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In re Marriage of M.A

California Court of Appeals, Fourth District, First Division

February 24, 2015

In re the Marriage of M.A and M.A. M.A., Appellant, M.A. et al., Respondent.

APPEAL from post-judgment orders of the Superior Court of San Diego County, No. DN129090 Pennie K. McLaughlin, Commissioner.

Page 895

[Copyrighted Material Omitted]

Page 896

COUNSEL

M.A., in pro per., for Appellant.

M.A., in pro per., for Respondent.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for The Public Interest.

OPINION

McCONNELL, P. J.

INTRODUCTION

This case presents a harsh reminder of the severe consequences that may result from a judicial officer's failure to properly handle a statement of disqualification filed under Code of Civil Procedure section 170.3, subdivision (c)(1). M.A. (father) appeals from post-judgment orders: an order dated October 25, 2013, awarding M.A. (mother) $6,500 in attorney fees under Family Code section 2030; and November 22, 2013 orders, determining the amount of child support he must pay and other matters.

As to the October 25 order, father contends the court abused its discretion in awarding the fees because of mother's superior financial condition and higher percentage of parenting time. We conclude father has not met his burden of establishing a clear abuse of discretion and affirm this order.

Father contends the November 22 orders were invalid because, among other reasons, the commissioner who made it was disqualified under Code of Civil Procedure section 170.3, subdivision (c)(4). We agree and, therefore, we reverse these orders and remand the matter to the superior court for further proceedings.

Page 897

BACKGROUND

Father and mother divorced in 2004. They have two children. On the topic of child support, the judgment of dissolution incorporated the parties' marital settlement agreement, which provided: "A. So long as both parties are gainfully employed, the goal is for [father and mother] to share equally the children's day care expense, health insurance, clothing and food, and other necessaries until the children turn age 18. Currently, day care expenses are $1444.00 per month; and the children's health care premiums are $190.00 per month. The current total of the children's day care and health care premiums are $1634.00 monthly. One-half of that amount is $817.00, which is being used as a basis for the calculations below. The parties agree to modify, pro-rata, the terms of children's support based on changes in actual cost of day care and or health care premiums.

"B. It is understood that, at this time, [mother] is making a steady income from professional employment; and that [father] is currently unemployed and has no income. [Father] expects to return to work next month, in a self-employed capacity, and that it [is] anticipated that it will take a reasonable period of time before he has a steady source of income from which to pay for his full share of child care and support related expenses. It is anticipated that he may have to incur debt to pay for business and personal expenses. For these reasons, the parties wish to provide for an increase in the amount of [father's] child expense contributions over a period of time.

"C. Commencing August 15, 2003, [father] shall pay [mother] $385.00 per month, and the 15th of each month thereafter. Payment shall be made directly, not by wage assignment.

"D. [Mother] acknowledges prepayment of August, September and October payments. Therefore, [father's] next payment of $385.00 is due on November 15, 2003.

"E. Commencing February 15, 2004, the amount shall increase to $550.00.

"F. Commencing June 15, 2004, the amount shall increase ...


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