RUISI v. THIERIOT (1997)

We have consolidated two appeals arising from the same child custody dispute.   The unpublished portion of this opinion pertains to the first appeal, which comes to us after the trial court denied the mother's motion to modify the existing child custody order to enable her to relocate to Rhode Island with the child.   We remand the matter to the trial court for reconsideration in light of In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473.

In the second appeal the question is whether the trial court erred in referring to a special master issues pertaining to implementation of the custody orders.   In the published portion of the opinion, we conclude the issues were not proper ones for reference in the absence of the parties' consent, and we reverse the order.

FACTS

Paula Ruisi and Charles (Kip) Thieriot were divorced in 1984.  (Hereafter, we will refer to the parties as “Paula” and “Kip,” the designations used by the parties themselves in their briefs.)   They are the parents of one child, Rhys, born in 1985.   Kip initially disputed paternity (Rhys having been born after the divorce), but later stipulated to paternity.

In 1986 the parties entered into a parenting agreement, which was incorporated into a judgment within the paternity action.   The agreement provided for joint legal custody and for “shared physical parenting” as follows:  Rhys's primary care was to be provided by Paula, but Kip was to care for him on Mondays (from 3:30 to 7 p.m.),  Thursdays (from 1 to 7 p.m.) and Saturdays (all day).   Over the years, by agreement, Kip's time with Rhys was increased so that Rhys was spending alternate weekends with Kip.

In September 1993, Paula moved (within the paternity action) to modify the existing custody and visitation arrangements to permit her to relocate to Rhode Island with Rhys.¹  She also sought sole legal custody on the ground that she and Kip had been unable over the years to agree on parenting decisions, and the conflict between them was harming the child.

Kip opposed the motion, urging the court to deny Paula permission to move, to maintain joint legal and shared physical custody, and to alter the physical custody arrangements so as to increase his time with Rhys.

By stipulation, the trial court appointed Dr. Margaret Lee, a psychologist, as an expert witness.   Dr. Lee recommended that no changes be made in Rhys's residence or his custody schedule.   Dr. Lee concluded that the proposed move to Rhode Island or even to Sonoma County would hurt Rhys's development due to the loss and change he would experience.

At the conclusion of the contested hearing, the trial court denied Paula's request to modify custody.   The court found that Paula had failed to prove that a move to Rhode Island was necessary.   Further, the court found no reason to change from joint to sole legal custody.   The court found that both parents were making great efforts to keep Rhys from being caught in their conflicts and that both make significant, though different contributions to Rhys's well-being.   On August 10, 1995, the trial court confirmed its tentative decision as its final decision.   Paula filed a timely notice of appeal.

In its ruling, the trial court left open the question of a modified parenting schedule, leaving it to the parties to resolve by agreement.   When the parties were unable to agree, the court issued an order on April 8, 1996, which established a new schedule for Rhys.²  Paula has asked that her notice of appeal be deemed to apply to that order as well.

DISCUSSION

I. Change of Custody**

II. Appointment of Special Master

A. Background

Dr. Lee, the court-appointed evaluator, recommended in her report to the trial court on the question whether Paula should be permitted to move to Rhode Island, that a special master be used in this case to assist in communications between Paula and Kip and to facilitate joint parenting decisions.⁷  Kip agreed, but Paula objected to the appointment of a special master.   Her concern was that the special master would add another layer of litigation, requiring her to incur more attorney fees and thereby favoring Kip, the wealthier party.   She also believed a special master would actually impair communication by allowing Kip to avoid communicating with her.   Paula did agree that assistance of a mediator could help her and Kip improve their ability to make joint parenting decisions.

In its ruling on August 10, 1995, the trial court denied Paula permission to move, but left open various pending issues, including modifications to the parenting schedule and the use of a special master.   Later, however, on January 24, 1996, the trial court issued an order appointing a special master to “hear and consider any and all issues regarding custody.” ⁸  Paula appeals from that order.

Thereafter, the parties selected Dr. Milton Schaefer, a psychotherapist, as special master.   However, Dr. Schaefer was unwilling to comply with a provision in the court's order requiring that all sessions be transcribed if requested by a party.   Accordingly, on May 10, 1996, the trial court met with the parties and counsel and on its own motion amended its order to eliminate the requirement that the proceedings be reported.   Paula has asked that her notice of appeal be deemed to extend to this order as well.

At the hearing on May 10, two parenting disputes were also presented to the court.   The first concerned which therapist should be appointed for Rhys.   This issue had been raised at the trial on Paula's motion for modification of custody and had been deferred by the trial court.   At the May 10 proceeding, the trial court again deferred decision on this issue until after an evaluation by Dr. Lee.

The second issue involved the summer schedule for Rhys.   Under the parenting schedule set forth in the court's order of April 8, 1996, Paula was to have care of Rhys for a six-week bloc of time during which she would take him to Rhode Island.   Kip was to have two blocs of two-weeks and four-weeks beforehand and afterward.   After the court's order was filed, however, Kip asked that he be allowed to visit Rhys on weekends in Rhode Island.   Paula objected that the court-ordered parenting schedule allowed her a full six-week bloc, and she had already made plans for all six weekends.   The trial court decided to refer that issue to the special master.

B. The Trial Court's Authority

In family law matters, especially where the parties are unable to curb their animosity toward each other, the trial court may well find it advantageous to designate a separate forum to resolve the parties' differences.  (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 2, 8, 17 Cal.Rptr.2d 480.)   However, the authority of the trial court to do so is constrained by the basic constitutional principle that judicial power may not be delegated.⁹  (Cal.Const., art. VI, § 1;  In re Marriage of Olson, supra, 14 Cal.App.4th at p. 7, 17 Cal.Rptr.2d 480 [appointment of accountant as special master to determine parties' income and to calculate spousal support month-by-month was an improper delegation of judicial authority].)

The trial court has no authority to assign matters to a referee or special master for decision without explicit statutory authorization.¹⁰  (Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431, 435, 227 Cal.Rptr. 460;  In re Marriage of Galis (1983) 149 Cal.App.3d 147, 150, 196 Cal.Rptr. 659;  Bird v. Superior Court (1980) 112 Cal.App.3d 595, 599, 169 Cal.Rptr. 530.)   An invalid reference constitutes jurisdictional error which cannot be waived.  (International Jet Ski Boating Assn., Inc. v. Superior Court (1991) 232 Cal.App.3d 112, 116, 283 Cal.Rptr. 33;  Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal.App.3d at pp. 436-437, 227 Cal.Rptr. 460.)

1. Powers of a Referee or Special Master 11

The Code of Civil Procedure ¹² provides for two types of reference.   A “general” reference is conducted pursuant to section 638, subdivision (1):  the referee is empowered to make a conclusive determination without further action by the court.  (§ 644.)   In order to comport with the constitutional prohibition against delegation of judicial power, a general reference requires consent of the parties. (§ 638;  Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal.App.3d at p. 436, 227 Cal.Rptr. 460.)  “[I]f the reference is by agreement of the parties, the parties can stipulate to the special master making determinations which otherwise would be an unlawful delegation of judicial authority.”  (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 8, 17 Cal.Rptr.2d 480.)

A “special” reference is one conducted pursuant to section 639 or subdivision (2) of section 638, in which the referee makes advisory findings which do not become binding unless adopted by the court.  (Holt v. Kelly (1978) 20 Cal.3d 560, 562, 143 Cal.Rptr. 625, 574 P.2d 441;  Bird v. Superior Court, supra, 112 Cal.App.3d at pp. 599-600, 169 Cal.Rptr. 530.)   The trial court must independently consider the referee's findings before acting.  (Bird v. Superior Court, supra, 112 Cal.App.3d at p. 600, 169 Cal.Rptr. 530;  see Marathon Nat. Bank v. Superior Court (1993) 19 Cal.App.4th 1256, 1261, 24 Cal.Rptr.2d 40.)   But the referee's recommendations are entitled to great weight.  (Holt v. Kelly, supra, 20 Cal.3d at p. 563, 143 Cal.Rptr. 625, 574 P.2d 441.)

Here, Paula contends the reference to the special master was a general reference, invalid because she did not give her consent.   Kip argues, on the other hand, that the reference was a special reference.

Paula's characterization is supported by the introductory paragraph of the trial court's order, which directs the special master “to hear and determine all disputes related to the interpretation or enforcement [of the custody orders].”  Yet, the subsequent paragraphs clarify that the special master shall “hear and consider any and all issues regarding custody.”   Unless the parties stipulate to an order, the special master must set forth his recommendation or direction in a statement of decision, which shall become an order of the court “only upon the signature of the judicial officer adopting it, on an ex parte or noticed hearing basis as may be appropriate.”   Because the special master's findings require further action by the court, we view the order, taken as a whole, as a special reference.   That determination, however, does not end our inquiry.

2. Scope of Issues

When, as here, the parties do not consent to a reference, the authority of the trial court to direct a special reference is limited to particular issues.   The trial court has no power to refer issues other than those explicitly specified by statute.¹³  (Williams v. Benton (1864) 24 Cal. 424, 425-426;  In re Marriage of Galis, supra, 149 Cal.App.3d at p. 151, 196 Cal.Rptr. 659;  Bird v. Superior Court, supra, 112 Cal.App.3d at p. 599, 169 Cal.Rptr. 530.)   Section 639 authorizes a nonconsensual reference only in the following cases:  “(a) When the trial of an issue of fact requires the examination of a long account on either side;  in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.  [¶] (b)  When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.  [¶] (c)  When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action.  [¶] (d)  When it is necessary for the information of the court in a special proceeding.  [¶] (e)  When the court in any pending action determines in its discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”   Section 639 does not permit a reference of all the issues in an action.  (Badgley v. Van Upp (1993) 20 Cal.App.4th 218, 225, 24 Cal.Rptr.2d 406.)

Here, the issues referred to a special master do not fall into any of the categories listed in section 639.   The dispute between the parties does not raise financial issues, so there is no need for an accounting (§ 639, subds. (a), (b)).   Nor does the dispute involve discovery questions (§ 639, subd. (e)).   The case is not a special proceeding (§ 639, subd. (d));  it is an ordinary civil suit, a paternity action.  (See Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal.App.3d at p. 435, 227 Cal.Rptr. 460 [law and motion proceedings within ordinary civil action are not special proceedings].)

The trial court relied upon subdivision (c) of section 639, which permits a referee to decide “a question of fact, other than upon the pleadings, [which] arises upon motion or otherwise.”   We conclude, however, that this subdivision, too, is inapplicable.

First, an issue referred pursuant to subdivision (c) of section 639 must be “a question of fact.” ¹⁴  (See Bird v. Superior Court, supra, 112 Cal.App.3d at p. 600, 169 Cal.Rptr. 530.)   The trial court has no authority to refer questions of law.  (Ibid.)  Here, the trial court's sweeping reference of “any and all issues regarding custody” is not necessarily limited to strictly factual issues.   Disputes involving interpretation of the existing custody orders, for example, may present questions of law.

Indeed, at the proceeding held on May 10, 1996, a question arose over Kip's desire to visit Rhys on weekends during Paula's six-week vacation time.   That dispute involved legal as well as factual questions by calling for an interpretation and possible modification of the existing parenting schedule.   It was not a proper issue for reference to the special master.

Furthermore, as we read the statutory scheme for reference, subdivision (c) of section 639 contemplates reference of an existing question, one which actually “arises upon motion or otherwise” and is presently before the court.   The trial court has no authority to compel a reference of unknown future disputes.   Here, when the trial court issued its reference order, the court did not assign any particular unresolved custody issues to the special master.¹⁵  However, Paula correctly points out that the trial court's directive referring “any and all issues regarding custody” is so broad that it encompasses even issues which may arise in the upcoming remand proceedings on her motion to change residence to Rhode Island.   We agree that the trial court's order of reference cannot be construed to include any issues which were not issues pending before the court at the time of its order.

We do not, by this decision, seek to discourage the use of special masters in proper circumstances.   We readily acknowledge that reference of time-consuming factual questions, with the costs borne by the parties themselves, can provide needed relief to the overburdened judicial system.  (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 5, fn. 2, 17 Cal.Rptr.2d 480.)   We simply hold that the scope of a nonconsensual reference pursuant to section 639, subdivision (c), must be limited to factual questions on existing controversies.

As we have already noted (fn.13, ante), the scope of a nonconsensual reference is quite limited when compared to the scope of a consensual reference (“any or all of the issues in an action”).   That distinction is carefully preserved in the statutes in order to comply with the constitutional mandate.  (See Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal.App.3d at p. 436, 227 Cal.Rptr. 460.)   To give subdivision (c) other than a narrow meaning would blur that distinction.   We therefore hold that the trial court's reference to the special master of “any and all issues regarding custody” was overbroad and unauthorized by the statute.

The orders are reversed.   Costs are awarded to appellant.

FOOTNOTES

1.   Paula later modified her request to seek permission to move, in the alternative, to Sonoma County.

2.   Under that order, the parties have “joint legal and physical custody” of Rhys.   Kip takes care of him Sunday, Monday, Tuesday;  Paula Wednesday, Thursday, Friday.   The parties alternate care on Saturday.   They also share holidays and vacation time.   The order further provides that neither party shall change the residence of Rhys from San Francisco or San Mateo counties without court order or written consent of the other party.

FOOTNOTE.   See footnote *, ante.

7.   Dr. Lee's recommendation was for a special master to decide issues such as pick up times, bedtime, diet, clothing, health care, schedule changes that do not alter the basic time share arrangement.   Further, Dr. Lee recommended that the special master make advisory findings on education, religion, and major changes in time share arrangements.

8.   The court ordered Kip to advance the special master costs by paying his one-half share directly to the special master and depositing the other half in an account in Paula's name from which Paula would pay the special master.

9.   We are not concerned here with the authority of a court commissioner to perform subordinate judicial duties.  (Cal.Const., art. VI, § 22;  Code Civ.Proc., § 259.)   The special master appointed here was a mental health professional.

10.   Kip mistakenly contends that the trial court had authority to order the reference under Family Code section 290, which allows the court to enforce its orders by such orders as it determines necessary.   That statute does not give the trial court explicit authority to direct a reference of family law issues.In making her recommendation for a special master, Dr. Lee relied upon Family Code section 3160, which authorizes mediation in family law cases.   It does not authorize reference of family law issues.

11.   “The title given to the appointee in family law cases appears to be, in part, geographically based.   In Northern California the appointee appears to be most often designated a special master, while in Southern California the appointee is called a referee.”  (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 6, fn. 4, 17 Cal.Rptr.2d 480.)

12.   All further section references are to the Code of Civil Procedure.

13.   In contrast, upon agreement of the parties, the court may order a reference to try “any or all of the issues in an action or proceeding, whether of fact or of law.”  (§ 638, subd. (1).)

14.   Counsel have not focused their arguments on the phrase “other than upon the pleadings,” nor have they enlightened us on the application of that phrase to the context here, a postjudgment motion within a paternity action to modify custody.   We find it unnecessary for purposes of our opinion to interpret that perplexing phrase.

15.   The only pending issue at that time was Kip's request for an increase in his time with Rhys, but the trial court eventually issued its own order setting forth a detailed parenting schedule.   Also pending was the question which therapist should be appointed for Rhys, but that question is not a custody question;  it was not submitted to the special master.

DOSSEE, Associate Justice.

STRANKMAN, P.J., and SWAGER, J., concur.