Tubiolo v. Tubiolo CA1/5

Filed 12/16/15 Tubiolo v. Tubiolo CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MICHELLE D. TUBIOLO, Plaintiff and Appellant, A144646 v. RICHARD TUBIOLO, (Alameda County Super. Ct. No. RF03094158) Defendant and Respondent.

Michelle Tubiolo (Mother) appeals from the trial court’s order denying her motion to vacate an addendum to a prior judgment in this marital dissolution proceeding. We conclude the trial court erred in failing to vacate the addendum as a void modification to the court’s child support order, because the addendum excused respondent Richard Tubiolo (Father) from paying accrued support arrearages, in violation of section 3651, subdivision (c)(1) of the Family Code (“Section 3651(c)(1)”). BACKGROUND The parties were married in March 1999 and had a son together who was born in May 2000. The parties separated thereafter, and Mother filed for dissolution in April 2003. A judgment of dissolution was entered in May 2006 based on the parties’ martial settlement agreement (“Judgment”). The Judgment required Father to pay monthly child support payments of $250 and to make an annual contribution of $1,200 to his son’s college education account.

1

On January 15, 2013, the trial court approved and entered as an order of the court the parties’ stipulation modifying the child support provisions in the May 2006 Judgment and addressing support arrearages (“Addendum”). In the stipulation, Mother and Father agreed neither party had a child support obligation to the other because both earned comparable incomes. Mother and Father also agreed “that any and all outstanding arrears debt and/or related interest incurred by the other party prior to the effective date of this addendum will be waived in its entirety. This addendum absolves any such indebtedness for both parties.”1 In August 2014, Father filed a motion seeking child support from Mother. In January 2015, Mother filed a motion to vacate the January 2013 Addendum. The trial court denied the motion, concluding the Addendum “is not void on its face such that the Court could set it aside at this late date.” This appeal followed. DISCUSSION On appeal, Mother contends the trial court erred in failing to set aside the Addendum under section 473, subdivision (d) of the Code of Civil Procedure, which authorizes the court to “set aside any void judgment or order.” Mother contends the trial court was without jurisdiction to make the Addendum because it was in violation of Section 3651(c)(1), which provides that “a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” As used in the statute, “ ‘[a]ccrued’ means ‘past due.’ ” (In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1212 (Marriage of Sabine).) The statute “applies whether or not the support order is based upon an agreement between the parties.” (§ 3651, subd. (e); see also Marriage of Sabine, at p. 1212.) It is well-established that Section 3651(c)(1) “precludes a trial court from modifying or forgiving accrued support payments—arrearages.” (Marriage of Sabine, at p. 1213.) Mother argues the January