Stratton v. Stratton

Opinion

SONENSHINE, Acting P. J. James W. Stratton appeals a child support judgment, claiming Code of Civil Procedure section 640.1, subdivision (c) violates article VI, section 21 of the California Constitution. We disagree and affirm.1

[1394]I.

After a Revised Uniform Reciprocal Enforcement of Support Act petition2 was served on Stratton, the matter proceeded to a contested hearing. Despite Stratton’s demand that the matter be heard by a superior court judge, a commissioner determined he was empowered to hear the matter and recommended child support be set at $151.66 per month. Stratton was told a superior court judge would be reviewing the recommendation. The judge, after a noticed hearing, approved the commissioner’s recommendation and ordered child support to be set at $151.66 per month.

II.

Section 640.1 allows district attorney applications for the establishment and enforcement of child support orders to be referred for hearing to a commissioner who shall take testimony, establish a record, evaluate evidence, and make recommendations. A review hearing is then held before a superior court judge, who shall independently review the record of the original hearing, consider any supplemental papers, and hear any oral objections. The judge may rehear the matter, adopt the recommended order, or modify it.3

[1395]Relying on California Constitution, article VI, section 21, Stratton argues section 640.1 is unconstitutional.4 He maintains the Constitution allows a determination to be made by a commissioner only when the parties so stipulate. Because Stratton refused to do so, all orders emanating from the hearing are void. He argues that statutory authority to the contrary is irrelevant because the Legislature cannot validate what the Constitution prohibits.

Our Constitution prevents delegation of judicial power.5 But, as explained in Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal.App.3d 431, 436, there is a distinction between special and general references. A general reference to a commissioner has a binding effect and must be consensual.