In Re Gideon

320 P.2d 599, 157 Cal. App. 2d 133, 1958 Cal. App. LEXIS 2216

Opinions

RICHARDS, J. pro tem.

Footnotes

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A writ of habeas corpus was issued by this court on petition of George D. Gideon, 3d, who was in custody under sentence of five days’ imprisonment for failure to comply with an interlocutory judgment of divorce which ordered him to vacate the family premises.

Petitioner is the defendant in an action for divorce. At the conclusion of the trial on July 7, 1955, the court orally pronounced its decision awarding an interlocutory judgment of divorce to the plaintiff and providing, inter alia, that petitioner should vacate the family home “on or before July 20, 1955.” The findings of fact, conclusions of law and interlocutory decree of divorce were directed by the court to be prepared by counsel and were filed on October 6, 1955, and the judgment was entered on October 7, 1955. See Gideon v. Superior Court, 141 Cal.App.2d 640 [297 P.2d 84], The judgment as entered on October 7, 1955, conformed to the decision of the court and ordered the petitioner to vacate the premises “on or before July 20, 1955.”

In response to the writ of habeas corpus, the sheriff filed his return, attached to which and made a part thereof was a copy of the commitment wherein the court finds that the petitioner “has willfully failed and refused, and still does willfully fail and refuse to comply with the said order of court,” viz., the judgment entered October 7, 1955.

Petitioner’s only contention is that he cannot be found in contempt of the judgment for his failure to vacate the premises after the entry thereof for the reason that it ordered him to vacate on or before a date which was prior to the entry of the judgment. He argues that so much of the judgment which ordered him to vacate was rendered null and void by reason of the additional provision that he comply therewith on or before a prior date. We agree that there was no enforceable order to vacate the premises until the entry of the interlocutory judgment on October 7, 1955, and that the petitioner could not be found in contempt for his failure to comply with that order prior to the entry of the decree. (Gideon v. Superior Court, 141 Cal.App.2d 640 [297 P.2d 84] ; Neblett v. Superior Court, 86 Cal.App.2d 64 [194 P.2d 22].) However, the adjudication of contempt was not based upon a finding of his failure to vacate the premises prior to the entry of the judgment but upon his continuing and existing failure and refusal to comply with the judgment order as of the date of his commitment on December 4, 1957.

A judgment must be given a construction that will support it if this may be done within reason and the accepted rules of construction. (28 Cal.Jur.2d, pp. 712-713; Williams v. Williams, 13 Cal.App.2d 433, 434 [56 P.2d 1253].) Certiorari to review an adjudication of contempt was sought in Lazar v. Superior Court, 16 Cal.2d 617 [107 P.2d 249]. The husband and wife had entered into a property settlement agreement whereby he agreed to pay her $130 a month. The agreement was approved and made part of an interlocutory decree of divorce which specifically provided for said monthly payments but the decree further provided that the wife was not entitled to maintenance, support or alimony. In sustaining the adjudication of contempt the Supreme Court held that the order for the monthly payments was an order for the payment of alimony, support and maintenance and said at page 622: “Nor do we think this conclusion is disturbed by the presence of that paragraph in the decree declaring that ‘the plaintiff is not entitled to maintenance, support or alimony, and no award therefor it [sic] made to her.’ The only reasonable construction attributable to the latter provision is that the wife ‘is not entitled to maintenance, support or alimony’ other than that theretofore agreed to by the parties and approved and adopted by the court. Individual clauses or provisions of a judgment, just as in a contract or any other document, are not to be separately considered and construed but, on the contrary, the entire document is to be taken by its four corners and construed as a whole to effectuate the obvious intention. (Citations.) ”

Construing the judgment herein as a whole to effectuate the obvious intention, it is clear that the court intended that the petitioner be ordered to vacate the family premises. The only reasonable construction attributable to the provision that he do so on or before July 20, 1955, is that the petitioner comply with the order not later than that date and the date having passed when the decree was entered, the order requiring him to vacate the premises must be construed as requiring his removal forthwith. We cannot attribute to the court an intent to render inoperative and void the order requiring defendant to vacate merely by reason of the inclusion therein of the clause that he do so on or before a date which had passed at the time of the entry of the decree. “No particular part or clause in the judgment is to be seized upon and given the power to destroy the remainder if such effect can be avoided.” (Larrison v. Walker, (Tex.Civ.App.) 149 S.W.2d 172, 178.) In construing the judgment entered herein we must do so based upon the surrounding circumstances. This rule is enunciated in Ex parte Ambrose, 72 Cal. , at page 401 [14 P. 33], as follows: “Moreover, the same rules of interpretation apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing, and if the language be in any degree uncertain, we may properly refer to the circumstances surrounding the making of the order or judgment,—to the condition of the cause in which it was entered.” As previously indicated the court directed at the time of its oral pronouncement of decision that the petitioner vacate the premises on or before a date which was two weeks after the decision and the obvious purpose of the court was to afford the petitioner an opportunity to find living quarters.

It is clear that the court intended that the petitioner be ordered to vacate the premises. If the judgment as entered was ambiguous due to the insertion of a date for the performance thereof which date was prior to the entry of the judgment, the ambiguity was due to an oversight and inadvertence on the part of the court. For this reason the judgment as entered should be liberally construed with a view of giving effect to the manifest intent of the court. (Bank of America v. Hill, 9 Cal.2d 495, 502 [71 P.2d 258].) We conclude therefore that the judgment must be construed as a continuing order to vacate, effective forthwith upon the entry of the decree and continuing thereafter, inasmuch as an order continues to speak as long as the cause for making it exists and the thing directed remains unperformed.

The writ is discharged and the petitioner is ordered remanded.

Fox, Acting P. J., concurred.

Assigned by Chairman of Judicial Council.