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Case of the Month Archive

June 2021

Payments of adult child's college expenses may be considered when calculating spousal support. . .


In affirmance, Fourth District holds that trial court did not err by considering supporting spouse's payment of adult child's college expenses in determining amount of spousal support to be paid to supported spouse.


In re Marriage of Maher & Strawn

(April 22, 2021)

California Court of Appeal 4 Civil D076487 (Div 1) 63 Cal.App.5th 356, 277 Cal.Rptr.3d 689, 2021 FA 1982, per Dato, J (Aaron, PJ, and Irion, J). San Diego County: Oberholtzer, J, affirmed. For appellant: Patrick McCrary, 619-589-8533. For respondent: Stephen Temko, CALS, CFLS, 858-361-4264. CFLP § F.97.62.


David Maher and Laurie Strawn separated in 2016 after 18 years of marriage. At the time of their separation, their children were 20 and 18 years old. During the marriage, David, an attorney who has a Ph.D. in biochemistry, worked as a patent attorney. Laurie, who also has a Ph.D., was earning at the time $28,000 per month, working for a pharmaceutical company.


In 2004, David "began committing acts of domestic violence." By 2007, those acts were so frequent that Laurie stopped keeping track of them. David, who had been earning $100,000 per year, stopped working in 2008, leaving behind debts for back taxes and a defunct law practice. The parties separated in 2016 after David inflicted a particularly severe assault against Laurie and then against their son the next day. As a result of those incidents, Laurie obtained a domestic violence restraining order against David. In the dissolution proceedings, David asked the trial court to order Laurie to pay him spousal support. The trial court imputed $1,733 per month to David (minimum wage) and ordered Laurie to pay him temporary spousal support of $4,376 per month, later increasing the amount to $6,218 per month.


At the trial, David testified that he has sleep apnea, insomnia, PTSD, anxiety, and severe depression. He told the trial court that he becomes nervous and afraid in crowds, traffic, or noise, and, as a result, stays alone in his apartment and has to "force" himself to socialize. On cross-examination, David admitted to attending an indoor rock concert in Las Vegas in 2018 as well as some concerts at the Del Mar fair with a "social group" and the House of Blues. David also stated that he takes Valium twice daily, anti-depressants, anti-anxiety drugs, and hydrocodone. He said he spends about $600 per month on wine, of which he has several glasses every night. He maintained that his mental issues kept him from working regular hours, but he had worked part time as a track and field coach, earning $1,000 in 2018, plus accolades as field coach of the year. David held a teaching credential but declined to do substitute teaching or tutoring because of "patience issues." David called Bernard A. Michlin, M.D., who had reviewed his medical records, to testify about his mental conditions. Dr. Michlin testified that these conditions prevented David from resuming his law practice but that he could do "simple and repetitive work, like filing papers, scanning documents, and data input," or could work part time as a track and field coach. Dr. Michlin even said that he held out hope that David's condition would improve and that working full time could be the answer to his sleep, anxiety, and depression issues. Laurie testified that she was paying $35,000 per year for the oldest child's college expenses and expected to pay the youngest child's college tuition of $50,000 per year after the child graduated from high school.


When the trial concluded, the trial court found that Laurie was more credible than David, that David's claim of fear of crowds was weakened by his attendance at Las Vegas and other concerts, and that Dr. Michlin was "too much of an advocate." The trial court determined that paying the children's college expenses was part of the parties' marital standard of living and should be taken into account when calculating the spousal support order. The trial court imputed $1,000 per month to David, finding that David's work as a track and field coach demonstrated he could earn something. It ordered Laurie to pay $4,000 per month until May 1, 2020, reduced to $3,000 per month until May 1, 2021, and reduced further to $2,500 per month thereafter. The trial court also issued a Gavron warning. Claiming that imputing income to him and ordering a step-down provision regarding spousal support resulted in an abuse of discretion, David appealed, but, in a partially published opinion, the Fourth District affirmed.


Split authority. . .
The justices first noted that split authority exists among California appellate courts over the issue whether a court may consider a supporting spouse's payments of college expenses for an adult child when determining an appropriate amount of spousal support. On one hand, several cases, led by In re Marriage of Paul (1985) 173 Cal.App.3d 913, 219 Cal.Rptr. 318, stand for the proposition that trial courts may consider these payments when setting such spousal support. On the other hand, some more recent cases, most notably In re Marriage of Serna (2000) 85 Cal.App.4th 482, 102 Cal.Rptr.2d 188, hold the opposite, finding in particular that such an offset indirectly compels the supported spouse to pay adult child support, which is prohibited by Fam.C. §3901(a). The justices here, however, disagreed with Serna's reasoning, which David argued for. To this panel, "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." The justices further noted that nothing in Fam.C. §4320 prevents courts from considering payment of college expenses any differently than other discretionary expenses. For these reasons, the Fourth District affirmed the trial court's holding.


Non-pub. . .
In the unpublished parts of the opinion, the panel found that the trial court's imputing income to David and finding that David had opportunities to work were supported by substantial evidence, that the trial court had discretion to order a step-down provision, and that the trial court did not err in evaluating marital standard of living.





Readers may wonder about Fam.C. §4320(i)(3) [in determining the amount of spousal support, trial courts may consider any history of domestic violence against the supporting spouse by the supported spouse]. Presumably the trial court took into consideration this factor when calculating the final award for spousal support, but the opinion is mostly silent on this issue, except for a brief reference in a footnote that simply acknowledges the existence of this authority.


Library References
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶¶ 6:911.1 et seq.
11 Witkin, Summary of Cal. Law (11th ed. 2021) Marriage, § 311



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