Nehls v. Nehls

By Attorney Gregg Herman
June 13, 2012

The Wisconsin Court of Appeals affirmed a trial court decision today in Nehls v. Nehls, Appeal No. 2011AP2330.  By the way, this is the first family law case recommended for publication by the court of appeals since March 6, 2012.

The holding is very simple:  Dale Nehls waived his right to a de novo hearing before the circuit court when he consented, by default, to the entry of an order by the Family Court Commissioner.

The lesson of the case is that lawyers cannot skip the FCC step and go to the trial court, Rather, a de novo hearing before the trial court presumes that there was a hearing to begin with before the FCC.

That holding makes a great deal of sense.  The interesting part of the case is the apparent local practice in Fond du Lac County, which is have the GAL prepare a written recommendation which becomes the order of the court if no one objects within 15 days.

Neither party apparently had any problem with this procedure and neither brief – nor the court of appeals decision – cites cases like Goberville v. Goberville, which discourage relying upon the GAL’s recommendation absent an evidentiary hearing.

Hopefully, this case will be relied upon only for the waiver issue, not approving the use of a GAL serving as a type of “special master” in deciding custody matters.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.