Armstrong v. Armstrong

• Decision Date: 28 January 1976
• Court: California Supreme Court
• Parties: , 544 P.2d 941 Marc B. ARMSTRONG, a minor, etc., et al., Plaintiffs and Appellants, v. Henry A. ARMSTRONG, Defendant and Respondent. L.A. 30437.

Page 805

126 Cal.Rptr. 805

15 Cal.3d 942, 544 P.2d 941

Marc B. ARMSTRONG, a minor, etc., et al., Plaintiffs and Appellants, v. Henry A. ARMSTRONG, Defendant and Respondent.

L.A. 30437.

Supreme Court of California In Bank.

Jan. 28, 1976.

Kindel & Anderson, and Mason H. Rose, V, Los Angeles, for plaintiffs and appellants.

Richmond & Smith, and Gilbert M. W. Smith, Pasadena, for defendant and respondent.

RICHARDSON, Justice.

In this appeal we consider whether a court may take cognizance of a child's independent income in determining the parent's obligation of support. We conclude that it may do so, but only in a limited and restricted sense and that a solvent parent may not entirely discharge his or her support obligation by resort to the child's independent income.

Plaintiffs, Scott and Marc Armstrong, ages 19 and 16, respectively, at the time of the commencement of this action are the only children born to the marriage, since dissolved, of Henry Armstrong (defendant) and Charmaine Armstrong. Plaintiffs were income beneficiaries of a testamentary trust established by their paternal grandfather in 1956. Under the terms of the trust their interest terminated on December 31, 1972.

Charmaine obtained an interlocutory decree of divorce from defendant in 1959, and a final decree in 1960. Prior to the entry of the interlocutory judgment, the parties executed a property settlement agreement which provided that, since each plaintiff received approximately $84 per month from the trust, defendant would pay monthly the difference between the amount each child received from the trust and $125, and in the event and to the extent the sum derived from the trust exceeded $125, defendant was to receive a corresponding credit against his support obligations for succeeding months. Defendant also agreed to pay all extraordinary medical and dental expenses incurred by the children. The terms of the agreement in substance were incorporated in the interlocutory decree of divorce.

In 1973 plaintiffs sued their father for past child support and for misappropriation of their trust assets. They sought general damages, declaratory relief, a temporary restraining order, counsel fees, costs and a preliminary injunction against distribution to defendant of a $50,000 trust asset. The trial court sustained both general and special demurrers interposed by defendant, concluding that it was proper for the court to recognize and give full credit to the plaintiffs' independent income received from the trust in determining defendant's support obligations. Plaintiffs declined to amend their complaint and instead took this appeal after their complaint was dismissed.

Plaintiffs' complaint contains four causes of action. In the first they allege that they are the sons of defendant and that defendant had both the duty and ability financially to support them; that the property settlement agreement incorporated in the divorce decrees obligated defendant to pay child support of $125 per month per child (in passing we note the material variance between this allegation and the provisions of the support order, incorporated as an exhibit to the complaint, which directs defendant to pay only the Difference between the trust income and $125, see Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734, 64 Cal.Rptr. 481); that defendant illegally agreed with Charmaine to use plaintiffs' trust income to reduce his monthly support obligations; and that he has failed to pay the $125 per month per child which he was obligated to pay. The second cause of action incorporates the first and alleges that in violation of his fiduciary obligations as plaintiffs' natural guardian, defendant 'misappropriated for his own use payments from the trust intended for plaintiffs' benefit.' The third cause of action seeks declaratory relief alleging a dispute between plaintiff children and defendant about whether defendant's support obligation to plaintiffs could be partially satisfied by the amounts received by plaintiffs in their own right from the trust. The fourth cause of action, alleging defendant's insolvency, asks for injunctive relief to prevent distribution by the trust to defendant of his own $50,000 beneficial interest.

1. Parental Duty of Support

As we have noted, the principal issue in the case is whether a trial court in determining the nature and extent of a parent's support obligation may consider the child's own independent income.

Resolution of the issue involves application of certain well-settled general principles. There is a statutory obligation of child support imposed on parents. (Civ.Code, §§ 242, 243, 4700.) This obligation continues notwithstanding the parents' lack of custody (Kresteller v. Superior Court (1967) 248 Cal.App.2d 545, 546--548, 56 Cal.Rptr. 771), and is unaffected by any agreement between the parents (Elkind v. Byck (1968) 68 Cal.2d 453, 457, 67 Cal.Rptr. 404, 439 P.2d 316; Davidson v. Superior Court (1964) 226 Cal.App.2d 625, 629--630, 38 Cal.Rptr. 274, hg. den.). When a child support agreement is incorporated in a child support order, the obligation created is deemed court-imposed rather than contractual, and the order is subsequently modifiable despite the agreement's language to the contrary. (Civ.Code, § 4811; see generally, 6 Witkin, Summary of Cal. Law (8th ed. 1974) Parent and Child, § 133, p. 4650.) However, the effect of the modification of the original order is prospective only. (Civ.Code, §§ 4700, 4811; Singer v. Singer (1970) 7 Cal.App.3d 807, 813, 87 Cal.Rptr. 42.) The extent of the parental support obligation is left to the sound discretion of the court (Primm v. Primm (1956) 46 Cal.2d 690, 694, 299 P.2d 231; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 209, 259 P.2d 656) and the trial court's order will not be disturbed on appeal unless that discretion is abused. (Brockmiller v. Brockmiller (1943) 57 Cal.App.2d 623, 625, 135 P.2d 184.)

Notwithstanding the broad latitude permitted the trial court in support matters, and acknowledging the existence of conflicting views, we conclude that the soundest and most substantial statutory and judicial authority supports the rule that parents bear the primary obligation to support their child and that resort may be had to the child's own resources for his basic needs only if the parents are financially unable to fulfill that obligation themselves. We consider some of these authorities.

California has adopted the Uniform Civil Liability for Support Act, contained in Civil Code section 241 et seq. Sections 242 and 243 impose upon both parents the duty to support their children. Guidance for the application of these sections is found in section 246, which authorizes the court to consider the child's need, relative wealth, and income in determining '. . . the Amount due for support . . .' (Italics added.) While § ection 246 allows consideration of the child's independent wealth and income in fixing the Amount of the support obligation, this section does not authorize the court to relieve entirely a financially capable parent of his or her obligation to support the child. The section permits reduction in the amount of support but it neither expressly nor by necessary implication frees the parent of the continuing obligation, which we deem primary, to provide the child with at least the basic necessaries of life.

Section 1504 of the Probate Code reinforces this conclusion. It provides that if a minor 'has property, the income of which is sufficient for his (or her) support, maintenance and education In a manner more expensive than his (or her) father can reasonably afford, . . .' (italics added) then the expenses of support, maintenance and education may be defrayed out of the child's income, in whole or in part, in such amounts as the court deems reasonable. Section 1504 confirms the view that although the parent, if financially able, must provide for the child's basic, minimum support needs, the child's income may be used to Supplement the parent's contribution in order to permit the child to live in a more 'expensive' manner by way of special education, travel, etc. It follows as a corollary, however, that only if the parent is unable to provide minimum-level support should the child's outside income relieve the parent entirely of his support obligation.

Numerous appellate decisions add strength to the foregoing interpretation of the statutes. As expressed in In re Carboni (1941) 46 Cal.App.2d 605, 116 P.2d 453, 'The law is well settled that the primary duty to support a minor rests upon his parents, and that the estate of the minor can only be resorted to where the parents are unable to fulfill the obligation in whole or in part. (Citations.)' (Id. at p. 613, 116 P.2d at 457.) Several other cases, both before and after Carboni, are in accord: In re Marriage of Cosgrove (1972) 27 Cal.App.3d 424, 432, 103 Cal.Rptr. 733; Hills, v. Hills (1966) 245 Cal.App.2d 578, 580, 54 Cal.Rptr. 89; see also Howe v. Howe (1928) 206 Cal. 1, 2--3, 272 P. 751; Fagan v. Fagan (1941) 43 Cal.App.2d 189, 198, 110 P.2d 520; In re Keck (1929) 100 Cal.App. 513, 514, 280 P. 387. Contrary dicta is contained in others: See Nunes v. Nunes (1964) 62 Cal.2d 33, 41 Cal.Rptr. 5, 396 P.2d 37; Rosher v. Superior Court (1937) 9 Cal.2d 556, 71 P.2d 918; Black v. Black (1928) 203 Cal. 173, 263 P. 234; Mattos v. Correia (1969) 274 Cal.App.2d 413, 79 Cal.Rptr. 229; Moore v. Moore (1969) 274 Cal.App.2d 698, 79 Cal.Rptr. 293; Van Diest v. Van Diest (1968) 266 Cal.App.2d 541, 72 Cal.Rptr. 304; Lakenan v. Lakenan (1967) 256 Cal.App.2d 615, 64 Cal.Rptr. 166; Levy v. Levy (1966) 245 Cal.App.2d 341, 53 Cal.Rptr. 790; McClellan v. McClellan (1958) 159 Cal.App.2d 225, 323 P.2d 811; White v. White (1927) 83 Cal.App. 356, 256 P. 579. We find that the contrary cases are distinguishable, and in only one of them (Lakenan v. Lakenan) does the court affirmatively sanction the avoidance by a parent of all obligations to support...