The circumstances under which a court can award, extend, or modify spousal support continue to shrink.
In In re Marriage of Serna (12/14/2000) 2000 Daily Journal D.A.R. 13193, the Fourth District Court of Appeals held that in a spousal support proceeding, a trial court may not consider the expenses incurred by a supported spouse for an adult child. In so doing, the appellate court expressly disapproved In re Marriage of Siegel (1972) 26 Cal.App.3d 88, and In re Marriage of Paul (1985) 173 Cal.App.3d 913, both of which had approved consideration of paying the expenses of adult children as an element of need in determining spousal support awards.
The initial words of this opinion comprise a succinct summary: “The Family Code is clear that child support ends, at the latest, at age 19.” 2000 Daily Journal D.A.R. at 13193. By predicating a spousal support order on the recipient’s claim of need to support adult children, the trial court had impermissibly done indirectly what it was precluded from doing directly, ordering child support for able-bodied adult children.
At the outset of the Serna opinion, the court looked to In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 70 Cal.Rptr.2d 109, which reversed a child support order in a case in which the father had extraordinarily high income, yielding a presumptive guideline child support figure which exceeded the needs of the child. The trial court ordered child support below guideline, part paid directly to the mother and part to be deposited into a trust in which support would accumulate and be used for “add-ons” pursuant to present Family Code ยงยง 4061 and 4062, as well as to provide a means for the child to participate in her father’s affluence. If anything remained in the trust upon the child’s reaching majority, the fund would be paid to the then-adult child. The majority opinion held that the trust device impermissibly gave control over the trust to the payor and restricted the recipient’s use of the funds. Further, absent the portion of child support allocated to this trust fund, the support award was far too low to provide the child with the amenities of her pre-separation lifestyle.
The author of the Serna opinion, Justice David G. Sills, noted that he had dissented from the decision in Chandler, “largely because of the anomalousness of allocating very high child support to a five-year-old’s current lifestyle while utterly ignoring the child’s need for a college education or savings to begin adult life.”2000 Daily Journal D.A.R. at 13193. Justice Sills observed that under the majority opinion, while the child would have enough money “to buy a thousand outfits for her Barbie doll … she may have nothing for college. 60 Cal.App.4th at 131. “When the income of a supporting parent is so high that it is in substantial excess of a child’s reasonable current needs, true ’sharing’ in a very high income parent’s standard of living means putting something away for college or adult life, not squandering it on childish things …” 60 Cal.App.4th at 131-32.
The Serna panel arrived at a different conclusion as to the present needs of adult children in the context of spousal support awards. The court concluded that there was no legal basis for an award of spousal support based in whole or part on needs of adult children and that Siegel and Paul were incorrectly decided and should not be followed.
In In re Marriage of Siegel (1972) 26 Cal.App.3d 88, the court affirmed an order increasing the spousal support payable to the former wife, whose adult daughter was divorced, had serious health problems and numerous hospitalizations, who ate most of her meals at her mother’s home, and whose two-year old daughter was residing with the former wife. The court deemed the “social and moral obligation” of the wife to care for her daughter and granddaughter to be a reasonable need, “commensurate with her station in life,” which a court might consider in determining the amount of spousal support. 26 Cal.App.3d at 91-92
Although the Siegel court expressly noted its lack of authority to require the husband to support his adult daughter and granddaughter directly, “Fulfilling her maternal obligation is a commendable part of her way of life just as much as entertaining her friends, contributing to worthy charitable causes or giving presents to her relatives on their birthdays, at Christmas or other memorable occasions,” the court held. 26 Cal.App.3d at 93.
Similarly, in In re Marriage of Paul (1985) 173 Cal.App.3d 913, the appellate court reversed an order which failed to consider evidence of wife’s expenses for the college education of the parties’ adult child, in analyzing her need in a spousal support modification proceeding. The panel observed that the relevant factors and circumstances to be considered in setting spousal support “‘includes “practically everything which has a legitimate bearing upon the present and prospective matters relating to the lives of both parties.”‘” 173 Cal.App.3d at 919. As in Siegel, the Paul court commended wife for choosing to spend money to educate her adult child.
The Serna panel deemed the reasoning of Siegel and Paul was fallacious because those cases stretch the concept of “circumstances” to equate adult child support with charitable giving, and then compound that idea into the standard of living during the marriage. However, the court stated, the concepts are not akin, because “[t]he whole point about charitable giving is that it’s giving.” 2000 Daily Journal D.A.R. at 13196.
In a footnote, the decision noted that the question of charitable giving in general as a factor affecting spousal support is beyond the scope of the opinion, then contrasts various types of charitable giving (tithing vs. regular donations to social/charitable organizations as part of an upscale lifestyle).
But to state that providing for one’s adult children is simply disguised adult child support begs the question of whether helping adult offspring is part of a spouse’s need commensurate with the lifestyle during the marriage. In some households, it is expected if not almost mandatory that the children will go to college and receive help from their parents. In other households, children are expected to be on their own once they are out of high school (if not before). Should not this element of the parties’ lifestyle be just another of those circumstances “bearing upon the present and prospective matters relating to the lives of both parties.”? Paul, supra, quoting from In re Marriage of Morrison (1978) 20 Cal.3d 437.
One of the cases cited in Serna is In re Marriage of McElwee (1988) 197 Cal.App.3d 902, which is most often cited, for the proposition that a supporting spouse need not bear the burden of the supported spouse’s improvident management of assets. The wife in McElwee argued that she needed a large residence so that her adult children could reside with her when on vacation from college (for which husband was paying). The court observed that, “Since he could not be ordered to make direct child support payments to [wife], he cannot be ordered to do so indirectly by requiring him to make support payments to [wife] sufficient to enable her to provide a residence for the adult children who would use it only intermittently.” 197 Cal.App.3d at 911. But isn’t having the children come home for the holidays an element of need?
An issue analogous to helping adult children arises when the supported spouse has saved money while receiving spousal support, leading the supporting spouse to seek a reduction.
In In re Marriage of Kennedy (1987) 193 Cal.App.3d 1633, 239 Cal.Rptr. 151, the court held that a supported spouse could set aside a portion of her income for savings, and could not be forced to alter her investments from growth to an income-producing strategy.
On the other hand, recently, in In re Marriage of Terry (2000) 80 Cal.App.4th 921, the court held that a supported spouse can be forced to change her investment strategy to generate greater income, and that the trial court should consider the reasonable income potential, not just the income, of the supported spouse’s investments in order to determine her need for spousal support.
If the marital lifestyle included saving, then saving should perhaps be included as an element of the supported spouse’s need as measured by the marital standard of living? The resolution likely can be found in the words of Justice Donald B. King, in In re Marriage of Smith (1990) 225 Cal.App.3d 469, that the marital standard of living is best understood in its “ordinary sense, i.e., upper, middle or lower income.” 225 Cal.App.3d at 491.
While in the years since Siegel and Paul were handed down, much has changed in the statutory limitations and requirements governing child support and, to a lesser extent, spousal support, one thing has remained essentially the same — child support for an able-bodied high school graduate still ends at age 18 (or, presently, at the latest at age 19). In the meantime, the definition of what comprises need in the context of spousal support has changed greatly.
By eliminating certain aspects of need, the court continues to chip away at considerations upon which an award of spousal support can be predicated.
