Filed 10/9/15; pub. & mod. order 10/27/15 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


In re the Marriage of TERRI E. and
GLENN RICHARD DRAKE.

TERRI E. DRAKE,
                                                              G050042
    Respondent,
                                                              (Super. Ct. No. 07D000906)
        v.
                                                              OPINION
GLENN RICHARD DRAKE,

    Appellant.



                 Appeal from an order of the Superior Court of Orange County,
Paula J. Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed
in part, reversed in part, and remanded with directions.
                 Seastrom & Seastrom, Brian G. Seastrom and Ryan B. McIntire for
Appellant.
                 Terri E. Drake, in pro. per., for Respondent.

                                          *             *        *
                                     INTRODUCTION
                                                             1
               In this appeal, Glenn Richard Drake (Glenn) challenges the trial court’s
order requiring him to pay adult child support of $1,404 per month for his emancipated
son, Dallas Drake (Dallas). His appeal presents two issues. First, were the conditions of
Family Code section 3910, subdivision (a) (section 3910(a)) for payment of adult child
support met? Second, did the trial court err by ordering that adult child support payments
be made to Terri E. Drake (Terri), who is Dallas’s mother and Glenn’s ex-wife, and to
allow her to use those payments for her personal expenses?
               Family Code section 3910 governs a parent’s responsibility to support an
adult child. Section 3910(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.” Although the trial
court misconstrued the standard for an award of adult child support, the court did not err
by ordering Glenn to make support payments because the evidence established that
Dallas was incapacitated from earning a living and without sufficient means. Dallas, who
suffers from several psychiatric and learning disorders, lives in a residential treatment
center in Texas and lacks the means to pay for expenses that are not publicly reimbursed.
               The trial court erred, however, by ordering that Glenn make the adult child
support payments to Terri. A parent’s obligation to support an incapacitated adult child
runs to the child, not the other parent. Dallas is a fully emancipated adult. He does not
live with Terri, and she is not Dallas’s conservator, guardian, or legal representative.
               Adult child support is not the same as minor child support or spousal
support, and payments must be made to Dallas, not to Terri. Nevertheless, we recognize
the serious practical difficulties involved in structuring how to do so. Glenn states he is
not opposed to making adult child support payments into Dallas’s expense account at the


 1
     As is customary, we use first names for clarity.

                                              2
residential treatment center, but otherwise the parties offer no suggestions and we cannot
decide in the first instance how support payments to Dallas should be made.
              We therefore affirm the order awarding adult child support but reverse the
order to the extent it requires support payments be made to Terri. On remand, the trial
court must consider and decide the best means for paying adult child support to Dallas.


                       FACTS AND PROCEDURAL HISTORY
                                   I. Background Facts
              Glenn and Terri married in 1993 and separated in 2006. Their marriage
was dissolved by judgment entered in August 2008. Glenn and Terri have two children
by their marriage: Anthony, born in November 1991, and Dallas, born in February 1995.
              The stipulated judgment of dissolution required Glenn to pay child support
of $2,214 per month. Of that amount, $810 was allocated for Anthony and $1,404 was
allocated for Dallas. The stipulated judgment provided that Glenn must pay child support
“until further order of the court or until the child marries, dies, is emancipated, reaches
nineteen (19), or reaches eighteen (18) and is no longer a full-time high school student,
whichever occurs first.” In September 2009, Glenn and Terri entered into a stipulation
(filed in October 2009) maintaining the same child support obligations.
              Dallas emancipated in February 2014, when he turned 19 years of age. He
has been diagnosed with attention deficit hyperactivity disorder, psychotic disorder (not
otherwise specified), oppositional defiant disorder, and cannabis abuse. As of the time of
the adult child support order, he lived at a residential treatment center in Texas, where he
receives treatment for those conditions through an individualized education program
      2
(IEP). At that time, Dallas had not lived with Terri (who had primary physical custody
of Dallas during his minority) for five years.
 2
   An IEP is an education plan designed to meet a disabled child’s unique needs. An
IEP is designed by the school district, in consultation with the child’s parents, after the

                                              3
              The Capistrano Unified School District (CUSD) pays for Dallas’s tuition,
room, board, and IEP assessments at the residential treatment center pursuant to the
Individuals with Disabilities Education Act, 20 United States Code section 1400 et seq.
Based on the IEP conducted in October 2013, the CUSD will continue to provide services
and pay for Dallas’s tuition, room, board, and IEP assessments at the residential treatment
center up to the time when Dallas becomes 22 years of age or graduates from high
school. In addition, the residential treatment center pays for a portion of Terri’s travel
expenses when she visits Dallas.
              Dallas has expenses that are not paid for by the CUSD. They include
certain medical expenses, clothing, toiletries, recreation, and snacks. Glenn claimed that
in the three years before February 2014, he paid about $2,500 in expenses for Dallas.
Terri claimed that in 2013 alone, she paid nearly $10,970 in expenses for Dallas.
                           II. Motion for Adult Child Support
              In November 2013, the Orange County Department of Child Support
Services (DCSS) filed a motion to extend child support payments for Dallas for an
indeterminate period of time beyond his emancipation. In effect, this was a motion for
adult child support in the amount of $1,404 per month. The DCSS alleged Dallas was
incapacitated from earning a living and without sufficient means due to his mental health
disorders and other medical concerns. Terri signed an income and expense declaration in
which she stated her expenses for Dallas, including her travel expenses to visit him, were
$1,750 per month. Terri stated on the form, “[t]he time involved needs to be taken into
consideration,—[m]y average hours spent [on Dallas’s care] is 20 hours per week.”
              In a declaration in opposition to the motion, Glenn stated that any of
Dallas’s expenses that was not paid for by the CUSD was billed directly to, and paid for
by, him. Glenn asserted: “As Dallas’[s] financial needs are being fully met by the CUSD

child is evaluated as eligible for special education services. (20 U.S.C. §§ 1412(a)(4),
1414(d).)

                                              4
and myself, I believe that any child support funds paid to [Terri] are simply funding her
own lifestyle. . . . [¶] . . . I believe that any support paid to [Terri] would be support for
[Terri]. I should not be made to enrich [Terri]’s lifestyle under the guise of child support,
especially when Dallas does not reside with [Terri], and has not for five (5) years.”
              A hearing on the motion for adult child support was held on February 27,
2014. No testimony was taken, but both Glenn and Terri spoke to the court about their
expectations and Dallas’s needs. Glenn expressed optimism that Dallas would receive
his high school diploma and pledged to take care of him after his departure from the
residential treatment facility. Glenn did not object to providing Dallas financial support
but asserted it should not be provided directly to Terri.
              Terri explained she spends a great deal of time taking care of Dallas and
speaks with him sometimes three or four times each day. She participates in therapy calls
and IEP meetings, works with the CUSD “on a daily basis,” and works with the “team of
professionals” at the residential treatment center. At the time of the hearing, Terri was
not employed.
              Counsel for the DCSS summed up what was and what was not in dispute:
“There really is no dispute between the parties that Dallas is incapacitated from earning a
living. He has been in a residential treatment facility for at least five years. He has not
been in [Terri]’s care for at least five years. That’s relevant because the current child
support order was entered while he was in a residential facility. It was stipulated to in
2009. [¶] . . . [T]here’s no doubt that Dallas is going to be incapacitated from earning a
living at least through December [2014] and more than likely [until he is] 22. There is no
real belief, even by the parties or in the IEP, that even if they graduate him out in
December of 2014 that he is going to then be able to go live on his own and to obtain a
job.” There also was no dispute that Glenn earned about $189,000 per year and had the
ability to support Dallas, while Terri’s only income was monthly spousal support of
$420.13.

                                                5
                              III. The Trial Court’s Order
              The trial court issued a five-page order granting the motion for adult child
support. The court concluded that Dallas was incapacitated from earning a living and
without sufficient means under section 3910(a). The court found that “[t]he fact that the
[CUSD] is paying for Dallas’[s] expenses does not negate a parent’s obligation to support
him nor does it make Dallas a public charge.” The court rejected Glenn’s argument that
adult child support paid to Terri would enrich her and support her lifestyle, by stating:
“The court asks why support should not continue, have his needs and circumstances
changed? If [Glenn] felt that child support was not needed for the benefit of Dallas[] why
was there no attempt to modify or cease it in the last five years? [Glenn] has been paying
his support obligation under the same circumstances for years.”
              The trial court found that child support paid to Terri was necessary to allow
her to participate in Dallas’s treatment: “The court believes that but for the receipt of
child support and spousal support, [Terri] would not be able to be as involved with
Dallas’[s] progress and provide incidentals for him which the court believes to be in
Dallas’[s] best interests.” The court concluded by finding, “it is in the best interests of
Dallas that adult child support should continue in order to maintain the status quo to see if
Dallas graduates from high school in December 2014.” The trial court ordered adult
child support in the amount of $1,404, which was the amount Glenn and Terri had
previously agreed upon as the amount of child support while Dallas was a minor.


                                STANDARD OF REVIEW
              The trial court’s determination to grant or deny adult child support or to
modify a support order is reviewed under the abuse of discretion standard. (In re
Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150-1151 (Drake).) “‘The abuse of
discretion standard . . . measures whether, given the established evidence, the act of the
lower tribunal falls within the permissible range of options set by the legal criteria.’”

                                              6
(Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089.) The
scope of the trial court’s discretion is limited by law governing the subject of the action
taken. (Ibid.) An action that transgresses the bounds of the applicable legal principles is
deemed an abuse of discretion. (Ibid.) In applying the abuse of discretion standard, we
determine whether the trial court’s factual findings are supported by substantial evidence
and independently review its legal conclusions. (County of San Diego v. Gorham (2010)
186 Cal.App.4th 1215, 1230.)
                                      DISCUSSION

                  I. The Trial Court Did Not Err by Ordering Glenn
                             to Pay Adult Child Support.
              Under section 3910(a), a parent’s responsibility to support an adult child
arises when two conditions are met: (1) the adult child is “incapacitated from earning a
living” and (2) the adult child is “without sufficient means.” The amount of support for
an adult child is determined by the statutory guidelines for minor children set forth at
Family Code section 4050 et seq. (Drake, supra, 53 Cal.App.4th at pp. 1154-1156.)
              The term “incapacitated from earning a living” (§ 3910(a)) means “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, 1014-1015.) Glenn does not dispute that Dallas is
incapacitated from earning a living within the meaning of section 3910(a).
              The statutory purpose for adult child support is “‘“to protect the public
from the burden of supporting a person who has a parent . . . able to support him or her.”
[Citations.]’” (Drake, supra, 53 Cal.App.4th at p. 1154.) Therefore, “the question of
‘sufficient means’ should be resolved in terms of the likelihood a child will become a
public charge.” (Ibid.)
              We agree with Glenn that the trial court misconstrued section 3910(a) in
ordering adult child support. The trial court mistakenly considered the need to support


                                              7
Terri and used the best interests of the child standard. Dallas is an adult, not a minor.
Section 3910(a), which governs adult child support, does not consider a parent’s needs or
incorporate the best interests of the child standard. Under section 3910(a), the court
considers only two factors. One—is the adult child incapacitated from earning a living,
which is not disputed here. Two—does the adult child have sufficient means, which is
disputed here.
              On the second point, Glenn argues Dallas has sufficient means because the
                                                                      3
CUSD pays for Dallas’s tuition, room, board, and IEP assessments. But Dallas has a
number of other necessary expenses which the CUSD does not cover. Such expenses
were evidenced by receipts presented to the trial court by both Glenn and Terri and
included medical expenses (including deductibles and copays), clothing, books, toiletries,
and snacks. Dallas does not have sufficient means to cover those expenses, which are at
least $800 per month, placing him at risk of becoming a public charge if adult child
support is not ordered.
              Dallas is, therefore, both incapacitated from earning a living and without
sufficient means under section 3910(a). The trial court did not err by ordering Glenn to
pay adult child support.

                 II. The Trial Court Erred by Ordering That Adult Child
                          Support Payments Be Made to Terri.
              Glenn does not challenge the amount of adult child support he was ordered
to pay. He argues adult child support payments for Dallas should not be made to Terri,
who has used those payments for her personal expenses. We agree.



 3
    The CUSD’s payment for Dallas’s tuition, room, board, and IEP assessments at the
residential treatment facility could affect the amount of adult child support. Once the
amount of adult child support is calculated under Family Code section 4050, the trial
court has discretion to reduce the amount based on the child’s independent income or
assets. (Drake, supra, 53 Cal.App.4th at pp. 1155-1156.)

                                              8
              A parent’s duty to support an incapacitated adult child runs to the child.
(Drake, supra, 53 Cal.App.4th at p. 1152.) When the adult child is disabled and lives
with a parent who bears the primary financial responsibility for the child’s care, payment
of adult child support to the parent makes sense. But Dallas does not live with Terri, and
she does not pay for his basic living expenses. Dallas lives, and for the foreseeable future
will live, in a residential treatment facility, and his tuition, room, and board are paid for
by the CUSD. Terri is not Dallas’s conservator, guardian, or legal representative. Terri
and Glenn are equally responsible, to the extent each is able, to maintain Dallas.
(§ 3910(a).) Glenn has no more obligation to make adult child support payments to Terri
than he has to make those payments to himself and use them to pay Dallas’s expenses.
              The trial court found that paying Dallas’s adult child support directly to
Terri, who had not worked regularly for years, would provide her the financial means
necessary to enable her to be involved in care and therapy for Dallas and to provide him
with incidentals. Adult child support is neither minor child support nor spousal support.
The amount of Terri’s spousal support is a different matter from that of adult child
support for Dallas. Adult child support cannot be indirectly awarded under the guise of
spousal support (In re Marriage of Serna (2000) 85 Cal.App.4th 482, 484; In re
Marriage of McElwee (1988) 197 Cal.App.3d 902, 910-911); likewise, spousal support
cannot be indirectly awarded under the guise of adult child support. Terri can make the
                                                                             4
necessary application if she believes higher spousal support is warranted.
              Dallas does not have a conservator, guardian, or legal representative.
Perhaps he should. In the meantime, consideration must be given as to how adult child
support payments shall be made directly to Dallas. Possibilities include making


 4
   We note that certain of Terri’s personal expenses are properly characterized as
Dallas’s necessary expenses. For instance, Terri’s reasonable travel expenses to visit
Dallas, to the extent not reimbursed by the residential treatment center, may be
appropriately paid out of Dallas’s adult child support.

                                               9
payments into Dallas’s account at the residential treatment center, opening a trust account
for Dallas, or opening a checking account in Dallas’s name with Glenn and/or Terri as
required signators. On remand, the trial court must consider those and any other
reasonable possibilities that result in payment of adult child support directly to Dallas or
his legal representative for payment of his expenses.

                                      DISPOSITION
              We reverse the order granting the motion for adult child support with
respect to the recipient of support payments. In all other respects, the order granting the
motion for adult child support is affirmed. The matter is remanded with directions for the
trial court to make an order that support payments be made to Dallas or his legal
representative in any manner consistent with this opinion. Because each party prevailed
in part, the parties shall bear their own costs on appeal.




                                                   FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




                                              10
Filed 10/27/15




                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


In re the Marriage of TERRI E. and
GLENN RICHARD DRAKE.

TERRI E. DRAKE,
                                                       G050042
    Respondent,
                                                       (Super. Ct. No. 07D000906)
        v.
                                                        ORDER MODIFYING OPINION
GLENN RICHARD DRAKE,                                    AND GRANTING REQUEST FOR
                                                        PUBLICATION; NO CHANGE IN
    Appellant.                                          JUDGMENT


                 It is ordered that the opinion filed herein on October 9, 2015, be modified
as follows:
                 The fourth full paragraph beginning with “We agree with Glenn” on page 7
and continuing onto page 8 is deleted and replaced with the following new paragraph:
                      We agree with Glenn that the trial court misconstrued
          section 3910(a) in ordering adult child support. The trial court
          mistakenly considered the need to support Terri and relied solely on the
          best interests of the child standard. Dallas is an adult, not a minor.
          Under section 3910(a), which governs adult child support, the court
          considers two factors. One—is the adult child incapacitated from
        earning a living, which is not disputed here. Two—does the adult child
        have sufficient means, which is disputed here.

              This modification does not effect a change in the judgment.

              The Association of Certified Family Law Specialists has requested that our
opinion, filed October 9, 2015, be certified for publication. It appears that our opinion
meets the standards set forth in California Rules of Court, rule 8.1105(c)(2) and(3). The
request is GRANTED. The opinion is ordered published in the Official Reports.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




                                             2
