Drescher v. Gross (In re Rosenfeld)

• Citation: 169 Cal.Rptr.3d 918,225 Cal.App.4th 478
• Decision Date: 11 April 2014
• Docket Number: B246494
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Kim Lenore ROSENFELD AND Mark P. GROSS. Lenore Drescher, Appellant, v. Mark P. Gross, Respondent.

225 Cal.App.4th 478

169 Cal.Rptr.3d 918

IN RE the MARRIAGE OF Kim Lenore ROSENFELD AND Mark P. GROSS.Lenore Drescher, Appellant,

v.Mark P. Gross, Respondent.

B246494

Court of Appeal, Second District, Division 3, California.

Filed April 11, 2014

See 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 273.

APPEAL from a post-judgment order of the Superior Court of Los Angeles County, Bruce G. Iwasaki, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. BD328732)

Drescher Law Firm, Robert E. Drescher, Valencia; Law Offices of Herb Fox and Herb Fox, Los Angeles, for Appellant.

Brot & Gross, Ronald F. Brot, Marie A. Lamolinara, Sherman Oaks; Barbakow & Ribet and Claudia Ribet, Beverly Hills, for Respondent.

KITCHING, J.

INTRODUCTION

With the dissolution of their marriage in 2001, Lenore Drescher and Mark Gross executed a marital settlement agreement wherein they stipulated to equally pay for the future college expenses of their three minor children. The agreement was incorporated into the judgment of dissolution and child support and spousal support were ordered as set forth in the agreement.

Eleven years later their daughter enrolled in the University of Missouri and began incurring significant expenses. Drescher sought a modification of the judgment, asserting she had become permanently disabled with an income of less than $23,000 a year, while Gross's income had increased to over $400,000. The trial court denied Drescher's request for modification, concluding it lacked jurisdiction to modify the judgment with respect to college expenses because the marital settlement agreement did not refer to the obligation as “child support.” Drescher appeals from this order.

In this appeal, we must decide whether parents may contractually limit the court's jurisdiction to modify an adult child support order made pursuant to the parents' agreement under Family Code ¹ section 3587. We conclude parents may do so. In contrast to the court's broad jurisdiction to order minor child support, which is rooted in parents' law-imposed duty to support their children until adulthood, the court's jurisdiction to order adult child support under section 3587 derives entirely from the parents' agreement to pay adult support, and the statute grants the court limited authority to “make a support order to effectuate the agreement.” Consistent with this grant of limited authority, in section 3651, the Legislature expressly made the court's general authority to modify a support order “subject to” section 3587. Interpreting the statutes together within the broader statutory framework, we conclude, as a matter of first impression, that the “subject to” clause in section 3651 means an order for adult child support, when authorized exclusively by the parents' agreement under section 3587, may be made non-modifiable by the parents' express and specific agreement to restrict the court's jurisdiction.

Though we hold parents may contract to restrict the court's jurisdiction to modify an adult child support order in this limited circumstance, we conclude the parties' marital settlement agreement in this case did not limit the court's jurisdiction. Accordingly, we reverse the order and remand the matter to the trial court with directions to consider whether the college expense support obligation should be modified.

FACTS AND PROCEDURAL BACKGROUND

1. The Marital Settlement Agreement and Judgment

Drescher and Gross were married in 1987 and separated in 2001. There are three children from the marriage: Joshua, born in 1992; Lila, born in 1994; and Noah, born in 1997.

In June 2001, the parties executed a Marital Settlement Agreement (MSA). At the time, the parties were both employed as attorneys earning six-figure incomes.

The parties' financial support obligations are set forth in Paragraph IV of the MSA, under the heading “FAMILY SUPPORT,” and the specific obligations are detailed in subparagraphs A through D. The MSA refers to the financial obligations set forth in subparagraph A as “non-modifiable, non-taxable family support,” while the obligations set forth in subparagraphs B and C are referred to as “additional child support.” Subparagraph D, the most pertinent to this appeal, does not contain a similar specific reference to “family support” or “child support.” Subparagraph D provides:

“D. Each party shall be responsible for payment of one-half ( ) of all costs incurred on behalf of each minor child, for undergraduate California state college or university expenses, trade or other school or schools' costs incurred by such minor child, or other schools approved by the parties, so long as such minor child is continuing to reasonably matriculate at such school. Costs for such undergraduate college or trade or other school or schools shall be defined as all tuition, fees, room, board, supplies, books, transportation costs, reasonable living expenses.”

In October 2002, the final judgment of dissolution was entered. The judgment incorporates the MSA and orders child custody, spousal support and child support as set forth therein. Pursuant to the terms of the MSA, the judgment awarded Drescher and Gross joint legal and physical custody of the children.

2. November 2011 Order Modifying Child Support and Enforcing College Expense Obligation

In August 2011, Gross filed an order to show cause requesting modification of child support, citing the significantly reduced timeshare between Drescher and the parties' daughter, Lila, as a material change in circumstances warranting modification. The order to show cause also asked the court to enforce the college expense provision of the MSA, as incorporated into the judgment. Specifically, Gross sought an order requiring Drescher to pay half of what it would cost for Lila to attend college in California, regardless of whether Lila ultimately enrolled in an in-state or out-of-state school.

In response, Drescher argued any modification in child support should take into account the vast disparity in the parties' incomes that had developed over the past 10 years. She presented evidence showing that, in 2004 and 2006, she was diagnosed with various ailments rendering her permanently disabled and unable to work in any capacity. She asserted her State Bar membership became inactive in 2006 and she was supporting herself on disability payments and child support. During the same period she claimed Gross's income had increased to over $400,000 a year.

As for the college expense provision, Drescher argued she could not be compelled to pay for Lila to attend an out-of-state school because the provision was limited, by its terms, to costs incurred for undergraduate California state college or university expenses.

In November 2011, the trial court entered an order modifying the child support Gross paid for Lila's and Noah's maintenance. With respect to the parties' incomes, the court found Drescher was disabled, unable to work, and received an annual income of $22,908, while Gross earned approximately $421,000 per year.

The court also granted Gross's request to enforce the college expense provision of the judgment, and ordered the parties to “meet and confer annually in advance of the Fall Semester to determine the maximum cost of a California college or university, trade or other school.” Commencing in 2012, the order required each party to pay on behalf of Lila one-half of the maximum annual cost of a California college, university, trade or other school, regardless of whether Lila attended a California or non-California school.

3. Order Denying Modification of College Expense Obligation

In June 2012, Drescher filed an order to show cause requesting modification of the college expense provision of the judgment. Drescher asserted her disability and the resulting change in the parties' relative incomes since the judgment was entered constituted a material change in circumstances. Her order to show cause asked the court to reallocate 91 percent of the shared support obligation to Gross, and 9 percent to Drescher, based on the disparity in their current incomes.

Gross opposed the request, arguing the court had no authority to modify the provision because college expenses are not child support, and the parties' stipulation to pay their children's college expenses was entirely contractual. He also argued Drescher had failed to establish a change in circumstances since the court had last modified child support in November 2011. While Drescher's request for modification was pending, Gross brought a competing order to show cause seeking payment from Drescher of approximately $8,800 for her share of tuition and living expenses incurred through September 2012 on behalf of Lila, who was now attending the University of Missouri.

On November 12, 2013, the trial court denied Drescher's request to modify the judgment and granted Gross's request for reimbursement of college expenses incurred on Lila's behalf. With respect to modification, the court concluded, as a matter of contract interpretation, that it lacked jurisdiction to modify because the parties had not intended the college expense provision to be treated as child support. The court reasoned that nothing in the language of the MSA indicated the parties intended “shared expenses for adult children to be treated as equivalent to statutorily mandated child support,” citing the fact that “[t]he MSA specifically identified certain items as child support, but [the college expense provision] is not among them.” Because Drescher had not presented extrinsic evidence of the parties' intent, the trial court concluded the language of the MSA controlled and it lacked jurisdiction to modify the provision. The court also concluded Drescher had failed to establish a change in circumstances. Drescher appealed.

DISCUSSION

1. Jurisdiction to Modify Judgment

a. Standard of review

Drescher contends the trial court erred in concluding it lacked jurisdiction to modify...