Marriage of Cecilia and David W.

Filed 11/3/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of CECILIA and
DAVID W.
D066918
CECILIA W.,
Respondent, (Super. Ct. No. D439588)
v.
DAVID W.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Paula S.
Rosenstein, Judge. Reversed and remanded with directions.
Linda Cianciolo for Appellant.
Dunne & Dunne and Anthony J. Dunne for Respondent.
David W. appeals from a postjudgment order establishing a duty of parental
support to former spouse Cecilia W. for their adult child, Robert W.,1 pursuant to Family
Code section 3910.2 Section 3910, subdivision (a) provides: "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."
David contends the trial court lacked jurisdiction, applied incorrect legal
standards, and did not have substantial evidence to support its order finding Robert to be
incapacitated from making a living and without sufficient means.3 We find jurisdiction
but agree the trial court failed to apply correct legal standards and there is no substantial
evidence to support its order. We reverse the order and remand with directions.
I
FACTUAL AND PROCEDURAL BACKGROUND
The parties divorced in 1998 when Robert was 11 years old. On December 30,
1998, the trial court entered a judgment dissolving the marriage, which incorporated the
parties' marital settlement agreement (MSA). The MSA provided Cecilia with physical
custody of Robert and required David to pay monthly child support until the earliest of
Robert's completion of high school, reaching age 19, or certain other events.
1 We refer to the parties by their first names as is the custom in family law matters.
(In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
2 All further statutory references are to the Family Code unless otherwise specified.
3 David sets forth as a separate argument that Robert is not incapacitated or without
sufficient means, but merely addresses the legal standards and sufficiency of the
evidence. As the argument is duplicative, we do not address it separately.
2
After the MSA child support obligation expired, Cecilia made no formal request
for child support until December 2012. At that time, Cecilia filed a Request for Order
seeking, in part, child support. Cecilia claimed Robert, then 24 years old, was "not
currently capable of earning a living or being self-supporting" and it was "uncertain he
ever will be."4 David moved to join Robert as a party, which Cecilia opposed. The
family court commissioner granted the joinder request.
The matter came on for a full-day hearing in December 2013.5 The trial court
admitted Robert's psychologist, Charles Hogan, Ph.D., as an expert witness on Robert's
health issues and how they impacted him day-to-day. Cecilia, David, and Robert also
testified. The witness testimony covered Robert's conditions, education, daily life, and
potential capacity for work. We discuss each in turn.
Robert suffers from Tourette's syndrome and attention deficit hyperactivity
disorder (ADHD). Tourette's symptoms include affected motor skills, tics, and
accompanying issues, including learning disabilities and emotional management issues.
Robert exhibits all of these symptoms when stressed. Robert's attention issues mean he
has great difficulty focusing continuously on a task.
Dr. Hogan believes Robert's medical and psychological issues affect his daily life,
resulting in a "constant struggle" without external support, schedules, and feedback to
4 Cecilia also provided a copy of Robert's neuropsychological evaluation report,
discussed in footnote 6, post.
5 All subsequent hearing references are to the December 2013 hearing unless
otherwise specified.
3
help him self-regulate emotion and to "talk him down from high levels of anxiety and
panic attacks that significantly get in the way of performing." Dr. Hogan has treated
Robert for his Tourette's side effects and ADHD; medical approaches treat the Tourette's
itself. The treatment plan assists Robert with his ADHD medication and provides
cognitive behavioral methods to cope with emotional self-regulation. Robert also sees
Dr. Hogan when he becomes stressed and overwhelmed.
Robert graduated from high school on time. He then attended Southwestern
College, a community college. There, Robert earned two associates degrees and
achieved a 3.3 grade point average, but took five years to graduate due to class
withdrawals. Robert also needed accommodations, including intervention by Disabled
Student Services, less distracting test settings, extra time for tasks, and tutors (including
private math tutoring). In addition, he was admitted to urgent care and the emergency
room twice during one semester because panic attacks caused tachycardia on one
occasion and cardiac arrest on the other.
Since August 2012, Robert has been enrolled at the University of California, San
Diego (UCSD).6 He has had similar accommodations, including Disabled Student
Services intervention, quiet test facilities, and flexibility for test completion time, as well
6 Before Robert started at UCSD, Dr. Hogan referred him to Roger Perez, Ph.D.,
who conducted a neuropsychological evaluation to provide an updated skill assessment
and assist with academic accommodations and intervention plans. Dr. Perez prepared a
neuropsychological evaluation report. Neither party entered the report into evidence at
the hearing or called Dr. Perez as a witness.
4
as use of a laptop and tape recorder in class. He also has had a private Spanish tutor.
Robert generally has earned B-range grades at UCSD.
Robert lives on campus with roommates and resides with Cecilia on weekends,
holidays, and during the summer. Robert has a car and drives himself.7 Robert
advocates for himself, but Cecilia remains involved, including attending meetings with
Disabled Student Services, tracking his e-mail and schedule, and doing his laundry.
Robert receives approximately $30,000 annually in financial aid from UCSD, of
which $5,000 is loans. Cecilia continues to pay for certain expenses, including Robert's
Spanish tutor, cell phone bill, vehicle costs (e.g., parking, insurance, and gas), clothing,
books, and groceries.8 Cecilia has not applied for disability or Social Security benefits
for Robert.
The testimony regarding whether Robert is unable to find work and be self-
supporting—the critical issue here—is sparse. Dr. Hogan is not a vocational expert and
has not researched whether Robert could get a job in San Diego. David sought a
vocational evaluation, which apparently was denied, and Cecilia made no similar
7 Robert earned his driver's license at age 20 after initially failing the written test
multiple times.
8 David gave Robert his first car and helped pay for Robert's math tutor. It is
unclear whether Robert now has a different car and, if so, who paid for it.
5
request.9 Cecilia confirmed Robert has never been assessed as to whether he could get a
job.
The only evidence on employability concerns Robert's potential ability to work
and suggests he has such potential. Dr. Hogan believes Robert is intellectually capable of
full-time work, but is concerned with his intermittent ability to regulate emotion and
attention; he thinks these issues will be a "very major challenge" and put Robert at "high
risk in trying to work effectively in a job on a consistent basis." He is of the view Robert
would have trouble in a stressful environment, but should be fine in a "low demand or
low stress environment," depending on the job. As for Robert's conditions, Dr. Hogan
has experience determining whether ADHD patients can work and reported 50 percent of
his adult ADHD patients can do so. He lacks similar expertise with Tourette's but thinks
if Robert was not symptomatic, it should not affect getting a job (and reported the last
time Robert was symptomatic in his office was "not in recent memory"). Dr. Hogan
believes Robert can write a resume, complete a job application, and sit for an
employment interview, and confirmed he was not saying Robert could not work. In fact,
he counseled Robert on his career goals and developed job seeking skills with him.
Cecilia believes and hopes Robert will one day become self-supporting. She also
believes Robert could get a minimum wage job if he was not attending school. She has
9 The record reflects David filed a Request For Order for a vocational evaluation on
May 13, 2013, but does not appear to contain the disposition. David indicated the request
was denied.
6
been advised Robert cannot go to school and work at the same time and does not want
him to do so.
The record likewise reflects David believes Robert could work. No professional
has told him Robert is incapacitated. David and Cecilia discussed the possibility of
Robert getting a part-time job if he was not taking a summer class at Southwestern
College. He also talked to Robert about applying for a job; Robert expressed interest in
applying "at a Game Stop store," but did not do so.
As for Robert himself, he has never applied for a job but plans to get one after
completing school and has sought out career counseling. Robert would like a career in
video game marketing or design, and participates in a weekly UCSD group that develops
games and performs outreach to game companies. At the same time, Robert is not sure if
he plans to work full time and has not taken video game courses because they require
math.
At the conclusion of the hearing, the trial court stated it was "not sure" Cecilia met
her burden, questioning whether there was "enough evidence on vocational abilities."
Notwithstanding its concerns, the trial court found Robert was incapacitated, explaining
the evidence supported a finding he could not work and go to school full time. As for
Robert's ability to work, in general, the trial court found Robert's manner was atypical
and was "going to make it very hard for him to find a job," his issues with focus and
stress would "interfere with the ability to hold the job," and his ability to have a job
earning $30,000 to $40,000 was "highly questionable." It concluded "the only evidence
is that [Robert] could potentially get a minimum wage job, maybe, but that would
7
undoubtedly require ADA [Americans with Disabilities Act] accommodations," which it
viewed as speculative.
The trial court then found Robert was without sufficient means, because he would
lose the support he had if he was not in school. The trial court also found a lack of
sufficient means because even if Robert could obtain minimum wage work, it would not
permit his parents' standard of living. The trial court reached this finding by interpreting
the support guideline discussion in In re Marriage of Drake (1997) 53 Cal.App.4th 1139(Drake), a section 3910 case, to reflect a legislative intent that children should share in
their parents' standard of living.
In August 2014, the trial court issued further findings and orders (August 2014
Order). The trial court stated it found at the hearing "Robert is an adult disabled
child."10 On incapacity, the trial court largely reiterated its earlier findings. However,
the trial court no longer found evidence of potential minimum wage employment, stating
"while it was argued that Robert might be able to obtain a minimum wage job, the
evidence did not support that finding." On insufficient means, the trial court focused on
Robert's UCSD funds, concluding he lacked sufficient means because his current support
was based on continued UCSD attendance. David timely appealed.
10 The transcript reflects only a trial court comment that some adult children in the
case law "are far more disabled than is Robert," not a finding of disability.
8
II
DISCUSSION
A. Jurisdiction
David contends the trial court lacked jurisdiction to award child support, claiming
(1) support terminated pursuant to the MSA and jurisdiction terminates without an
agreement to extend support, and (2) Robert purportedly does not live with Cecilia,
rendering child support unavailable.11 We find jurisdiction.
First, as David acknowledges, section 3910 requires parents to support adult
children under certain circumstances. Section 2010 provides jurisdiction to award such
support. (§ 2010 ["In a proceeding for dissolution of marriage . . . the court has
jurisdiction to . . . render any judgment and make orders that are appropriate
concerning . . . [¶] . . . [¶] (c) [t]he support of children for whom support may be
ordered . . . ."]; In re Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 391-393
[recognizing continuing jurisdiction over adult child support]; see also section 4001 ["In
any proceeding where there is at issue the support of a . . . child for whom support is
authorized under Section . . . 3910, the court may order either or both parents to pay an
amount necessary for the support of the child."].)12
11 Although David did not challenge jurisdiction below, subject matter jurisdiction is
not subject to waiver and may be raised at any time. (San Joaquin County Human
Services Agency v. Marcus W. (2010) 185 Cal.App.4th 182, 187-188; In re Marriage of
Oddino (1997) 16 Cal.4th 67, 73.)
12 David also contends Cecilia did not previously request support under section 3910
and does not claim Robert as a tax dependent. However, he cites no guidance to suggest
9
Second, David provides no authority to show that parental residence is required
for section 3910 jurisdiction. To the contrary, Drake found no error in crediting one
parent with "full physical responsibility" in setting a section 3910 award, where the
disabled adult child was not living with either parent. (Drake, supra, 162 Cal.App.4th at
p. 1160.) Edwards v. Edwards (2008) 162 Cal.App.4th 136, upon which David relies,
concerned a nondisabled adult child and found Drake, involving an incapacitated adult
child, "completely inapposite." (Edwards, at p. 143.) Nevertheless, the record reflects
Robert resides with Cecilia at least part of the time.
B. Legal Standards Regarding Child Support for Adult Children
David contends the trial court applied incorrect legal standards in ordering support
under section 3910. We agree.
1. First Prong: Incapacitated from Working
The first prong of section 3910 requires the adult child be "incapacitated from
earning a living." (Id., subd. (a).) However, an adult child is only incapacitated from
earning a living within the meaning of section 3910 if he or she demonstrates "an
inability to be self-supporting because of a mental or physical disability or proof of
inability to find work because of factors beyond the child's control." (Jones v. Jones
(1986) 179 Cal.App.3d 1011, 1015 (Jones); accord, In re Jessie V. (1989) 214
Cal.App.3d 1619, 1623 (Jessie V.).)
either issue is relevant to jurisdiction, even assuming the latter were true (which is not
clear from the record).
10
In the August 2014 order, the trial court concluded Robert was incapacitated based
on the findings that Robert lacked the capacity to work and attend school at the same
time, was disabled, had an odd affect that would impede finding a job and focus and
stress issues that would interfere with holding one, and could not hold a minimum wage
job (in contrast to its contrary finding at the hearing). These findings reflect the trial
court did not apply the correct standards.
As an initial matter, whether Robert was unable to work and attend school at the
same time is not the relevant incapacity for section 3910. Parents have no obligation to
support an adult child, otherwise capable of working, while he or she pursues an
education. (Jones, supra, 179 Cal.App.3d at p. 1015 [finding adult child was not a
" 'person in need' " under predecessor statute, where she sought a college education but
was unable to pay for it]; Rebensdorf v. Rebensdorf (1985) 169 Cal.App.3d 138, 146 (dis.
opn. of Franson, J.) [in discussing predecessor statute, recognizing principle that
individual "could have quit school and presumably gone to work"].)
Even to the extent the trial court purportedly focused on Robert's ability to work, it
failed to do so in accordance with the applicable standards. In brief, it found Robert was
disabled and his conditions would hamper him from finding and keeping employment.
But the required showing is not disability, without more, or possible difficulties in the
workplace. Rather, the inquiry should have been whether Robert was (1) unable to be
"self-supporting," due to the purported disability, or (2) unable to "find work" due to
factors outside his control. (Jones, supra, 179 Cal.App.3d at p. 1015.) The only trial
11
court findings addressing Robert's employability concerned his potential ability to hold
minimum wage employment, and they were inconsistent.
We recognize there is a dearth of authority applying the incapacity standards, as
section 3910 cases are uncommon and generally involve no dispute over capacity. (See,
e.g., Jones, supra, 179 Cal.App.3d at p. 1013 ["not physically or mentally disabled"];
Jessie V., supra, 214 Cal.App.3d at p. 1623 ["no indication" child was "physically or
mentally disabled"]; Drake, supra, 53 Cal.App.4th at p. 1148 [chronic paranoid
schizophrenia]; Chun v. Chun (1987) 190 Cal.App.3d 589, 592 ["emotionally disabled
adult" child with 12-year-old maturity level].) We find where, as here, there is such a
dispute, the incapacity standards require courts to focus not on the adult child's conditions
and their potential impact on employment, but rather on his or her ability to find work or
become self-supporting in light of such conditions. (Jones, at pp. 1014-1015.)13
2. Second Prong: Lack of Sufficient Means
The second prong of section 3910 requires the adult child to be "without sufficient
means." (§ 3910, subd. (a).) "[T]he question of 'sufficient means' [is] resolved in terms
of the likelihood a child will become a public charge." (Drake, supra, 53 Cal.App.4th at
p. 1154.) " '[T]he duty to support children of any age is legislatively designed "to protect
the public from the burden of supporting a person who has a parent . . . able to support
13 Additionally, we note the trial court dismissed as speculative the claim that ADA
accommodations could enable Robert to find work. We are unclear whether it found
ADA accommodations irrelevant to section 3910 (if so, it failed to explain why) or that
there was insufficient evidence on the issue. We direct the trial court on remand to
consider the potential relevance of ADA accommodations for establishing incapacity
within the meaning of section 3910.
12
him or her.'' [Citations.]' " (Ibid.; accord, Jones, supra, 179 Cal.App.3d at p. 1014;
Jessie V., supra, 214 Cal.App.3d at p. 1624.)
Here, however, the trial court found Robert lacked sufficient means because his
current support was based on UCSD attendance. It also found insufficient means because
minimum wage work would not allow Robert to live at his parents' level. Neither finding
reflects the correct legal standard.
With respect to the finding on UCSD support, the trial court did not elaborate on
its reasoning; we surmise it was responding to David's argument that Robert had his own
means while enrolled at UCSD. Either way, the trial court was right in viewing the
UCSD support as irrelevant, but for the wrong reason. It should have assessed Robert's
ability to support himself and avoid becoming a public charge, regardless of UCSD
support (which indisputably is temporary), not simply because those amounts required
continued attendance. (See Drake, supra, 53 Cal.App.4th at p. 1154 [finding adult child's
trust income, which could not bear his full support through death, did not discharge
parent's obligation under section 3910].)14
The trial court's earlier finding regarding the parents' standard of living likewise
ignored the appropriate standard and resulted from a misapplication of Drake. Drake
addressed several issues, including the sufficient means standard and whether family
court support guidelines applied to adult children. (Drake, supra, 53 Cal.App.4th at
14 The record reflects the trial court later considered Robert's UCSD funds in
calculating support. It may be appropriate to consider such amounts in that context.
(Drake, supra, 53 Cal.App.4th at p. 1158 ["[I]n suitable circumstances, the trial court
may adjust parental support obligations in light of a child's independent income."].)
13
pp. 1154-1163.) The trial court suggested Drake found the guidelines reflect a legislative
intent that children should share in their parents' standard of living, and, from this,
reasoned that Robert's ability to get a minimum wage job did not prevent him from being
without sufficient means. Although Drake addresses this legislative intent in assessing
the guidelines for calculating support, there is no parallel discussion in its analysis of
sufficient means for awarding support. (Compare Drake, supra, 53 Cal.App.4th at
pp. 1157-1162 with id. at pp. 1154-1155.) Rather, Drake made clear, as discussed ante,
that sufficient means is determined based on the "likelihood a child will become a public
charge." (Id. at p. 1154.) The trial court failed to make this determination.15
C. Sufficiency of the Evidence
David contends there is no substantial evidence to support the court's order. In
reviewing for substantial evidence, we view the evidence in the light most favorable to
the findings, give such findings the benefit of all reasonable inferences, and uphold the
order if supported by substantial evidence. (Drake, supra, 53 Cal.App.4th at p. 1151; In
re Marriage of Mix (1975) 14 Cal.3d 604, 614.) We find the order is not supported by
substantial evidence.
First, the record lacks substantial evidence of incapacity. It establishes Robert
suffers from Tourette's syndrome and ADHD, conditions impacting his ability to manage
15 The trial court introduced its Drake analysis while purportedly discussing
incapacity and later made an income-related capacity finding (i.e., viewing Robert's
ability to have a $30,000 job questionable). We assume the trial court simply switched
focus, mid-discussion, and cited Drake for its sufficient means finding. To the extent it
relied on Drake in finding incapacity, we reject such reliance as well.
14
stress and attention and requiring accommodations at college. It also shows Robert's
stress and attention issues will be a major challenge for him in a job, meaning he would
have trouble in a stressful work environment. However, the record reflects that Robert's
conditions are disorders, not disabilities. Additionally, the record shows he is completing
a degree at UCSD, living on his own in a dormitory (at least part of the time), and
independently handling other aspects of adult life, such as driving and seeing his
psychologist, Dr. Hogan, when needed. Dr. Hogan believes he can work, at least in a
low-stress workplace, as do his parents. Robert himself plans to seek employment after
finishing at UCSD. This evidence does not support a finding Robert is incapacitated
from earning a living. (§ 3910, subd. (a); Jones, supra, 179 Cal.App.3d at pp. 1014-
1015.) As discussed ante, where incapacity is in dispute, the trial court must focus on
whether the adult child is unable to find work or be self-supporting. Vocational evidence
likely will be necessary to meet these standards and there is little to no such evidence
here.
Second, there likewise is no substantial evidence that Robert is without sufficient
means. The record reflects he potentially could hold a minimum wage job. Given the
possibility of at least this level of employment, we find there would need to be additional
evidence regarding the likelihood of Robert becoming a public charge to support a
finding of insufficient means. (§ 3910, subd. (a); Drake, supra, 53 Cal.App.4th at
p. 1154.)
15
III
DISPOSITION
The order is reversed. We remand this matter to the trial court with directions that
it determine if Robert is incapacitated from earning a living and without sufficient means
within the meaning of section 3910. The parties are to bear their own costs on appeal.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
16