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The Appointment and Powers of Referees and Judicial Hearing Officers in Matrimonial and Family Court ActionsRussell I. Marnell Download PDF The Supreme Court is empowered to appoint a Referee or a Judicial Hearing Officer to preside over a trial pursuant to Article 43 of the CPLR. A referee is an individual who is appointed by the Court to conduct a trial or to perform another Court related function. A Judicial Hearing Officer (“JHO”) who is a retired judge who has been duly certified to perform judicial functions and duties is also permitted to act as a referee. In matrimonial actions, only a judicial hearing officer or a special referee appointed by the chief administrator of the courts may be designated to determine an issue. Moreover, in matrimonial actions, the Court cannot order a reference to a referee or J.H.O. nominated by a party. Furthermore, leave of court and designation by it of the referee or J.H.O. is required for references in matrimonial actions. With regards to uncontested divorce actions, a court clerk, law secretary, or any other non-judicial employee of the court who is in good standing admitted to practice in New York may be appointed by an administrative judge to serve without fee as a referee for the purpose of hearing and reporting to the Court. In addition, a Judicial Hearing Officer derives his or her authority from an order of reference by the Court which can only be made on the consent of the parties in a matrimonial action. In cases not involving divorce or Family Law, except upon the consent of the parties, no person shall be designated a referee unless he or she is an attorney admitted to practice in New York and is in good standing. Pursuant to the CPLR, a referee may determine an issue, perform an act or hear and report. If a referee is appointed to hear and report, the individual will preside over the hearing, and then rather than making the ultimate determination, will merely report his or her recommendations to the initial and presiding Judge. If, however, the referee is appointed to hear and determine, the individual will have full authority to preside over the dispute and render a decision at the conclusion. Thus, an Order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. Upon appointment, the Court may also specify or limit the powers of the referee and the time for the filing of his or her report and may fix a time and place for the hearing. In addition, a referee appointed by the Court to determine an issue or to perform an act has all of the powers of a Court in performing a like function, but shall not have the power to relieve him or herself, to appoint a successor or to adjudge any person guilty of contempt with the exception of a witness before the Court. In addition, the referee’s authority is limited to the provisions contained in the Order of reference, and he or she must comply with the direction contained in such Order. Once appointed, a Judicial Hearing Officer possesses the same powers and judicial authority as a Judge or Referee assigned to preside over a divorce action. It is important to remember that if your are involved in a case where a referee or Judicial Hearing Officer has been appointed to hear and report, you will need to order the transcripts at the conclusion of the trial/hearing so they can be available to be reviewed by the Judge who will be rendering the final determination. In addition, in cases in which a referee has been appointed, it is good practice for the litigants at the outset to stipulate in writing as to whether the referee is being appointed to hear and report or to hear and determine. Doing so will avoid any ambiguities, misinterpretations or misunderstandings at the conclusion of the litigation. For example, additional litigation could result if one of the parties believes the referee was appointed to merely hear and report while the other asserts that it was to hear and determine, or in the event that the Order is silent on this issue. Once the referee has rendered a decision and completed the services for which he or she was appointed, their authority in the case terminates. A reference to determine may only be utilized upon the consent of the parties. Thus, the parties may stipulate that any or all issues shall be determined by a referee rather than the assigned Justice. The court is not empowered in a matrimonial action to appoint a referee or Judicial Hearing Officer to hear and determine without the consent of all parties. The procedure to accomplish this is that upon the filing of the stipulation consenting to the reference with the Court, the Court shall issue an order referring the issue for trial to the referee named in the stipulation. The parties are also free to name the referee in the Stipulation, or absent such a naming, the referee can be appointed by the Court. Thus, subject to the exceptions below, a referee cannot hear and determine a matter without the consent of all parties to the action. In addition, in matrimonial actions, leave of Court and designation by it of the referee is required. The rules in the foregoing paragraph do not apply to matrimonial actions or in actions where the Defendant is an infant. They also do not apply to actions against a corporation to obtain a dissolution, to appoint a receiver of its property, or to distribute its property unless such an action is brought by the Attorney General. In such cases, leave of Court and designation by the Court of a referee is required. A referee to determine may also be appointed by the Court without the consent of the parties on motion of any party or on its own initiative . However, this is not applicable in matrimonial actions as it merely applies in limited circumstances such as actions to foreclose mechanics liens. Unless otherwise specified in the order of reference, the referee will conduct the trial in the same manner as a court trying an issue without a jury. In addition, the referee’s decision shall comply with the requirements for a decision by the Court and shall stand as a decision of a Court. A new trial may be granted upon motion of a party if the referee fails to file his or her decision in a timely manner. Where a referee is appointed merely to hear and report, they shall also conduct the trial in the same manner as a court trying an issue without a jury. The referee shall then file their report setting forth findings of fact and conclusions of law within 30 days after the submission of the matter. A referee appointed to inquire and report also possesses the authority to issue subpoenas, to administer oaths and to direct the parties to engage in disclosure proceedings. Typically, an Order referring an issue to a referee is not appealable as of right. This is the case whether or not the reference is to hear and report or to hear and decide. However, an appeal as of right can be taken from such an order where the order affects a substantial right. The Appellate Division, First Department has held that an order directing a referee to hear and report may be appealable as well where such an order affects a substantial right.
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