Fukuzaki v. Superior Court

Opinion

EVANS, J.

By this petition for writ of mandate, petitioner (Jimmie) seeks to nullify an order of respondent court holding a marital settlement agreement provision for spousal support was modifiable.

Jimmie and Masae separated in 1967, after 16 years of marriage. The parties signed a marital settlement agreement on the 26th day of November 1971. The agreement contained a spousal support provision and a further statement that the agreement was to be merged in the judgment of marital dissolution. On July 25, 1980, Masae secured an

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order to show cause concerning modification of spousal support. Pursuant to stipulation of the parties, the court limited its initial hearing to the question of the right of the court to modify the spousal support award under the terms of the agreement. Following a hearing conducted virtually on briefs and an examination of the agreement, the court determined that it had jurisdiction to consider modification. This writ petition followed, and we issued our alternative writ.

Our resolution of the sole question presented is controlled by the provisions of Civil Code section 4811, subdivisions (a), (b), and (c), and paragraphs 4, 8, 10, and 17 of the marital settlement agreement.

The provisions of Civil Code section 4811, subdivisions (a), (b), and (c), provide as follows: “(a) The provisions of any agreement between the parties for child support shall be deemed to be separate and sever-able from all other provisions of such agreement relating to property and support of the wife or husband. All orders for child support shall be law-imposed and shall be made under the power of the court to make such orders. All such orders for child support, even when there has been an agreement between the parties on the subject of child support, may be modified or revoked at any time at the discretion of the court, except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.

“(b) The provisions of any agreement for the support of either party shall be deemed to be separate and severable from the provisions of the agreement relating to property. All orders for the support of either party based on such agreement shall be deemed law-imposed and shall be deemed made under the power of the court to make such orders. The provisions of any agreement or order for the support of either party shall be subject to subsequent modification or revocation by court order, except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke, and except to the extent that any written agreement, or, if there is no written agreement, any oral agreement entered into in open court between the parties,