In Re Marriage of Monge

113 Cal.Rptr.2d 524 (2001) 93 Cal.App.4th 911 In re the MARRIAGE OF Raymond Joseph and Carolyn Janell MONGE.

Raymond Joseph Monge, Respondent,

v.

Carolyn Janell Gerig, Appellant.

No. C036831. Court of Appeal, Third District.

November 13, 2001. Rehearing Granted December 10, 2001. Mark W. Coleman for Appellant.

[525] Meckfessel & Hopkins and Kenneth M. Hopkins, Willows, for Respondent.

SIMS, Acting P.J.

In 1971, appellant Carolyn Janell Monge, who is now known as Carolyn Janell Gerig (hereafter Gerig), obtained a final judgment of dissolution of marriage from respondent Raymond Joseph Monge (hereafter Monge). The judgment provided for payment by Monge of both child support and spousal support.

In May 2000, Gerig, acting in propria persona, filed in Tehama County Superior Court a Judicial Council form seeking an order to show cause to establish child support and spousal support arrearages. The form did not advise Gerig that the matter would be heard by a commissioner unless she objected and did not advise her of her right to review by a superior court judge.

The superior court conducted two hearings on Gerig's application for an order to show cause at which Gerig appeared without counsel. The hearings were presided over by a commissioner, who did not advise Gerig that the matter was being heard by a commissioner who shall act as a temporary judge unless any party objects to the commissioner acting as a temporary judge.

Following the hearings, in August 2000, the commissioner entered an order denying Gerig's application for an order to show cause.

Gerig, now represented by counsel, filed a timely notice of appeal from the order.[1]

On appeal, Gerig argues, among other things, that the order must be reversed because the commissioner lacked the authority to act on her case. She contends Family Code section 4251 required the court to advise her the matter was being heard by a commissioner and that she could object to the commissioner acting as a temporary judge and the record reflects she was not so advised.[2] We shall conclude that the court did not give Gerig the required statutory advisement and nothing in the record shows Gerig knew the case was being heard by a commissioner to whom she. could object. We shall therefore conclude no valid stipulation to the commissioner's hearing the matter appears on the record. We shall therefore reverse the order denying Gerig's application for an order to show cause.