FACTS: F was ordered to pay child support (c/s) for two children at a default hearing in 1998. Over the years, there were numerous subsequent c/s orders signed by Commissioner. Numerous motions were filed, each of which contained a notice of right to object to
commissioner. F had on previous occasions watched an introductory video which explained this right.
DCSS sought c/s arrearages from F, who defended by proving he had paid more than court ordered amount. Commissioner allowed many of the payments, but disallowed F to carry them forward to offset future payments absent an agreement that he could do so. Arrearages were calculated commencing 2/09, when F stopped making regular payments.
F filed motion to set aside order, claiming he had not been properly advised of his right to object to having a commissioner decide the matter. Commissioner denied motion, finding F was fully aware of his right to object to having a commissioner decide the matter but failed to do so until after the ruling was made. F appealed and Court of Appeal affirmed.
HELD: In light of F’s actual awareness of his right to object, the commissioner was authorized to hear and decide the motion.
Family Code section 4251 requires that these sorts of c/s hearings be heard by a commissioner acting as a temporary judge, unless a party objects. If a party objects to the commissioner acting as a temporary judge, the commissioner is still empowered to hear the matter, make findings of fact and issue a recommended order. If there is no objection to the recommended order within 10 court days, a judge shall ratify it as the order of the court. If a timely objection is made to the recommended order, then the party is entitled to a hearing de novo before a judge.
“As a result of the statutory scheme, a party must object twice to earn a trial de novo before a judge—first, to the commissioner acting as a temporary judge and, second, to the commissioner’s recommendation.” (Kern County Dept. of Child Support Services v.
Camacho, supra, 209 Cal.App.4th at p. 1035.)
Here, it was obvious from the record that F was fully aware of his right to object and failed to do so until after he had received an adverse ruling. Even if there was error, F failed to show it was prejudicial.
Although Cal. Const., art. VI, §21 and Code of Civil Procedure section 259(d) require a stipulation before a commissioner may act as a temporary judge to determine a cause, the stipulation requirement is deemed satisfied by conduct from which it may be implied. Here, the evidence showed F was aware of his right to object to a commissioner hearing his motion, yet failed to do so and in fact allowed the commissioner to hear and decide the support arrearages.
“Under [Family Code section 4251 (b)], a child support commissioner’s right to act as a temporary judge in a child support enforcement hearing is established in the absence of timely objection. That is, a failure to object by a party with notice of his or her right to do so manifests an implied consent to have the matter heard by a commissioner.” (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1037.)
Motion to Set Aside Does Not Require a New Stipulation: F then argued that even if he was deemed to have consented to a commissioner hearing arrearages motion, motion to set aside was a new motion requiring a separate stipulation. Court of Appeal disagreed, holding that a motion to set aside the prior arrears order did not require a new or separate notification, stipulation or waiver of a right to a judge.
“The motion to set aside related directly to the prior child support arrears order; therefore, section 4251 was likewise applicable regarding the motion to set aside.” (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.)
Furthermore, it made sense for the same judicial officer to hear the set aside motion “in light of considerations of sound judicial policy, efficiency and common sense that [Code of Civil Procedure section 473] motions should be heard by the same judicial officer that rendered the challenged judgment or order.” (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.