How Can Child Support Be Made Non-Modifiable?

If I agree to pay for college in the good times, years later when that even actually happens, can that order be modified?  This very question came up in a new case, Drescher v. Gross (2014) 225 Cal.App.4th 478. In this case, both husband and wife were practicing lawyers when they divorced in 2001, both earning six-figure incomes. In their Marital Settlement Agreement, they agreed, among other things, that they would split the costs associated with the attendance at undergraduate California state colleges or universities (with some predictable requirements about reasonable matriculation, etc.). This provision was found as a sub-section to the “Support” section of their agreement, unfortunately in a portion of that section that contained no instruction as to whether or not its terms were modifiable.

In 2011 Husband asked the court to reduce the amount of support he was paying for their children due to his Wife’s reduced timeshare with one of the kids. He also asked that the Wife be required to contribute to their older child’s college expenses as per the agreement from 2001. The wife opposed these requests and asked the court to consider the fact that since the judgment had been entered Wife had become permanently disabled and her income was severely limited, whereas the Husband’s income had increased significantly. She also resisted the application of the college education clause of the agreement claiming that its terms were limited to attendance at a California college or university. The trial judge did consider the Wife’s reduced income and Husband’s increased income and also determined that the Wife was contractually bound to contribute to the college expenses, even if the child was attending an out of state college.

The wife then filed her own Request for Order with the court in 2012, asking the court to modify the college provision to account for the fact that there was such a great disparity in her and her Husband’s income. (It is worth noting here that Wife made this request at the 2011 hearing but her position was opposed by Husband who argued that she should not be allowed to raise it because Wife waited [essentially] until the hearing to bring this up and thus failed to give Husband sufficient legal notice of her intent to make that request. While that is, in this author’s opinion, a legally correct position, from a practical standpoint all it ended up doing was to delay the resolution of that issue and undoubtedly cost a lot more in attorney’s fees and costs, something to think about when considering adopting a particular litigation position in court. Sometimes getting a decision on a predictable request early on ends up being the best way to approach a situation, certainly if what one is interested in is seeing equity done on an issue in contention).  The trial court denied the Wife’s request, finding that it lacked the jurisdiction to modify this provision because it was contractual in nature and thus susceptible to denial of modification.

That indeed was the question for the Appellate court to decide: can parties to a contract make a provision for additional child support in the form of payment for college non-modifiable? The answer to that question is, under the appropriate circumstances, “yes.” However, when rafting such a provision great care must be taken to ensure that non-modifiability is clearly and unambiguously set out in the agreement, because if it is not, the same thing that happened to Husband can happen to you: the Appellate court ruled that even though creating a contractually non-modifiable provision for additional l support of an adult child is possible under the law, the agreement in question was sufficiently vague in that regard that the Appellate court reversed the trial judge and remanded the case back to him to consider the request for modification in light of the parties’ disparate incomes. This is basically because as a matter of law child support in California is always modifiable; indeed, it is deemed to be a violation of public policy to do otherwise. That said, this concept generally applies to minor children and adult disabled children. This particular provision presents a situation of an adult, non-disabled child, a matter about which the waters are murkier.

The moral of the story is this: when drafting an agreement, any agreement but certainly one seeking to restrict the court’s ability to alter its provisions, great care must be taken to ensure that the provision is clear and unambiguous in its expression of exactly what the parties intend, because when faced with a request such as this one, especially in the context of child support, if the intention of the parties is not clear and unambiguous the court will always defer to the notion that they, as the court, maintain the authority to review these provisions and fashion the best order available under all the circumstances. In this case, the Husband clearly bargained for the provision that the Wife was to share the college expenses for the kids. Perhaps he allowed her to receive more spousal support than she otherwise might have received, or perhaps Wife received a greater share of the community estate in exchange for this promise. She did, after all, promise to share these costs equally, and one must assume that she received some consideration for that promise, a fact upon which Husband relied in making his agreements with her.

Too often we see this kind of thing happen; even with lawyers, when an agreement fails to state clearly and unambiguously exactly what it is the parties are agreeing to, and the bases for that agreement, it runs the risk of being completely changed by a later-reviewing court, and that can (and usually does) ending up costing at least one of the parties dearly.

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