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California Family Law Report



Case of the Month (from CFLR Monthly)

December 2015

Trial court should order Dad to pay adult child or child’s legal representative directly . . .


In partial reversal, Fourth District holds that trial court did not err by ordering father to pay adult child support for emancipated adult child living in Texas residential treatment center, but did err by ordering him to pay that support to mother


In re Marriage of Drake

(October 9, 2015; ordered published October 27, 2015)

California Court of Appeal 4 Civil G050042 (Div 3) 241 Cal.App.4 th 934, 194 Cal.Rptr.3d 252, 2015 FA 1713, per Fybel, J, (O’Leary, PJ and Rylaarsdam, J, concurring). Orange County: Coleman, Temp J, affirmed in part, reversed in part, and remanded with directions. For appellant: Brian Seastrom, CFLS, (949) 474-0800, and Ryan McIntire, (949) 798-1311. For respondent: pro per. CFLP §§E.2.1.1, E.2.15.


Terri and Glenn Drake were married in 1993. They have two children, Anthony, born in November 1991, and Dallas, born in February 1995. The couple separated in 2006 and filed for divorce. Their 2008 disso judgment provided, among other things, that Glenn would pay $2,214 per month for child support, allocated $810 to Anthony and $1,404 to Dallas, payable until each child reached age 19, married, died, became emancipated, or reached age 18 and was no longer a full-time high school student, whichever occurred first. In September 2009, the parties signed a stipulation maintaining the same child support obligations.


In February 2014, Dallas reached age 19 and was emancipated. By that time, he had been diagnosed with ADHD, along with an unspecified psychotic disorder, oppositional defiant disorder, and cannabis abuse. He was living in a residential treatment center in Texas, where he received treatment for those disorders under an IEP (individualized education program) with his tuition, room, board, and IEP assessments paid for by the Capistrano Unified School District under the Individuals with Disabilities Education Act [20 USC 1400 et seq.]. Those payments were to continue until Dallas either graduated from high school or reached age 22. In addition, the residential treatment center paid part of Terri’s travel expenses to visit Dallas.


Meanwhile, in November 2013, the Orange County Dept. of Child Support Services (DCSS) filed a motion to extend child support payments for Dallas for an indefinite period beyond his date of emancipation, claiming that he was incapacitated from earning a living due to his mental health disorders and other medical issues, and without sufficient means. In an I&E declaration filed by Terri in connection with the motion, she asserted that she incurred expenses of $1,750 a month related to Dallas’s care. In opposition, Glenn stated that all of Dallas’s expenses that were not paid by CUSD were billed directly to him for payment, and claimed that Dallas’s expenses were being fully met. Glenn contended that the child support funds he was paying to Terri were funding her own lifestyle, since Dallas had not lived with her for five years.


At a hearing in February 2014, Glenn told the trial court that he was quite willing to take care of Dallas financially after he left the Texas facility, but he objected to paying those funds directly to Terri. Terri described for the court the things that she did daily to participate in and support Dallas’s therapy. She also stated that she was not currently employed. An attorney for the DCSS told the trial court that it was unlikely that Dallas would be able to live on his own after he was released from the Texas facility, that Glenn, who earned $189,000 annually, had the ability to support Dallas, and that Terri’s only income was $420 a month from spousal support. In a five-page statement of decision, the trial court found that Terri and Glenn had an obligation to support Dallas, despite assistance from CUSD, and that child support was necessary to permit Terri to participate in Dallas’s treatment. Concluding that an adult child support order was in Dallas’s best interests, the trial court ordered Glenn to pay adult child support of $1,404 per month to Terri.


Glenn appealed, and the Fourth District affirmed in part, reversed in part, and remanded.


Adult in years, but a child in need . . .
The justices explained that under Fam C §3910(a), parents have a responsibility to support an adult child who is both incapacitated from earning a living and without sufficient means. They noted that in Jones v. Jones (1986) 179 Cal.App.3d 1011, 225 Cal.Rptr. 95, 1986 CFLR 3103, 1986 FA 217, the court defined the term “incapacitated from earning a living” to mean that the adult child is unable to be self-supporting due to mental or physical disability or is unable to find work due to factors beyond his or her control. When the trial court determines whether the adult child is without sufficient means, the panel continued, it must look to see how likely it is that the child will become a public charge, since the purpose of an adult child support order is to prevent that from occurring.


It’s not about Terri . . .
With those things in mind, the justices considered whether the lower court had properly applied the statute. They noted that the trial court had impermissibly focused on Terri’s financial needs in order to participate in Dallas’s treatment and had relied solely on a best-interests of the child standard, instead of on the factors required by Fam C §3910(a) concerning Dallas’s incapacity and means. As to Dallas’s incapacity, it was undisputed that he was incapacitated from earning a living. The question was whether he was without sufficient means. Glenn argued that he was not because CUSA paid for Dallas’s room and board, tuition, and IEP assessments. The justices pointed out, however, that Dallas had other expenses, for which both parents had produced receipts at trial, such as medical deductibles and copays, clothing, books, toiletries, and snacks. These expenses generally totaled around $800 a month, but Dallas had no money to pay for them. That meant, the justices said, that if left on his own, Dallas was “at risk of becoming a public charge if adult child support is not ordered.” Accordingly, the panel concluded, the trial court had not erred by making such an order.


Who gets the money? . . .
The trial court had erred, the panel found, in ordering Glenn to pay the support directly to Terri, who apparently used the money for her personal expenses. That might have been appropriate, the justices reasoned, if Dallas actually lived with Terri, but he didn’t. Moreover, Terri is neither his conservator, nor his guardian or legal representative. She and Glenn have an equal obligation to support Dallas, the panel said, but Glenn had no corresponding obligation to make adult child support payments to Terri. “Adult child support cannot be indirectly awarded under the guise of spousal support,” the justices emphasized; “likewise, spousal support cannot be indirectly awarded under the guise of adult child support.” If Terri needed more spousal support, the panel commented, she should file a motion for more. Meanwhile, the question remained as to how and to whom Glenn should make his adult child support payments. The panel suggested that perhaps a court could appoint a conservator, guardian, or legal representative for Dallas to whom the payments could be made. Alternatively, they might be paid into Dallas’s account at the Texas treatment center, or to a trust account or checking account in Dallas’s name, with Terri and Glenn as required signators. The panel reversed the order for adult child support with respect to the recipient of the payments and ordered that on remand, the trial court must determine the best way to make the payments consistent with this opinion. They affirmed the order in all other aspects.





The justices ordered this opinion published at the request of the Association of Certified Family Law Specialists. We’re glad they asked and that the panel complied. There are not many cases dealing with support for an adult disabled child to which family law attorneys can look for guidance. This one is especially important because it deals with an adult disabled child who is emancipated but lives totally apart from his parents. In addition, the justices here give us clear guidance for both attorneys and trial courts as to how to apply Fam C §3910(a). The justices cite extensively from In re Marriage of Drake (1997) 53 Cal.App.4 th 1139, 62 Cal.Rptr.2d 466, 1997 CFLR 7517, 1997 FA 797, which involves another family named Drake with a disabled adult child, a 21-year-old son, David, who was diagnosed with paranoid schizophrenia ten years after their 1961 disso. In 1983, David’s mother, Miriam, and he moved into a townhouse with her nephew, rent-free, so that Miriam could take care of David; that same year, she created a trust to provide for David after her death. Per a 1988 settlement in a civil action that Miriam brought against David’s father, James, the latter agreed to pay a minimum of $1,350 in monthly support for David and to apply for social security benefits so that David would be eligible for federal disability benefits. When declining health prevented Miriam from continuing to care for David, she had to hire live-in help for him; her nephew reached a point where he could no longer offer rent-free housing to David. As expenses mounted, Miriam sought an increased contribution from James toward David’s expenses. Before the OSC could be heard, Miriam died; her executors then substituted in as her successors. The trial court then ordered James to pay increased support for David, plus hefty attorney’s fees. James appealed, but the Second District affirmed. The justices found that David’s trust income did not discharge James’s duty of support under Fam C §3910, since there was not enough money in the trust to support David throughout his expected lifetime and he would become a “public charge” without support from his father.



Experienced family law attorneys are all too familiar with clients who balk at paying child support, on the basis that the money will fund the lifestyle of the custodial parent more than it will actually support the child or children. Here, the justices actually find that argument persuasive. It reminds us of another case involving support for a child who was technically an adult, albeit not disabled.



In Edwards v. Edwards (2008) 162 Cal.App.4 th 136, 75 Cal.Rptr.3d 458, 2008 CFLR 10910, 2008 FA 1339, a Second District panel considered whether a trial court had erred by using the child support guideline to reduce a father’s child support obligation, which per the parties MSA and disso judgment, required him to pay support until their son reached the earlier of age 25 or one of some other enumerated milestones. Reversing the lower court, the justices explained that the son had moved from his mother’s house to attend college in San Francisco, where he lived first in a dorm and later in an apartment. He had stayed in SF during the summer, coming home only at spring break and Christmas. The panel determined that the fact that the son had left some belongings at his mother’s house, which he had used as his address of residence with the college, did not mean that his mother had primary physical responsibility for him. On these facts, the justices concluded, which involved a fully competent adult child who was not in the custody of either parent, the trial court erred by applying the guideline formula to modify child support, and they remanded with directions to the lower court to enter a new order reducing the father’s child support obligation to zero.



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