Opinion
C078005
02-07-2017
ANNA K. PETERSON, Plaintiff and Appellant, v. KEVIN THOMPSON, Petitioner and Respondent; PLACER COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SDR0034174)
Appellant Anna K. Peterson (mother) appeals from a court order denying her request to set aside a prior order for child support. She contends the trial court abused its discretion in denying her motion. Finding no merit to her claim, we affirm the trial court's order.
BACKGROUND
Mother and father Kevin Thompson are the parents of an eight-year-old child. On October 24, 2013, the trial court ordered mother to pay monthly child support to father in the amount of $565. The trial court also ordered mother to pay $161 per month for child care costs.
On April 9, 2014, the Placer County Department of Child Support Services (DCSS) filed a motion to modify the October 24, 2013, child support order. In response to DCSS's motion, on April 25, 2014, father filed an income and expense declaration, delivering a file-endorsed copy to DCSS.
On May 7, 2014, the trial court modified the monthly child support order, including child care costs, downward to a total of $504. The trial court further ordered mother and father to submit updated income and expense declarations no later than August 1, 2014, and to appear in court on August 14, 2014, for a review hearing.
On August 14, 2014, counsel for mother appeared in court and noted there were discrepancies between the April 25, 2014, income and expense declaration father filed with the court and the file-endorsed copy provided to DCSS. Specifically, counsel noted that on the file-endorsed copy, father redacted the name, location, and phone number of his place of business. She also noted that father redacted the exhibits attached to his income and expense declaration: (1) the specific department in which he worked; (2) the name, location, and phone number of the child's daycare provider; and (3) a signature page.
Based on these discrepancies, on February 3, 2015, mother moved to set aside the May 7, 2014, child support order pursuant to Family Code section 2122 and Code of Civil Procedure section 473, subdivision (b). In support of her motion, mother argued these discrepancies amounted to fraud and perjury. In response, DCSS argued that Family Code section 2122 did not apply and the motion was untimely under Code of Civil Procedure section 473, subdivision (b).
The trial court heard mother's motion on March 11, 2015. The court agreed with DCSS that Family Code section 2122 did not apply because that statute applies only to judgments for spousal support and the division of community property. The court also agreed the motion was untimely under Code of Civil Procedure section 473, subdivision (b), because the motion was not filed within six months of the order's issuance. Accordingly, the court denied mother's motion.
Mother appeals from that order.
DISCUSSION
Mother's sole contention on appeal is that the trial court abused its discretion in denying her motion to set aside the May 7, 2014, child support order. In support of her contention, mother argues the request was timely filed under Code of Civil Procedure section 473, subdivision (b) and Family Code sections 2122 and 3691.
Code of Civil Procedure section 473, subdivision (b) provides in relevant part that a court may "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Code Civ. Proc., § 473, subd. (b), italics added.)
Here, the support order that mother moved to set aside was filed on May 7, 2014. Accordingly, to be timely, mother needed to file her Code of Civil Procedure section 473, subdivision (b) motion on or before November 7, 2014. She did not file her motion until February 3, 2015. The trial court was thus correct in finding her motion to be untimely.
Mother's claim on appeal fares no better under Family Code section 2122 because that statute applies only to motions seeking "to set aside a judgment." (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910.) Where, as here, a party moves to set aside an order, Family Code section 3691, subdivision (b) is the applicable statute. (In re Marriage of Zimmerman, at p. 910.) Mother has nevertheless forfeited her right to argue the court should have found her motion timely under Family Code section 3691 because she did not seek relief pursuant to that statute in the trial court. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 567 [generally, theories not raised in the trial court cannot be asserted for the first time on appeal, particularly where it is unclear whether the theory raises a pure question of law].)
DISPOSITION
The trial court's March 11, 2015, order is affirmed.
RAYE, P. J. We concur: MURRAY, J. RENNER, J.