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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.




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       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

1
  In a January 2015 declaration opposing Mother’s motion to vacate, Father admitted he
stopped making the $250 child support payments when he became unemployed in
October 2006.

                                               2
2013 Addendum violated Section 3651(c)(1) because it plainly excused Father from
paying child support amounts that had already accrued since the May 2006 Judgment.
       Our determination of whether the order is void on its face for lack of jurisdiction
must be “limited to a consideration of matters which appear in the judgment roll or are
admitted by the parties.” (Phelan v. Superior Court (1950) 35 Cal.2d 363, 372–373;
accord Harley v. Superior Court (1964) 226 Cal.App.2d 432, 437 [“[T]o be attackable
collaterally for lack of jurisdiction the judgment must be void on its face, and it is not
void on its face unless the record affirmatively shows that the court was without
jurisdiction to render the judgment [citations]. The record is the judgment-roll and upon
collateral attack is the only evidence that can be considered in determining the question
of jurisdiction. Extrinsic evidence is wholly inadmissible, even though it might show that
jurisdiction did not in fact exist.”].)2 “[E]very presumption is in favor of the validity of
the judgment or order of a court of general jurisdiction, and any condition of facts
consistent with its validity and not affirmatively contradicted by the judgment roll will be
presumed to have existed.” (Phelan, at pp. 373–374.)
       At the outset, Father contends Section 3651(c)(1) only applies to “arrears that have
been determined (i.e. calculated or ‘set’).” He asserts, “if the arrears have been
calculated, and if there is a court order that has ‘set’ the arrears, then a subsequent order
cannot disturb the previous order. However, if the arrears have not been calculated, and
there is no order setting arrears, then an order or agreement, subsequent to the original
support order, may set those arrears. Setting the arrears, if they have not been set, is not
the modification of a support order prohibited by” Section 3651(c)(1). We reject that
contention, which lacks any support in the statutory language or caselaw. As explained
in Marriage of Sabine, supra, 153 Cal.App.4th at p. 1212, Section 3651(c)(1) prohibits
the modification of accrued arrearages, meaning arrearages that are “ ‘past due.’ ”


2
  The judgment roll includes “the pleadings, all orders striking out any pleading in whole
or in part, a copy of the verdict of the jury, the statement of decision of the court, or
finding of the referee, and a copy of any order made on demurrer, or relating to a change
of parties, and a copy of the judgment . . . .” (Cal. Code Civ. Proc. § 670.)

                                              3
Respondent provides no basis for an additional requirement that the amount of the
arrearages have been determined by a court before they can be considered past due.
       Father also contends the Addendum is not void on its face because the underlying
stipulation was an accord and satisfaction. This argument is based on language in
Marriage of Sabine, supra, 153 Cal.App.4th at p. 1214, explaining that Section
3651(c)(1) does not prohibit a trial court from “determining whether any arrearages exist
and, if so, the amount due” or preclude parties from “settling all disputes that might affect
the calculation of arrearages.” Thus, “ ‘When a dispute, having the ring of truthfulness
on each side, arises, concerning an amount due under an obligation, as in a case where
. . . an agreement is . . . made to accept a lesser sum in full satisfaction of the amount [in
controversy], the obligation is cancelled by a tender and acceptance of the lesser sum in
full payment.’ ” (Marriage of Sabine, at pp. 1214–1215.) Father argues the stipulation
underlying the January 2013 Addendum was such an accord and satisfaction because the
amount of the arrearages had not been determined and because, in December 2012,
Father sought child support from Mother.3
       We reject Father’s argument. Marriage of Sabine cautioned that “an accord and
satisfaction requires the existence of a bona fide dispute concerning the debt.” (Marriage
of Sabine, supra, 153 Cal.App.4th at p. 1215.)4 There, the court of appeal concluded
there was no bona fide dispute that permitted a reduction in the arrearages. The court
reasoned, “[Husband] did not deny the existence of the arrearages, question the meaning
of the Judgment, or raise any issue concerning the amount he owed. Nor did he contend


3
  Father’s brief in one place refers to an August 2012 motion for child support, but
Father’s declaration admits the motion was filed in December and elsewhere the brief
refers to the December filing.
4
  “An accord and satisfaction is the substitution of a new agreement for and in
satisfaction of a preexisting agreement between the same parties. The usual purpose is to
settle a claim at a lesser amount. [Citations.] The elements of an accord and satisfaction
are: (1) a bona fide dispute between the parties, (2) the debtor sends a certain sum on the
express condition that acceptance of it will constitute full payment, and (3) the creditor so
understands the transaction and accepts the sum.” (In re Marriage of Thompson (1996)
41 Cal.App.4th 1049, 1058.)

                                               4
that the Judgment was invalid or void as a result of extrinsic fraud, lack of service of
process, or any other reason. Quite simply, [husband] offered [wife] less than one-third
of the arrearages in exchange for a release as to the rest. We fail to see how this resolved
a bona fide dispute.” (Id. at p. 1215.)
       Similar reasoning applies in the present case. The judgment roll affirmatively
demonstrates Father was required to pay Mother $250 in monthly child support starting
in May 2006. Further, Father admitted in his January 2015 declaration in opposition to
Mother’s motion to vacate that he stopped making those monthly payments when he
became unemployed in October 2006. Nothing in the judgment roll or in the parties’
admissions raises even the possibility that, as of January 2013, Father owed Mother
nothing for the over five years that he did not pay child support. Although there may be
situations in which a settlement waiving all arrearages constitutes the resolution of a bona
fide dispute, Father does not suggest any circumstances that could have excused him
from paying child support those years. We conclude the trial court erred in concluding
the Addendum is not void on its face.5
                                      DISPOSITION
       The trial court’s order denying Mother’s motion to vacate is reversed. On remand,
the court is directed to grant the motion and to conduct further proceedings consistent
with this decision. Mother is awarded her costs on appeal.




5
 We express no opinion on the proper result of any effort to enforce the Judgment. (See
County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1326 [“Although a court
may not ‘disturb the accrual of payments under the original [child support] judgment,’ it
does have some equitable powers regarding the enforcement of the judgment.”].)

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                    SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J.




(A144646)



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