### FILED 

### AUGUST 26,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re: ) ) No. 31322-1-111 JENNIFERHALL, ) ) Appellant, ) ) and ) ) WILLIAM BROUILLET, ) UNPUBLISHED OPINION ) Respondent.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 Courtheldthat a petitionto modify the custodyprovisions ofa divorce decree was a new proceeding within the meaning of Washington statutes entitlingparties to litigation to one change of judge, with the result that the motherhad a right to file an affidavit ofprejudice andthereby disqualify the judgewho hadpresided overherdivorce. The Supreme Courtrefused to indulgethe argument that "because thejudgewho settles the issue ofcustody ofchildren at thetrial ofa divorce case is acquainted withtheproblem, 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 of judgespresents no question ofdiscretion or policy. It must be granted as a matter ofright." Id. The same result obtains under the

### No. 31322-I-III In re Hall andBrouillet 

### present modification statute, RCW 26.09.260, and under RCW 4.12.050, which allows a party to litigation to disqualify onejudge in a proceeding as a matter ofright. Jennifer Hall, having commenced this action to modify the parentingplan for her daughter, filed a timely motion and affidavit ofprejudice seekingto disqualify the superior courtjudgewho presided overthe parentage action in which the existing parentingplan was entered. Mauerman 

### is controlling. Ms. Hall's motion for change of judge should have been granted as a matter ofright. We reverse the superior court's denial ofthe motion for change of judge. We remand with directions to vacate any action taken by the disqualifiedjudge and to transfer the petition to another department ofthe court. FACTS AND PROCEDURAL BACKGROUND Jennifer Hall and William Brouillet are the natural parents ofa 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 thatproceedingthat 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. Brouilletwished 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 2No. 31322-I-III In re Hall andBrouillet Judge Plese evidently also retained some type of jurisdiction over matters addressed by her order. At one point Mr. Brouillet's trial lawyer argued, [T]he parentingplan 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 retainjurisdiction over the parenting plan at least to the extent ofany allegations as to parental conduct. Clerk's Papers (CP) at 130. Neitherparty has made Judge Plese's January 11,2012 original order a part ofthe record. I OnAugust 29, 2012, Ms. Hall commenced the action below by filing a summons andpetition 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 priorparenting plan, unless it finds, upon the basis offacts 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 orthe nonmovingparty 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 parentageproceeding that was filed with the court on Apri123, 2012 that includes different language about retainingjurisdiction. CP at249. 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 whatjurisdictionwas being retained would not make a difference, given our analysis. 3No. 31322-1-111 In re Hall andBrouillet
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 earlierrepresentation tothe courtthat he wished for his daughter to go to school in the Mead area becausethat is where he was living. Upon filing her petition, Ms. Hall obtained an ex parte restraining orderproviding that the parties' daughter would reside with Ms. Hall until the time ofa September 12 hearing and would be allowed to be enrolled in and attend school in the district in which Ms. Hall resided. Mr. Brouilletpromptly 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 sethis 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 of judge 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 ofprejudice. Afterhearing arguments from bothparties, Judge Plese pointed out that she had presided
overthe lengthy priorproceeding, which now consumed 14 volumes ofcourt files and that in the course ofthat action she had retainedjurisdiction over future matters. She 4No. 31322-1-III 

### In re Hall andBrouillet
denied the motion for change of judge, 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 whatthe 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 of judge was entered thereafter and included findings that (1) thepetition was not a new proceeding, and (2) that the court had retainedjurisdiction overthe parenting plan and Ms. Hall had not attempted to appeal the retention of jurisdiction. Ms. Hall appeals. ANALYSIS Motions to changejudges are governed by RCW4.12.040 and RCW 4.12.050.2 RCW 4.12.040(1) provides that "[n]ojudge
... shall sit to hear or try any action or proceeding when it shall be established
... that saidjudge is prejudiced" against any party ortheir interest. Underthese statutes, "[a] party in a superior court proceeding is entitled to one change of judge upon timely filing an affidavit ofprejudice." 

### In re Marriage o/Tye, 121 Wn. App. 817, 820, 90 P.3d 1145 (2004). An affidavit ofprejudice

2 A second basis on which to disqualify ajudge who a party believes is biased is the appearance offairness doctrine, which prevents "abiased or potentially interested judge from ruling on a case," but requires a showing ofactual prejudice. 

### In re Marriage a/Meredith, 148 Wn. App. 887, 903, 201 P.3d 1056 (2009). Ms. Hall makes an alternative argument for disqualification ofJudge 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. 5No. 31322-1-111 In re Hall andBrouillet
is timely ifit is called to the court's attention "before thejudgepresidinghas made any order orruling 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 ofprejudice before Judge Plese took any action onthepetition for modification. The only issues are whether thepetition was a "proceeding" distinct from the parentage action over which Judge Plese had earlierpresided, and whetherJudge Plese's earlier orderretainingjurisdiction makes
a difference. The determination ofwhetherRCW 4.12.050 imposed a duty onJudge Plese to step aside underthe circumstances is a question oflaw that wereview de novo. In re Estate of Black, 116 Wn. App. 492, 496, 66 P.3d 678 (2003). The Washington Supreme Court's 1954 decision in Mauerman and earlier cases
onwhich it relies are controlling. In Mauerman, a mother filed a petition for modification ofthe custody provisions in her divorce decree, asserting changed circumstances. The modificationproceeding was assigned to thejudge who had presided
overthe divorce. The mother filed a timely affidavit ofprejudice. When the trial court denied her motion, she obtained an alternate writ ofmandate from the Supreme Court, which ordered thejudgeto transferthe proceeding to another department ofthe court or show cause for not doing so. 44 Wn.2d at 830.

6No. 31322-1-III In re Hall andBrouillet
In responding to the orderto show cause, thejudge asserted that, because the

, divorce action was submittedto and heard by him, he could not be disqualified from hearing the modificationproceeding. Id. The Supreme Court disagreed. 

### It held that [a] proceedingto modify the child custody provisions ofa divorce decree, upon allegations ofchanged conditions since the entry ofthat decree, is a newproceeding. It presents new issues arising out ofnew facts occurring since the entry ofthe decree. Itis not ancillary to or in aid ofthe enforcement ofthe divorce decree. Itis a "proceeding" within the meaning ofthe cited statutes, and the petitioner is entitled to a change of judges as a matter ofright. 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 ofa child, the petitioner was entitled to a change of judge upon filing an affidavit ofprejudice because the requested modification was not "aproceeding ancillary to the divorce action or in aid ofthe enforcement ofthe final decree rendered therein," but a proceeding to "determine new rights arising out ofnew facts occurring since the rendering ofthat decree." 95 Wash. 647, 653, 164 P. 198 (1917). Accordingly, itheld that it is "a 'proceeding' withinthe meaning ofRem. Code, § 209-1,"3 and that the petitioner, having made his application

3The priorversion ofthe statute contained inthe Remington Code was essentially identical to that ofthe current RCW4.12.040 See REM. 1915 CODE 

### § 209-1 ("Nojudge ofa superior court ofthe state ofWashington shall sitto hear ortry any action or proceeding when it shall be established, as hereinafterprovided, that suchjudge is prejudiced against any party or attorney, or the interest ofany party or attorney appearing in such cause."). 7No. 31322-1-111 In re Hall andBrouillet
for change of judge 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. Ourrecord reveals thatboth are emphatic that Ms. Hall did not, in fact, present a substantial change in circumstances, since where 

### Mr. Brouillet spenthis timeat his Seattle area home, or in the Mead area-hadbeen addressed in the earlier action. Buttheir skepticism aboutthe substantive merits ofMs. Hall's petition for modification-even though well infonned, and we would ofcourse regard thejudge's view as especially reliable-is irrelevant, given the statutory standard. Mauerman requires only that a modification petition be based upon allegations ofchanged conditions. Mauerman, 44 Wn.2d at 830. And it is well settled that, once prejudice is established bythe filing ofan affidavit, no inquiry into the facts is pennissible. Rather, "[s]uch a motion and affidavit seasonably filed presents no question offact or discretion." State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968). Because the filing ofthe affidavit is conclusive, the court musttake thepetition at face value-regardless ofwhether it believes the allegations containedtherein lack merit. This mandate makes sense in light ofthe purpose ofthe statutory scheme governing affidavits ofprejudice and change of judges: "Every lawsuit musthave a loser. This will be easier to bear if, before proceedings begin, the loser had the right to remove ajudge who he thought might not be fair to him." State v. Clemons, 56 Wn. App. 57,60, 782 8

### No. 31322·1·111 In re Hall andBrouillet


### P.2d 219 (1989). And ifa petitioner has frivolously asserted changed circumstances and
new facts, that will be discovered soon enough, by the nextjudge. The trial court's prior retention of jurisdiction 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 of jurisdictionmade a difference, Mr. Brouillet relied onIn re Marriage of True, 

### 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 ongoingjurisdiction ofthe case for a short period oftime during which provisions ofits final order would be going into effect; the appellate court held that "a trial court may retainjurisdiction over the matter for a limited period oftime in order to review the efficacy ofits decision and to maintainjudicial economy following its order." Id. 

### at 298. Butthe appellate court did not agree with the wife, who challenged the retainedjurisdiction, that it would deprive her ofher statutory right to disqualify the judge ifshe filed a petition for modification proceeding. Ifthe "situation and facts so merit," it concluded that she wouldbe free to file a petition for modification and exercise her right to disqualify thejudge. Id. 

### In effect, the trial court in True 

### made it possible for the parties to come back to it for further review and reliefshort of modification. 

### 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 herrights under RCW 4.12.050. 9No. 31322-1-111 In re Hall andBrouillet
We reverse the trial court's order denying Ms. Hall's motion for change of judge and remand with directions to vacate any actions taken in the action by Judge Plese and to transfer the petition to another department ofthe court. A majority ofthe panel has determined that this opinion will not beprinted in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

# Sid~ () WE CONCUR:

# ~-I-----IF-It-- Korsmo,

# 1'1'

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