Wiscombe v. Wiscombe, 860081-CA
| Decision Date | 03 November 1987 |
| Docket Number | No. 860081-CA,860081-CA |
| Citation | 744 P.2d 1024 |
| Parties | Rosemary WISCOMBE, Plaintiff and Respondent, v. J. William WISCOMBE, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Gordon A. Madsen, Robert C. Cummings, Salt Lake City, for defendant and appellant.
Aaron Alma Nelson, Bayle, Hanson, Nelson & Chipman, Salt Lake City, for plaintiff and respondent.
Before GREENWOOD, BENCH and GARFF, JJ.
Defendant, William Wiscombe, appeals from an order entered in post divorce proceedings in the Third Judicial District Court for the State of Utah. Plaintiff and defendant were divorced in 1981. Pursuant to the decree of divorce, plaintiff was awarded the parties' residence and defendant was ordered to pay the first mortgage payment of $578 per month. A year later plaintiff sold the home under a uniform real estate contract, but the first mortgage remained in place and defendant continued payment on the mortgage. Two years after the divorce, plaintiff remarried and defendant stopped paying the first mortgage. Plaintiff then filed an order to show cause seeking to compel defendant to pay all arrearages on the mortgage. Commissioner Sandra Peuler, Domestic Relations Commissioner for the Third Judicial District Court, heard the motion pursuant to Rule 8 of that district's rules of practice. As is customary, the hearing before the commissioner was not a full evidentiary hearing, but was based on the written pleadings and proffers. No evidence was received. The commissioner recommended judgment against defendant for the mortgage arrearages. The commissioner's minute entry states that defendant objected to the recommendation, but defendant never filed a written objection. In August of 1984 defendant served plaintiff with interrogatories and in September, defendant notified plaintiff of a hearing before Judge J. Dennis Frederick on the order to show cause. Prior to the hearing plaintiff answered the interrogatories. At the subsequent hearing before Judge Frederick, the court found that defendant had failed to properly object to the recommendation of the commissioner and entered judgment against defendant in accordance with the commissioner's recommendation.
Defendant claims that Judge Frederick erred in finding that defendant failed to properly notify the commissioner and opposing counsel of his objection to the commissioner's recommendation as required by Rule 8(d) of the Rules of Practice of the Third Judicial District Court. Rule 8 allows the court to appoint a domestic relations commissioner to assist in domestic relations matters. All domestic relations proceedings except ex parte motions and petitions for modification are generally considered first by the commissioner, who recommends disposition. Subsection (d) sets forth the procedure when the parties object to the recommendation as follows:
Any party objecting to the recommended order or seeking further hearing before the assigned judge shall, within five (5) days of the entry of the commissioner's recommendation, provide notice to the commissioner's office and opposing counsel that the recommended order is not acceptable or that further hearing is desired. The commissioner shall then refer the matter to the assigned judge for further hearing, conference or trial. If no objection or request for further hearing is made within five (5) days, said party shall be deemed to have consented to entry of an order in conformance with the commissioner's recommendation. 1
The rule does not state that the objections need be in writing. Clearly, no written notice was given in this case. Defendant claims that there was an oral objection...
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Holm v. Smilowitz
...of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved." Wiscombe v. Wiscombe, 744 P.2d 1024, 1025 (Utah App.1987) (quoting Rupp v. Grantsville City, 610 P.2d 338, 341 (Utah 1980)). "One of the fundamental requisites of due process is ......
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State v. Hegbloom
...sufficient notice and the issuing court lacked jurisdiction."¶ 18 Hegbloom's claim finds the strongest support in Wiscombe v. Wiscombe, 744 P.2d 1024, 1025 (Utah Ct.App.1987). The basic facts of Wiscombe are similar to those before us. In Wiscombe, a divorced couple attended a proffer heari......
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Rawlings v. Holden
...of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved." Wiscombe v. Wiscombe, 744 P.2d 1024, 1025 (Utah App.1987) (quoting Rupp v. Grantsville City, 610 P.2d 338, 341 (Utah 1980)); accord State v. Robinson, 860 P.2d 979, 982 (Utah App......
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State v. Robinson
...to the case and just to the parties involved." Holm v. Smilowitz, 840 P.2d 157, 164 (Utah App.1992) (quoting Wiscombe v. Wiscombe, 744 P.2d 1024, 1025 (Utah App.1987) (quoting Rupp v. Grantsville City, 610 P.2d 338, 341 (Utah 1980))). "One of the fundamental requisites of due process is the......
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Family Law Update 1988
...to section 30-3-4.1 through 4.4, Utah Code Annotated (1985). Proceedings before the commissioner were examined in Wiscombe v. Wiscombe, 744 P.2d 1024 (Utah App. 1987). The Court of Appeals noted that hearings before domestic relations commissioners are based solely on proffers. There is no ......