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 reverse the order in part, modify it in part, and affirm it in part.

I

The case at bench is, so far as we are advised, the third 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. 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. But the reasoning which underlies the continuance of pre-1972 orders does not apply where the family law court seeks, not to continue or to reduce the support, but to increase it. Since the 1972 legislation, a family law court is without power to enter an order that compels a parent to support a normal child after that child has reached the new age of majority. The order herein attacked was such an order. The trial court erred in making it and it must be reversed insofar as it purports to impose on the husband the additional costs of a collegiate education.

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.³ 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, Calif.Proc. (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. While we have held that the trial court erred in attempting to increase the child support order at the time and under the circumstances herein involved, there can be no question but that the court had jurisdiction to entertain the wife's motion to modify. A trial court has jurisdiction to act on a motion to modify, whether or not the motion is well founded. 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,⁴ 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. We note, in passing, that the contention, even if properly raised, would be without merit for the reasons above set forth.

The order of March 5, 1973, is reversed insofar as it purports to award to the wife support for the college education of the son John; it 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.  ‘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.’

4.  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.