I Don’t Like the Decision my Commissioner Made; What Can I Do?

When it comes to divorce and family law cases, Utah is a bit different from other states.

For example, we use a commissioner system, which is pretty rare in America.

A commissioner is not quite a judge, but acts as something like an under-judge in divorce and family law cases.

What this means is a commissioner handles almost all aspects of a family law case, but he or she does not actually have decision-making authority.

What a commissioner does is hear disputes and make recommendations to a judge, then the judge signs off on those recommendations which makes them an order of the court.

Commissioners hear Temporary Orders, Motions for Order to Show Cause, Protective Orders, Temporary Restraining Orders, Pretrials, etc. Essentially, they hear and make recommendations on every aspect of a case with the exception those things right before trial.

So, commissioners have a lot of power in Utah divorce cases.

But what happens if your commissioner gets something wrong and makes a wrong decision? What can you do?

There really are two options.

First, you can deal with the wrong decision and let it go. I know, not a great option, but you have to decide if the decision was about something important enough to object to.

Second, you can object to the commissioner’s decision (technically, we call it a recommendation).

If you object, you will need to file a formal objection with the court. That needs to happen “within 14 days after the recommendation is made in open court or, if the court commissioner takes the matter under advisement, within 14 days after the minute entry of the recommendation is served.”

Your objection will be forwarded to the judge on your case, and you will have a hearing with that judge to discuss why you think the commissioner was mistaken.

Now, when an objection goes to the judge, the judge will have one of two hearings: (1) regarding law only, or (2) regarding law and facts (i.e., evidentiary hearing).

The distinction here is really important.

If the hearing regards law only, then you will argue only legal reasons why the commissioner was mistaken. You will not be able to introduce new evidence or present witnesses or live testimony. Also, the judge will assume the commissioner’s recommendation was correct and require you to show clear legal arguments why he or she was wrong. Hearings regarding only law are difficult to win.

If the hearing regards law and facts (i.e., it’s an evidentiary hearing), then the judge will review your situation de novo. In other words, the judge will give now weight to the commissioner’s recommendation. In this type of hearing, you would present witnesses and live testimony. There would be cross-examination, opening statements, and closing arguments. It’s very much like a mini-trial.

Be careful and decide which type of hearing you want. If you do not specifically ask for an evidentiary hearing in your objection, your judge will very likely schedule a hearing regarding law only.

If you would like to read the Utah rule of civil procedure that spells out how you object to your commissioner’s recommendation, click here.

Published On: November 21st, 2019Categories: Contested DivorceComments Off on I Don’t Like the Decision my Commissioner Made; What Can I Do?
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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