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Court of Appeal:
Alimony May Be Cut Based on Paying Son’s College Costs
Opinion Repudiates 2000 Decision Saying That Taking Into Account the Obligor Spouse’s Expense in Subsidizing Adult Offsprings’s Outlays Means Impermissible Saddling of Obligee Spouse With Adult Child Support Duty
By a MetNews Staff Writer
A judge, in setting a woman’s spousal support obligation to her ex-husband, a lawyer on inactive status with medical problems, properly took into account the woman’s expenditure of about $35,000 a year on an adult son’s college tuition and living expenses, Div. One of the Fourth District Court of Appeal has held, rejecting the contrary reasoning of an opinion that says such an approach means the obligee spouse is subsidizing adult child support.
Thursday’s opinion, by Justice William Dato, affirms a July 2019 judgment by San Diego Superior Court Judge David B. Oberholtzer which set alimony for David Maher at $4,000 until May 1, 2020, $3,500 a month until May 1 of this year, then falling to $2,500 a month after that. Oberholtzer relied on Family Code §4320 which provides that “[i]n ordering spousal support under this part, the court shall consider all of the following circumstances,” specifying, in subpart (n), “[a]ny other factors the court determines are just and equitable.”
At the time of the judgment, the ex-wife, Laurie Strawn, who is employed by a pharmaceutical company, had the impending $50,000-a-year expense of putting the former couple’s daughter through college.
Dato’s opinion repudiates the 2000 decision of the Fourth District’s Div. Three in In re Marriage of Serna, authored by Presiding Justice David Sills (now deceased) under which Oberholtzer would be precluded from taking into account ex-wife Laurie Strawn’s decreased ability to pay Maher based on the educational expenses. Dato said that Oberholtzer “determined that the better reasoned cases—not the least of which is the Supreme Court’s decision in In re Marriage of Epstein (1979)…—indicate that the court has discretion to consider an adult child’s college expenses like any other expenditure of discretionary income.”
Sills and Dato expressed differing views as to the pertinence of the decision in Epstein.
Sec. 3901(a)
Dato wrote:
“We acknowledge, of course, that David cannot be required to support his adult child. Family Code section 3901, subdivision (a) prohibits that. But the question here—whether Laurie’s choice to spend her discretionary income on their adult child’s educational expenses may be considered on equal footing with her other expenses—is distinctly different.”
He declared that “both Epstein and section 4320 compel the conclusion that a trial court may appropriately consider a supporting spouse’s payment of adult children’s college expenses in determining ability to pay spousal support.”
Sills’s Opinion
Sills criticized two Court of Appeal opinions which, he said, “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.” The trial court in the instant case had taken such a factor into account and, the jurist wrote, “The abuse of discretion is manifest.”
He postulated:
“Suppose, for example, that a supporting spouse were to undertake the ‘morally commendable’ task of helping the couple’s adult child through a very expensive private college which left the spouse without much left to pay spousal support? Most courts, one might hope, would easily recognize that the supported spouse was, in effect, subsidizing the supporting spouse’s de facto adult child support to the degree that the expense was factored into the support decision.
Epstein Not Relevant
The presiding justice (who at one time had been a son-in-law of Ronald Reagan) went on to say:
“In re Marriage of Epstein…is sometimes cited for the idea that a court may consider the expenses of an obligor spouse in supporting an adult child in college for purposes of lowering support….On closer inspection, however, Epstein does not endorse the idea of indirect adult child support.
“In Epstein, the court simply noted that part of the supporting spouse’s monthly expenses was $350 applied toward the couple’s daughter’s college education….The issue of whether the supported spouse was, in effect, being required to pay adult child support by means of lowered spousal support than would otherwise have been the case was not raised or discussed.”
He said a footnote in that decision set forth in detail “the supported spouse’s arguments that her ex-husband had an increased ability to pay based on several factors, none of which included the money spent on the daughter’s college” education.
Dato’s View
Taking a varying view of the high court decision, Dato said:
“We read Epstein differently. The Supreme Court held that the trial court ‘did not abuse its discretion in limiting spousal support to $750 per month’ in light of the supporting spouse’s total monthly expenses, which included $350 per month for the adult child’s college.”
He added, however, that “even if Serna correctly distinguished Epstein, we would reach the same result in this case.”
Dato set forth these thoughts behind his rejection of Sills’s reasoning:
“[W]e disagree with Serna’s analysis because Laurie is not asking that David be required to support their adult children’s education, nor does the court’s order ‘bind David to subsidize...able-bodied, adult child’s expenses’ as he claims. Laurie asks only that in setting spousal support under section 4320, her choice to pay their children’s college expenses be evaluated for reasonableness—in the same way the court would consider other expenses affecting her ability to pay support. If Laurie chooses to spend her discretionary income on their adult children’s education rather than on Maui vacations, 11 luxury automobiles, and expensive clothes—that is her prerogative and a choice the court should respect and treat as it would any other legitimate expense.”
Agreement With Oberholtzer
He expressed agreement with Oberholtzer’s statement that “sending children to college is at least as much of the marital standard of living as the marital home, vacations, what cars they drive, how often they go out to eat, etc.,” remarking:
“Moreover, a support order based in part on the supporting spouse’s payment of reasonable college expenses for adult children is not ‘indirect adult child support’ any more than considering vacation expenses or car payments would compel indirect support of the Four Seasons hotel chain or Ford Motor Company.”
Other issues were dealt with in a portion of the opinion that was not certified for publication.
The case is In re Marriage of Maher and Strawn, 2021 S.O.S. 1667.
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