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Melissa Shurr v. the Superior Court of Sacramento County

September 7, 2012


(Super. Ct. No. 04Fl01857)

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

Shurr v. Superior Court



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Melissa and Brett Shurr have been involved in a marital dissolution action since 2004.*fn1 In one of their prior appeals, this court remanded the matter to the superior court to strike a provision for a step down of child support, to redetermine Brett's investment income, and to recalculate child and spousal support after eliminating certain expenses. (In re Marriage of Shurr (May 10, 2011, C059951) [nonpub. opn.].) On remand, Melissa peremptorily challenged Judge McBrien from retrying the matter pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2) (hereafter section 170.6(a)(2)).*fn2 Judge McBrien struck the notice of disqualification, vacated the child support step down provision, and confirmed the remainder of his prior decision in all other respects.

Melissa now seeks a writ of mandate compelling the superior court to disqualify Judge McBrien and to vacate his subsequent order. She maintains that this court remanded the matter for a new trial within the meaning of section 170.6(a)(2) and hence she was entitled to disqualify Judge McBrien as a matter of right.

We disagree that the matter was remanded for a new trial. Accordingly, we will deny the petition for a writ of mandate.


Melissa and Brett were married in 1994, had a child in 1996, and separated in 2004. The superior court entered judgment of dissolution and ordered Brett to pay temporary child and spousal support. We need not recount all of the court proceedings that occurred thereafter. It will suffice to provide a synopsis of the proceedings underlying the present writ petition.

Following a two-day trial, Judge McBrien issued a minute order for temporary spousal and child support in February 2008, and issued a formal order on his ruling on September 4, 2008. Melissa appealed from the order, challenging a number of the underlying factual findings. For example, Melissa contended that the superior court found Brett's "other income" to be only $881 per month, when the evidence showed it was much higher. Brett testified that in 2006 he received $18,600 in investment income, or $1,550 per month. On his most recent income and expense declaration he listed income of $1,484.92 per month. Other evidence showed Brett received investment income of $1,366.25 per month in 2007. On appeal, Brett did not refute the evidence or defend the superior court's factual determination.

In resolving this contention and the others Melissa raised regarding Judge McBrien's factual findings, this court held the superior court must "(1) recalculate [Brett's] investment income based on the evidence presented at trial; (2) eliminate from [Brett's] expenses any payments made by [Brett] for [Melissa's] health insurance; (3) eliminate mortgage interest and property tax amounts from [Melissa's] expenses for purposes of computing her income tax liability; and (4) recalculate [Brett's] income tax liability based on five exemptions rather than three. In addition, to the extent [Melissa] received any offsetting deduction from gross income for health insurance payments she did not make, this should also be eliminated from the calculation."

Melissa also contended that Judge McBrien erred in ordering a step down of temporary child support and temporary spousal support. This court agreed Judge McBrien erred in ordering a step down of child support. As for the step down of spousal support, this court said it "was intended to send a message to [Melissa] that her right to support was limited and that she must make reasonable efforts to become self-sufficient." In response to Melissa's contention that Judge McBrien did not consider all of the relevant evidence concerning Brett's financial condition in deciding to deny permanent spousal support, this court stated, "As previously explained, this matter must be remanded to allow Judge McBrien to recalculate support levels based on correct findings of fact. At the same time, Judge McBrien will have an opportunity, if he did not do so already, to consider [Brett's] entire financial condition at the time of the original order based on the evidence already in the record."

In the disposition, this court reversed Judge McBrien's order "insofar as the support calculations are based on erroneous findings as to [Brett's] investment income, health insurance expenses, and number of income tax exemptions and as to [Melissa's] home mortgage and property tax expenses and any health insurance expenses [Melissa] may have claimed that she did not in fact incur." This court also reversed Judge McBrien's order insofar as it ordered a step down in child support and remanded the matter "for a recalculation of both ...

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