FILED 


AUGUST 26,2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


In re: ) 

) No. 31322-1-111 

JENNIFER HALL, ) 

) 

Appellant, ) 

) 

and ) 

) 

WILLIAM BROUILLET, ) UNPUBLISHED OPINION 

) 

Respondent. ) 

SIDDOWAY, C.J. - In State ex rei. Mauerman v. Superior Court, 44 Wn.2d 828, 

271 P.2d 435 (1954), the Washington Supreme Court held that a petition to modify the 

custody provisions of a divorce decree was a new proceeding within the meaning of 

Washington statutes entitling parties to litigation to one change ofjudge, with the result 

that the mother had a right to file an affidavit ofprejudice and thereby disqualify the 

judge who had presided over her divorce. The Supreme Court refused to indulge the 

argument that "because the judge who settles the issue of custody of children at the trial 

of a divorce case is acquainted with the problem, he should not be disqualified from later 

proceedings." Id. at 830. It held, "Ifthe proceeding is one within the meaning ofthe 

cited statutes, a motion for a change ofjudges presents no question of discretion or 

policy. It must be granted as a matter ofright." Id. The same result obtains under the 
No. 31322-I-III 

In re Hall and Brouillet 

present modification statute, RCW 26.09.260, and under RCW 4.12.050, which allows a 

party to litigation to disqualify one judge in a proceeding as a matter of right. 

Jennifer Hall, having commenced this action to modify the parenting plan for her 

daughter, filed a timely motion and affidavit of prejudice seeking to disqualify the 

superior court judge who presided over the parentage action in which the existing 

parenting plan was entered. Mauerman is controlling. Ms. Hall's motion for change of 

judge should have been granted as a matter of right. 

We reverse the superior court's denial of the motion for change ofjudge. We 

remand with directions to vacate any action taken by the disqualified judge and to 

transfer the petition to another department of the court. 

FACTS AND PROCEDURAL BACKGROUND 

Jennifer Hall and William Brouillet are the natural parents of a daughter whose 

parentage was resolved in an action presided over by Judge Annette Plese. On January 

11,2012, Judge Plese signed a parenting plan in that proceeding that divided the 

daughter's time almost equally between Ms. Hall and Mr. Brouillet. Although a copy of 

this original plan is not in the record on appeal, it is evident from the record that Judge 

Plese's order also resolved a dispute between the parties over where the daughter should 

attend school; Mr. Brouillet wished for her to attend school in the Mead area, where he 

lived, but Ms. Hall had since moved to Liberty Lake and wanted her daughter to attend 

school there. The court ordered that the daughter would attend school in Mead. And 

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Judge Plese evidently also retained some type ofjurisdiction over matters addressed by 

her order. At one point Mr. Brouillet's trial lawyer argued, 

[T]he parenting plan in January was entered by agreement. The agreement 

contained paragraphs 2.1 and 2.2, which specifically states that the parties 

have agreed this Court will retain jurisdiction over the parenting plan at 

least to the extent of any allegations as to parental conduct. 

Clerk's Papers (CP) at 130. Neither party has made Judge Plese's January 11,2012 

original order a part ofthe record. I 

On August 29, 2012, Ms. Hall commenced the action below by filing a summons 

and petition for modification ofthe parenting plan, using the mandatory petition form for 

such an action. The modified parenting plan that she proposed provided that her daughter 

would live with her in Liberty Lake upon enrollment in school, and stay with Mr. 

Brouillet every other weekend. She sought modification under RCW 26.09.260(1), 

which provides that ordinarily the court shall not modify a prior parenting plan, 

unless it finds, upon the basis of facts that have arisen since the prior decree 

or plan or that were unknown to the court at the time ofthe prior decree or 

plan, that a substantial change has occurred in the circumstances ofthe 

child or the nonmoving party and that the modification is in the best interest 

ofthe child and is necessary to serve the best interests ofthe child. 

I The record on appeal includes an insufficiently explained "CR2A Settlement 

Agreement" from the parentage proceeding that was filed with the court on Apri123, 

2012 that includes different language about retaining jurisdiction. CP at 249. Because it 

is unexplained, and because Mr. Brouillet's lawyer's statements to the court were made 

later, we cite to them. The language as to what jurisdiction was being retained would not 

make a difference, given our analysis. 

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In re Hall and Brouillet 

The "substantial change in circumstance" that Ms. Hall alleged in the petition was 

that she had discovered a declaration filed by Mr. Brouillet in King County superior court 

proceedings involving his fiancee that suggested (along with other evidence) that he was 

now living in the Seattle area. Ms. Hall alleged that this was contrary to Mr. Brouillet's 

earlier representation to the court that he wished for his daughter to go to school in the 

Mead area because that is where he was living. 

Upon filing her petition, Ms. Hall obtained an ex parte restraining order providing 

that the parties' daughter would reside with Ms. Hall until the time of a September 12 

hearing and would be allowed to be enrolled in and attend school in the district in which 

Ms. Hall resided. Mr. Brouillet promptly moved to quash the restraining order and 

moved for an order shortening time so that his motion to quash could be heard on 

September 4. He set his motion to quash to be heard by Judge Plese. 

On the day the motion to quash was to be heard, and before Judge Plese had taken 

any action, Ms. Hall filed a motion for change ofjudge that included her lawyer's 

certificate that he believed that "a fair and impartial trial in this case cannot be had 

before: [Judge] Annette Plese." CP at 57. As a result, the first matter addressed by Judge 

Plese upon taking the bench for the September 4 hearing was the affidavit of prejudice. 

After hearing arguments from both parties, Judge Plese pointed out that she had presided 

over the lengthy prior proceeding, which now consumed 14 volumes of court files and 

that in the course of that action she had retained jurisdiction over future matters. She 

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No. 31322-1-III 

In re Hall and Brouillet 

denied the motion for change ofjudge, which she characterized as a veiled attempt to 

"bypass this Court's rulings and file a new modification and get by what the Court's 

already heard and what the Court made ruling on." CP at 118. A motion by Ms. Hall for 

reconsideration was denied. 

Judge Plese's written order denying the motion for change ofjudge was entered 

thereafter and included findings that (1) the petition was not a new proceeding, and (2) 

that the court had retained jurisdiction over the parenting plan and Ms. Hall had not 

attempted to appeal the retention ofjurisdiction. Ms. Hall appeals. 

ANALYSIS 

Motions to change judges are governed by RCW 4.12.040 and RCW 4.12.050.2 

RCW 4.12.040(1) provides that "[n]o judge ... shall sit to hear or try any action or 

proceeding when it shall be established ... that said judge is prejudiced" against any 

party or their interest. Under these statutes, "[a] party in a superior court proceeding is 

entitled to one change ofjudge upon timely filing an affidavit of prejudice." In re 

Marriage o/Tye, 121 Wn. App. 817, 820, 90 P.3d 1145 (2004). An affidavit of prejudice 

2 A second basis on which to disqualify a judge who a party believes is biased is 

the appearance of fairness doctrine, which prevents "a biased or potentially interested 

judge from ruling on a case," but requires a showing of actual prejudice. In re Marriage 

a/Meredith, 148 Wn. App. 887, 903, 201 P.3d 1056 (2009). Ms. Hall makes an 

alternative argument for disqualification of Judge Plese based on the appearance of 

fairness doctrine, but given our decision on Ms. Ha11's right under RCW 4.12.050, we do 

not address it. 

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In re Hall and Brouillet 

is timely if it is called to the court's attention "before the judge presiding has made any 

order or ruling involving discretion." RCW 4.12.050(1); 14 KARL B. TEGLAND, 

WASHINGTON PRACTICE: CIVIL PROCEDURE § 10:9 (2d ed. 2009). 

It is undisputed that Ms. Hall filed her motion and affidavit of prejudice before 

Judge Plese took any action on the petition for modification. The only issues are whether 

the petition was a "proceeding" distinct from the parentage action over which Judge Plese 

had earlier presided, and whether Judge Plese's earlier order retaining jurisdiction makes 

a difference. The determination of whether RCW 4.12.050 imposed a duty on Judge 

Plese to step aside under the circumstances is a question of law that we review de novo. 

In re Estate ofBlack, 116 Wn. App. 492, 496, 66 P.3d 678 (2003). 

The Washington Supreme Court's 1954 decision in Mauerman and earlier cases 

on which it relies are controlling. In Mauerman, a mother filed a petition for 

modification of the custody provisions in her divorce decree, asserting changed 

circumstances. The modification proceeding was assigned to the judge who had presided 

over the divorce. The mother filed a timely affidavit of prejudice. When the trial court 

denied her motion, she obtained an alternate writ of mandate from the Supreme Court, 

which ordered the judge to transfer the proceeding to another department of the court or 

show cause for not doing so. 44 Wn.2d at 830. 

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No. 31322-1-III 

In re Hall and Brouillet 

In responding to the order to show cause, the judge asserted that, because the 

, divorce action was submitted to and heard by him, he could not be disqualified from 

hearing the modification proceeding. Id. The Supreme Court disagreed. It held that 

[a] proceeding to modify the child custody provisions of a divorce decree, 

upon allegations of changed conditions since the entry ofthat decree, is a 

new proceeding. It presents new issues arising out of new facts occurring 

since the entry ofthe decree. It is not ancillary to or in aid ofthe 

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. 

Id. The court cited to its earlier decision in State ex reI. Foster v. Superior Court, in 

which it had held that in an action to modify the custody of a child, the petitioner was 

entitled to a change ofjudge upon filing an affidavit ofprejudice because the requested 

modification was not "a proceeding ancillary to the divorce action or in aid of the 

enforcement ofthe final decree rendered therein," but a proceeding to "determine new 

rights arising out of new facts occurring since the rendering ofthat decree." 95 Wash. 

647, 653, 164 P. 198 (1917). Accordingly, it held that it is "a 'proceeding' within the 

meaning of Rem. Code, § 209-1,"3 and that the petitioner, having made his application 

3 The prior version of the statute contained in the Remington Code was essentially 

identical to that ofthe current RCW 4.12.040 See REM. 1915 CODE § 209-1 ("No judge 

of a superior court ofthe state of Washington shall sit to hear or try any action or 

proceeding when it shall be established, as hereinafter provided, that such judge is 

prejudiced against any party or attorney, or the interest of any party or attorney appearing 

in such cause."). 

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No. 31322-1-111 

In re Hall and Brouillet 

for change ofjudge as required by the statute, was entitled to such change "as a matter of 

right." Id. 

We understand that Mr. Brouillet and Judge Plese view Mauerman as 

distinguishable. Our record reveals that both are emphatic that Ms. Hall did not, in fact, 

present a substantial change in circumstances, since where Mr. Brouillet spent his timeat his Seattle area home, or in the Mead area-had been addressed in the earlier action. 

But their skepticism about the substantive merits ofMs. Hall's petition for 

modification-even though well infonned, and we would of course regard the judge's 

view as especially reliable-is irrelevant, given the statutory standard. Mauerman 

requires only that a modification petition be based upon allegations of changed 

conditions. Mauerman, 44 Wn.2d at 830. And it is well settled that, once prejudice is 

established by the filing of an affidavit, no inquiry into the facts is pennissible. Rather, 

"[s]uch a motion and affidavit seasonably filed presents no question of fact or discretion." 

State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968). 

Because the filing ofthe affidavit is conclusive, the court must take the petition at 

face value-regardless ofwhether it believes the allegations contained therein lack merit. 

This mandate makes sense in light ofthe purpose of the statutory scheme governing 

affidavits of prejudice and change ofjudges: "Every lawsuit must have a loser. This will 

be easier to bear if, before proceedings begin, the loser had the right to remove a judge 

who he thought might not be fair to him." State v. Clemons, 56 Wn. App. 57,60, 782 

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No. 31322·1·111 

In re Hall and Brouillet 

P .2d 219 (1989). And if a petitioner has frivolously asserted changed circumstances and 

new facts, that will be discovered soon enough, by the next judge. 

The trial court's prior retention ofjurisdiction does not change the analysis, given 

that Ms. Hall framed her legal action as a petition for modification under RCW 

26.09.260. In arguing in the trial court that the court's retention ofjurisdiction made a 

difference, Mr. Brouillet relied on In re Marriage ofTrue, 104 Wn. App. 291,16 P.3d 

646 (2000), but the case does not help him. In True, the trial court in a divorce action 

retained ongoing jurisdiction of the case for a short period of time during which 

provisions of its final order would be going into effect; the appellate court held that "a 

trial court may retain jurisdiction over the matter for a limited period of time in order to 

review the efficacy of its decision and to maintain judicial economy following its order." 

Id. at 298. But the appellate court did not agree with the wife, who challenged the 

retained jurisdiction, that it would deprive her of her statutory right to disqualify the 

judge if she filed a petition for modification proceeding. If the "situation and facts so 

merit," it concluded that she would be free to file a petition for modification and exercise 

her right to disqualify the judge. Id. In effect, the trial court in True made it possible for 

the parties to come back to it for further review and relief short ofmodification. The trial 

court was powerless in True, and Judge Plese was powerless here, to deprive Ms. Hall of 

her right to file a petition for modification under RCW 26.09.260 and exercise her rights 

under RCW 4.12.050. 

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No. 31322-1-111 

In re Hall and Brouillet 

We reverse the trial court's order denying Ms. Hall's motion for change ofjudge 

and remand with directions to vacate any actions taken in the action by Judge Plese and 

to transfer the petition to another department of the court. 

A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

Sid~ () 

WE CONCUR: 

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