¶ 1. Dale Earl Nehls appeals a circuit court order denying his request for a de novo hearing following entry of a family court commissioner (FCC) order implementing the custody and physical placement recommendation of the guardian ad litem (GAL). Dale declined to object to the entry of the FCC order, intending to bypass the evidentiary hearing before the FCC and proceed directly to a de novo hearing before the circuit court. We conclude that Dale's consent to the entry of the order without a hearing before the FCC waived his right to a de novo hearing before the circuit court. We affirm.
BACKGROUND
¶ 2. The underlying facts are undisputed. Dale and his former spouse, Constance Monica Nehls, were divorced on March 15, 2007. The parties' agreement as to the joint custody and physical placement schedule for their three minor children was incorporated into the judgment of divorce. On June 10, 2009, Dale filed a motion to modify physical placement and child support. The matter was heard by the FCC and a written order was issued on July 16, 2009, denying Dale's motion in its totality based on a finding of no
¶ 3. On April 25, 2011, the FCC notified the parties of its intent to enter an order implementing the GAL's recommendation. The notice states: "[A]n Order implementing the recommended plan for custody and periods of physical placement will be entered as a FINAL Order of the Court 15 business days from the date of this Notice unless a written objection as stated below is timely received and unless deposits toward [GAIL] fees are current." Neither party filed a written objection. Noting this fact, the FCC filed a written order on June 6, 2011, approving the GAL's recommendation, and entering it as the final order in the matter. On June 13, 2011, Dale filed a request for de novo review before the circuit court.
¶ 4. Among other objections, Constance argued that Dale's motion was barred by Fond du Lac County Circuit Court Rule No. 3.8(1) which indicates that any FCC order entered either by stipulation or default is not subject to de novo review. Dale indicated that he did not default or stipulate to the order, but rather, "It was [his] express intent. . . to De Novo the Order issued by the Family Court to have this matter heard before the assigned Judge, the Honorable Peter Grimm."
¶ 5. On September 29, 2011, the circuit court issued an order denying Dale's request for a de novo hearing. The circuit court found, inter alia, that Dale waived his right to a de novo hearing because he consented to the entry of the FCC order without a hearing. The court relied upon Fond du Lac County Circuit Court Rule No. 3.8(1) which provides that "any party who was present at a hearing held by the [FCC] has the right to have the assigned Circuit Court Judge hold a new hearing," and that "[findings and orders entered by the [FCC] by stipulation or entered by default are not subject to de novo review." In reaching its decision, the court reasoned:
[Dale's] intent was to have a hearing before Judge Grimm on the merits of [his] motion brought before the FCC, and consequently did not file any objections before the FCC, having the plan to seek a hearing De Novo. This attempt to bypass the FCC is contrary to the procedures established by the judges as set forth in the Court Rules, as the Commissioner is to hear the merits of post judgment matters first, and then the circuit judge by de novo.
Although the circuit court denied Dale's request for a de novo hearing, it indicated it would permit a request for review on the limited scope of whether the court should enter an order comparable to the June 6, 2011 FCC order. Dale appeals.
¶ 6. Dale argues that Wis. Stat. § 757.69(8) (2009-10)
¶ 7. The interplay between state statutes and local rules was addressed in Hefty v. Strickhouser,
A circuit court has the authority to "adopt and amend rules governing practice in that court that are consistent with rules adopted under [Wis. Stat. §] 751.12 and statutes relating to pleading, practice, and procedure." Wis. Stat. § 753.35(1). The clear implication of this statute is that local rules may not be inconsistent with state rules or statutes. They may supplement state statutes and rules, but they may not supersede state statutes and rules.
Hefty,
¶ 8. Wisconsin Stat. § 757.69 governs the "powers and duties of circuit court commissioners" generally, and addresses the role of court commissioners in various areas including, criminal matters, municipal traffic cases, small claims actions, juvenile proceedings, and actions affecting the family. Section 757.69(8) governs circuit court review of court commissioner decisions. It provides:
Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo.
Id. Fond du Lac County Circuit Court Rule No. 3 governs family court hearing procedures. Rule No. 3.8(1) provides:
3.8 DE NOVO HEARINGS.
1. Pursuant to Wis. Stat. § 757.69(8), any party who was present at a hearing held by the Family Court Commissioner has the right to have the assigned Circuit Court Judge hold a new hearing upon the filing of a motion within 15 days of the oral decision of the Family Court Commissioner, or within 15 days of mailing of a written decision by the Family Court Commissioner if the order was not orally given by the Family Court Commissioner at the time of the hearing. Findings and orders entered by the Family Court Commissioner bystipulation or entered by default are not subject to de novo review. Fifteen (15) days shall be counted consecutively and include weekends and holidays pursuant to Wis. Stat. 801.15(1).
Thus, Rule No. 3.8(1) recognizes that any party who was present at a hearing before the FCC has a right to a "new hearing" before the assigned circuit court judge to review of decisions in contested matters; however, there is no right to a hearing when the FCC order was entered by stipulation or default. In other words, the rule does not recognize the right to a new hearing before the circuit court if there was never a hearing before the FCC, for whatever reason.
¶ 9. In arguing that Rule No. 3.8(1) is inconsistent with Wis. Stat. § 757.69(8), Dale emphasizes the first sentence of § 757.69(8) which provides that "[a]ny decision of a circuit court commissioner shall be reviewed" by the circuit court. (Emphasis added.) However, requests for de novo hearings are addressed in the next sentence: "Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo." Id. (emphasis added). Based on this provision, we reject Dale's contention that Rule No. 3.8(1) and § 757.69(8) are at odds. In doing so, we are guided by the supreme court's decision in City of Pewaukee v. Carter,
¶ 10. In Carter, the court construed the language in Wis. Stat. § 800.14 (2001-02), governing appeals in municipal court proceedings.
¶ 11. Similarly, the provision in Wis. Stat. § 757.69(8) for a "hearing de novo" presupposes that the FCC has conducted a hearing. See Stuligross v. Stuligross,
¶ 12. As the circuit court observed, an attempt to bypass a hearing before the FCC would be contrary to the established procedures in Fond du Lac county implementing the applicable state statutes — namely, that the FCC first conduct hearings
¶ 13. Simply put, the local rule is both consistent with Wis. Stat. § 757.69(8) and the legislative intent that the FCC would conduct initial hearings. The legislature identified certain areas in which a court commissioner could be used to increase efficiency while still affording the safeguard of circuit court review of all decisions, upon motion, and a de novo hearing in contested matters. Wis. Stat. §§ 757.68(1), 757.69(1).
¶ 14. Here, it is undisputed that no hearing took place before the FCC; in fact, Dale expressly intended to circumvent such a hearing with the expectation that he would proceed directly to a hearing before the circuit court. However, Dale's waiver of his right to a hearing before the FCC rendered unavailable a de novo hearing before the circuit court. Cf. County of Racine v. Smith,
CONCLUSION
¶ 15. Dale acknowledges that he failed to object to, contest or otherwise respond to the FCC notice that the GAL recommendation would be entered if no objections were received within fifteen days. By consenting to entry of the order without a hearing before the FCC, Dale waived his right to a de novo hearing before the circuit court. We affirm the circuit court order denying Dale's request for a de novo hearing.
By the Court. — Order affirmed.
Notes
The FCC order appointing the GAL, dated December 8, 2010, indicated its finding that there had not been a substantial change in circumstances. However, it also indicated that appointment of a GAL was necessary because the parties were unable to facilitate a shared placement schedule. The GAL was ordered to consider the current placement schedule, the parties' proposed parenting plans, and to provide a written recommendation as to physical placement.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Dale also contends that the circuit court erred in its determination that his request was untimely. Because we conclude that Dale waived his right to a de novo hearing, we do not address the timeliness of Dale's motion. See Walgreen Co. v. City of Madison,
We note that Wis. Stat. § 800.14 (2001-02) has since been revised to expressly distinguish between appeals from municipal court decisions rendered after a trial has been held and decisions rendered without a trial. See § 800.14(4), (5). Consistent with the supreme court's holding in City of Pewaukee v. Carter,
Wisconsin Stat. § 767.001(lb) provides that "[c]ourt" as used in Wis. Stat. ch. 767 Actions Affecting the Family, "includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exercise the authority of the court or has been delegated that authority as authorized by law."
This interpretation of Wis. Stat. § 757.69(8) and Rule No. 3.8(1) is consistent with the appeal or review procedures set forth in other areas. See, e.g., Wis. Stat. § 755.19(3) ("[a] motion for a new hearing or appeal of a contested ruling by a municipal court commissioner ... shall be heard by the supervising municipal judge"); Wis. Stat. § 799.29(l)(a) (providing that in small claims actions "[t]here shall be no appeal from default judgments").