Filed 4/11/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LENORE DRESCHER,

Plaintiff and Appellant,

v.

MARK P. GROSS,

Defendant and Respondent.

B246494

(Los Angeles County

Super. Ct. No. BD328732)

APPEAL from a post-judgment order of the Superior Court of Los Angeles 

County, Bruce G. Iwasaki, Judge. Reversed with directions.

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

for Plaintiff and Appellant.

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

Claudia Ribet for Defendant and Respondent.

_____________________
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INTRODUCTION

With the dissolution of their marriage in 2001, Lenore Drescher and Mark 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 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 Code1section 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 

 

1 All statutory references are to the Family Code unless otherwise specified.
3

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.

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 (

2

1

) 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 continuing to reasonably matriculate at such 

school. Costs for such undergraduate college or trade or other school or 

schools shall be defined as all tuition, fees, room, board, supplies, books, 

transportation costs, reasonable living expenses.”
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In October 2002, the final judgment of dissolution was entered. The judgment 

incorporates the MSA and orders child custody, spousal support and child support as set 

forth therein. Pursuant to the terms of the MSA, the judgment awarded Drescher and 

Gross joint legal and physical custody of the children.

2. November 2011 Order Modifying Child Support and Enforcing College 

Expense Obligation

In August 2011, Gross filed an order to show cause requesting modification of 

child support, citing the significantly reduced timeshare between Drescher and the 

parties’ daughter, Lila, as a material change in circumstances warranting modification. 

The order to show cause also asked the court to enforce the college expense provision of 

the MSA, as incorporated into the judgment. Specifically, Gross sought an order 

requiring Drescher to pay half of what it would cost for Lila to attend college in 

California, regardless of whether Lila ultimately enrolled in an in-state or out-of-state 

school.

In response, Drescher argued any modification in child support should take into 

account the vast disparity in the parties’ incomes that had developed over the past 10 

years. She presented evidence showing that, in 2004 and 2006, she was diagnosed with 

various ailments rendering her permanently disabled and unable to work in any capacity. 

She asserted her State Bar membership became inactive in 2006 and she was supporting 

herself on disability payments and child support. During the same period she claimed 

Gross’s income had increased to over $400,000 a year.

As for the college expense provision, Drescher argued she could not be compelled 

to pay for Lila to attend an out-of-state school because the provision was limited, by its 

terms, to costs incurred for undergraduate California state college or university expenses.

In November 2011, the trial court entered an order modifying the child support 

Gross paid for Lila’s and Noah’s maintenance. With respect to the parties’ incomes, the 

court found Drescher was disabled, unable to work, and received an annual income of 

$22,908, while Gross earned approximately $421,000 per year. 
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The court also granted Gross’s request to enforce the college expense provision of 

the judgment, and ordered the parties to “meet and confer annually in advance of the Fall 

Semester to determine the maximum cost of a California college or university, trade or 

other school.” Commencing in 2012, the order required each party to pay on behalf of 

Lila one-half of the maximum annual cost of a California college, university, trade or

other school, regardless of whether Lila attended a California or non-California school.

3. Order Denying Modification of College Expense Obligation

In June 2012, Drescher filed an order to show cause requesting modification of the 

college expense provision of the judgment. Drescher asserted her disability and the 

resulting change in the parties’ relative incomes since the judgment was entered 

constituted a material change in circumstances. Her order to show cause asked the court 

to reallocate 91 percent of the shared support obligation to Gross, and 9 percent to 

Drescher, based on the disparity in their current incomes.

Gross opposed the request, arguing the court had no authority to modify the 

provision because college expenses are not child support, and the parties’ stipulation to 

pay their children’s college expenses was entirely contractual. He also argued Drescher 

had failed to establish a change in circumstances since the court had last modified child 

support in November 2011. While Drescher’s request for modification was pending, 

Gross brought a competing order to show cause seeking payment from Drescher of 

approximately $8,800 for her share of tuition and living expenses incurred through 

September 2012 on behalf of Lila, who was now attending the University of Missouri.

On November 12, 2013, the trial court denied Drescher’s request to modify the 

judgment and granted Gross’s request for reimbursement of college expenses incurred on 

Lila’s behalf. With respect to modification, the court concluded, as a matter of contract 

interpretation, that it lacked jurisdiction to modify because the parties had not intended 

the college expense provision to be treated as child support. The court reasoned that 

nothing in the language of the MSA indicated the parties intended “shared expenses for 

adult children to be treated as equivalent to statutorily mandated child support,” citing the 

fact that “[t]he MSA specifically identified certain items as child support, but [the college 
6

expense provision] is not among them.” Because Drescher had not presented extrinsic 

evidence of the parties’ intent, the trial court concluded the language of the MSA 

controlled and it lacked jurisdiction to modify the provision. The court also concluded 

Drescher had failed to establish a change in circumstances. Drescher appealed.

DISCUSSION

1. Jurisdiction to Modify Judgment 

a. Standard of review

Drescher contends the trial court erred in concluding it lacked jurisdiction to 

modify the college expense provision of the judgment. We review the trial court’s 

determination to grant or deny a modification of a support order for an abuse of 

discretion. (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.) However, questions 

concerning the interpretation of statutes are matters of law for the reviewing court. 

(Ibid.) Likewise, “the interpretation of a contract or other written instrument is a question 

of law if there is no extrinsic evidence thereon or if the evidence is without conflict and is 

not susceptible of conflicting inferences.” (Lucas v. Elliott (1992) 3 Cal.App.4th 888, 

892 (Lucas).) So too, “[t]he question of the trial court’s jurisdiction is a pure question of 

law subject to our independent review.” (Thompson Pacific Construction, Inc. v. City of 

Sunnyvale (2007) 155 Cal.App.4th 525, 537.) “A trial court’s failure to exercise 

discretion is itself an abuse of discretion, and we review such action in accordance with 

that standard of review.” (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)

b. Parents may restrict the court’s jurisdiction to modify adult child 

support when the authority to order support is based exclusively on 

the parents’ contract

We begin with Drescher’s contention that an agreement to pay an adult child’s 

college expenses is modifiable as a matter of law, regardless of whether the parents 

contract to restrict the court’s jurisdiction.
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Section 3900 recognizes the equal duty of parents to “support their child in the 

manner suitable to the child’s circumstances.” (See also § 4053, subds. (a) & (b).) 

“ ‘Support,’ ” when used with reference to a minor child, refers to “a support obligation 

owing on behalf of a child,” and includes the obligation to pay for the child’s 

“maintenance and education.” (§ 150.) Additionally, among the expenses the court may

order parents to pay as “additional child support” are “[c]osts related to the educational or 

other special needs of the children.” (§ 4062, subd. (b)(1).)

The duration of the parents’ child support obligation normally continues until an 

unmarried child “completes the 12th grade or attains the age of 19 years, whichever 

occurs first.” (§3901, subd. (a).) However, “[n]othing in [section 3901] limits a parent’s 

ability to agree to provide additional support . . . .” (§ 3901, subd. (b).) Consistent with 

this qualification, section 3587 authorizes the court to order adult child support, as 

follows: “Notwithstanding any other provision of law, the court has the authority to 

approve a stipulated agreement by the parents to pay for the support of an adult child or 

for the continuation of child support after a child attains the age of 18 years and to make a 

support order to effectuate the agreement.” And, consistent with this authority, section 

58 defines “ ‘Child for whom support may be ordered’ ” as “a minor child and a child for 

whom support is authorized under Section 3587 . . . .” (§ 58.)

Section 3651 states the general rule for modification or termination of support 

orders, “whether or not the support order is based upon an agreement between the 

parties.” (§ 3651, subd. (e); In re Marriage of Alter (2009) 171 Cal.App.4th 718, 726 

(Alter).) Subject to other provisions of the Family Code—including section 3587, as we 

will discuss—section 3651 authorizes prospective modification of all child support 

orders, even those based upon the parents’ agreement. (Alter, at p. 727.) In turn, section 

3585 states that “provisions of an agreement between the parents for child support shall 

be deemed to be separate and severable from all other provisions,” and “[a]n order for 

child support based on the agreement shall be law-imposed and shall be made under the 

power of the court to order child support.” Thus, with respect to support for a minor 

child, our Supreme Court has held, “[w]hen a child support agreement is incorporated in 
8

a child support order, the obligation created is deemed court-imposed rather than 

contractual, and the order is subsequently modifiable despite the agreement’s language to 

the contrary.” (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947; see also In re 

Marriage of Bodo (2011) 198 Cal.App.4th 373, 386.)

Based on the court’s general authority to modify support orders under section 

3651 and the Supreme Court’s holding in Armstrong, Drescher contends an agreement 

concerning child support is always modifiable, even if the parents contract to restrict the 

court’s jurisdiction. While this undoubtedly is true with respect to support ordered for a 

minor child, the language of section 3651, and the limited authority granted by section 

3587, suggests a different rule applies to orders for adult child support that are authorized 

exclusively to “effectuate” the parents’ agreement under section 3587.

Section 3651, subdivision (a) states the court’s authority to modify or terminate a 

support order is “subject to . . . [section] 3587.”2 (Italics added.) No appellate authority 

has yet considered the effect of the clause making the general power to modify a support 

order “subject to” section 3587; however, one commentator has suggested the language 

means parents have the contractual power to limit the court’s jurisdiction to modify adult 

support orders authorized by section 3587. (See Minerich, Support for Adult Children: 

Is it Modifiable? (May 2005) Orange County Law, at p. 61.) We agree with this 

interpretation.

Unlike the authority to order support for a minor child, which derives from the 

parents’ law-imposed duty to support children until adulthood under sections 3900 and 

3901, or the authority to order support for an incapacitated adult child, which derives 

from the parents’ law-imposed duty to “maintain . . . a child of whatever age who is 

incapacitated from earning a living and without sufficient means” under section 3910, the 

court’s authority to order adult child support under section 3587 derives entirely from the 

 

2

Section 3651, subdivision (a) provides: “Except as provided in subdivisions (c) 

and (d) and subject to Article 3 (commencing with Section 3680) and Sections 3552, 

3587, and 4004, a support order may be modified or terminated at any time as the court 

determines to be necessary.”
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parents’ agreement to pay such support. Because the court’s authority is rooted in the 

parents’ contractual agreement, it follows that the parents’ agreement also may restrict 

the court’s authority to modify an order for adult child support made under section 3587. 

Construing the “subject to” clause in section 3651 to limit the court’s authority to modify 

an adult child support order where the parents have expressly contracted for such a 

restriction is consistent with the limited grant of jurisdiction under section 3587, which 

authorizes the court to order adult child support to “effectuate the [parents’] agreement.”

Moreover, this interpretation also gives effect to the “[n]otwithstanding any other 

provision of law” clause that prefaces section 3587. (See Minerich, supra, 47-May 

Orange County Law. at p. 61.) That is, as we interpret the relationship of the various 

statutes, where the parents’ agreement provides for adult child support that cannot be 

modified, section 3587 authorizes the court to make a non-modifiable “support order to 

effectuate the agreement.” And this is so notwithstanding sections 3585 and 3651, which 

otherwise treat child support provisions of an agreement as “severable,” and the resulting 

order as “law-imposed,” such that it remains subject to the court’s continuing jurisdiction 

to modify.

Accordingly, we conclude that while section 3651 generally authorizes the court to 

modify a child support order, including adult child support ordered pursuant to the 

parents’ agreement, this authority is “subject to,” and may be limited by, the parents’ 

express agreement to restrict modification of adult child support ordered pursuant to 

section 3587. We turn now to the trial court’s construction of the MSA.

c. The MSA does not expressly restrict the court’s jurisdiction to 

modify the college expense support order; the trial court’s failure to 

consider modification was an abuse of discretion

In concluding it lacked jurisdiction to modify the college expense provision, the 

trial court framed the issue as “fundamentally a question of contract interpretation.” 

Because the “MSA specifically identified certain items as child support,” but the 

provision concerning college expenses was “not among them,” the court reasoned that 

“[n]othing in the language of the MSA indicates that the parties intended that voluntarily 
10

undertaken shared expenses for adult children be treated as equivalent to statutorily 

mandated child support, or that the equal obligation could later be altered other than by 

mutual consent.”

Though we agree this is a question of contract interpretation, we disagree with the 

trial court’s construction of the MSA. As noted, because no extrinsic evidence was 

considered, we are not bound by the trial court’s construction and interpret the terms of 

the MSA de novo. (Lucas, supra, 3 Cal.App.4th at p. 892.)

The trial court’s construction was based entirely on an inference drawn from an 

omission. Because the parents referred to some support obligations as “child support,” 

but not the provision concerning college expenses, the court inferred the parents must not 

have intended the resulting order to be modifiable. Though there is some logic to this 

reasoning, we find the statutory scheme requires a more explicit statement of intent to 

restrict the court’s jurisdiction where matters of support are concerned.

As with adult child support ordered pursuant to section 3587, which we have 

concluded can be made non-modifiable to effectuate the parents’ agreement, parties are 

similarly permitted to contractually restrict the court’s jurisdiction to modify spousal 

support. However, to do so, section 3651, subdivision (d) requires a written or oral 

agreement made in open court that “specifically provides that the spousal support is not 

subject to modification or termination.” (Italics added.) We conclude the same rule 

should apply in the context of adult child support orders. Parties may restrict the court’s 

jurisdiction to modify, but to do so, they must expressly and specifically state in their 

agreement that any resulting adult child support order made under section 3587 will not 

be subject to modification or termination by the court. In this case, the absence of an 
11

express and specific statement in the MSA is alone sufficient to conclude the trial court 

had jurisdiction to modify the adult child support order pertaining to college expenses.3

Nevertheless, apart from the lack of an express agreement restricting modification, 

we find other problems with the inference drawn by the trial court. To begin, the parties’ 

use of the terms “family support” and “child support” in the MSA is hardly dispositive. 

Though it is true the college expense provision was not designated as “additional child 

support,” the provision was included under the section defining the parties’ “FAMILY 

SUPPORT” obligations. Section 92 defines “ ‘Family support’ ” as “an agreement 

between the parents, or an order or judgment, that combines child support and spousal 

support . . . .” (Italics added.) It follows that by including the stipulation to pay each 

child’s college expenses within the section of the MSA setting forth the parties’ 

respective family support obligations, the parties intended the resulting judgment to 

incorporate the college expense obligation in a child support order.

Moreover, though the MSA may not specifically refer to college expenses as 

“child support,” the obligation it describes constitutes child support under the law. The 

subject provision obligates each parent to pay one-half of all costs incurred on behalf of 

“each minor child” for undergraduate college expenses, trade or other school costs 

incurred by such minor child, as well as other “reasonable living expenses.” As noted, 

“ ‘Support’ ” when used with reference to a minor child is defined to include the 

 

3 Gross’s reliance on In re Marriage of Smith & Maescher (1993) 21 Cal.App.4th 

100 (Smith) is misplaced. In Smith, the mother brought her claim for reimbursement of 

college expenses gratuitously loaned to her son as a contract action and, on appeal, “[t]he 

parties agree[d] the separation agreement made [the child] an intended third party 

beneficiary as to college expenses.” (Id. at p. 105.) Thus, the appellate court identified 

the “pivotal issue in this dispute [as] whether [the mother] may maintain a damage action 

for breach of the third party beneficiary contract,” and did not consider whether the 

agreement created a child support obligation, subject to the court’s general jurisdiction to 

modify under section 3651. (Smith, at p. 105.) Indeed, because the marital separation 

agreement in Smith was governed by Massachusetts law and incorporated into a 

Massachusetts judgment, the court relied “particularly [on] generally accepted contract 

principles and Massachusetts case law,” without analyzing the statutory framework that 

governs our decision here. (Id. at p. 106.)
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obligation to provide for the child’s “maintenance and education” (§ 150), and the court 

may order parents to pay as “additional child support” “[c]osts related to the educational 

or other special needs of the children” (§ 4062, subd. (b)(1)). Though the parties agreed 

the obligation would persist “so long as such minor child is continuing to reasonably 

matriculate at such school”—thus, presumably, beyond age 18 and into adulthood—the 

obligation described, by its terms, fits squarely within the Family Code’s definition of 

child support.

We conclude the parties’ stipulation to pay each minor child’s college expenses 

resulted in a child support order when incorporated into the court’s judgment. Though 

based on an agreement to pay adult child support, the resulting order was subject to the 

court’s jurisdiction to modify, absent an express and specific agreement by the parties to 

the contrary. Because the MSA does not expressly restrict the court’s authority to modify 

the college expense support order, the trial court erred in concluding it lacked 

jurisdiction. The court’s failure to consider whether the support order should be modified 

was an abuse of discretion.

2. Material Change in Circumstances 

Notwithstanding our conclusion concerning the court’s jurisdiction to modify the 

college support order, Gross contends the judgment should nevertheless be affirmed 

because Drescher failed to establish a material change in circumstances since the last 

order modifying child support in November 2011. We disagree.

“ ‘As a general rule, courts will not revise a child support order unless there has 

been a “material change of circumstances.” . . . .’ ” (In re Marriage of Stanton (2010)

190 Cal.App.4th 547, 553 (Stanton).) “[T]he reason for the change of circumstances rule 

is to preclude relitigation of the same facts” and to bring finality to determinations 

concerning financial support. (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 501;

Stanton, at pp. 553-554.) “Without a changed circumstances rule, ‘ “dissolution cases 

would have no finality and unhappy former spouses could bring repeated actions for 

modification with no burden of showing a justification to change the order. Litigants 

‘ “are entitled to attempt, with some degree of certainty, to reorder their finances and life 
13

style [sic] in reliance upon the finality of the decree.” ’ [Citations.] Absent a change of 

circumstances, a motion for modification is nothing more than an impermissible 

collateral attack on a prior final order.” ’ ” (Stanton, at pp. 553-554.)

Because a request to modify the college expense support allocation was not before 

the trial court when it made its November 2011 order, the underlying rationale for the 

change of circumstances rule is not implicated here. Though the November 2011 order 

modified Gross’s child support obligation for Lila and Noah based on a change in the 

parties’ timeshare for Lila and a change in their respective incomes, with respect to 

college expenses, the order was limited to granting Gross’s request to enforce the 

obligation, regardless of whether Lila attended a California or out-of-state school. The 

trial court did not consider whether the allocation of college expenses to each parent 

should be modified in light of the disparity in their respective incomes or other assets that 

each might have to pay the children’s college expenses. Indeed, when Drescher’s 

counsel raised modification, the trial court questioned whether that relief had been 

requested in Drescher’s papers, and Gross’s counsel argued it would be a violation of due 

process for the court to consider the issue without a “cognizable request to modify.” 

Because the November 2011 order did not determine whether modification was 

appropriate, Drescher’s subsequent request for modification cannot be regarded as a 

collateral attack on a prior final order. (See Stanton, supra, 190 Cal.App.4th at p. 554.)
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DISPOSITION

The order is reversed. On remand, the trial court is directed to consider whether 

the allocation of the college expense support obligation should be modified in light of the 

parties’ respective incomes, other assets they may have to satisfy the support obligation, 

and any other relevant evidence the court may consider in exercise of its discretion. 

Drescher is entitled to costs on appeal.

CERTIFIED FOR PUBLICATION

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.