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


June 28, 2011


Super. Ct. No. 04FL01857

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

Marriage of Shurr CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 In re Marriage of Shurr (May 12, 2009, C057456) [nonpub. opn.] (hereafter Shurr I), we reversed in part an August 2007 order of the trial court modifying temporary child and spousal support and deferring consideration of a request for attorney fees. We remanded with directions to recalculate support in accordance with our opinion and to make an appropriate award of attorney fees. Following remand, the trial court recalculated support as directed and entered a new support order. The court also entered an order awarding attorney fees to Melissa Shurr (wife). Brett Shurr (husband) appeals both orders. We conclude husband's challenge to the new support award borders on the frivolous and affirm that order. However, we further conclude the record fails to show the trial court considered all relevant factors before awarding attorney fees and reverse that order. Finally, we reject husband's request that we direct the case be assigned for all purposes to a particular judge of the superior court.

Facts and Proceedings

As recounted in Shurr I, "[h]usband and wife married in 1994, had a child in 1996, and separated in 2004. The court entered a judgment of dissolution of marriage the same year, bifurcating the marital status issue from others to be determined. The court ordered husband to pay temporary child support of $1,288 per month and temporary spousal support of $1,904 per month.

"In [August] 2007, wife filed a motion to increase these temporary support payments to $1,548 per month in child support and $3,522 in spousal support. She also sought attorney fees of $2,500. . . . [T]he court ordered child support of $1,045 per month and spousal support of $2,429, and made this order subject to retroactive modification. The court deferred ruling on wife's request for attorney fees." (Shurr I, supra, C057456.)

Wife appealed. In Shurr I, we concluded the trial court erred in assessing husband's income and expenses for purposes of calculating temporary support. In particular, we concluded the court incorrectly found husband's interest income to be $1,000 per month, when in fact the evidence showed it was $2,722, and the court improperly included payments made by husband for wife's health insurance in his monthly expenses. (Shurr I, supra, C057456.) However, we also concluded the court properly considered the income of husband's new wife in determining his income tax liability. (Ibid.) Finally, we concluded the trial court erred in making its order subject to retroactive modification and in deferring wife's request for attorney fees. (Ibid.) We reversed in part and remanded for a recalculation of spousal and child support and any appropriate award of attorney fees. (Ibid.)

During the pendency of the foregoing appeal, the trial court entered a new order, effective February 1, 2008, further modifying child and spousal support going forward.

Following remand in Shurr I, wife moved for an award of additional child and spousal support for the period from August 2007, when the court entered the order we reversed, to February 1, 2008, when the court's new support order took effect. Wife also sought an award of attorney fees.

On October 5, 2009, the trial court entered an order awarding wife $935 in additional child support and $3,902 in additional spousal support for the indicated period. The court also awarded attorney fees in the amount of $13,341, consisting of $2,341.40 for wife's original motion for modification, $9,000 for the subsequent appeal, and $2,000 for the current motion. Husband appeals.

On November 19, 2009, wife moved for an award of additional attorney fees in the amount of $23,000, $15,000 to respond to the instant appeal and $8,000 to litigate the remainder of this dissolution proceeding. The matter was heard on December 23, 2009, but continued to January 25, 2010.

On January 19, 2010, husband filed an objection to the matter being heard by any judge other than Judge McBrien, who had entered the February 2008 order modifying support. On the day of the renewed hearing on wife's motion for attorney fees, husband moved for assignment of the case for all purposes to Judge McBrien.

At the renewed hearing on January 25, 2010, Judge Balonon awarded wife $5,000 in attorney fees for a trial that was then set for March 2010 but deferred consideration of attorney fees for the instant appeal. The court set a hearing on the latter issue for February 5.

On February 5, 2010, husband filed an objection under Code of Civil Procedure section 170.3 to Judge Balonon presiding at the February 5 hearing, thereby preventing Judge Balonon from conducting the hearing as scheduled. That same day, husband appealed Judge Balonon's January 25 order awarding attorney fees.


I Order on Remand

Following remand from Shurr I, wife moved for a recalculation of child and spousal support for the period from August 2007 through January 2008. In his opposition to the motion, husband presented additional evidence on his income and expenses and wife's earning capacity during the relevant period. The trial court refused to consider this new evidence, explaining: "Where a reviewing court reverses a judgment with directions, the trial court is bound by the direction given and has no authority to retry any other issue or to make any other findings. Its authority is limited to following the directions of the reviewing court."

Husband contends the trial court erred in excluding his proposed evidence, because our opinion in Shurr I was not a reversal with directions, but an unqualified reversal. As such, he argues, the trial court was required to retry the issues presented in wife's August 2007 motion as if the original order had never been issued and to consider all available evidence presented by the parties. Husband argues the trial court instead accepted the arguments of wife's counsel as to the state of the evidence.

Husband cites Hall v. Superior Court (1955) 45 Cal.2d 377 (Hall), in which the petitioner appealed "'from that part of an interlocutory decree which ordered him to pay alimony and the fees of Mrs. Hall's attorneys,'" and the Supreme Court "ordered that '[i]nsofar as the judgment awards Mrs. Hall $350 per month for support and maintenance, it is reversed; in all other respects it is affirmed.'" (Id. at pp. 379-380.) The high court concluded this was "a partial reversal of the portion of the judgment from which the appeal was taken, without directions." (Id. at p. 381.) According to the court, such an "unqualified" reversal "in no way restricts the scope of a retrial of the issues set at large." (Ibid.)

The present matter is readily distinguishable from Hall. In Shurr I, wife appealed an order of the trial court that modified temporary child and spousal support, made such awards subject to retroactive modification, and deferred wife's request for attorney fees. The support awards were based on certain factual determinations by the trial court, including a finding that husband's monthly investment income was $1,000, husband received an additional $30,000 in income from his new wife during 2007, and husband's monthly expenses included $400 in health insurance payments. We affirmed the order "in so far as the court considered the income of husband's new wife in calculating husband's tax liability." (Shurr I, supra, C057456.) However, in all other respects, we reversed with directions to the trial court "to recalculate temporary spousal and child support in accordance with [our] opinion, and to make an appropriate award of attorney fees." (Ibid.) In Shurr I, we determined husband's investment income was in fact $2,722 and husband is not entitled to deduct payments made for wife's health insurance from his gross income. (Ibid.)

By no possible interpretation can our opinion in Shurr I be considered an unqualified reversal. The issues before us were limited to certain factual findings by the trial court that went into its support calculations, and we made specific determinations regarding those issues. The net effect of our decision was to dissect the factual underpinnings of the trial court's temporary support awards into three categories: (1) those facts on which wife did not appeal; (2) those facts on which wife appealed and we affirmed the trial court's determination; and (3) those facts on which wife appealed and we reversed the trial court's determination. As to the third category, we further identified the correct finding the court was required to make based on the evidence presented at the time. Upon remand, all that was left for the trial court to do was make the necessary changes to the third category of facts and recalculate support. That is, in fact, what the trial court did.

"When an appellate court's reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void. [Citations.] When, for example, 'a cause is remanded with directions to enter a particular judgment, it is the duty of the trial court to enter judgment in conformity with the order of the appellate court, and that order is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if it should do so, the judgment rendered thereon would be void." (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)

In Shurr I, we did not remand to the trial court for determination of a wholly new award of temporary support going forward. The award at issue was applicable only between August 2007 and the end of January 2008, after which new temporary support orders had already taken effect. In August 2007, the parties were tasked with presenting evidence to support their respective positions on the appropriate support awards. At the time, the evidence presented by husband showed he was receiving $2,722 per month in investment income. In connection with wife's motion following remand, husband attempted to introduce evidence that, in fact, he had been earning $2,038 per month on his investments. However, the time for husband to present this evidence was in August 2007.

Husband argues it would have been premature for him to present this "new" evidence earlier, because it "did not develop" until after wife filed her appeal from the original order. However, to the extent the indicated evidence did not exist at the time of the trial court's original ruling, it was not properly subject to consideration following remand. As we explained in Shurr I, the trial court was required to rule based on the evidence before it. Nor was the court free to consider evidence that might have been presented if the parties had been more diligent. We find no error in the trial court's recalculation of support following remand.

II Attorney Fees

In its October 2009 order following remand, Judge Balonon awarded wife attorney fees in the amount of $13,341.40. Husband contends this award must be reversed, because the underlying order on support is incorrect. Inasmuch as we reject husband's challenge to the support order, we also reject this ground for challenging the award of attorney fees.

Husband also contends Judge Balonon abused his discretion in awarding attorney fees "by affirmatively refusing and failing to exercise that discretion." In particular, husband argues that, instead of exercising discretion, Judge Balonon simply based his ruling on the declaration of wife's attorney regarding the relevant factors and failed to consider the big picture of the case, including wife's lack of need for attorney fees and her past waste of resources on counter-productive litigation.

Judge Balonon awarded attorney fees pursuant to Family Code section 2030. (Further undesignated section references are to the Family Code.) Former subdivision (a) of that section read: "During the pendency of a proceeding for dissolution of marriage, . . . the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party . . . to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding. . . ." (Stats. 1993, ch. 219, § 106.1, pp. 1607-1608.) In determining whether and to what extent to make an award of attorney fees and costs under section 2030, "the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. . . ." (§ 2032, subd. (b).) Section 4320 sets forth factors to be considered when awarding spousal support, including such things as the marketable skills of the parties, the need for education and training, the needs of the parties based on the standard of living established during the marriage, the obligations and assets of each party, the duration of the marriage, and the balance of hardships to each party. (§ 4320, subds. (a), (d), (e), (f), (k).)

"[T]he purpose of section 2030 is not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) "Reading section 2032 together with section 4320, one cannot escape the idea that a pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties' as the statute puts it. (§ 2032, subd. (a).) Conversely, determination of a pendente lite attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test." (Id. at p. 254.)

Husband argues Judge Balonon, a law and motion judge, is not well-suited to perform the nuanced analysis necessary for a section 2030 attorney fees motion. He further argues "it appears that Judge Balonon disregarded [wife's] failure to pursue self-sufficiency" and there is nothing in the record to show Judge Balonon considered the big picture of the parties' relative circumstances. In particular, according to husband, Judge Balonon failed to consider that wife's counsel's services were not wisely devoted to expeditious disposition of the case. Husband further argues the record does not show the proper exercise of discretion but instead reveals that Judge Balonon disregarded all of husband's evidence.

We fail to see what bearing the fact that Judge Balonon may be a law and motion judge has on the matter before us. As long as the parties present the relevant evidence to the court, there is no reason to believe a law and motion judge, rather than one specially assigned to the case, cannot perform the "nuanced analysis" required for an attorney fees motion. Nevertheless, we agree the record before us does not demonstrate that Judge Balonon considered all the relevant factors before making his ruling.

In Alan S. v. Superior Court, supra, 172 Cal.App.4th 238, the trial court ordered the husband to pay the wife attorney fees in the amount of $9,000 but, in doing so, failed to take into consideration several relevant factors, to wit, the husband's negative cash flow, the parties' respective property ownership, the child support already paid by the husband, new partner contributions to each party's household, and the wife's incurrence of fees not reasonably necessary for the litigation. (Id. at pp. 242-243.) The Court of Appeal concluded the record failed to show the court considered all relevant factors and issued a writ of mandate reversing the fee award and sending the matter back for reconsideration of the wife's motion. (Id. at pp. 258, 263.) According to the court: "While no particular language is required in an order awarding attorney fees under sections 2030 and 2032, the record (including, but not limited to, the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Id. at p. 254; see also In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 134; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315; In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)

The record before us contains no explanation whatsoever for the trial court's fee award. Therefore, it cannot be ascertained if the court considered the factors highlighted by husband on appeal. The matter must be remanded for reconsideration of wife's motion based on all the relevant factors. In so concluding, we express no opinion as to whether and to what extent the original award was appropriate. That will be for the trial court to sort out.

Husband also appeals Judge Balonon's January 25, 2010, order awarding wife $5,000 in attorney fees to litigate the remainder of this case and deferring consideration of her request for $15,000 to pursue the instant appeal.

As with the October 5, 2009, order, husband contends Judge Balonon failed to undertake the analysis of factors required by sections 2030, 2032 and 4320. Husband asserts Judge Balonon ruled "without ever having reviewed [husband's] objection filed January 26, 2010, and without having reviewed either of the prior declarations filed by [husband] and his counsel in August and September 2009" regarding the "'big picture'" of the case.

The record does not contain an objection filed by husband on January 26, 2010, although it does contain one filed on January 19, 2010. However, wife's motion for attorney fees was originally set for hearing on December 23, 2009, and then continued to January 25, 2010. Thus, husband's submission was obviously untimely and there can be no fault in Judge Balonon failing to consider it, if in fact he did. Nevertheless, as explained above, the record must demonstrate Judge Balonon considered all relevant factors in arriving at the fee award. The record here does not do so. We therefore reverse the January 25, 2010, attorney fees award as well and remand for reconsideration based on all relevant factors.

In light of husband's arguments in this appeal on the issue of whether the trial court erred in refusing to consider new evidence bearing on support obligations, we caution that reconsideration of wife's motions for attorney fees is not an opportunity for the parties to present new or different evidence bearing on the issue. Unless the trial court previously excluded relevant evidence, the parties have had their one and only opportunity to present evidence on the respective attorney fees motions. All that remains is for the trial court to reconsider the motions based on the existing record and to demonstrate on the record that it has considered all relevant factors.

III Judge Assignment

Husband requests that we direct the trial court to assign this case for all further proceedings to Judge McBrien. Husband further argues all rulings of the trial court challenged in this appeal were rendered in violation of section 2330.3 and California Standards of Judicial Administration section 5.30 (hereafter standard 5.30). Thus, he argues, all rulings appealed herein must be reversed.

Section 2330.3, subdivision (a), reads, in relevant part: "All dissolution actions, to the greatest extent possible, shall be assigned to the same superior court department for all purposes, in order that all decisions in a case through final judgment shall be made by the same judicial officer. . . ." This goal is reiterated in standard 5.30(b).

Husband did not seek to have this matter assigned to Judge McBrien prior to Judge Balonon's October 5, 2009, order. As for the January 25, 2010, order, husband did not seek assignment to Judge McBrien until after the originally scheduled hearing on wife's motion. And it was not in fact until the day of the renewed hearing that husband filed such a motion. Hence, husband has no basis for challenging those orders simply because they were issued by Judge Balonon.

On March 5, 2010, the trial court denied husband's motion to assign this case for all purposes to Judge McBrien. Husband has not appealed that ruling in this matter. Hence, we have no occasion to consider whether it was incorrect in light of section 2330.3 and standard 5.30. And, as for any inherent powers we may have to direct the trial court to assign the case to Judge McBrien, we decline to exercise those powers. This matter has been pending in the trial court for more than seven years. Wife asserts that various matters in this case have been heard by no fewer than six different judges of the trial court. It is a little late in the day for husband to seek assignment of the case to his preferred judge.


Those portions of the trial court's orders of October 5, 2009, and January 25, 2010, awarding attorney fees are reversed. In all other respects, the orders are affirmed. The matter is remanded to the trial court with directions to reconsider wife's attorney fee requests as indicated in this opinion. Wife is awarded her costs on appeal.

We concur: BLEASE , Acting P.J. NICHOLSON ,J.


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