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In re Marriage of Djulus

California Court of Appeals, Fourth District, First Division

April 14, 2017

In re the Marriage of KELLI and MARC DJULUS. KELLI MCCLINTOCK, Respondent,
MARC DJULUS, Appellant.

         APPEAL from a judgment of the Superior Court of San Diego County No. ED92245 Darlene A. White, Commissioner. Reversed.

          Marc Djulus, in pro. per., for Appellant.

          Kelli McClintock, in pro. per., for Respondent.

          BENKE, J.

         The 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.

         The 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.

         Appellant 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 favor.

         The 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 "commissioner."

         Because 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.)[1]


         Marc 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.

         Rather, 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."

         Commissioner White reminded Marc of the purpose of the hearing, noting as follows:

         "So 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."

         Over 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 ...

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