Clarification on when a Court Commissioner can hear a case

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Wife filed a petition for dissolution of marriage. At the hearing on the petition a Commissioner (rather than a Judge) made a series of temporary orders over husband’s objection. Husband was self-represented. Minute orders identified the Commissioner as “judge.”

At subsequent hearing on wife’s motion to compel discovery, the Commissioner stated as a “‘preliminary matter'” she needed parties to sign a preprinted stipulation to Commissioner’s acting as a temporary judge.  Wife and her counsel signed, but husband refused to do so, objecting to the Commissioner. The Commissioner noted husband had not appealed earlier orders and since she had already heard a contested matter, that amounted to a “‘tantamount stipulation'” entitling her to “‘go forward'” with the case. The Commissioner proceeded to hear the case for another year, finally making permanent orders favorable to wife and entering a judgment. Husband appealed and the Court of Appeal reversed, voiding all of the Commissioner’s orders.

The Court of Appeal held that it was not enough for husband merely to be present at and to participate in the temporary hearing for the “tantamount stipulation” doctrine to apply. Cal. Const. art. VI, §21 provides: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” The “‘jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties’ stipulation.’ (In re Horton (1991) 54 Cal.3d 82). Where there is no proper stipulation, any judgment or order entered by a court commissioner is void. “A stipulation need not be in writing and an express oral stipulation on the record will suffice. (Horton, supra, 54 Cal.3d at p. 91.)” Under proper circumstances, a stipulation may be implied from the conduct of the parties.

Here, the Court of Appeal was unable to find conduct implying husband’s consent. The Commissioner was referred to as “judge” during the hearing. The minute orders did not inform that the Commissioner wasn’t a judge. Husband refused to sign the stipulation when requested to do so and objected to the Commissioner’s continuing to preside over the cause. It was not enough for husband merely to be present at and participate in the temporary hearing for the “tantamount stipulation” doctrine to apply, as Commissioner found. Absent a proper stipulation, the judgment of dissolution subsequently entered by Commissioner was void. When it became obvious husband was unaware that the Commissioner was not a judge and refused to stipulate, the Commissioner should have vacated her previous order(s) and reassigned the case to another judicial officer for that hearing and all future hearings.

Please click here to read the Djulus opinion.


Please be sure to visit, the website for the law firm of Harding & Associates, for more information on California family law.
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