Article Title: the Appointment of Special Masters in High Conflict Divorces

• Publication year: 2002
• Pages: 08-8
• Citation: Vol. 2002 No. 08 Pg. 08-8

Utah Bar Journal Volume 8.

08-8 (2002). Article Title: The Appointment of Special Masters in High Conflict Divorces

August, 2002

Article Title: The Appointment of Special Masters in High Conflict Divorces

Author: Janet Griffiths Peterson

Article Type

Article

Article

Research has shown that ongoing conflict between parents after divorce can significantly affect a child's emotional adjustment to the divorce. As many states look for ways to reduce parental conflict and its related litigation several have turned to the use of special masters to assist these conflicted families. Special masters are court-appointed experts, appointed pursuant to Rule 53 of the rules of civil procedure, who assist judges in a quasi-judicial role to avoid frequent, continuing custody litigation. The special master's role in custody cases is to make decisions about children when the parents cannot and to assess, report, and make recommendations to the court about custody and visitation issues. The appointment of special masters in high conflict divorce cases can minimize trauma to the children of divorce by resolving custody-related disputes and reducing the court's involvement with the family

This article addresses the legal authority to appoint special masters in high conflict divorce actions and the limits of the special masters' powers. In addition, it identifies conditions that compel the appointment of special masters and suggests practical guidelines for using special masters including what qualifies a person to act as a special master, what the order of reference should contain, and what procedural processes are available to ensure due process.

Authority to Appoint Special Masters

The statutory authority to appoint special masters derives from Utah Rule of Civil Procedure 53 which is nearly identical to the Federal Rule of Civil Procedure 53. The rule provides that any or all issues in an action may be referred to a master upon the parties' consent. Without the parties consent, the court may appoint a special master only if some "exceptional condition requires it," and reference to a master should be the exception and not the rule.(fn1)

Another statutory source of authority for the appointment of special masters in Utah is found in the Utah Code of Judicial Administration (2002). Rule 4-510 establishes a court-annexed alternative dispute resolution program in the Second, Third, and Fourth Judicial Districts pursuant to the Alternative Dispute Resolution Act.(fn2) The rule provides that civil actions filed after January 1, 1995 may be referred to the ADR program either upon the filing of a responsive pleading or on the court's own motion.(fn3) Utah Code §58-39a-2(1)(b) provides that alternative dispute resolution includes "arbitration, mediation, conciliation, negotiation, mini-trial, moderated settlement conference, neutral expert fact-finding, summary jury trial, and use of special masters and related processes in civil disputes" (emphasis added). In addition, special masters are included in the definition of a dispute resolution provider under Utah Code §58-39a-2(4).

State and federal case law clarifying Rule 53 has focused on three elements: 1) the "exceptional condition" requirement of subdivision (b); 2) the "exception and not the rule" requirement of subdivision (b) and; 3) the limitations of the special master's powers. Rule 53(a) provides that the parties may consent to the appointment of a special master but, where the parties do not consent and the court by its own determination appoints a special master, subsection (b) requires that appointment shall be made "only upon a showing that some exceptional condition requires it."

1. High Conflict Divorce Cases Involve Exceptional Conditions Justifying the Appointment of a Special Master

The Utah Supreme Court addressed the issue of what constitutes an "exceptional condition" within the meaning of Rule 53 in Plumb v. State, 809 P.2d 734 (Utah 1990). Here the court upheld the district court's referral of the issue of attorney fees in a class action suit to a special master because the facts underlying the issue of attorney fees constituted "exceptional conditions."(fn4) The case made three points important to the use of special masters:

1. Utah has taken a flexible approach to the use of judicial resources such as special masters.

2. The facts underlying the issue determine whether an issue should be referred to a special master, not the category into which the issue falls.

3. Masters are most analogous to commissioners when acting in the performance of their duties.

The Plumb court turned to federal precedent and commentary for enlightenment on the issue of exceptional conditions.(fn5) Although federal courts have not addressed the appointment of special masters in high conflict divorce cases, they have appointed special masters under "exceptional conditions" that are analogous to conditions found in divorce and custody cases. Federal courts have appointed special masters to monitor compliance with court orders,(fn6) to implement settlements or court orders,(fn7) to resolve issues and disputes arising under court orders,(fn8 )and to make decisions related to court orders.(fn9) These same conditions are found in most high conflict custody cases that involve psychologically impaired parents who become litigious because they are unable to implement and follow court orders, or are unable to find reasonable solutions to the ongoing problems of divorce.

Combative parents may delay court proceedings, fail to cooperate with each other, and violate the terms of agreements. Where repeated violations disrupt parent/child relationships, exceptional conditions arise justifying the appointment of a special master to monitor, supervise, and manage the case. Where mental or emotional pathology exits, psychologists trained as special masters can be appointed to implement orders, develop methods for achieving compliance, and manage decision-making.

2. High Conflict...