A Divorce Court May Not Unilaterally Order A Parent To Create A Trust Account As A Form Of Child Support Payments.

In determining a child support payment, a divorce court is limited to consider the conditions and circumstances as they exist at the time of the order and cannot anticipate what may potentially happen in the future.

In a divorce proceeding, mother was awarded custody of 5-year old daughter, Ashley, and father was ordered to pay child support. Father’s monthly income was $117,000 with a disposable monthly income of $71,002. At the time of the divorce trial, mother was a homemaker and received $14,000 in temporary support and $1,500 in temporary child support from father. Mother’s listed monthly expenses totaled $20,000, while the divorce court determined mother’s monthly expenses were $10,000, of which $3,000 constituted expenses for Ashley.

The guideline formula allowed a child support payment of $9,197 a month. However, the divorce court rebutted the presumption of the guideline formula because father had an extraordinarily high income and ordered the father to pay $3,000 per month to mother for child support per month. Also, the trial court ordered the father to pay $4,000 per month into a trust account for Ashley with the mother as the trustee. The divorce court ordered that the custodial mother not be permitted to withdraw funds directly without the permission of the non-custodial father. Essentially the trust was to act as a savings account for Ashley and provide for additional child support payments when necessary.

The court determined that the divorce court had abused its discretion by ordering a child support payment of $3,000 per month together with creating a trust for child-related expenses. The court held that ordering the father to pay less than one-third of the guideline figure was an abuse of discretion by the trial court, especially considering it was such a drastic deviation from the guidance figure of $9.197. Also, the court found the trial court had improperly calculated the $3,000 child support monthly payment by subtracting $7,000 of mother’s expenses from the custodial households total monthly expenses.

Further, the court ruled that a court is not permitted to order child support payments in the form of a trust, especially if it would place the custodial parent under the financial control of the non-custodial parent. A trust may only be used if “there is a strong showing of necessity, buttressed by specific, detailed factual findings compelling the need to limit access to support funds.” The court held that a divorce court must consider the conditions and circumstances existing at the time of the order and cannot award child support based on a possible future event. Thus, it was improper for the divorce court to order the father to only pay $3,000 per month in child support monthly and unilaterally order the creation of a trust fund. The court reversed the divorce court’s order establishing a trust and ordered father to pay $7,000 per month in monthly child support payments for Ashley.

In re Marriage of Chandler, 60 Cal. App. 4th 124 (1997)