In re Marriage of Djulus

The parties’ express or implied consent necessary for a commissioner to act as a judge was missing here since the pro per parties were not told the judicial officer was a commissioner or that she could act as judge only with their consent.  Though the superior court had a form for parties to sign consenting to a commissioner acting as judge, it was not signed.  And before hearing issues involving interim child custody and support, the commissioner did not explain she was a commissioner and did not obtain the parties’ express oral consent to her acting as a judge.  After the commissioner ruled on those matters against husband, he refused to sign the consent form.  Held, all rulings by the commissioner must be vacated.  A commissioner may act as judge only with the parties’ consent, express or implied.  Here, there was no express consent, and consent could not be implied because the pro per husband was not told the commissioner was only a commissioner, not a judge, and was also not told that she could act in the case only with his consent.

California Court of Appeal, Fourth District, Division 1 (Benke, J.); April 14, 2017; 2017 WL 1371490

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