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In Re the Marriage of Brett and Melissa Shurr. v. Melissa Shurr

May 10, 2011

IN RE THE MARRIAGE OF BRETT AND MELISSA SHURR. BRETT SHURR, APPELLANT,
v.
MELISSA SHURR, APPELLANT.



(Super. Ct. No. 04FL01857)

The opinion of the court was delivered by: Hull , J.

Marriage of Shurr

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a marriage of nearly 10 years, Brett Shurr (husband) and Melissa Shurr (wife) have remained locked in a dissolution proceeding that has itself lasted for over seven years. In this appeal, we are asked to review a series of orders entered by the trial court between February 2008 and March 2009 concerning child and spousal support and attorney fees. The initial order was issued by Judge Peter McBrien following a two-day trial in February 2008. Judge McBrien ordered a gradual step down in child and spousal support commencing on July 1, 2008, with spousal support eventually eliminated altogether. The remaining orders, issued by Judge Eugene Balonon, primarily delayed implementation of the child support step down and either denied or deferred wife's requests for attorney fees.

Both parties have appealed. Wife challenges some of the factual underpinnings of Judge McBrien's order and contends he erred in ordering a step down of both child and spousal support based on a mistaken belief that wife would be able to start earning an income by July of 2008. Wife also argues Judge Balonon erred in refusing to modify the step down of support when it turned out wife was not in fact able to start earning an income as anticipated. Wife also challenges Judge Balonon's failure to award attorney fees. Husband contends Judge Balonon erred in delaying the step down of child support and in ordering him to pay the fees of a child custody evaluator.

On wife's appeal, we conclude some of the factual findings underlying Judge McBrien's order are not supported by the record and, therefore, the support amounts must be recalculated. We further conclude Judge McBrien erred in ordering a step down of child support based on anticipated changes in wife's earning capacity. However, we find no fault in his decision to step down spousal support based on anticipated changes and find no error in Judge Balonon's refusal to delay the step down of spousal support. Finally, we conclude Judge Balonon erred in denying one attorney fee request and deferring consideration of the other.

On husband's appeal, we conclude his notice of appeal was untimely as to one of the orders and otherwise reject each of his contentions as either not properly presented or moot.

We therefore reverse in part.

Facts and Proceedings

Husband and wife were married in 1994, had a child in 1996, and separated in 2004. The trial court entered judgment of dissolution and ordered husband to pay temporary child support of $1,288 per month and temporary spousal support of $1,904 per month.

Wife later moved for a modification of child and spousal support and for attorney fees. In August 2007, the trial court ordered child support of $1,045 and spousal support of $2,429, which amounts were less than wife had requested. The court deferred consideration of her attorney fees request. Wife appealed.

The following month, husband moved for bifurcation of the issues of spousal support and property division and for a trial date on those issues. Wife objected to setting a separate trial on spousal support and property division. Wife also sought attorney fees of $1,500 and a release of $8,500 in community funds to allow her to complete her education in her chosen field of equine dentistry.

On September 26, 2007, the trial court bifurcated the issue of child custody from all other issues and denied wife's request for distribution of $8,500.

In February 2008, the parties participated in a two-day trial before Judge McBrien, who thereafter issued a minute order setting a gradual step down in child and spousal support as follows:

Dates Child Support Spousal Support

2/1/08 - 7/1/08 $1,479 no change

7/1/08 - 8/1/08 $1,160 $2,200

8/1/08 - 9/1/08 $930 $1,850

9/1/08 - 10/31/08 $744 $1,450

11/1/08 --> $744 $0

In May 2008, wife moved for a modification of child and spousal support and an award of attorney fees. Wife sought: (1) a delay in the step down of spousal support until October 1, 2008; (2) a modification of child support based on new financial information; (3) elimination of the child support step down altogether; and (3) attorney fees of $2,500. Wife asserted the step down of support had been premised on an incorrect finding that she would become certified in equine dentistry by May 2008 and thereafter start earning income in that field.

On June 16, 2008, Judge Balonon denied wife's motion to delay the step down of spousal support, but ordered a delay in the step down of child support until September 1, 2008.

In August 2008, wife moved to modify child support once again, seeking a further delay in the step down "until such time as she has actually become certified as an equine dentist."

On September 3, 2008, Judge Balonon issued a minute order continuing the stay on the step down of child support, resetting the matter for November 26, 2008, and ordering wife to provide documentation from her school regarding the status of her certification.

The next day, Judge McBrien issued a formal order on his February ruling.

Wife appealed Judge McBrien's order and Judge Balonon's June 16, 2008, order.

In November 2008, wife's counsel filed a declaration indicating wife was then in Idaho attending class but was not yet attempting to obtain certification because "by the time this session [of the school] arrived [wife] was not sufficiently proficient to do so."

On November 26, 2008, Judge Balonon issued an order further delaying the child support step down until January 1, 2009, and continuing the matter until January 12, 2009.

In December 2008, wife filed a motion to compel husband to pay all fees of a court-appointed child custody evaluator. Husband responded, requesting that the motion be denied until such time as the reasonableness of the evaluator's fees could be determined at trial.

On January 26, 2009, Judge Balonon issued an order on the various matters before him. First, he found the fees charged by the custody evaluator to be reasonable and ordered husband to pay them. He also confirmed his previous minute order that the child support step down would begin effective January 1. However, he made the child support order subject to retroactive modification in the event husband could later establish a reduction in his income. Finally, Judge Balonon deferred consideration of wife's request for attorney fees.

On February 24, 2009, wife filed a motion to compel husband to pay the custody evaluator fees or to allow her to do so by withdrawing the necessary funds from her trust account. Wife also sought unpaid child support of $2,077 and attorney fees of $1,000.

On March 18, 2009, Judge Balonon issued an order releasing funds to pay the evaluator's fees and awarding wife $1,830 in child support and $500 in attorney fees.

On March 26, 2009, wife appealed Judge Balonon's orders of November 26, 2008, and January 26, 2009.

The following day, husband appealed Judge Balonon's orders of June 16, 2008, October 22, 2008, November 26, 2008, January 26, 2009, and March 18, 2009.

While the foregoing matters were working their way through the trial court, wife's appeal of the trial court's August 2007 order was pending in this court. In May 2009, we issued In re Marriage of Shurr (May 12, 2009, C057456) [nonpub. opn.] (hereafter Shurr I), in which we reversed in part, concluding the trial court erred in assessing husband's income and expenses for purposes of calculating temporary support. We also concluded the court erred in making its support order subject to retroactive modification and in deferring wife's request for attorney fees. (Shurr I, C057456.)

Discussion

I

Appealability

Wife raises a number of challenges to Judge McBrien's minute order of February 2008, which was formalized in a written order on September 4. However, before considering those challenges, we must address husband's contention that wife's challenges are not properly before us.

Husband contends wife may not appeal Judge McBrien's order until entry of final judgment. Husband asserts the issues of permanent spousal support and imputed income to wife, which were decided by Judge McBrien, were bifurcated for separate trial. Therefore, wife must first seek certification of the issues for appeal in accordance with Family Code section 2025. (Further undesignated section references are to the Family Code.) Husband further argues the order is not appealable as a collateral matter, inasmuch as determination of the issues of permanent spousal support and imputed income are necessary steps in the final resolution of this matter.

"'The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature. [Citation.]' [Citation.] The primary statute governing appeals in civil cases is Code of Civil Procedure section 904.1. Subdivision (a) thereof provides for an appeal '[f]rom a judgment except (1) an interlocutory judgment . . . .' . . . [¶] The intent of Code of Civil Procedure section 904.1 '. . . is to codify the final judgment rule, or rule of one final judgment, a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly and that a review of intermediate rulings should await the final disposition of the case. [Citations.]' [Citation.]" (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687.)

Code of Civil Procedure section 904.1, subdivision (a)(10), permits an appeal from any order made appealable by the Family Code. Family Code section 2025 reads: "Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. . . ." Under California Rules of Court, rule 5.175(c), "[t]he court may try separately one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues. Issues that may be appropriate to try separately in advance include: [¶] (1) Validity of a postnuptial or premarital agreement; [¶] (2) Date of separation; [¶] (3) Date of use for valuation of assets; [¶] (4) Whether property is separate or community; [¶] (5) How to apportion increase in value of a business; or [¶] (6) Existence or value of business or professional goodwill."

It is readily clear the court here did not bifurcate a particular issue or issues for separate trial in advance of disposition of the entire case. Rather, the court bifurcated the issue of custody for later trial and then purportedly proceeded on everything else. In addition, the issues tried in February 2008 were not of a type likely to simplify determination of the remaining issue of custody.

At any rate, it is also clear the issues tried in February 2008 were primarily collateral to the main issues in the case. "When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.] This constitutes a necessary exception to the one final judgment rule. Such a determination is substantially the same as a final judgment in an independent proceeding." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Historically, temporary support orders have been considered collateral to the main issues and directly appealable. (Ibid.) Such orders possess all the essential elements of a final judgment that may be enforced immediately. "An order for support is operative from the moment of pronouncement. And a final judgment excluding future support does not preclude recovery of all money due under a prior temporary support order." (Id. at p. 369.)

Husband argues the order at issue here is not one for temporary spousal support but one that denies permanent support. At the end of the step-down period, no further spousal support is required. But even if the final step of no spousal support amounts to a denial of permanent support, the fact remains the order also awards temporary support for a given period. It also provides for a gradual step down of child support. Had this order gone into effect, it could have been enforced immediately, notwithstanding the fact there has been no final judgment in the action. We conclude direct appeal from Judge McBrien's order is proper.

As noted above, on March 27, 2009, husband appealed or cross-appealed from Judge Balonon's orders of June 16, 2008, October 22, 2008, November 26, 2008, January 26, 2009, and March 18, 2009.

Wife contends husband's appeal from the June 16, 2008, order must be dismissed as untimely. California Rules of Court, rule 8.104(a) states that an appeal must be filed on or before the earliest of 60 days after service of notice of entry of the order or judgment or 180 days after entry of the order or judgment. Husband's March 27, 2009, notice of appeal was more than 180 days after entry of the June 16, 2008, order.

Husband contends the appeal is timely, because the June 16, 2008, order was not finalized by Judge Balonon until January 26, 2009, and husband's notice of appeal was filed ...


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