Drescher v. Gross

Filed 4/11/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LENORE DRESCHER, B246494

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BD328732)
v.

MARK P. GROSS,

Defendant and Respondent.

APPEAL from a post-judgment order of the Superior Court of Los Angeles
County, Bruce G. Iwasaki, Judge. Reversed with directions.

Drescher Law Firm, Robert E. Drescher; Law Offices of Herb Fox and Herb Fox
for Plaintiff and Appellant.

Brot & Gross, Ronald F. Brot, Marie A. Lamolinara; Barbakow & Ribet and
Claudia Ribet for Defendant and Respondent.
_____________________
 INTRODUCTION
With the dissolution of their marriage in 2001, Lenore Drescher and Mark Gross
executed a marital settlement agreement wherein they stipulated to equally pay for the
future college expenses of their three minor children. The agreement was incorporated
into the judgment of dissolution and child support and spousal support were ordered as
set forth in the agreement.
Eleven years later their daughter enrolled in the University of Missouri and began
incurring significant expenses. Drescher sought a modification of the judgment, asserting
she had become permanently disabled with an income of less than $23,000 a year, while
Gross’s income had increased to over $400,000. The trial court denied Drescher’s
request for modification, concluding it lacked jurisdiction to modify the judgment with
respect to college expenses because the marital settlement agreement did not refer to the
obligation as “child support.” Drescher appeals from this order.
In this appeal, we must decide whether parents may contractually limit the court’s
jurisdiction to modify an adult child support order made pursuant to the parents’
agreement under Family Code1 section 3587. We conclude parents may do so.
In contrast to the court’s broad jurisdiction to order minor child support, which is rooted
in parents’ law-imposed duty to support their children until adulthood, the court’s
jurisdiction to order adult child support under section 3587 derives entirely from the
parents’ agreement to pay adult support, and the statute grants the court limited authority
to “make a support order to effectuate the agreement.” Consistent with this grant of
limited authority, in section 3651, the Legislature expressly made the court’s general
authority to modify a support order “subject to” section 3587. Interpreting the statutes
together within the broader statutory framework, we conclude, as a matter of first
impression, that the “subject to” clause in section 3651 means an order for adult child
support, when authorized exclusively by the parents’ agreement under section 3587, may

1
All statutory references are to the Family Code unless otherwise specified.

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be made non-modifiable by the parents’ express and specific agreement to restrict the
court’s jurisdiction.
Though we hold parents may contract to restrict the court’s jurisdiction to modify
an adult child support order in this limited circumstance, we conclude the parties’ marital
settlement agreement in this case did not limit the court’s jurisdiction. Accordingly, we
reverse the order and remand the matter to the trial court with directions to consider
whether the college expense support obligation should be modified.
FACTS AND PROCEDURAL BACKGROUND
1. The Marital Settlement Agreement and Judgment
Drescher and Gross were married in 1987 and separated in 2001. There are three
children from the marriage: Joshua, born in 1992; Lila, born in 1994; and Noah, born in
1997.
In June 2001, the parties executed a Marital Settlement Agreement (MSA). At the
time, the parties were both employed as attorneys earning six-figure incomes.
The parties’ financial support obligations are set forth in Paragraph IV of the
MSA, under the heading “FAMILY SUPPORT,” and the specific obligations are detailed
in subparagraphs A through D. The MSA refers to the financial obligations set forth in
subparagraph A as “non-modifiable, non-taxable family support,” while the obligations
set forth in subparagraphs B and C are referred to as “additional child support.”
Subparagraph D, the most pertinent to this appeal, does not contain a similar specific
reference to “family support” or “child support.” Subparagraph D provides:
“D. Each party shall be responsible for payment of one-half ( 1 2 ) of all

costs incurred on behalf of each minor child, for undergraduate California
state college or university expenses, trade or other school or schools’ costs
incurred by such minor child, or other schools approved by the parties, so
long as such minor child is continuing to reasonably matriculate at such
school. Costs for such undergraduate college or trade or other school or
schools shall be defined as all tuition, fees, room, board, supplies, books,
transportation costs, reasonable living expenses.”

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 In October 2002, the final judgment of dissolution was entered. The judgment
incorporates the MSA and orders child custody, spousal support and child support as set
forth therein. Pursuant to the terms of the MSA, the judgment awarded Drescher and
Gross joint legal and physical custody of the children.
2. November 2011 Order Modifying Child Support and Enforcing College
Expense Obligation
In August 2011, Gross filed an order to show cause requesting modification of
child support, citing the significantly reduced timeshare between Drescher and the
parties’ daughter, Lila, as a material change in circumstances warranting modification.
The order to show cause also asked the court to enforce the college expense provision of
the MSA, as incorporated into the judgment. Specifically, Gross sought an order
requiring Drescher to pay half of what it would cost for Lila to attend college in
California, regardless of whether Lila ultimately enrolled in an in-state or out-of-state
school.
In response, Drescher argued any modification in child support should take into
account the vast disparity in the parties’ incomes that had developed over the past 10
years. She presented evidence showing that, in 2004 and 2006, she was diagnosed with
various ailments rendering her permanently disabled and unable to work in any capacity.
She asserted her State Bar membership became inactive in 2006 and she was supporting
herself on disability payments and child support. During the same period she claimed
Gross’s income had increased to over $400,000 a year.
As for the college expense provision, Drescher argued she could not be compelled
to pay for Lila to attend an out-of-state school because the provision was limited, by its
terms, to costs incurred for undergraduate California state college or university expenses.
In November 2011, the trial court entered an order modifying the child support
Gross paid for Lila’s and Noah’s maintenance. With respect to the parties’ incomes, the
court found Drescher was disabled, unable to work, and received an annual income of
$22,908, while Gross earned approximately $421,000 per year.

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 The court also granted Gross’s request to enforce the college expense provision of
the judgment, and ordered the parties to “meet and confer annually in advance of the Fall
Semester to determine the maximum cost of a California college or university, trade or
other school.” Commencing in 2012, the order required each party to pay on behalf of
Lila one-half of the maximum annual cost of a California college, university, trade or
other school, regardless of whether Lila attended a California or non-California school.
3. Order Denying Modification of College Expense Obligation
In June 2012, Drescher filed an order to show cause requesting modification of the
college expense provision of the judgment. Drescher asserted her disability and the
resulting change in the parties’ relative incomes since the judgment was entered
constituted a material change in circumstances. Her order to show cause asked the court
to reallocate 91 percent of the shared support obligation to Gross, and 9 percent to
Drescher, based on the disparity in their current incomes.
Gross opposed the request, arguing the court had no authority to modify the
provision because college expenses are not child support, and the parties’ stipulation to
pay their children’s college expenses was entirely contractual. He also argued Drescher
had failed to establish a change in circumstances since the court had last modified child
support in November 2011. While Drescher’s request for modification was pending,
Gross brought a competing order to show cause seeking payment from Drescher of
approximately $8,800 for her share of tuition and living expenses incurred through
September 2012 on behalf of Lila, who was now attending the University of Missouri.
On November 12, 2013, the trial court denied Drescher’s request to modify the
judgment and granted Gross’s request for reimbursement of college expenses incurred on
Lila’s behalf. With respect to modification, the court concluded, as a matter of contract
interpretation, that it lacked jurisdiction to modify because the parties had not intended
the college expense provision to be treated as child support. The court reasoned that
nothing in the language of the MSA indicated the parties intended “shared expenses for
adult children to be treated as equivalent to statutorily mandated child support,” citing the
fact that “[t]he MSA specifically identified certain items as child support, but [the college

5
expense provision] is not among them.” Because Drescher had not presented extrinsic
evidence of the parties’ intent, the trial court concluded the language of the MSA
controlled and it lacked jurisdiction to modify the provision. The court also concluded
Drescher had failed to establish a change in circumstances. Drescher appealed.
DISCUSSION
1. Jurisdiction to Modify Judgment
a. Standard of review
Drescher contends the trial court erred in concluding it lacked jurisdiction to
modify the college expense provision of the judgment. We review the trial court’s
determination to grant or deny a modification of a support order for an abuse of
discretion. (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.) However, questions
concerning the interpretation of statutes are matters of law for the reviewing court.
(Ibid.) Likewise, “the interpretation of a contract or other written instrument is a question
of law if there is no extrinsic evidence thereon or if the evidence is without conflict and is
not susceptible of conflicting inferences.” (Lucas v. Elliott (1992) 3 Cal.App.4th 888,
892 (Lucas).) So too, “[t]he question of the trial court’s jurisdiction is a pure question of
law subject to our independent review.” (Thompson Pacific Construction, Inc. v. City of
Sunnyvale (2007) 155 Cal.App.4th 525, 537.) “A trial court’s failure to exercise
discretion is itself an abuse of discretion, and we review such action in accordance with
that standard of review.” (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)
b. Parents may restrict the court’s jurisdiction to modify adult child
support when the authority to order support is based exclusively on
the parents’ contract
We begin with Drescher’s contention that an agreement to pay an adult child’s
college expenses is modifiable as a matter of law, regardless of whether the parents
contract to restrict the court’s jurisdiction.

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 Section 3900 recognizes the equal duty of parents to “support their child in the
manner suitable to the child’s circumstances.” (See also § 4053, subds. (a) & (b).)
“ ‘Support,’ ” when used with reference to a minor child, refers to “a support obligation
owing on behalf of a child,” and includes the obligation to pay for the child’s
“maintenance and education.” (§ 150.) Additionally, among the expenses the court may
order parents to pay as “additional child support” are “[c]osts related to the educational or
other special needs of the children.” (§ 4062, subd. (b)(1).)
The duration of the parents’ child support obligation normally continues until an
unmarried child “completes the 12th grade or attains the age of 19 years, whichever
occurs first.” (§3901, subd. (a).) However, “[n]othing in [section 3901] limits a parent’s
ability to agree to provide additional support . . . .” (§ 3901, subd. (b).) Consistent with
this qualification, section 3587 authorizes the court to order adult child support, as
follows: “Notwithstanding any other provision of law, the court has the authority to
approve a stipulated agreement by the parents to pay for the support of an adult child or
for the continuation of child support after a child attains the age of 18 years and to make a
support order to effectuate the agreement.” And, consistent with this authority, section
58 defines “ ‘Child for whom support may be ordered’ ” as “a minor child and a child for
whom support is authorized under Section 3587 . . . .” (§ 58.)
Section 3651 states the general rule for modification or termination of support
orders, “whether or not the support order is based upon an agreement between the
parties.” (§ 3651, subd. (e); In re Marriage of Alter (2009) 171 Cal.App.4th 718, 726
(Alter).) Subject to other provisions of the Family Code—including section 3587, as we
will discuss—section 3651 authorizes prospective modification of all child support
orders, even those based upon the parents’ agreement. (Alter, at p. 727.) In turn, section
3585 states that “provisions of an agreement between the parents for child support shall
be deemed to be separate and severable from all other provisions,” and “[a]n order for
child support based on the agreement shall be law-imposed and shall be made under the
power of the court to order child support.” Thus, with respect to support for a minor
child, our Supreme Court has held, “[w]hen a child support agreement is incorporated in

7
a child support order, the obligation created is deemed court-imposed rather than
contractual, and the order is subsequently modifiable despite the agreement’s language to
the contrary.” (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947; see also In re
Marriage of Bodo (2011) 198 Cal.App.4th 373, 386.)
Based on the court’s general authority to modify support orders under section
3651 and the Supreme Court’s holding in Armstrong, Drescher contends an agreement
concerning child support is always modifiable, even if the parents contract to restrict the
court’s jurisdiction. While this undoubtedly is true with respect to support ordered for a
minor child, the language of section 3651, and the limited authority granted by section
3587, suggests a different rule applies to orders for adult child support that are authorized
exclusively to “effectuate” the parents’ agreement under section 3587.
Section 3651, subdivision (a) states the court’s authority to modify or terminate a
support order is “subject to . . . [section] 3587.”2 (Italics added.) No appellate authority
has yet considered the effect of the clause making the general power to modify a support
order “subject to” section 3587; however, one commentator has suggested the language
means parents have the contractual power to limit the court’s jurisdiction to modify adult
support orders authorized by section 3587. (See Minerich, Support for Adult Children:
Is it Modifiable? (May 2005) Orange County Law, at p. 61.) We agree with this
interpretation.
Unlike the authority to order support for a minor child, which derives from the
parents’ law-imposed duty to support children until adulthood under sections 3900 and
3901, or the authority to order support for an incapacitated adult child, which derives
from the parents’ law-imposed duty to “maintain . . . a child of whatever age who is
incapacitated from earning a living and without sufficient means” under section 3910, the
court’s authority to order adult child support under section 3587 derives entirely from the

2
Section 3651, subdivision (a) provides: “Except as provided in subdivisions (c)
and (d) and subject to Article 3 (commencing with Section 3680) and Sections 3552,
3587, and 4004, a support order may be modified or terminated at any time as the court
determines to be necessary.”

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parents’ agreement to pay such support. Because the court’s authority is rooted in the
parents’ contractual agreement, it follows that the parents’ agreement also may restrict
the court’s authority to modify an order for adult child support made under section 3587.
Construing the “subject to” clause in section 3651 to limit the court’s authority to modify
an adult child support order where the parents have expressly contracted for such a
restriction is consistent with the limited grant of jurisdiction under section 3587, which
authorizes the court to order adult child support to “effectuate the [parents’] agreement.”
Moreover, this interpretation also gives effect to the “[n]otwithstanding any other
provision of law” clause that prefaces section 3587. (See Minerich, supra, 47-May
Orange County Law. at p. 61.) That is, as we interpret the relationship of the various
statutes, where the parents’ agreement provides for adult child support that cannot be
modified, section 3587 authorizes the court to make a non-modifiable “support order to
effectuate the agreement.” And this is so notwithstanding sections 3585 and 3651, which
otherwise treat child support provisions of an agreement as “severable,” and the resulting
order as “law-imposed,” such that it remains subject to the court’s continuing jurisdiction
to modify.
Accordingly, we conclude that while section 3651 generally authorizes the court to
modify a child support order, including adult child support ordered pursuant to the
parents’ agreement, this authority is “subject to,” and may be limited by, the parents’
express agreement to restrict modification of adult child support ordered pursuant to
section 3587. We turn now to the trial court’s construction of the MSA.
c. The MSA does not expressly restrict the court’s jurisdiction to
modify the college expense support order; the trial court’s failure to
consider modification was an abuse of discretion
In concluding it lacked jurisdiction to modify the college expense provision, the
trial court framed the issue as “fundamentally a question of contract interpretation.”
Because the “MSA specifically identified certain items as child support,” but the
provision concerning college expenses was “not among them,” the court reasoned that
“[n]othing in the language of the MSA indicates that the parties intended that voluntarily

9
undertaken shared expenses for adult children be treated as equivalent to statutorily
mandated child support, or that the equal obligation could later be altered other than by
mutual consent.”
Though we agree this is a question of contract interpretation, we disagree with the
trial court’s construction of the MSA. As noted, because no extrinsic evidence was
considered, we are not bound by the trial court’s construction and interpret the terms of
the MSA de novo. (Lucas, supra, 3 Cal.App.4th at p. 892.)
The trial court’s construction was based entirely on an inference drawn from an
omission. Because the parents referred to some support obligations as “child support,”
but not the provision concerning college expenses, the court inferred the parents must not
have intended the resulting order to be modifiable. Though there is some logic to this
reasoning, we find the statutory scheme requires a more explicit statement of intent to
restrict the court’s jurisdiction where matters of support are concerned.
As with adult child support ordered pursuant to section 3587, which we have
concluded can be made non-modifiable to effectuate the parents’ agreement, parties are
similarly permitted to contractually restrict the court’s jurisdiction to modify spousal
support. However, to do so, section 3651, subdivision (d) requires a written or oral
agreement made in open court that “specifically provides that the spousal support is not
subject to modification or termination.” (Italics added.) We conclude the same rule
should apply in the context of adult child support orders. Parties may restrict the court’s
jurisdiction to modify, but to do so, they must expressly and specifically state in their
agreement that any resulting adult child support order made under section 3587 will not
be subject to modification or termination by the court. In this case, the absence of an

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express and specific statement in the MSA is alone sufficient to conclude the trial court
had jurisdiction to modify the adult child support order pertaining to college expenses.3
Nevertheless, apart from the lack of an express agreement restricting modification,
we find other problems with the inference drawn by the trial court. To begin, the parties’
use of the terms “family support” and “child support” in the MSA is hardly dispositive.
Though it is true the college expense provision was not designated as “additional child
support,” the provision was included under the section defining the parties’ “FAMILY
SUPPORT” obligations. Section 92 defines “ ‘Family support’ ” as “an agreement
between the parents, or an order or judgment, that combines child support and spousal
support . . . .” (Italics added.) It follows that by including the stipulation to pay each
child’s college expenses within the section of the MSA setting forth the parties’
respective family support obligations, the parties intended the resulting judgment to
incorporate the college expense obligation in a child support order.
Moreover, though the MSA may not specifically refer to college expenses as
“child support,” the obligation it describes constitutes child support under the law. The
subject provision obligates each parent to pay one-half of all costs incurred on behalf of
“each minor child” for undergraduate college expenses, trade or other school costs
incurred by such minor child, as well as other “reasonable living expenses.” As noted,
“ ‘Support’ ” when used with reference to a minor child is defined to include the

3
Gross’s reliance on In re Marriage of Smith & Maescher (1993) 21 Cal.App.4th
100 (Smith) is misplaced. In Smith, the mother brought her claim for reimbursement of
college expenses gratuitously loaned to her son as a contract action and, on appeal, “[t]he
parties agree[d] the separation agreement made [the child] an intended third party
beneficiary as to college expenses.” (Id. at p. 105.) Thus, the appellate court identified
the “pivotal issue in this dispute [as] whether [the mother] may maintain a damage action
for breach of the third party beneficiary contract,” and did not consider whether the
agreement created a child support obligation, subject to the court’s general jurisdiction to
modify under section 3651. (Smith, at p. 105.) Indeed, because the marital separation
agreement in Smith was governed by Massachusetts law and incorporated into a
Massachusetts judgment, the court relied “particularly [on] generally accepted contract
principles and Massachusetts case law,” without analyzing the statutory framework that
governs our decision here. (Id. at p. 106.)

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obligation to provide for the child’s “maintenance and education” (§ 150), and the court
may order parents to pay as “additional child support” “[c]osts related to the educational
or other special needs of the children” (§ 4062, subd. (b)(1)). Though the parties agreed
the obligation would persist “so long as such minor child is continuing to reasonably
matriculate at such school”—thus, presumably, beyond age 18 and into adulthood—the
obligation described, by its terms, fits squarely within the Family Code’s definition of
child support.
We conclude the parties’ stipulation to pay each minor child’s college expenses
resulted in a child support order when incorporated into the court’s judgment. Though
based on an agreement to pay adult child support, the resulting order was subject to the
court’s jurisdiction to modify, absent an express and specific agreement by the parties to
the contrary. Because the MSA does not expressly restrict the court’s authority to modify
the college expense support order, the trial court erred in concluding it lacked
jurisdiction. The court’s failure to consider whether the support order should be modified
was an abuse of discretion.
2. Material Change in Circumstances
Notwithstanding our conclusion concerning the court’s jurisdiction to modify the
college support order, Gross contends the judgment should nevertheless be affirmed
because Drescher failed to establish a material change in circumstances since the last
order modifying child support in November 2011. We disagree.
“ ‘As a general rule, courts will not revise a child support order unless there has
been a “material change of circumstances.” . . . .’ ” (In re Marriage of Stanton (2010)
190 Cal.App.4th 547, 553 (Stanton).) “[T]he reason for the change of circumstances rule
is to preclude relitigation of the same facts” and to bring finality to determinations
concerning financial support. (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 501;
Stanton, at pp. 553-554.) “Without a changed circumstances rule, ‘ “dissolution cases
would have no finality and unhappy former spouses could bring repeated actions for
modification with no burden of showing a justification to change the order. Litigants
‘ “are entitled to attempt, with some degree of certainty, to reorder their finances and life

12
style [sic] in reliance upon the finality of the decree.” ’ [Citations.] Absent a change of
circumstances, a motion for modification is nothing more than an impermissible
collateral attack on a prior final order.” ’ ” (Stanton, at pp. 553-554.)
Because a request to modify the college expense support allocation was not before
the trial court when it made its November 2011 order, the underlying rationale for the
change of circumstances rule is not implicated here. Though the November 2011 order
modified Gross’s child support obligation for Lila and Noah based on a change in the
parties’ timeshare for Lila and a change in their respective incomes, with respect to
college expenses, the order was limited to granting Gross’s request to enforce the
obligation, regardless of whether Lila attended a California or out-of-state school. The
trial court did not consider whether the allocation of college expenses to each parent
should be modified in light of the disparity in their respective incomes or other assets that
each might have to pay the children’s college expenses. Indeed, when Drescher’s
counsel raised modification, the trial court questioned whether that relief had been
requested in Drescher’s papers, and Gross’s counsel argued it would be a violation of due
process for the court to consider the issue without a “cognizable request to modify.”
Because the November 2011 order did not determine whether modification was
appropriate, Drescher’s subsequent request for modification cannot be regarded as a
collateral attack on a prior final order. (See Stanton, supra, 190 Cal.App.4th at p. 554.)

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 DISPOSITION
The order is reversed. On remand, the trial court is directed to consider whether
the allocation of the college expense support obligation should be modified in light of the
parties’ respective incomes, other assets they may have to satisfy the support obligation,
and any other relevant evidence the court may consider in exercise of its discretion.
Drescher is entitled to costs on appeal.

CERTIFIED FOR PUBLICATION

KITCHING, J.
We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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