If you live within the 1st, 2nd,3rd and 4th Judicial Districts of Utah, all motions and hearings in divorce proceedings will first be before a “domestic relations commissioner,” if a commissioner is assigned to the particular courthouse where your case is pending.
The court proceedings will look and feel similar to proceedings as if they were in front of a Judge. The commissioner sits behind a bench, wears the traditional robes, is called “Your Honor,” and your attorneys proceed as if in front of a judge. A commissioner, however, does not have the authority to make final rulings. A commissioner takes evidence presented and makes a recommendation to the judge as to what the judge’s order should be.
Under Utah law, the commissioner’s recommendation is considered the order of the court unless and until it is modified by the court, and as a general rule the judge will sign every recommendation from a commissioner. But what happens when the commissioner makes a bad recommendation? What if the commissioner simply does not like you? What do you do? Is there anything you can do?
You can object to the commissioner’s recommendation and ask the judge assigned to your case to review it.
Rule 108 of Utah Rules of Civil Procedure provide the procedure for objecting to the recommendations of a commissioner. The rule has recently been amended and contains many substantive changes.
Once a commissioner makes a recommendation, either party has 14 days from the date the recommendation is made to object. The 14 days starts when the recommendation is made in open court, or on the date the commissioner signs the recommendation if the recommendation is given in writing first.
In objecting a party must state succinctly and with particularity the grounds for objecting. Prior to the new rule, the judge would then decide if a hearing was needed and either overrule the objection or hold a hearing. As an actual practice judges would rarely if ever hold a hearing on an objection to a commissioner’s recommendation.
Under the new rule, a party, as a matter of right, can request an evidentiary hearing with the actual judge assigned to the case. At the hearing each party has the ability to present evidence including calling witnesses. This is a much-needed change as the judge has historically adopted recommendations of court commissioners without any actual evidence presented to the court.
After a hearing on objections to recommendations of the commissioner the judge will make his/her final ruling based on the actual evidence presented. This will be the order of the court.
Additionally, if the recommendation of the court commissioner was for temporary orders, either party may plead that there has been a “substantial change” since the entry of the order, and can present evidence to support the change, and therefore ask to modify the existing temporary order. However, if the evidence is not new or could have been presented to the commissioner and was not, Rule 108 precludes the Judge from considering the late evidence.
The new rule for objecting to the recommendations of court commissioners is welcome and needed to fully protect the parties’ rights of due process, and allows actual evidence to be presented to the judge when it is needed. The question, will this completely abrogate the role of commissioners? Will every recommendation be objected to, thus requiring a second hearing (if it did, it wouldn’t be the end of the world—commissioners get surprisingly complacent in their analysis of the facts and in the making of their recommendations)?
While it may ultimately result in more work for the court system, the truth is the parties need the opportunity to present actual evidence to the court on issues they deem important enough to raise an objection and for which to request a hearing. The new Rule 108 ensures the parties have the ability to object to the recommendations of court commissioners and present necessary information to the court, so that due process is more fully ensured. This is a welcome change in a broken system.
 Rule 108 provides, in its entirety:
(a) A recommendation of a court commissioner is the order of the court until modified by the court. A party may file a written objection to the recommendation 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. A judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.
(b) The objection must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought. The memorandum in support of the objection must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect. The time for filing, length and content of memoranda, affidavits, and request to submit for decision are as stated for motions in Rule 7.
(c) If there has been a substantial change of circumstances since the commissioner’s recommendation, the judge may, in the interests of judicial economy, consider new evidence. Otherwise, any evidence, whether by proffer, testimony or exhibit, not presented to the commissioner shall not be presented to the judge.
(d)(1) The judge may hold a hearing on any objection.
(d)(2) If the hearing before the commissioner was held under Utah Code Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health Facilities, Utah Code Title 78B, Chapter 7, Protective Orders, or on an order to show cause for the enforcement of a judgment, any party has the right, upon request, to present testimony and other evidence on genuine issues of material fact.
(d)(3) If the hearing before the commissioner was in a domestic relations matter other than a cohabitant abuse protective order, any party has the right, upon request:
(d)(3)(A) to present testimony and other evidence on genuine issues of material fact relevant to custody; and
(d)(3)(B) to a hearing at which the judge may require testimony or proffers of testimony on genuine issues of material fact relevant to issues other than custody.
(e) If a party does not request a hearing, the judge may hold a hearing or review the record of evidence, whether by proffer, testimony or exhibit, before the commissioner.
(f) The judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.