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LAW AND THE FAMILY
AUTHORITY OF JUDICIAL HEARING OFFICERS
Joel R. Brandes
New York Law Journal
August 28, 2001
JUDICIAL HEARING Officers are frequently
appointed in matrimonial actions to "hear and determine" the issues.
The authority of a Judicial Hearing Officer to hear and determine an issue in
a "matrimonial action" [FN1] or family court proceeding [FN2] is
limited to the extent that the parties consent. For this reason, the wording
of the stipulation or order of referral is critical, as it defines the
jurisdiction of the Judicial Hearing Officer to act.
Counsel should be wary of an order of
referral to hear and determine "all issues" in the action, unless
the issues are defined in the order. Otherwise the right to have unrelated
motions unrelated determined by the IAS justice may be unwittingly waived and
the Judicial Hearing Officer may be empowered by the parties to determine
issues that counsel would have preferred to be determined by a justice of the
court. Once the equitable distribution portion of divorce action is referred
to a Judicial Hearing Officer, on consent, "to hear and determine all
issues in this matter" he has no power to return the case to the judge
who had heard the divorce portion for further substantive or adjective
decisions. [FN3]
Background
Prior to 1962, New York had Official
Referees and nonofficial Referees. Official Referees were retired Judges
[FN4]. Only an Official Referee could be designated by a court to determine an
issue in a matrimonial action [FN5]. The purpose of this rule was to prevent
collusion in divorce actions where the parties would nominate a
"friendly" Referee in order to circumvent our strict divorce laws
[FN6]. In addition to references on consent, Judiciary Law former 116
permitted the reference of any issue in a matrimonial action to an Official
Referee for determination without the consent of the parties [FN7].
In 1962, the Office of the Official Referee
was abolished [FN8] and the statutory authorization for compulsory references
to determine matrimonial actions was eliminated. However, existing Official
Referees could continue in office for the remainder of the terms [FN9]. When
the CPLR became effective in 1963, it provided that those who still held the
office of Official Referee had authority to act in matrimonial actions [FN10].
In 1983, Article 22 was added to the
Judiciary Law to provide for the designation of Judicial Hearing Officers, and
the CPLR was amended to incorporate Judicial Hearing Officers in all of the
provisions relating to Referees and to substitute the term Judicial Hearing
Officer for "official referee." CPLR 4301 was amended to provide
that "[f]or the purposes of this article, the term referee shall be
deemed to include judicial hearing officer." However, the Legislature did
not enact legislation empowering Judicial Hearing Officers to hear and
determine issues in matrimonial actions without the parties' consent.
CPLR 4317(a) provides in part that the
parties may stipulate that any issue shall be determined by a referee.
However, leave of court and designation by it of the referee is required for
references in matrimonial actions. Subdivision (b) provides that on motion of
any party or on its own initiative, the court may order a reference to
determine a cause of action or an issue where the trial will require the
examination of a long account. CPLR 4312 (2) also provides, inter alia,
"[i]n matrimonial actions, only a judicial hearing officer or a special
referee appointed by the chief administrator of the courts may be designated
to determine an issue."
A referee to determine an issue has all of
the powers of the court in performing a like function. However, he has no
power to relieve himself of his duties, appoint a successor or to adjudge any
person except a witness before him guilty of contempt. [FN11]
In Shanback v. Shanback, [FN12] despite the
parties' refusal to consent, the Administrative Judge directed that the
economic aspects of the divorce action be heard and determined by a Judicial
Hearing Officer based upon CPLR 4317 (b) which provides that on its initiative
the Court may order a referee to determine a cause of action or issue where
the trial will examine the examination of a "long account." The
plaintiff's counsel objected to the court's ruling on the basis that the
equitable distribution case did not constitute a "long account"
under CPLR 4317 (b). The plaintiff's counsel also argued that the statute, as
construed, was unconstitutional.
The Second Department held that the Judicial
Hearing Officer should not have determined the issues, because a matrimonial
action is not an examination of a "long account" within the meaning
of CPLR 4317(b). However, it held that because there were exceptional
conditions within the meaning of CPLR 4212, the reference would be deemed one
to hear and report.
The Appellate Division held that the
exercise of discretion required in the resolution of the issues involved in
equitable distribution actions far exceeds the bounds of an "examination
of a long account." CPLR 4317 [b] has been traditionally limited
basically to matters concerning mathematical calculations, i.e., debits,
credits, receipts and payments. The impropriety of referring these matters to
a Judicial Hearing Officer for resolution over the parties' objection was
underscored by the importance of the issues to the parties involved,
particularly in the absence of statutory authority. Absent statutory authority
to the contrary or the consent of the litigants, the parties in these actions
have a right to have a Supreme Court Justice resolve these equitable
distribution issues irrespective of the fact that their resolution may require
lengthy and detailed testimony and evidence and consume a great deal of the
court's time. Since equitable distribution actions cannot be reasonably
characterized as "examination[s] of a long account" and no specific
statutory authority exists to permit a Judicial Hearing Officer to hear and
determine these actions over the parties' objections, the compulsory reference
was inappropriate.
Equitable Distribution Issues
The court noted that a Judicial Hearing
Officer can hear and determine equitable distribution issues if the parties
consent to such a reference and, if "exceptional" conditions exist,
a court may, in its discretion, refer an issue of fact in an equitable
distribution action to a Judicial Hearing Officer to hear and report to the
court on the particular issue, without the parties' consent, pursuant to CPLR
4212. It concluded that while the use of a compulsory reference to a Judicial
Hearing Officer to hear and determine issues in an equitable distribution
action may be administratively attractive in helping to alleviate the delays
and calendar congestion in the State's trial courts, no statutory authority
currently exists to permit its utilization.
The determination that the compulsory
reference was inappropriate did not require a new trial. The court was
satisfied that "exceptional" conditions existed which would have
justified the reference to a Judicial Hearing Officer to hear and report with
or without the parties' consent pursuant to CPLR 4212. In the absence of
authorization to determine, the court held that the reference would be deemed
as one to hear and report.
In Rothman v. Rothman [FN13] the parties
consented to all issues being heard and determined by a referee "to hear
and determine." After the Referee rendered his decision, the plaintiff
husband moved to vacate the appointment of the referee, to void his decision
and to restore the action to the contested matrimonial calendar. The grounds
urged in support of the motion were that the court lacked power to designate a
referee to hear and determine the issues in a matrimonial action, such power
of designation being vested solely in the Appellate Division. The court held
that a Justice of the Supreme Court may, where the parties consent, grant
leave and designate a referee to determine the issues in a matrimonial action.
Where the parties do not consent, the court may direct that the issues in a
matrimonial action be determined by a special referee designated by the
Appellate Division. The court found authority for its determination in CPLR
4317, which provides that the parties may stipulate that any issue shall be
determined by a referee. In the case at bar, the parties so stipulated, and
the court designated the referee, after granting leave as provided in CPLR
4317(a).
More Case Law
In Haibi v. Haibi [FN14], the Appellate
Division affirmed an order of the Supreme Court that rejected certain findings
of a Judicial Hearing Officer and determined that the husband was in arrears
with respect to his child support payments. It held that the Supreme Court was
not bound by its original reference directing the Judicial Hearing Officer to
hear and determine, because the husband refused to consent to have the
Judicial Hearing Officer determine the matter. It held that an order of
reference to hear and determine may only be made upon the consent of the
parties.
A Judicial Hearing Officer who attempts to
determine matters not referred to him by the order of reference acts beyond
and in excess of his jurisdiction. In McCormack v. McCormack, [FN15] the
parties appeared before a Judicial Hearing Officer, and a Stipulation of
Settlement was dictated onto the record. The court conducted an inquest and
granted a divorce judgment to the wife. Prior to the entry of the divorce
judgment the husband died, and the wife moved to vacate the divorce judgment
and to set aside the Stipulation. The Supreme Court granted the wife's motion.
The Appellate Division affirmed. It held that the Judicial Hearing Officer was
without authority to rule that the parties' Stipulation was voluntary or to
enter the divorce judgment. A Judicial Hearing Officer who attempts to
determine matters not referred to him by the order of reference acts beyond
and in excess of his jurisdiction. In this case, the parties did not stipulate
to a reference in the manner prescribed by CPLR 2104 nor was there any
indication that there was an order of reference designating the Judicial
Hearing Officer.
In Colodner v. Colodner, [FN16] a
matrimonial action was referred to a Judicial Hearing Officer, by stipulation,
to hear and determine. He rendered his decision and prior to the entry of an
order or judgment a motion to reargue was made. The Supreme Court referred the
motion back to the Judicial Hearing Officer. It held that if it were to
consider the motion it would be in the nature of a review of the
determination, which may only be done by the Appellate Division, and under
CPLR 2222 the motion should go to the Judicial Hearing Officer. Since the
statute gives the Judicial Hearing Officer "all the powers of a
court" (with exception), there is little difference between him and an
acting justice of the Supreme Court and consequently his authority continues
after he has made and filed his decision.
'Lipton v. Lipton'
In the same vein, in Lipton v. Lipton [FN17]
the Second Department affirmed an order made by a Judicial Hearing Officer,
which, after a hearing, set aside a stipulation of settlement that had been
entered into during the proceedings before the Judicial Hearing Officer. The
court held that the Judicial Hearing Officer acted within his authority in
conducting a hearing to determine whether or not the stipulation of settlement
should have been set aside and in thereafter directing a trial of the divorce
action. The court held that he did not exceed his authority, because the
action in which the stipulation of settlement had been entered into had not
been terminated by the entry of judgment at the time the hearing was held.
Joel R. Brandes has law offices in Garden
City and New York City. He co- authored the nine-volume Law and the Family New
York 2nd Ed. and Law and the Family New York Forms (both published by West
Group).
FN(1) CPLR 105 (p) provides that the term
"matrimonial action" includes actions for a separation, for an
annulment or dissolution of a marriage, for a divorce, for a declaration of
the nullity of a void marriage, for a declaration of the validity or nullity
of a foreign judgment of divorce and for a declaration of the validity or
nullity of a marriage. DRL 236[B][2]adds to this list proceedings to obtain
maintenance or a distribution of marital property following a foreign judgment
of divorce.
FN(2) There is no authority for a Judicial
Hearing Officer to hear and determine issues of paternity or child support in
family court. Myndi O., 180 Misc 2d 608, 690 NYS2d 409 (Fam. Ct.,1999).
FN(3) Harris v. Harris (1988) 140 Misc 2d
275, 531 NYS2d 77.
FN(4) see, Judiciary Law former 116
FN(5) see, former Civ Prac Act 1174
FN(6) See, Cunningham and Sullivan, Practice
Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 4312, at 184)
FN(7) See, Matter of Brock, 245 App Div 5;
Gossin v. Gossin, 188 Misc 1
FN(8) see, NY Const, art VI, 35
FN(9) 1962, ch 704, 2
FN(10) CPLR former 4312 [2]; Judiciary Law
117; see also, CPLR former 4313, 4315
FN(11) CPLR 4301
FN(12) Schanback v. Schanback (1987, 2d
Dept) 130 App Div 2d 332, 519 NYS2d 819
FN(13) NYLJ, 9-30-82 (Sup Ct, Richmond Co.)
(Rubin, J.)
FN(14) (1991, 2d Dept) 171 App Div 2d 842,
567 NYS2d 778
FN(15) (1991, 2d Dept) 174 App Div 2d 612,
571 NYS2d 498
FN(16) (1987) 138 Misc 2d 66, 523 NYS2d 939
N(17) (1986, 2d Dept) 119 App Div 2d 809,
501 NYS2d 437.
8/28/2001 NYLJ 3, (col. 1)
END OF DOCUMENT
