In re Marriage of Serna, G025314.

• Decision Date: 12 December 2000
• Docket Number: No. G025314.,G025314.
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Raul John and Joanell SERNA. Raul John Serna, Appellant, v. Joanell Serna, Respondent.

102 Cal.Rptr.2d 188

85 Cal.App.4th 482

In re MARRIAGE OF Raul John and Joanell SERNA.

Raul John Serna, Appellant, v. Joanell Serna, Respondent.

No. G025314.

Court of Appeal, Fourth District, Division 3.

December 12, 2000.

Gary S. Gorczyca, Orange, for Appellant.

No appearance for Respondent.

OPINION

SILLS, P.J.

The Family Code is clear that child support ends, at the latest, at age 19.¹ The only exception is in the case of an adult child who is incapacitated from earning a living and is without sufficient means.² Accordingly, in In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 70 Cal. Rptr.2d 109, this court held that a trial court did not have jurisdiction in a very high income case to order the establishment of a trust that allowed surplus child support to be saved for the minor child's college education. "[A]bsent special circumstances such as completing high school or incapacity," wrote Justice Rylaarsdam for the majority, "a court has no authority to order a parent to support an adult child." (Id. at p. 130, 70 Cal.Rptr.2d 109.)³

However, two Court of Appeal decisions, one from the early 1970's, In re Marriage of Siegel (1972) 26 Cal.App.3d 88, 102 Cal. Rptr. 613, and one from the mid-1980's, In re Marriage of Paul (1985) 173 Cal.App.3d 913, 918-921, 219 Cal.Rptr. 318, had previously circumvented the no-support-for-an adult child rule by allowing, as one consideration in a spousal support order, the fact that the supported spouse was supporting an able-bodied adult child. Later, In re Marriage of McEhvee (1988) 197 Cal. App.3d 902, 243 Cal.Rptr. 179, made it clear that "indirect" able-bodied adult child support by means of increased spousal support was improper, but did not address the Siegel and Paul cases.

The instant case, like McElwee, also involves an attempt to indirectly obtain child support for two adult children via a spousal support order. We take the opportunity, not taken by the McElwee court, to explain why Siegel and Paul should not be followed.

Facts

When the parties were divorced in 1991, Raul Serna worked for Unocal as an offshore worker making about $4,438 a month gross. After a 26-year marriage to Joanell, he was ordered to pay $520 a month in spousal support.

Raul lost his job in 1996 when Unocal was bought out, but was able to continue making his spousal support payments from his severance pay. By 1997, at age 51, he found a job as a groundkeeper for a school district in Garden Grove making less than half of what he earned at Unocal—$2,118 a month—and brought a show cause proceeding to reduce his spousal support payments based on the change in his circumstances.

The trial judge reduced the support to $450 a month for fiscal year 1997-1998, and then stepped it down to $400 commencing July 1, 1998. Even so, Raul contended in a motion for reconsideration that it was still too much because in setting the new, lowered, levels of support, the trial judge specifically considered Joanell's support of two of the couple's four adult children: Kris, 25 years old and the mother of an infant boy, and Maria, a then 21-year-old college student.

Almost two years later, in March of 1999, Raul brought another show cause proceeding for a reduction in support, based on the fact that Kris, now a nursing student, had become employed at a local hospital, was getting married in a few weeks, and would be moving to Montana at the end of September. Maria had already moved out and was working as a waitress in Tahoe, albeit with a subsidy from Joanell of an undisclosed amount. (Joanell testified, "I often send Maria money.") Joanell's gross income was now $2,075 a month as a receptionist at a law firm, while Raul earned $2,521 a month, which included additional part-time work for the City of Brea two nights a week, plus a split shift on Saturdays (for a total of 16 extra hours a week). On her income and expense declaration Joanell listed Kris and Kris' now two young children as persons in her household whose expenses were included.

Nevertheless, the trial court (the same judge who heard the 1997 hearing) didn't change a thing. The court mentioned the fact that Raul, having remarried, had a "marital standard of living" that was "currently far and away superior from the standard of [Joanell]," the duration of the marriage, and that Raul was "able to handle additional part-time employment above and beyond which he has reported to the court by way of his income and expense declaration."

Discussion

We now reverse, and direct the trial court to hold a hearing that will result in a reduction of support retroactive to March 1999. The abuse of discretion is manifest.

Extra Hours

First, our Supreme Court made clear in In re Marriage of Simpson (1992) 4 Cal.4th 225, 14 Cal.Rptr.2d 411, 841 P.2d 931, that a supporting ex-spouse should not be penalized because he or she works "excess hours" or otherwise undertakes "an onerous work schedule." (Id. at p. 234, 14 Cal.Rptr.2d 411, 841 P.2d 931; see also In re Marriage of Smith (1990) 225 Cal.App.3d 469, 493, 274 Cal.Rptr. 911 [standard of living during marriage pegged to what supporting spouse would have made "had he worked at a reasonably human pace"].) In Simpson, the high court said: "We conclude that earning capacity generally should not be based upon an extraordinary work regimen, but instead upon an objectively reasonable work regimen as it would exist at the time the determination of support is made." (In re Marriage of Simpson, supra, 4 Cal.4th at pp. 234-235, 14 Cal.Rptr.2d 411, 841 P.2d 931.)

The trial court's statement that Raul was "able to handle additional part-time employment above and beyond which he has reported to the court by way of his income and expense declaration" was without evidentiary foundation. The evidence was uncontroverted that the extra money that Raul earned by giving up two nights and Saturdays each week was included in his income and expense declaration. The marginal increase in his income from roughly $2,100 to $2,500 a month is the result of extra hours in addition to his regular full time job.⁴

Raul is not, contrary to the trial court's intimation, required to work extraordinary hours so as to approximate the marital standard of living. Had the couple still been together when he lost his job, both he and his wife would have had to take the rough with the smooth and adjust their standard of living downwards. An ex-spouse's needs based on the standard of living during the marriage (§ 4320, subd. (d)) is only one of many equitable factors, and must necessarily be balanced against the economic realities of the job market. Raul is not a human paycheck which may be arbitrarily increased by expecting him, as the trial judge put it, to "handle additional part-time employment" without any regard to whether he, in modern parlance, "has a life."

A Higher Standard of Living Because of Remarriage

Second, given that Raul and Joanell earned roughly equal incomes but for Raul's extra hours (they were within $500 of each other despite Raul's overtime), any discrepancy in their current standard of living was the result of Raul's onerous work schedule, having remarried, or both. The Legislature has made it quite clear, however, that the income of a new spouse is not to be considered in any spousal support order. (Fam.Code, § 4323, subd. (b) ["The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support"].) To the degree that Raul was perceived to have a higher standard of living beyond what he earned by his extra hours, it is evident that the trial judge improperly took his new spouse's earnings into consideration.

Indirect Adult Child Support

Finally, to some degree the latest order was still predicated on a consideration of Joanell's needs that included a subsidy for the couple's adult children, even though circumstances had changed (one child had moved out, one child was going to move out; both had jobs) lessening the need for that subsidy. Joanell included the expenses of that daughter and the daughter's two children in her own income and expense declaration, and in her statement to the court said that she "often" sends money to the daughter who had moved out and was living in Tahoe. There was no issue of incapacity.

Joanell's subsidies, either by way of the additional expenses incurred for the one child (and the two children of that child) still living at home, or directly for the child who had moved to Tahoe, should not have been considered. They were even more a form of "indirect" adult child support than the trust fund provisions that the Chandler court said were beyond the trial court's jurisdiction.

In re Marriage of McElwee, supra, 197 Cal.App.3d 902, 243 Cal.Rptr. 179 also stands for the proposition that adult child support cannot be indirectly awarded under the guise of spousal support. In McElwee, a supported spouse challenged a finding of the trial court that the equity in her home was available for her support. She argued that she needed at least a three-bedroom residence so the couple's two adult children, ages 22 and 24, could visit her when on vacations. The appellate court rejected the assertion because it amounted to child support for adult children by other means: "Although [the supporting spouse] is paying their colleges expenses, he is under no current legal obligation to support them. Since he could not be ordered to make direct child support payments to [the supported spouse], he cannot be ordered to do so indirectly by requiring him to make support payments to [her] sufficient to enable her to provide a residence for the adult children who would use it only intermittently." (Id. at pp. 910, 911, 243 Cal.Rptr. 179, emphasis added.)

In re Marriage of Epstein (1979) 24 Cal.3d 76, 154 Cal.Rptr. 413, 592 P.2d 1165 is sometimes cited for the idea that a court may consider the expenses of an obligor spouse in supporting an...