Motion De Novo Hearings in Wisconsin

February 21, 2017 Divorce

I receive a lot of questions about Motions De Novo? What are they? What is the time line 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 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 time line assigned locally by each county and it varies from county to county. When appealing a de novo review, it is best to check the local court rules to see what the time line is for appealing and any other requirements that may be involved, such as a requirement to clip the decision of the court commissioner to the motion for review.

One can appeal without asking a de novo review. If one were to file a motion for review, the court would be limited to determine if the court commissioner made a mistake or not. They would not be required to conduct an entire new hearing and give a litigant two kicks at the cat, if you will, to be heard on the issues. I rarely see anyone appealing without doing it by a de novo review.

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 court under recent case law, 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 case 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.

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