Ellison v. Mummert , 105 Ariz. 46 ( 1969 )

105 Ariz. 46 (1969) 459 P.2d 306

Virginia A. ELLISON, Petitioner,
v.
John MUMMERT, Sheriff of Maricopa County, John E. Burke, Judge of Superior Court, Maricopa County, Respondents.

No. 9784.

Supreme Court of Arizona. In Banc.

October 7, 1969.

Dohn M. Rosenthal, Maricopa County Legal Aid Society, Mesa, for petitioner.

Moise Berger, Maricopa County Atty., Phoenix, by Albert Firestein, Deputy County Atty., Phoenix, for respondents.

PER CURIAM.

Petitioner, Virginia A. Ellison, was incarcerated on August 11, 1969 pursuant to a Superior Court hearing held on an Order to Show Cause why she should not be held in contempt of court and punished accordingly for violation of certain provisions of a decree of divorce issued July 2, 1969 which provisions were designated as "paragraphs III a.; III c.; III f.; XVI; XX and XXI of said decree of divorce". After the hearing held on August 11, 1969 the Court entered the following order regarding the purported contempt:

"The Court finds that the Plaintiff, Virginia Ellison, is guilty of wilful and intentional contempt of this Court for her violations of the terms of the Divorce Decree dated July 2, 1969. As punishment for that contempt, IT IS ORDERED that she be confined in the Maricopa County Jail for a period of ninety days, or until further order of the Court. Plaintiff is remanded to the custody of the Sheriff."

An adjudication of contempt must be based on specific facts found which show knowledge of the order, ability to comply with it, and contumacious conduct on the part of the accused amounting to wilful violation. Since no facts were found by the court as to the specific contumacious acts or acts on which the order for contempt was based,

Now therefore it is ordered that the Writ of Habeas Corpus prayed for by petitioner is granted and

It is further ordered that John Mummert, Sheriff of Maricopa County, is directed to release the petitioner, Virginia A. Ellison, forthwith.