In California Divorces, Paying for College May Reduce Spousal Support
In the past, if a divorced parent asked me what took priority – support for the other spouse or support for the adult child– the answer would have been easy: the other spouse. After all, there is no authority (except in cases of severe disability of a child) for California courts to order adult child support, but there is authority to order one spouse to support the other.
Turns out that is no longer the proper approach, at least according to the First District of Division Four of California’s Court of Appeal, here in San Diego. In a 3-0 decision this past week, the justices affirmed a trial court’s decision to consider a woman’s payment of college expenses for the two children of the marriage when determining what to make her pay in spousal support to her former husband. Rejecting the argument that the husband was being forced to pay adult child support by having his spousal support be lower than it would otherwise be by giving some sort of credit to the wife for paying for the kids’ college, the justices said that paying for college could be considered. Writing for the Court in a case entitled In re Marriage of Maher and Strawn, the Hon. William Dato said the inquiry should only be whether those college expenses were reasonable.
In affirming the lower court, Justice Dato and his colleagues expressly refused to follow the 2000 decision of another branch of the Court of Appeal entitled Marriage of Serna (2000) 85 Cal.App.4th 482, which had reasoned 3-0 that considering payment of college was indeed an indirect method of taking the prohibited step of ordering adult child support for otherwise healthy individuals.
As with many appellate decisions, it is important to look at this most recent case in context. The Court of Appeal did not say that a divorce judge must give some sort of discount for college expenses, even those that are “reasonable”. Rather, the justices simply held that the trial judge has the option of doing what this judge, the Hon. David Oberholtzer, now retired, did.
Moreover, Judge Oberholtzer’s decision was reached when the matter went to trial. Had the controversy arisen in the context of a post-judgment request to lower spousal support, it is not clear whether a payor’s post-judgment voluntary decision to take on child college expenses that did not exist earlier in the case would be grounds, standing alone, to find the requisite change in circumstances to lower spousal support.
The facts of this case did not help the husband either. First, the husband was a former lawyer. Not just any lawyer, but a patent lawyer. But he had fallen apart mentally and in the waning days of the marriage, things were not good. Holding nothing back, the judge stated that the parties’ marital standard of living was close to “appalling”. He said
They lived in a filthy refuse strewn home with each evening dedicated to drinking a bottle of wine each. ([Laurie] testified [David] would not allow her to clean the house while he was home, and he seldom left.)
. . .
At (the date of separation, David) was living in a squalid house strewn with garbage, refuse, discarded items left to sit where they dropped and rooms filled with empty carboard boxes from his online shopping . . . He has maintained that same standard of living.
Finally, it is important to realize that Judge Oberholtzer did not refrain from ordering any spousal support. Rather, he ordered an amount that the husband believed would have been, or should have been, higher had the college expenses not been considered. Specifically, the judge ordered $4,000.00 a month for one year; $3,500.00 a month for the next year; and $2,500.00 per month thereafter.
So, had did the Maher court reach its decision despite precedent to the contrary? First, it considered other precedent that was contrary to the Serna case. Basically, before Serna, there was other case law that the Serna court rejected but that the Maher court chose to follow. And although this does not come up every day in appellate litigation, when there are, say, two precedents that see the law differently, the Court of Appeal is in the rare situation of basing its decision on whichever case it likes better or thinks is better reasoned. The same applies to trial courts. They, after all, must follow the law established by the Court of Appeal, but where there are conflicting decisions on the appellate level that address the issue the trial judge is facing, the trial judge is at liberty –subject to appeal—to follow the precedent he or she likes better.
And, in spousal support cases, whenever it appears that a judge may have based her or his decision on a factor not contained in the main part of Family Code section 4320 (i.e., subd. (a) – (m)), which contains the criteria for deciding spousal support, it can always be said that the judge followed subdivision (n) of section 4320, which is an opened ended subdivision that allows the judge to consider any facts that may be just or equitable. And in this case, the justices did rely on subdivision (n) in reaching their decision, although they also relied on subdivisions (e) and (k), which address financial obligations and the balance of hardships.
Also, in this case, the parties were of above-average wealth. In a case where there is less income at play, I still do not think supporting adult children takes priority over supporting one’s spouse. Indeed, the Family Code expressly requires one to support one’s spouse (at least during marriage) and expressly allows or requires courts to order spousal support to a former spouse.
And the Maher decision is not immune from criticism. For example, the Court of Appeal noted that section 4320 requires a review of the supporting spouse’s expenses, and that the payment for college is just like any other expense; how much is it and how reasonable is it? But at the end of the day, college is not as fundamental an expense as, say, housing, one’s auto insurance, or food. Children of divorced parents must understand that their ability to rely on their parents for college may have been compromised by a divorce that they never anticipated or sanctioned. This is not fair, of course, for young adults who have life in front of them. But at the end of the day, the higher earning parent may adjust downward the expenses being paid for college in light of a spousal support claim or order.
In any event, anticipating that allowing for a college spending deduction might not be appropriate in every case, the justices established a ten-part test for determining whether to consider college expenses. A trial judge, they said, has to look at “(1) whether the supported spouse, if still living with the child, would have contributed toward the educational costs; (2) the effect of the background, values and goals of the parents on the reasonableness of the child’s expectation of higher education; (3) the amount expended; (4) the supporting spouse’s ability to pay that cost; (5) the parents’ respective financial resources; (6) the commitment to and aptitude of the child for the education; (7) the adult child’s financial resources; (8) the child’s ability to earn income during the school year or on vacation; (9) the availability of financial aid including reasonable amount of loans; and (10) the relationship of the education to the adult child’s long-range career goals as affected by the family circumstances and values during the marriage”.
So now what happens? The husband could ask the California Supreme Court to get involved. But the high court –similar to the U.S. Supreme Court—only considers very few of the cases presented to it. Basically, the case must involve a matter where there are conflicting decisions by the Court of Appeal (and that certainly is the case here) and/or important issues are at stake. While this case is no doubt important to the parties involved, it may not be viewed as important as other matters by the high court.
Justice Dato, who is no stranger to family law, having presided as a trial judge over a family law department before his elevation to the Court of Appeal, was joined by Justices Cynthia Aaron and Joan Irion.