**IN THE** **COURT OF** **APPEALS OF** **THE STATE** **OF WASHINGTON** 

**JESSICA LEE** **BODGE, )**  **No. 78055-** **7-1 )**  **(Consolidated with**  **78157-0-1, Appellant,**  

### ) **78384-0-1, 78583-4-1,** 



### ) **78854-0-1 )**  **V. )**  **) DIVISION** **ONE BRIAN** **EUGENE BODGE,**  **) UNPUBLISHED** **OPINION**

**Respondent. )** 



### ) **) FILED:**  **November 18,**  **2019 HAZELRIGG-HERNANDEZ,** **J.**
**- Jessica**  **Lee Badge** **seeks reversal** **of an** **order denying**  **her motion** **for a**  **change of** **judge in**  **a parenting**  **plan modification**  **action. Because**  **the modification**  **action was**  **a separate**  **proceeding from**  **the action**  **in which** **the parenting** **plan was entered and** **she requested** **a change** **of judge** **before any**  **rulings had**  **been issued**  **in the**  **modification, she**  **was entitled**  **to the**  **relief sought.**  **We reverse**  **and remand**  **with instructions**  **to vacate**  **any subsequent**  **rulings by** **the disqualified** **judge in** **the modification**  **action.**
**FACTS On** **September 27,**  **2017, final** **orders, including** **a final** **parenting plan, were**  **entered in**  **the divorce**  **of Jessica**  **and Brian Badge.**  **The following**  **February, Jessica** **1 filed**  **a petition** **to modify**  **the parenting**  **plan. The**  **same day,**  **she filed**  **a**

**1 For** **clarity, the**  **parties will**  **be referred** **to by** **their first**  **names. We**  **intend no** **disrespect.**No. 78055-7-1/2

motion for change ofjudge and affidavit of prejudice stating her belief that she would not receive a fair and impartial hearing before Judge Eric Lucas. On March 21, 2018, a superior court commissioner ruled that Jessica had not presented sufficient facts to establish adequate cause to modifythe parenting plan and granted Brian’s cross-motion for CR 11 sanctions and attorney fees. Jessica filed a motion for revision of the commissioner’s orders. Judge Lucas denied the motion for revision on April 12, 2018. On May4, 2018, the court denied Jessica’s motion to recuse Judge Lucas, stating: This court retained jurisdiction in this matter. There has been no break in that jurisdiction that would provide an opportunity to affidavitthejudge. Moreover, this is a continuing enforcement action of the trial court’s prior orders. That a litigant is unhappy with the decision ofthe court is not a basis for recusal for bias. It is at most a basis for appeal. Jessica then filed another petition to modifythe parenting plan. On August 2, 2018, the superior court denied Jessica’s motion for adequate cause and dismissed the second petition to modifythe parenting plan. The order stated that the court lacked jurisdiction over the modification matter because “the Parenting Plan Petitioner seeks to modify is under review by the Washington Court of Appeals Division I.” On June 14, 2019, Judge Lucas recused himself from the case, citing his inabilityto be effective in the case going forward. Jessica filed numerous notices ofappeal seeking review of multiple rulings bythe superior court. All of her appeals were consolidated into the instant case. 2

2 The parties submitted briefing on the appealability ofsome ofthe challenged orders to a commissioner ofthis court, but did not fully argue the issue of appealability. We accept review -2-No. 78055-7-1/3 DISCUSSION

I. Disqualification ofJudge Jessica contends that the court erred in ruling that the parenting plan modification action was not a “new action” forpurposes of RCW4.12.040 and .050 and denying her motion for a change ofjudge. As an initial note, Brian argues briefly that this issue is rendered moot by Judge Lucas’ voluntary recusal from this matter on June 14, 2019. “A case is technically moot ifthe court can no longer provide effective relief.” Statev. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012). Jessica responds thatthe issue is not moot because Judge Lucas made rulings after he was properly disqualified that
are still in effect, including an order awarding Brian attorney fees. Because those orders were not vacated when Judge Lucas voluntarily recused himself, we can still provide relief and will considerthe merits ofthe argument. Appellate courts “interpretstatutes astheyare plainlywritten, unless a literal reading would contravene legislative intent by leading to a strained or absurd result.” Marine Power& Eciuiii Co. v. Indus. Indem. Co., 102 Wn.2d 457, 461, 687 P.2d 202 1984). We review de novo whether ajudge was statutorily disqualified from hearing a case. In re Parenting Plan of Hall, 184Wn. App. 676, 681, 339 P.3d 178 (2014). Subject to certain limitations, a party to an action in superior court may disqualify ajudge from hearing a matter byfiling a notice ofdisqualification before the judge has made any discretionary ruling in the case. RCW 4.12.050(1).

without deciding the appealability ofthese orders and deny Brian’s requestto dismiss the notices ofappeal. -3-No. 78055-7-114

Provided the statutory requirements are met, disqualification is available as a matter of right. State v. Chamberlin, 161 Wn.2d 30, 41, 162 P.3d 389 (2007). No party may disqualify more than one judge per matter. RCW 4.12.050(1)(d). A judge may not sit to hear or 

### try any action or proceeding from which they have been properly disqualified. RCW4.12.040(1). The currentversions ofthe disqualification statutes went into effect on July 23, 2017. Laws of 2017, ch. 42, 

### § 2. The previous statutory scheme required a party seeking a change ofjudge to file a motion and supporting affidavit stating “thatthejudge before whom the action is pending is prejudiced against such party
orattorney, sothatsuch partyorattorney cannot, orbelievesthat he orshe cannot, have a fair and impartial trial before such judge.” Former RCW 4.12.050 (2009). The partywas not required to substantiate the claim of prejudice and was entitled to one change of judge as a matter of right on a timely motion and affidavit. Chamberlin, 161 Wn.2d at41. Washington courts have long recognized a petition to modify a parenting plan as a new action for purposes of RCW 4.12.040 and .050: A proceeding to modify the child custody provisions of a divorce decree, upon allegations of changed conditions since the entry of that decree, is a new proceeding. It presents new issues arising out of newfacts occurring since the entry ofthe decree. It is not ancillary to or in aid of the enforcement of the divorce decree. It is a ‘proceeding’ within the meaning of the cited statutes, and the petitioner is entitled to a change ofjudges as a matter of right. State ex rel. Mauerman v. Super. Ct. for Thurston Cty., 44 Wn.2d 828, 830, 271 P.2d 435 (1954). Division Three of this court recently found this rule to require “onlythat a modification petition be based on allegations ofchanged conditions[,]”

-4-No. 78055-7-1/5

regardless of the merits of the petition.

~ 184 Wn. App. at 683 (emphasis omitted). Because the petition to modify is a new action, a party is entitled to a change ofjudge even if the trial judge has retained jurisdiction in the underlying
case. ki.; In re Marriage of Rounds, 4Wn. App. 2d 801, 807, 423 P.3d 895 (2018). Jessica filed an affidavit of prejudice and motion for change ofjudge on the
same day that she filed the initial petition to modify the parenting plan based on changed circumstances. Although the pleadings she submitted comported with an outdated version ofthe relevant statutes, theywere sufficientto provide notice that she was seeking disqualification ofJudge Lucas. Because the modification action
was a new proceeding under RCW 4.12.050 and Judge Lucas had not made any rulings in the action, Jessica was entitled to a change ofjudge as a matterof right. The court erred in denying the motion fora change ofjudge.

II. Subsequent Orders Jessica next argues that, because the superior court judge should have recused himselfafter she filed the first affidavit of prejudice, all subsequent orders entered by thatjudge in the parenting plan modification action are void. When a party properly disqualifies a judge from an action, “the judge loses all jurisdiction
overthe case.” State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984). Ifthe court improperly denied a motion for a change ofjudge, any actions taken by that judge in the matter should be vacated on remand. ~jj~jj, 184 Wn. App. at 684. Jessica clarifies in her reply that she is seeking vacation only of Judge Lucas’ subsequent orders in the parenting plan modification action, not any other

-5-No. 78055-7-1/6

orders related to enforcement of the parenting plan. The only orders that she challenges are the April 12, 2018 order denying revision of the commissioner’s ruling and awarding Brian attorney fees and the portion ofthe May 4, 2018 order denying the motion to recuse. Because we have ruled thatthe motion for change of judge was denied in error, the portion of the May 4, 2018 order denying the motion is reversed. Afterthe motion forchange ofjudge and accompanying affidavitofprejudice
were filed, Judge Lucas was divested of authority to enter orders in the modification action. The April 12, 2018 order concerned a motion for revision of the commissioner’s ruling dismissing the petition to modifythe parenting plan and awarding Brian sanctions. Acts of commissioners are subject to revision by the superiorcourt. RCW2.24.050. When a party movesfor revision, the superiorcourt reviews the commissioner’s findings offact and conclusions of law de novo. State
v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). The superior court’s ruling
on revision is reviewable bythis court, but the commissioner’s ruling is not. Id. The order on revision concerned a commissioner’s ruling on the modification petition and is therefore part ofthe separate modification action from which Judge Lucas was disqualified. Accordingly, the April 12, 2018 order on revision must be vacated. Because we are reviewing onlythe court’s ruling on the motion for revision, the commissioner’s underlying order is not disturbed.

-6-No. 78055-7-1/7

III. Dismissal for Lack ofJurisdiction Jessica also contends that the court erred in dismissing her second parenting plan modification action for lack of jurisdiction because the parenting plan was under review by this court. After review of a case has been accepted by the appellate court, the trial court has limited authority to act in that case. RAP 7.2(a). The trial court retains the authorityto hear and determine “actions to change or modify a decision that is subjectto modification bythe courtthat initially made the decision.” RAP 7.2(e)(2). The trial court will hearthe motion to modify and decide the matter. j~j~ Ifthe trial court’s decision on the motion to modifywill change the ruling under review bythe appellate court, “the permission ofthe appellate court must be obtained priorto the formal entry ofthe trial court decision.”j4~ The trial court is empowered to modify a parenting plan if a substantial change in circumstances has occurred and the modification is in the best interest ofthe child. RCW26.09.260(1). Because thetrial court had the authorityto modify the parenting plan, the court erred in determining that it was unable to hear the motion to modifywhile the parenting plan was under review. We reverse the portion ofthe trial court’s August 2, 2018 order dismissing the petition to modifythe parenting plan for lack ofjurisdiction, reverse the portion ofthe May4, 2018 orderdenying the motion for change ofjudge, and remand with instructions to vacate the April 12, 2018 order on revision and transferthe petition to anotherdepartment ofthe court.3

~ Because Brian is not the prevailing party, his requests for sanctions and attorney fees and costs are denied. -7-No. 78055-7-1/8 Reversed and remanded. 

## ‘A,

WE CONCUR:

-8-