District II
December 4, 2013
To:
Hon. Paul V. Malloy
Circuit Court Judge
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
Marylou Mueller
Clerk of Circuit Court
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
James E. Gatzke
Gatzke Law LLC
15710 W. National Avenue
New Berlin, WI 53151
Rhonda K. Gorden
Ozaukee County Justice Center
Corporation Counsel
P.O. Box 994
Port Washington, WI 53074-0994
Thor H. Templin
Lagmann, Inc.
P.O. Box 1729
Milwaukee, WI 53201-1729
D. H. Milbrath
Levy & Levy S.C.
P.O. Box 127
Cedarburg, WI 53012-0127
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Eiman Nassar (L.C. #2010PA32) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Eiman Nassar appeals from an
order denying as untimely her petition for de novo review of a family court
commissioner’s ruling. Based on our review
of the briefs and the record, we conclude that summary disposition is
appropriate. See Wis. Stat. Rule 809.21 (2011-12).[1] We reverse and remand for a de novo hearing.
On July 26, 2012, Ronald Wilson and Nassar litigated a
paternity action at a trial/evidentiary hearing before a court commissioner. The commissioner decided paternity, custody,
placement, and child support. The next
day, Nassar filed a written demand for a de novo hearing but did not give
notice to Wilson or the guardian ad litem (GAL). Twenty-one days later, on August 17, the commissioner
entered his written order. The order
stated that either party could request a de novo hearing if it filed a “written
request … with the Judge’s clerk within ten (10) days of receipt of the written
order.” On September 11, forty-six days
after filing her July 27 demand, Nassar provided Wilson and the (GAL) a copy of
it.
Wilson and the GAL objected that the de novo hearing
demand was untimely because it was not filed within ten days of receipt of the commissioner’s
written order. The circuit court held a hearing
on the timeliness of the de novo demand.
The court dismissed it as not timely filed or served on opposing
parties, and the lack of sufficient notice prejudiced the minor child. Nassar appeals.
Wisconsin Stat. § 757.69(8) entitles a
party to circuit court review of a court commissioner’s decision “upon motion of
any party.” The statute does not state
when the motion for review must be made.
Wisconsin Stat. § 802.01(2),
governing motions in general, provides in relevant part:
(e) When deemed made. In computing any period of time prescribed or allowed by the statutes governing procedure in civil actions and special proceedings, a motion which requires notice under s. 801.15 (4) shall be deemed made when it is served with its notice of motion.
Nassar argues that § 802.01(2)(e)
does not apply because § 757.69(8) does not involve computing a time
period “prescribed or allowed” by a statute. Accordingly, she argues, one requesting a de novo hearing
must turn for guidance to the county’s local rules. We agree.
In Ozaukee county, the applicable rule provides in
relevant part:
307.1 REVIEW OF DECISIONS OF A COURT COMMISSIONER
Any determination,
order, or ruling by a court commissioner may be certified to the branch of
court to which the case has been assigned, upon a motion by any party. Such motion shall be filed within ten (10)
days of the date of the determination, order, or ruling or, if the
determination, order, or ruling was mailed, by allowing the statutory time for mailing
in addition to the specified time.
Ozaukee
Cnty. Cir. Ct. R. 307.1 (June 16, 2003). Nassar
argues that her July 27 de novo demand was timely because she filed it well
within ten days of the court commissioner’s July 26 oral “determination, order,
or ruling.” She notes, and we must
agree, that the rule does not limit determinations, orders, or rulings to
written decisions. If the county
intended such a restriction, it easily could have crafted the rule to say so,
as various other counties have done.
Giving notice when the demand is filed well may be the
better practice. Still, requests for de
novo review, especially in family matters such as this, are not so unusual as
to take the prevailing party completely off-guard. And, as noted above, the county could have
written its rule to require that notice be provided when a party seeks de novo
review. In so holding, we note and appreciate
the circuit court’s concern for prejudice to the minor child. Nonetheless, we remand for a de novo hearing,
the demand for which we conclude was timely made. Therefore,
IT IS ORDERED that the order of the circuit court is summarily reversed, pursuant to Wis. Stat. Rule 809.21, and remanded for a de novo hearing.
Diane M. Fremgen
Clerk of Court of Appeals