment at a later date. Further, he did not sell the Escondido ranch home.

In October 2004 Elizabeth obtained an OSC for contempt claiming Edward violated the 2004 Judgment by failing to pay the $13,000 per month in support due on August 1, 2004 and September 1, 2004. Elizabeth also applied for an OSC to establish child and spousal support arrears asserting the amount due for the months of August and September were the amounts specified in the 2004 Judgment at $13,000 per month. After the court granted Edward's motion to dismiss the OSC for contempt, Elizabeth obtained a second OSC in November 2004. She alleged $13,000 per month in support was due for the months of August, September, October and November as set forth under the 2004 Judgment. In February 2005, Elizabeth amended her second OSC for contempt asserting Edward owed support for the period of six months from August 2004 through January 2005 as set forth under the 2004 Judgment or under the 1999 pendente lite order. Elizabeth also applied for an OSC to list Edward's ranch home for sale. The court scheduled a hearing on the amended OSC for contempt.

Before the contempt trial, Edward objected to the sufficiency of the facts in the affidavit. Specifically, he filed an in limine motion to dismiss the OSC asserting Elizabeth was improperly attempting to revive the 1999 pendente lite order that expired when the 2004 Judgment took effect. The court denied Edward's motion.

At the contempt hearing, Edward asserted the pendente lite order was not valid because the MSA/2004 Judgment superseded all previous agreements between the parties and did not require payment of any spousal or child support until he made the equalization payment. Edward argued the equalization payment was a condition precedent to making the support payments.

At the conclusion of the hearing, the court found the modification of spousal and child support in the 2004 Judgment was based on the payment of equalization. Because Edward had not made the equalization payment, the 1999 pendente lite support orders were still in effect. The court found Edward guilty of 12 counts of contempt for not paying child and spousal support under the 1999 pendente lite order for the period from August 2004 through January 2005. The court sentenced Edward to 60 days in jail.

DISCUSSION

I

Edward has challenged the contempt judgment by a petition for writ of habeas corpus. (See In re Buckley (1973) 10 Cal.3d 237, 240, fn. 1 [contempt judgment may be challenged by habeas corpus].) Edward contends the MSA/2004 Judgment supersedes the 1999 pendente lite order. Thus, he cannot be held in contempt for failing to make support payments under the provisions of the pendent elite order because it was no longer valid and in effect. We agree.

A

As a general rule, the elements of contempt include (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order. (Anderson v. Superior Court (1998) 68 Cal.App.4th 1240, 1245; In re Cassil (1995) 37 Cal.App.4th 1081.) Disobedience of a valid order of a court may be punished as contempt under section 1209, subdivision (a). Section 1209 sets forth those acts or omissions which constitute contempt, including, "[d]isobedience of any lawful judgment, order, or process of the court." (§ 1209, subd. (a)(5).)

However, a party cannot be held in contempt for a violation of an order unless there is a valid and enforceable order at the time the acts alleged to be in contempt of court are committed. (In re Blaze (1969) 271 Cal.App.2d 210, 212.) Specifically, the "violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt . . . ." Instead, " ' any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts . . . are in excess of jurisdiction.' " (In re Berry (1968) 68 Cal.2d 137, 147; see also Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 229-230 [violation of invalid court order cannot produce valid contempt judgment].)

B

Under the pendente lite order of December 1999, Edward was required to pay Elizabeth child and spousal support starting September 1999 and "continuing thereafter until further order of the court . . . ." Edward claims he complied with and satisfied the pendente lite order during the period it was in force. However, once the 2004 Judgment incorporating the MSA went into effect, he asserts the temporary pendente lite was superseded as set forth by the language in the MSA/2004 Judgment. Specifically, the MSA/2004 Judgment set forth the amount of child and spousal support to be paid by Edward to Elizabeth, starting the "first day of the month after which the equalizing payment . . . is paid . . . ."

In the MSA/2004 Judgment, the parties stipulated all support due to Elizabeth from Edward with either child or spousal support under the pendente lite order had been resolved and/or settled. The parties further stipulated that the MSA/2004 Judgment contained the "final, complete and exclusive agreement of the parties concerning the subject matters covered . . . . Any previous oral or written agreements between the parties about matters addressed in this Agreement are entirely superseded by this Agreement." Based on these provisions, Edward testified he did not pay support under the pendente lite order because the MSA entered into by both parties superseded all other agreements. He also testified the provisions of the MSA did not require payment of any support until he made the equalization payment and conceded he did not make the equalization payment even though he had the ability to do so. Edward asserted the equalization payment was a condition precedent to making the support orders.

At the conclusion of the contempt hearing, the court reasoned that Edward's interpretation of the language in the MSA/2004 Judgment was unreasonable. The court concluded the support payments under the pendente lite order were not terminated by the MSA/2004 Judgment. Instead, the court found the new support payments under the MSA/2004 Judgment were conditioned upon Edward making the equalization payment. Edward by his own admission did not make the equalization payment to avoid making the new support payments. The court ruled until the equalization payment was made, the pendente lite order remained in effect and Edward was in contempt of the order.

After thoroughly reviewing the record, this court is able to understand and sympathize with the trial court's frustration created by Edward's manipulation of the current situation in an effort to avoid making support payments. By his own admission, Edward testified he did not make the equalization payment in order to avoid providing support not only for Elizabeth, but for his four children. Nonetheless, in order for a trial court to make a finding of quasi-criminal contempt, it needs to strictly construe the pendente lite order and MSA/2004 Judgment. Based upon our review of these orders, we are unable to discern from where the trial court found the support it needed to issue the quasi-criminal contempt order. Instead, as discussed above, the language of these orders shows the MSA/2004 Judgment superseded the pendente lite order. Because the pendente lite order no longer appears to be valid and enforceable, Edward cannot be held in contempt for any alleged failure to comply with the order. (See People v. Gonzalez (1996) 12 Cal.4th 804, 816-818.)

DISPOSITION

The judgment of contempt is annulled. The stay issued by this court on November 2, 2005, is vacated.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Apartment Manager Lawyers.

^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.