DVRO Motions Are Not Ancillary in Rent-a-Judge

In re Marriage of Reichental, No. B307255 (D2d6 Dec. 29. 2021)

In many parts of California, when a husband and wife are of means, their divorce lawyers often agree to have the dissolution proceedings heard by referees who are effectively appointed as temporary judges under Code of Civil Procedure § 638. The referee conducts the proceeding as if it were filed in court, enters a judgment, from which the parties can take an appeal to the Court of Appeal.

Here, the parties did just that. In those proceedings husband requested, and the referee granted, a domestic violence restraining order, known in that trade as a DVRO. The procedural question in this appeal is whether that was within the scope of the appointment, or whether that should have gone back to superior court. That depends on whether the order is a proceeding within the referred divorce case—like a motion—or an “ancillary” matter, which is heard on a different record and seeks an independent judgment. 

In family law (whose substance I would not touch with a thirty nine-and-a-half-foot pole) a request for a DVRO can apparently be either. The code authorizes both the issuance of a DVRO in a pending dissolution action and an independent petition to obtain one. As there’s no question that in this case the DVRO was sought by the equivalent of a motion in the divorce case, the referee had jurisdiction to decide it.

Affirmed, on the procedural issue.

Ref Don't Matter if the Decision Was Right

Stella v. Asset Management Consultants, Inc., No. B269207 (D2d7 Feb 6, 2017)

A limited partnership agreement for a real estate investment contains a provision that subjects any dispute arising from or related to it to judicial reference under Code of Civil Procedure § 638. A motion for reference was granted, and the referee subsequently granted a demurrer based on the statute of limitations. The plaintiff appeals both the reference order and the demurrer.*

Taking an interesting tack, the Court of Appeal affirms the sustained demurrer. Then, since the court addressed de novo the merits of the dismissal in exactly the same fashion as it would had the order been by a superior court judge, it finds any error in granting the reference harmless. It thus declines to reach the merits of that decision.

*A § 638 reference is somewhat like an arbitration, but it is subject to the ordinary rules of civil procedure. In the case of a consensual general reference, the referee’s ruling essentially gets entered as a decision of the court, from which a judgment can be entered and then subject to appeal like any civil judgment. See § 644(a).