We are asked many times if a person has a right to appeal a decision they disagree with from a contested family court commissioner hearing on their divorce or family law matter. The answer is yes, you do.
The applicable statutory section falls under sec. 767.69 (8) and reads as follows;
“Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo.”
The statute allows a party as a matter of right to file for review of the court commissioners’ order, or can do so de novo by requesting a brand new hearing. If the motion is filed simply as a review and not filed “de novo,” the trial judge would be limited to making a decision or order based on whether the court commissioner properly exercised it’s discretion. If the motion is filed “de novo,” (which is Latin for “new hearing,”) you are entitled to a new hearing, and the court is not restricted or limited in simply deciding whether the court commissioner properly exercised it’s discretion. The trial court can make complete new findings and orders and decide the case as if the initial hearing never occurred.
Some things to remember when filing a de novo motion for review of the family court commissioner’s orders; (1) there are strict time lines for filing the appeal in most counties and the rule varies from county to county. There is no statutory provision for the time line for appealing, so one needs to check on what the local court rule requires for filing the appeal (2) Local court rules may also require that you attach to the motion a copy of the order being appealed as well as financial disclosure statements. Again, since the rule varies from county to county, you must check the local court rules to make sure you are in strict compliance with filing the motion for new hearing.
There is recent case law that the trial court must hold a full evidentiary hearing. If the court restricts the party from having a full hearing, it may be cause for reversal on appeal. The court is not limited to what the facts and issues were at the time of the initial hearing. The court can consider new issues not brought up at the first hearing and can consider new evidence or issues that have arisen between the time of the first hearing and the time of the de novo review.
“The provision in sub. (8) for a circuit court to conduct a “hearing de novo” on review of a circuit court commissioner’s order presupposes that the court commissioner has conducted a hearing. A de novo hearing is a new hearing of a matter, conducted as if the original hearing had not taken place. Thus, a local rule precluding a new hearing upon stipulation or default does nothing more than expressly advise as to the practical consequences of consenting to a court commissioner’s order.” Nehls v. Nehls, 2012 WI App 85, 345 Wis. 2d 499.
“A party who requests a hearing de novo under sub. (8) is entitled to a hearing that includes testimony from the parties and their witnesses.” Stuilgross v. Stuilgross, 2009 WI App 25, 316 Wis. 2d 344.
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