The use of retired judges to resolve family law cases in California has become quite common over the years. The way it works is that in exchange for an hourly rate paid for by the parties, the retired judge serves as a “privately compensated temporary judge.”
However, in a published decision by the California Court of Appeal from July, 2023, one of the justices, the Hon. Lamar Baker, in a concurring opinion, said with respect to these retired judges, “it may be time for some reexamination of the rules and procedures in place to permit the practice, including the extent to which existing rules and procedures are being followed”.
This was the case of Marriage of DeWolfe, an appeal from Los Angeles County (case no. BD483342). Specifically, the wife challenged the rulings of the Hon. Melinda A. Johnson, a retired judge from Ventura County, who served as the privately compensated temporary judge in this matter.
Following protocol, after the divorce was filed, the parties stipulated to Judge Johnson serving as the private judge. This was in 2018. Pursuant to the stipulation, the husband would advance Judge Johnson’s compensation subject to reallocation by her. Judge Johnson’s appointment would end on May 1, 2019.
On April 30, 2019, one day before Judge Johnson’s “term” was set to expire, the wife filed a request for order (“RFO”) for accounting of her 10 percent interest in stock that the husband held in trust. While the RFO was pending, the parties stipulated –and the Superior Court approved—a continuation of Judge Johnson’s appointment until April 1, 2020. This meant that the retired judge would have authority over the case until April 1, 2020, and beyond that date for any RFOs filed before April 1 that had not yet been decided.
Somewhere around June 26, 2020, before the accounting RFO had been heard, Wife informed Judge Johnson that she did not have funds to proceed with the RFO and filed a notice withdrawing her RFO “solely because she [did] not have access to legal and accounting fees to proceed”. But the judge found that she had jurisdiction to determine the accounting RFO even though the wife was willing to drop the matter! Have I lost you already?
Then, on October 14, 2020, the husband filed an RFO merely to restore the accounting RFO to Judge Johnson’s calendar. The so-called “restoration” RFO was granted on December 3, 2020. The wife then asked the Los Angeles County Superior Court’s family law supervising judge to dismiss the RFO, arguing that Judge Johnson did not have authority to hear it. But the supervising judge denied that request.
Then, on October 8, 2021, Judge Johnson basically ruled against the wife on the merits of the RFO. This was 15 months after the wife had withdrawn the RFO.
On appeal, the wife argued that Judge Johnson lacked jurisdiction to rule on the accounting RFO because it had been withdrawn and then the husband’s RFO to restore the matter was filed after Judge Johnson’s appointment order ended on April 1, 2020. In a 3-0 decision, the Court of Appeal ruled in Wife’s favor, noting that there is no “case that holds that a party needs a trial court’s approval to withdraw a motion”.
Although the opinion was written by the Hon. Dorothy Kim, Justice Baker wrote a concurring opinion to “shine[] some light on the use of stipulated temporary judges, and what is illuminated may warrant broader reflection.” What bothered the justice was a combination of facts. Judge Johnson knew that she was to be paid on an hourly basis by the husband. Justice Baker also noted that when the husband at one point changed attorneys, Judge Johnson did not disclose the newly substituted law firm had served as counsel in other matters over which Judge Johnson had previously presided. Then, as noted above, when the wife withdrew her accounting RFO, Judge Johnson granted the husband’s “application to ‘restore’ the motion to the calendar, [which] exceeded the contemplated term of her stipulated appointment, and decided the motion in [the husband’s] favor – all of which increased the compensation the temporary judge was due”.
While acknowledging Judge Johnson’s actions were an attempt to prevent the wife from engaging in what the judge saw as forum shopping, Justice Baker noted “that is not the only inference an observer could draw from the judge’s decision to determine the withdrawn motion.”
Hinting at ulterior motives on the part of the trial judge is rare for a California appellate court or justice. Neither of Justice Baker’s colleagues joined in his concurring opinion.
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