Wednesday, July 5, 2017

Tantamount to Proceeding Without Consent

McClintock v. Djulus, No. D049757 (D4d1 Apr. 14, 2017)

A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.

That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not. 

So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.


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