Politzer v. Himmelsbach

Opinion

ELIA, J. Plaintiff and appellant Jay Politzer appeals from a denial of a petition for a writ of mandate. The petition sought to prohibit respondent district attorney from attempting to collect child support from appellant on behalf of appellant’s 18-year-old son who was still in high school. Appellant contends that, once his son reached 18 years of age, he was entitled to a hearing pursuant to Civil Code section 196 et seq.1 concerning further child support obligations. We disagree and therefore affirm.

Background

Orders arising out of appellant’s 1977 dissolution of marriage proceeding obligated appellant to pay $250 per month to the Santa Clara County Family Support Trustee on behalf of his minor son. According to the final judgment, the obligation’s duration was “until said child reaches the age of majority or further order of this court.” Appellant ceased making the payments when his son reached majority. Respondent demanded continued child support from appellant until appellant’s son graduates from high school or becomes 19 years of age. Appellant refused and instituted the within action.

Discussion

Section 196 provides that a father and mother have an equal responsibility to support and educate their child. Section 196.5 states: “The duty imposed by Section 196 shall continue to exist as to any unmarried child who has attained the age of 18, is a full-time high school student, and resides with a parent, until such time as he or she completes the 12th grade or attains the age of 19, whichever first occurs. This obligation may be enforced in the manner described in Section 196a.” Section 196a provides, in part: “A civil suit to enforce such obligations may be maintained in behalf of a minor child, and in such action the court shall have power to [298]order and enforce performance thereof, the same as in a suit for dissolution of marriage.”

Appellant initially argues that the trial court which ordered him to pay child support lacks jurisdiction to extend child support beyond his son’s age of majority absent a separate proceeding brought pursuant to section 196a. By inference, he claims respondent has no authority to collect further payments from him.

“[C]ase law at one time held family law courts lacked jurisdiction to extend child support beyond a child’s majority absent an independent action in the superior court. [Citations.] However, these cases were decided prior to the enactment of section 196.5 and the amendments to sections 4701 [sic] and 4351 which now provide family law courts may order child support for adult children unable to maintain themselves by work. (See § 206.) Accordingly, these cases can no longer be considered viable.” (In re Marriage of Gonzales (1989) 207 Cal.App.3d 1198, 1202, fn. 3 [255 Cal.Rptr. 336].)