Wednesday, February 25, 2015
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Commissioner’s Lack of Proper Response to Litigant’s Disqualification Bid Voids Court’s Orders—C.A.
By a MetNews Staff Writer
All orders issued by a San Diego Superior Court commissioner after a party to a family law proceeding moved to recuse her are void because the bench officer did not respond to the challenge in the manner prescribed by law, the Fourth District Court of Appeal ruled yesterday.
Div. One overturned several orders issued by Commissioner Pennie K. McLaughlin. Presiding Justice Judith McConnell said McLaughlin failed to adhere to the procedures for disposing of a challenge under Code of Civil Procedure §170.3(c)(1).
The appeal arose out of support proceedings between two people, the parents of two children, who divorced over a decade ago. The Court of Appeal identified each of them solely by the identical initials, M.A.
The parties both represented themselves on appeal.
Prior to a hearing set for Aug. 1, 2013, the father moved to disqualify McLaughlin from hearing his ex-wife’s motions regarding sanctions and child support. The father, whose lawyer was seeking to withdraw at that point, claimed, among other things, that McLaughlin’s award of temporary support showed that she was biased.
The commissioner struck the statement for lack of service and legal insufficiency.
In September of that year, the father moved for sanctions against his ex-wife and her lawyer, and the ex-wife moved for sanctions against him. The following month, the commissioner awarded $6,500 in attorney fees under Family Code §2030(a) and continued the hearing on sanctions and child support to November.
On the day of the continued hearing, the father objected to McLaughlin sitting as a temporary judge and filed a new §170.1/170.3 disqualification statement. He claimed she had not advised him of his right to have her rulings reviewed by a judge, and had refused to allow him to argue his previous bid for her disqualification and his objections to the attorney fee award the previous month.
The commissioner responded she would not “entertain any other motion on disqualification” at that time, but reassured the father she was not biased against him and responded to some of his allegations She proceeded to order the father to pay past and future child support in varying monthly amounts, and denied his motions for sanctions and reconsideration of the fee award.
McConnell, writing for the Court of Appeal, said the commissioner mishandled the disqualification statement.
She explained that a commissioner faced with such a paper must proceed in one of several ways specified in §§170.3 and 170.4:
“Once a statement of disqualification is filed, the commissioner has limited power to act in the proceeding until the question of his or her disqualification is determined….The commissioner may, without conceding disqualification, ‘request any other judge agreed upon by the parties to sit and act in his or her place.’…The commissioner may also, within 10 days of the filing or service of the statement, whichever is later: (1) order the statement stricken if the statement is untimely or, on its face, discloses no legal grounds for disqualification; (2) consent to disqualification; or (3) file a written verified answer to the statement….However, the commissioner may not ignore the statement.”
McLaughlin’s announcement she would not entertain the statement was tantamount to ignoring it, the jurist said, and renders all of the orders she entertained that day void. The court did, however, uphold the earlier order on attorney’s fees.
The case is In re Marriage of M.A., 15 S.O.S. 1069.
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