California Court of Appeals, Fourth District, First Division
In re the Marriage of KELLI and MARC DJULUS. KELLI MCCLINTOCK, Respondent,
MARC DJULUS, Appellant.
from a judgment of the Superior Court of San Diego County No.
ED92245 Darlene A. White, Commissioner. Reversed.
Djulus, in pro. per., for Appellant.
McClintock, in pro. per., for Respondent.
California Constitution provides that parties litigating a
cause may stipulate that the matter may be heard and decided
by a temporary judge. (Cal. Const., art. VI, § 21.) Our
Supreme Court has interpreted this to mean that a stipulation
is required to qualify a commissioner to act and that without
such a stipulation, any ruling by or judgment of the
commissioner is void. (See In re Horton (1991) 54
Cal.3d 82, 90 (Horton).) To be valid, the
stipulation need not be in writing or be the result of an
express oral statement (id. at p. 91), but it may be
implied as a result of the conduct of a party and/or
his/her counsel under the "tantamount stipulation
doctrine" (ibid.). However, in order for there
to be an implied stipulation, there must be evidence in the
record to show a party and/or his/her counsel "were
aware that the judicial officer sitting on the bench was a
commissioner rather than a judge" (id. at p.
99) and nonetheless participated in the cause.
instant case is a prime example of the harsh consequences
that result when a commissioner neglects, at the
outset of the cause, to obtain the parties'
consent for the commissioner to hear and decide the cause
before making any substantive rulings. This case is
even more troubling because the superior court had available
a form, D-204 (rev. 2012) titled "Stipulation for Court
Commissioner to Act as Temporary Judge for All Purposes"
(D-204 form), that, if signed by the parties and/or their
attorneys, gave the commissioner the power to hear and decide
the cause. Thus, the tantamount stipulation doctrine should
never have been an issue in this case.
Marc Djulus (Marc), appearing in propria persona as is
respondent Kelli McClintock (Kelli), appeals the judgment of
dissolution entered in December 2015. Among other
contentions, Marc asserts the commissioner lacked
jurisdiction to hear and decide the cause because the record
contains insufficient evidence to support the
commissioner's finding in June 2014 that Marc consented
to the commissioner hearing the cause as a result of his
participation as a pro se litigant in the initial
hearing of the parties in March 2014-when the commissioner
made several rulings ostensibly not in Marc's
commissioner made this finding at the outset of the June
hearing after realizing the parties had not yet been provided
with and signed the D-204 form. Although Kelli and her
counsel then signed the D-204 form, Marc refused. Rather than
taking the simple step of stopping the proceedings and
sending the cause back for reassignment, the commissioner
instead ruled the tantamount stipulation doctrine applied,
despite the absence of any evidence that Marc knew, or should
have known, at the outset of the March 2014 hearing that the
judicial officer was a commissioner, and despite the evidence
in the record, summarized ante, that this judicial
officer was initially referred to as the "court"
and as a "judge" but, unfortunately, not as a
on this record there is insufficient evidence to support the
application of the tantamount stipulation doctrine, we agree
with Marc's contention. As such, we are constrained to
reverse not only the judgment of dissolution, but all orders
made by the commissioner leading up to the judgment
(including any restraining order(s)). (See Horton,
supra, 54 Cal.3d at p. 90.)
AND PROCEDURAL BACKGROUND
and Kelli were married in October 2006. They had one child
together, born in November 2009 (minor), and they separated
in January 2014. In January 2014, Kelli filed a petition
seeking an order regarding child and spousal support, custody
and visitation, and attorney fees (petition). The record
shows the hearing on the petition took place on March 13,
2014. Although counsel represented Kelli at the March 13
hearing, Marc appeared in propria persona. Significant to the
issue on appeal, there is no evidence in the record showing
Marc was informed before, or at any time during, the March 13
hearing that Commissioner Darlene A. White, who was presiding
over the hearing, was a commissioner and not a judge.
the record shows at the March 13 hearing, Commissioner White
stated that she had read the parties' papers, including
Marc's response to the petition; that she had considered
the income and expense statements filed by both parties; and
that she had read the "mediator's report."
After the lengthy argument by Kelli's counsel,
Commissioner White asked Marc to respond to each of the
subject matters raised in the petition. Marc instead asked to
give an "opening statement."
White reminded Marc of the purpose of the hearing, noting as
I just go through the issues and make my rulings. Eventually
you may get to a trial. But for today, it's really just a
moving calendar where I go through the issues, understanding
-- and I think both parties understand -- everything I do
today is temporary because this is a pending dissolution.
[¶] So the orders I make on support and custody and all
that may or may not change as time goes on depending on
either because you agree to do something different in a
marital settlement agreement or if the matter goes to trial.
So what I do today is temporary. [¶] So I'm not
necessarily precluding you from making an opening statement,
as much as I'll hear what you have to tell me, but I just
need to go through the issues one at a time."
Marc's objection, at the conclusion of the hearing
Commissioner White made a series of rulings involving
physical custody of minor, visitation, child and spousal
support, and an award of attorney fees in favor of Kelli. The
record includes two minute orders from the March 13 hearing.
In both minute orders, the box entitled "JUDGE"
says "Darlene A. White." At the bottom of both
minute orders, it says ...