De novo hearings allow a brand-new hearing on issues decided by court commissioners. Practitioners are not limited by the pleadings or evidence presented before the commissioner.
De Novo hearings are a useful tool for practitioners to gain the best possible result for clients, especially if a client comes to you after attempting to handle their case pro se.
What is a De Novo Hearing?
De novo is Latin, meaning “from the new.” Black’s Law Dictionary defines a de novo hearing as a “new hearing of a matter, conducted as if the original hearing had not taken place.”1 A court hearing a case de novo decides the case based only on the evidence presented at the de novo hearing, rather than giving any deference to the decision made by the previous court.
Lauren L. Otte, Marquette 2017, is an associate attorney with Karp & Iancu S.C., in Milwaukee, where she practices in divorce, paternity, injunctions, and post-judgment issues.
A request for de novo review is not a motion to overturn or modify a commissioner’s decision, nor is it an appeal of the commissioner’s application of the law to the facts. Rather, it is a request for a brand-new hearing and a complete re-trial of the disputed issues.
At a de novo hearing, the circuit court judge decides the case as if it had never been heard before, based only on the facts and evidence presented at that hearing, without considering the commissioner’s prior decision.
What Types of Decisions can be Reviewed De Novo?
Family law practitioners will often encounter a request for de novo review following decisions made by court commissioners in pre- and post-judgment family law matters as well as harassment and domestic abuse injunctions, however, they can also be requested following an appeal of an arbitration decision.2 Any decision made by a court commissioner after hearing can be reviewed de novo by the presiding circuit court judge. Many counties do not allow de novo review of a stipulation approved by a court commissioner if there was no initial hearing.3 Be sure to check the local rules of the county in which you are practicing.
How Long Do I Have to Request a De Novo Hearing?
The time limit for requesting de novo review in an injunction matter is 30 days.4
The family code is silent about time limits, but most counties require the request for de novo review to be filed within 15 or 30 days from date the commissioner’s decision is entered. You absolutely must check the local rules of the county in which you are practicing being sure you do not miss the deadline to request a de novo review.
Additionally, if your client is unhappy with any portion of the commissioner’s decision, you must file a request for de novo review, regardless of whether the opposing party has also requested a review. If you rely on the opposing party’s request for de novo review, and that request is later withdrawn after the time limit has expired, the hearing will be dismissed, and your client has forfeited the opportunity to have the commissioner’s decision reviewed by the judge.
What Evidence can be Presented at a De Novo Hearing?
Often, a client may come to you for the first time after they have attempted to handle their case alone and received an unfavorable decision from a court commissioner.
Because a de novo hearing is heard as if the hearing before the commissioner never took place, the parties can – and often should – present evidence and testimony. Practitioners and clients are sometimes concerned whether they are restricted to the evidence presented at the first hearing, or if additional evidence not heard by the commissioner can be presented before the judge.
Case law provides some guidance on this issue, and is clear that a party requesting a de novo review is entitled to an evidentiary hearing, including testimony from parties and witnesses.5
A restriction against the presentation of new facts and evidence at a de novo hearing would defeat the purpose of a de novo review. A de novo hearing is a fresh look at the disputed issues – a new hearing – and not merely a review of the record made before a commissioner.6
Can Allegations Not Set Forth in the Pleadings Be Presented at a De Novo Hearing?
As stated above, sometimes a client will come to you after attempting to handle their case pro se. In this scenario, the client has prepared the motion or petition that led to a hearing before a commissioner, and often those pleadings may not address all the facts and evidence that exist to support their claims.
You can present evidence of allegations outside, but related to, the pleadings at the de novo hearing. Wis. Stat. section 802.09(2) allows practitioners to amend the pleadings on the record to conform to the evidence presented at a hearing when necessary.
Additional issues may be raised upon motion at any time by any party. The court may allow the pleadings to be amended, and shall amend said pleadings freely in pursuit of the merits of the action unless the admission such evidence would prejudice either party.
The court may also grant a continuance to allow the objecting party time to prepare a response to evidence outside of the pleadings. This statute offers further protection for this allowance by stating that the result will not be affected by a failure to move to amend.
Conclusion: An Opportunity
De novo hearings offer an opportunity to completely retry an issue decided by a court commissioner.
Practitioners can and should present all evidence to support their client’s position, regardless of the allegations pled and the evidence considered by the court commissioner.
This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.
Endnotes
1 Black's Law Dictionary, p.738 (8th ed.,
2 Wis Stat. § 788.15.
3 Nehls v. Nehls, 819 NW 2d 335, 339 (Ct. App. 2012).
4 Wis Stat. § 813.126.
5 Stuligross v. Stuligross, 763 N.W.2d 241, 245 (Ct. App. 2008).
6 Id.
