IN RE: the MARRIAGE OF Judith I. and Ronald E. LUNGSTROM. (1974)

The parties were divorced in 1955, the interlocutory decree providing, inter alia, for the payment by the husband to the wife of the sum of $125 per month for the support of the minor son of the parties, such payments ‘to continue . . . until . . . such . . . child shall attain his . . . majority.’¹ In January 1973, the son then being over 18 years of age but under the age of 21, the wife petitioned for a modification of that decree so as to provide $3,200 per year for the son's pre-medical education.

On March 5, 1973, the trial court made an order requiring the husband to pay or to reimburse the wife for ‘all reasonable expenses, such as room, board, books, tuition and clothing of the son John at Pacific Lutheran College.’² The order also allowed the wife attorney fees and costs. The husband has appealed; we modify and affirm the order as modified.

I

The case at bench is, so far as we are advised, the fourth case to construe the 1972 legislation lowering the age of majority from 21 to 18, insofar as that legislation affects child support orders made prior to 1972 and modified thereafter.³ In Phillips v. Phillips (1974) 39 Cal.App.3d 723, 114 Cal.Rptr. 362, Division One of this District held that the special language of the decree therein involved (‘to continue until emancipation’) caused the child support order to terminate, by its own terms, when the child reached the age of 18. In Atwell v. Atwell (1974) 39 Cal.App.3d 383, 114 Cal.Rptr. 324, this Division of the court held that an order, made after 1972 and after the child had reached the age of 18, which reduced the amount of the support order without other action did not serve to terminate in its entirety the pre-1972 order, but that that order continued, in the reduced amount, until the child reached the age of 21.

We see no reason to repeat here the discussion in Atwell of the legislative history of the statutes involved. The purport of that legislation was, as we determined in Atwell, to allow pre-1972 child support to continue unabated until the former age of majority, unless and until a family law court should, after a hearing and for good cause, expressly determine that the child involved no longer required parental support.

In 1974, the Legislature added section 4704 to the Civil Code. That section reads as follows:

‘(a) Any order issued prior to March 4, 1972, providing for support for a child may be amended or modified by the court having jurisdiction to increase or decrease the amount of such award without terminating such award at the age of majority based on 18 years of age.

‘(b) This section does not constitute a change in, but is declaratory of, the existing law.’

While a legislative declaration that a statute is merely declaratory of previous law is not binding on the courts, it is entitled to respect. In the case at bench, we accept the declaration since it accords with the legislative purpose to continue unchanged the power of a family law court to adjust to changing circumstances the support allowances entered prior to the 1972 change in the age of majority. Accepting that view, the increase herein involved was within the power of the trial court.

It is argued that the legislative attempt to continue support orders, entered prior to 1972, until the old age of majority was reached is unconstitutional as denying equal protection to children who had not benefitted from a support order issued prior to 1972. We disagree. It seems to us quite a reasonable classification to treat pre-1972 support orders on a different basis from post-1972 orders. The parents, and the child, involved in a pre-1972 order could quite reasonably have made plans for the child's education and life between 18 and 21, relying on the expectation that a support order adequate for a high school student would, on a showing of need and ability to pay, be increased as the child reached college age. To permit that expectation (as always subject to proof and the exercise of judicial discretion) to continue is not a denial of equal protection. The post-1972 support order created no similar expectation and the Legislature could validly treat those orders on a different basis.

II

The trial court's order, as originally entered in its minutes also contained the sentence: ‘The Court orders that the amount of child support shall remain as is.’ At a later date, and after the notice of appeal had been filed, the trial court, after a somewhat confused hearing, made a purported nunc pro tunc order deleting that sentence. The husband here contends that the trial court lacked jurisdiction to make such an order after the appeal had been noticed. The contention is without merit. It is obvious from the reporter's transcript of the original hearing that the trial court had intended that the collegiate support be in addition to, and not in substitution for, the original $125 monthly allowance.⁴ The sentence ultimately deleted caused a confusion in the order. The collegiate support allowance obviously and expressly was one for ‘child support’; clearly the trial court never intended that child support ‘remain as is.’ The deletion was a proper one to correct an obvious clerical error and within the power of the trial court to make at any time. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, p. 4025.)

However, the order, as ultimately corrected, still contains a latent ambiguity concerning the $125 payments. In order to carry out the express intent of the trial court and of the parties themselves at the original modification hearing, we modify the order herein under review by adding thereto the following language:

‘That portion of the interlocutory decree entered December 23, 1955, which requires Respondent to pay to the wife, for the support of the son John, the sum of $125 per month continues in full force and effect.’

III

As we have noted above, on March 5, 1973, the trial court awarded the wife attorney fees and costs relating to the hearing then held. It is contended that this order was void for lack of jurisdiction. The contention is without merit.

Section 4370 of the Civil Code expressly authorizes such orders ‘during the pendency of any proceeding’ under the family law act. It is long settled that, in matters concerning child support, the trial court may make such award as it deems reasonable for legitimate efforts to protect and advance the child's interests.

IV

Without bringing up any record to support the reference, and without any notice of appeal relating thereto,⁵ the husband argues that an order alleged to have been entered on May 10, 1973, awarding the wife $750 attorney fees on appeal was also void. Lacking either record or appeal, the matter is not before us.

The order of March 5, 1973, is modified as hereinabove set forth; it is otherwise affirmed.

FOOTNOTES

1.  The decree also ordered a similar payment for support of a daughter. At the time of the hearing herein involved the daughter had reached the age of 21 and, by stipulation, the order as to her was terminated.

2.  It was stipulated that the amount requested was reasonable and that the husband had ability to pay it. No objection is made in this court to the lack of a dollar limitation on the new order.

3.  In addition to the two cases discussed in the text, a third opinion was filed in the First District (Ganschow v. Ganschow, Cal.App., 116 Cal.Rptr. 611); but the Supreme Court has granted hearing in that case, rendering the Court of Appeal decision unavailable as a precedent.

4.  ‘Now the court knowingly, for reasons stated to counsel, leaves any cash support obligation exactly as it was, and I trust counsel will explain that to the petitioner if she hasn't already.’

5.  The only notice of appeal in the record before us is directed to the order of March 5, 1973.

KINGSLEY, Associate Justice.

FILES, P. J., and DUNN, J., concur.