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In re Marriage of Rosenfeld

California Court of Appeals, Second District, Third Division

April 11, 2014

In re the Marriage of KIM LENORE ROSENFELD and MARK P. GROSS. LENORE DRESCHER, Appellant,
v.
MARK P. GROSS, Respondent.

APPEAL from a post-judgment order of the Superior Court of Los Angeles County, No. BD328732 Bruce G. Iwasaki, Judge.

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COUNSEL

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

Brot & Gross, Ronald F. Brot, Marie A. Lamolinara; Barbakow & Ribet and Claudia Ribet for Respondent.

OPINION

KITCHING, J.

INTRODUCTION

With the dissolution of their marriage in 2001, Lenore Drescher (formerly known as Kim Lenore Rosenfeld) and Mark P. 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

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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 Code[1] 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 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.

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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 (½) 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 ...


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