Child Support for Adult Children

CHILD SUPPORT

In re Marriage of Edwards

In re Marriage of Edwards

1982: Married 1984: Son born 1986: Separated 1990: Marital Settlement Agreement MSA child support order provides for F’s

continued support of son as an adult, and for shared payment of college expenses.

In re Marriage of Edwards

“Subject to the power of the court to modify same, Husband shall pay to Wife, as and for child support, the sum of $200 per month, payable on the 10th day of each month, said payments began on . . . March 15, 1990, and shall continue for the Minor Child until further order of this court or until he marries, dies, becomes self-supporting, emancipated, reaches the age of 25, whichever comes first” (Italics added.)

In re Marriage of Edwards

1998: stipulation for an upward modification to $400 per month

1999: following a contested hearing, another upward modification to $700 per month

2003: F files another motion to modify child support based on a change of circumstances.

In re Marriage of Edwards

F argues that application of the guideline formula would be unjust or inappropriate, per Family Code, Section 4057.

F argues he had a substantial decrease of income ($87,552 to $38,304).

F argues adult son no longer in the custody of either parent.

F argues son is attending a state university on a full financial aid package.

In re Marriage of Edwards

M argues the court should apply the guideline formula.

M contends she has “physical responsibility” because when son is not in school, he returns to her home, his “stuff” is there, he receives mail there, and is it son’s address of residence with the college. In addition, the previous school year son came home for Christmas and a week for spring break.

In re Marriage of Edwards

T/Ct: Denies F’s request. No “special circumstances” found to depart

from the guideline formula. Applying the guideline formula, the court

modifies support from $700 to $432 per month.

The court grants M 100% timeshare and F’s is 0%.

F appeals. Your ruling?

In re Marriage of Edwards

Court of Appeal: Reversed. Trial court erred in determining child

support pursuant to the guideline formula.

Application of the guideline formula was “unjust and inappropriate” due to the circumstances of the case, per F.C. Section 4057(b)(5).

Neither parent retained “primary physical responsibility.”

In re Marriage of Edwards

Court of Appeal distinguishes case from In Re Marriage of Drake (1997) 53 Cal.App.4th 1139 (where the guideline formula was applicable to child support for a mentally incapacitated adult child whose mother took full responsibility for his situation and care).

The fact that M receives mail for son at her address, and that he visits from time to time, does not support a finding she had primary physical responsibility.

In re Marriage of Edwards

N.B.: Compare Plumas County Department of Child Support Services v. Rodriguez (where M considered the custodial parent when minor child lived with her brother).

Compare In re Marriage of Katzberg (where father given timeshare while minor son was living in a local boarding school).

RELEVANT CODES

Family Code, Section 3901

(a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.

(b) Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.

Family Code, Section 3910

(a) The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.

(b) Nothing in this section limits the duty of support under Sections 3900 and 3901.

Family Code, Section 4057 (a) The amount of child support established by the formula provided . . . , is presumed to be the correct

amount of child support to be ordered. (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may

be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . . , because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056:

(1) The parties have stipulated to a different amount of child support . . . . (2) The sale of the family residence is deferred . . . . , and the rental value of the family residence in which

the children reside exceeds the mortgage payments, homeowner's insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount.

(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.

(4) A party is not contributing to the needs of the children at a level commensurate with that party's custodial time.

(5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following:

(A) Cases in which the parents have different time-sharing arrangements for different children. (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a

much lower or higher percentage of income used for housing than the other parent. (C) Cases in which the children have special medical or other needs that could require child support that

would be greater than the formula amount.

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