In Re Marriage of Whitney

Opinion

KINGSLEY, Acting P. J.

Petitioner and respondent were married in 1956. They had four children, of whom the oldest, Ronald, became 18 on August 5, 1975. They separated in 1970. On August 24, 1972, they entered into a marriage settlement agreement, under which petitioner agreed to pay, for the support of the four children, $125 per month per child, such payments to continue “until further order by a court of competent jurisdiction” but to terminate, as to each child “who dies, reaches the age of twenty-one (21) years, is married, or is otherwise emancipated, whichever of these events shall occur first.” That agreement was approved by the court and incorporated in the interlocutory decree of divorce, entered on October 18, 1972. On March 6, 1976, petitioner filed his request to modify the child support provision by terminating support for Ronald. The sole ground for such request was

[182]

that Ronald had reached the age of majority. That request was denied on April 21, 1976, and this appeal followed. We affirm the order.

I

Petitioner relies on

In re Marriage of Pilcher

(1975) 51 Cal.App.3d 142 [123 Cal.Rptr. 868], and urges that, under section 4351 of the Civil Code, the trial court had jurisdiction to order support of children only during their minority. In

Sheldon

v.

Superior Court

(1967) 257 Cal.App.2d 541, at page 544 [65 Cal.Rptr. 59], the court noted that it was entirely proper for a court to include, in a judgment of divorce, provisions for the support of a child past minority, but that enforcement of such a provision could be only by way of a plenary suit for breach of contract and not by contempt.

No issue as to contempt is before us on this appeal and we are not here concerned with the remedies available to respondent if payments for Ronald are not made. We hold only that, on the facts shown by this record, it was not error for the trial court to refuse to make an order, under the powers of modification reserved to it both by law and by the agreement, which would arguably have had the effect of limiting respondent’s rights under the agreement.