Motion De Novo Hearings in Wisconsin

We receive numerous questions regarding Motions De Novo? What are they? What is the timeline for appealing? Are you limited on appeal to only those issues that were raised at the first hearing, or can the court consider other issues or new issues that arise? Can the trial court refuse to do a de novo review? What type of court hearing is required? How does a De Novo review differ from a general motion to review?

Let’s start with the meaning of “De Novo.” It is a Latin term for “new hearing.” When you are unhappy with the decision or order of the family court commissioner, under the statute, you have an absolute right to request a de novo review to the trial judge assigned to the case. There is a strict timeline for appealing, and it is 20 calendar days from the oral decision of the court commissioner or within 20 calendar days of the mailing of a written decision or order by the court commissioner, if the decision or order was not given orally by the court commissioner at the time of the hearing. Sec, 767,17 WI. STATS. You also cannot appeal de novo if you failed to show up for the hearing. Once the motion is filed by the court, under the statute, the court is required to hold  a de novo hearing within 60 days from the filing of the motion.

You are not limited to only the issues decided at the first hearing. Since it is a new hearing, the court can consider new issues that were not addressed at the first hearing, along with new issues that may have arisen from the time of the first hearing to the point of the time of the hearing for the de novo review. The phrase “hearing de novo” means that the circuit court conducts literally a new hearing, which requires the circuit court to take a fresh look at the issues, including the taking of testimony. Jahimiak v. Jahimiak 410 Wis. 2d 557, 2 N.W. 3^rd 756.

The trial court is absolutely obligated to provide a new hearing. How that hearing gets conducted is to some extent, up to the trial judge, but it is clear based on the law, that a hearing needs to be afforded and the person appealing be given a right to have a new hearing. Most courts will hold the de novo review on the record, with the court reporter present and require formal testimony and evidence. It most likely will not be handled in an informal way, not on the record, where the attorneys are simply making arguments and the litigants do not testify.

Being allowed a second chance for someone aggrieved by a decision or order of a court commissioner is an important and valuable statutory right that a litigant has, and while there are not that large a number of those individuals who file de novo reviews, while adding to the stress of the daily onslaught of motions, pretrials, final hearings and trials that courts need to conduct, the trial courts are required to provide a brand new hearing to give a person aggrieved a second chance.

For more information on this article, contact Karp & iancu.