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

June 28, 2011

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



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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 ...


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