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FAMILY LAW: Court of Appeals’ decision important for what it didn’t do

Gregg Herman

The Wisconsin Court of Appeals’ decision in Nehls v. Nehls, No. 2011AP2330 (filed June 13), marked the first family law case recommended for publication by the appellate court since March 6, 2012.

It’s a straightforward ruling that might be more important for what it didn’t do.

The facts were undisputed. Dale Nehls moved to modify placement and child support. The parties appeared before the Fond du Lac County family court commissioner.

The FCC appointed a guardian ad litem regarding Dale’s proposed placement changes, who later made a written recommendation.

The FCC then notified the parties of its intent to enter an order implementing the GAL’s recommendation.

The notice stated:

“[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 [GAL] fees are current.”

Neither party objected and the FCC filed a written order making the GAL’s recommendation the final order.

Dale filed a request for de novo review from this order, which Judge Peter Grimm denied.

The District II appellate court’s holding was very simple. Dale waived his right to a de novo hearing before the circuit court when he consented, by default, to the entry of an order by the family court commissioner.

The lesson of the case is that lawyers cannot skip the FCC and go directly to the trial court. Rather, a de novo hearing before the trial court requires the preliminary step of a hearing before the FCC.

That holding makes sense.

The FCC exists for a reason: to expedite the process by screening most cases which can be resolved at a non-evidentiary hearing. Allowing parties to bypass that step would not promote judicial efficiency.

The interesting part of the case is the local practice in Fond du Lac County. In prior cases, the court has made it clear that the GAL is a lawyer, not a special master or agent of the court. Therefore, a court cannot rely on a GAL’s report, either written or oral, absent admissible evidence to support any factual assertions in the report.

• In re Paternity of Stephanie R.N., 174 Wis.2d 745, 498 N.W.2d 235(1993). Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503.

Interestingly, neither party cited Stephanie R.N. or Goberville in their briefs. In fact, Dale’s lawyer cited only two cases in his entire brief — neither family law cases — which may be a record.

As a result, the Court of Appeals did not cite either case or address the issue. Rather, it treated the issue as purely one of enforcing the local rule and waiver.

So please permit me to raise the issue. Yes, under the local rule, Dale waived his rights to a de novo review and yes, the requirement of a hearing before the FCC makes sense.

But, this case should not be read to allow GAL reports to serve as evidence. The GAL is a lawyer representing the concept of the best interests of the children — whatever that means.

A “report” is the same as a trial brief or an oral argument. The court can consider it to the extent that any factual representations are proved by competent evidence.

Rather, the case should be read for its procedural aspects only: That a hearing before the FCC is required before the trial court can conduct a de novo hearing arising from it.

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