Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV040644
Pollak, Acting P. J.
Thomas H. Lutge appeals from an order extending his child support obligations for his incapacitated daughter beyond her 18th birthday. He contends that the court erred in extending his support payments because there was no evidence that his daughter would become a public charge in the absence of the court-ordered support. He also claims that the daughter’s mother, Barbara Acker-Hitta, should have been ordered to bear the full financial burden of supporting their daughter because she allegedly stole approximately $150,000 from him. We affirm.
Factual and Procedural History
This action was originally commenced in 1992 by the City and County of San Francisco when the parties lived in San Francisco. After the mother and daughter moved to Marin County, the Marin County Department of Child Support Services registered the San Francisco order in the Marin County Superior Court. Since then, the action has proceeded in the Marin County Superior Court with the Marin County Department of Child Support Services acting as the local child support agency. Contrary to father’s suggestion, the Marin County Department of Child Support Services has properly appeared as a respondent in this appeal under Family Code section 17404.
It is undisputed that the daughter is permanently and severely disabled. She uses a wheelchair at all times and needs assistance with her everyday needs. She has no financial resources of her own and will never be self-supporting. It is also undisputed that the father has been an exemplary parent and has provided significant financial support for his daughter throughout her life. The daughter lives with her mother in a home half-owned by the father. In addition, the father has been providing monthly support in the amount of $2,276.
On October 8, 2007, just prior to the daughter’s 18th birthday, mother filed a motion pursuant to Family Code section 3910, subdivision (a) to extend the monthly child support payments beyond the daughter’s minority. In opposition, father acknowledged that “it is ordinarily the duty of both parents to provide for the support of adult, incapacitated children,” but argued that “the statute is intended to first and foremost allow the child to receive enough support so that the child does not become a ‘public charge’ ” and that “the motion should be denied because [his daughter] will not become a public charge if the current child support arrangement is not continued, i.e. if [mother] is made to provide all of [daughter’s] support.” He explained that mother “should be held responsible for all child support payments and costs” because she “has stolen the sum of $156,372 from [him] through a series of forged checks” and because she lives rent-free in a home that she co-owns with him.
Family Code section 3910, subdivision (a) provides, “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.” All further statutory references are to the Family Code.
Following a hearing, the court commissioner issued its findings and recommended that the motion be granted. The commissioner explained that “the mother’s motion is limited to continuing the duration of father’s child support obligation indefinitely, and is not a motion to modify the current monthly amount father is obligated to pay.” The commissioner found that the parents have an “equal responsibility” to provide for their daughter and that absent their support the daughter would not have sufficient means to provide for herself. The commissioner also noted that separate litigation was pending regarding mother’s alleged theft and that even if father were to prevail in that action, it would not affect his obligation for continuing child support under section 3910. On December 20, 2007, a superior court judge approved the findings and recommendation and issued an order granting the motion. Father filed a timely notice of appeal.
Discussion
Father does not dispute his ability to provide for his daughter’s support or her inability to earning a living on her own. Nor does he challenge the amount of his child support payments. He argues, however, that the court erred in finding that his daughter was “without sufficient means” of support as required by section 3910, subdivision (a). In In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1154, the court held that “the question of ‘sufficient means’ should be resolved in terms of the likelihood a child will become a public charge” in the absence of parental support. Thus, the determination of whether an adult child has sufficient means must be based solely on the child’s own assets and not the assets of the parents. (Ibid.) In Drake, the court found that although the mother had created a trust for the support of the child, the existence of the trust did not discharge the father’s statutory support duty in light of the “evidence that the trust will run dry long before [the child] dies if the full burden of supporting [the child] falls upon it, raising the prospect that [the child] will become a public charge.” (Ibid.) Here, it is undisputed that the daughter now has no independent means to provide for her own support.
Father’s arguments in opposition to the extension of support payments are, as the commissioner noted, “[a]t best, . . . without legal or factual support.” First, father suggests that his provision of half of the home in which his daughter lives is analogous to the trust created in In re Marriage of Drake, supra, 53 Cal.App.4th 1139. The house, however, remains in his name and cannot be considered the daughter’s separate asset. Father also argues that “[t]here is no way [his daughter] would ever become a public charge” because even if the mother “were to be made to fully financially support [their daughter],” he would “never do any aspect of anything to change [his] commitment to [his] child” and that he would “still care for and provide for [his daughter].” “He would do nothing to harm the well-being of his daughter. He would continue to pay for her housing and medical and other expenses.” Father’s assurances, however well-meaning, are simply insufficient to establish that there is no likelihood that his daughter would become a public charge absent a legally enforceable support obligation.
Indeed, the commissioner noted, “If father was self-represented, his argument to be relieved of his child support obligation, as stated, could perhaps be understood for the reason that he simply does not understand what is required of him under the law. But, father is represented by counsel and has been throughout these proceedings. And for counsel to make such an argument on father’s behalf is, at best, disingenuous on its face.”
Father’s underlying objection is to being required to continue making payments directly to the mother. Before the trial court he explained, “What I’m asking is that the money that goes to [mother] that doesn’t go to my kid, not go to [mother]. That was what we’re asking.” However, the amount of the child support payments presumably is the amount that is necessary solely for the daughter’s support. That amount was adjusted in proceedings shortly before mother brought the present motion. If the amount of support is excessive, an appropriate motion to adjust the amount may be brought, but that is not the subject of the present appeal. Similarly, whether father is entitled to a credit for the housing he is providing his daughter is relevant only to the amount of the monthly payments, not to whether he has an ongoing obligation to support his daughter. As the commissioner noted, the calculation of the amount of the monthly payments is beyond the scope of mother’s motion.
Finally, we agree with the trial court that the disputed debt between the parents is irrelevant to father’s obligation under section 3910. A supporting parent cannot offset a debt owed by the custodial parent against his or her child support obligations where the offset would eliminate or reduce the court-ordered support to the detriment of the child. (Williams v. Williams (1970) 8 Cal.App.3d 636, 639; see also In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1039 [“ ‘[s]ince a child support obligation runs to the child and not the parent, a debt owed by the custodial parent to the supporting parent generally cannot be offset against child support arrearages’ ”]; In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1152 [“a parent’s statutory duty to support an incapacitated adult child runs to the child”].) In Williams, the court explained: “An order for child support, like alimony, is not an ‘ordinary debt’ but rather a court-imposed obligation to provide for one’s child. . . . [¶] . . . [¶] . . . In essence, the parent, to whom such support is paid, is but a mere conduit for the disbursement of that support.” (Williams, at pp. 639-640.) As the court noted, “the very nature of child support gravitates against the allowance of the setoff sought. Such support is strongly favored in the law and statutes providing for it are to be liberally construed to promote their purpose of protecting the family.” (Id. at p. 640.)
Father also argues that the court failed to make the necessary “findings on the issue of whether [his daughter] would become a public charge.” Contrary to the father’s assertion, the court was not required to find that “without an extended support period, [the daughter would] become a public charge.” Rather, the court was required to find, and did find, that the daughter comes within the class of children protected by section 3910, subdivision (a) in that she “is incapacitated from earning a living and without sufficient means.”
Disposition
The order is affirmed. Respondents Marin County Department of Child Support Services and Barbara Acker-Hitta are to recover their costs on appeal.
We concur: Siggins, J., Jenkins, J.