Carpy v. Carpy CA1/1

Filed 8/28/13 Carpy v. Carpy CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN CARPY, Appellant, A135261 v. ANN CARPY, (Napa County Super. Ct. No. 2638095) Respondent.

Appellant John Carpy, an adult who is “incapacitated from earning a living” and “without sufficient means,” challenges one provision of an order requiring his mother, Ann Carpy,1 to provide child support under Family Code section 3910. Specifically, John challenges the provision of the support order specifying support will terminate on his mother’s death. We agree this provision was not properly included in the support order, order the phrase stricken and, as modified, affirm the support order. FACTUAL AND PROCEDURAL BACKGROUND In June 2007, John filed a petition “to enforce parental duty to support indigent adult child” under Family Code section 3910.2 John alleged he is incapacitated from

1 We refer to the parties by their first names to avoid confusion and intend no disrespect. (See In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 967, fn. 2.) 2 Family Code section 3910, entitled “Duty to Maintain Incapacitated Child,” provides: “(a) 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. [¶] (b) Nothing in this section limits the duty f support

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earning a living and without sufficient means due to a persistent schizophrenic condition which precludes him from maintaining gainful employment. He further alleged his mother, Ann, has a duty to maintain him and “currently has the ability to do so.” He prayed for an order requiring Ann to pay for support “in such amounts and under such terms as the court deems proper.” Ann filed a response denying on grounds of lack of investigation that John is incapacitated from earning a living or without sufficient means or unable to maintain gainful employment. She acknowledged, however, that if John, in fact, is incapacitated from earning a living and without sufficient means as defined in section 3910, she would have a duty to provide maintenance and that she has the ability to reasonably contribute to his needs. She denied that she had refused and failed to provide any support, alleging she “has authorized proposals for providing assistance to [John] which have gone unanswered.” She asked that the court determine whether section 3910 applies and, if so, to “set reasonable support.” The parties ultimately stipulated John is “incapacitated from earning a living” and “without sufficient means” within the meaning of section 3910. Accordingly, the sole issue before the trial court was the amount of support that should be ordered. John advocated the court utilize the Statewide Uniform Support Guideline (§ 4050 et seq.). He claimed Ann’s annual gross income for the three preceding years ranged from approximately $494,000 to over $600,000, her monthly net disposable income ranged from approximately $37,000 to over $47,500, and she should provide $6,000 a month in support. He also claimed the support should be retroactive to the date of his petition, and the court should approve the creation of a trust to receive the payments to Ensure the money is distributed prudently and used only for John’s legitimate needs. John asserted the fact he had previously received $450,000 from a family trust should be disregarded. He claimed Ann and other trustees had breached the terms of the trust by