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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Parenting

and Support of

Z.L.P.,

Child.

MICHAEL CHRISTOPHER PERKINS,

Appellant,

and

JENNIER LYNN HOPPER,

Respondent.

No. 72742-7-1

UNPUBLISHED OPINION

FILED: November 23, 2015

Verellen, A.C.J. — Without evidence of actual or potential bias, an appearance

of fairness claim fails. Here, Michael Perkins argues the judge violated the appearance

of fairness doctrine because during a hearing to amend a temporary parenting plan, the

judge allegedly stated, "There is ... no situation where Iwould change the custody of

the child to you."1 But Perkins did not provide us with a record of the alleged statement.

Even ifwe were to ignore the inadequate record, it appears the statement was made in

the context of a hearing to amend a temporary parenting plan, yet Perkins is appealing

the judgment establishing the final parenting plan. In that setting, the alleged statement

does not reveal actual or potential bias. Accordingly, we affirm.

Clerk's Papers (CP) at 327.
No. 72742-7-1/2

FACTS

On September 10, 2012, Island County Superior Court Judge Vickie Churchill

entered a temporary order for a parenting plan for Michael Perkins and Jennifer

Hopper's six-month-old daughter. On August 1, 2013, Hopper filed a motion to amend

the temporary plan. After a hearing on the motion, Judge Churchill entered a temporary

parenting plan designating Hopper as the primary residential parent. The temporary

plan also included a provision that, for purposes of laws that require a designation of

custody, Hopper should be considered the "custodian" of the child.2

On August 22, 2013, Perkins filed a motion for reconsideration. In his motion, he

alleged that the "judge prejudicially stated on the record, There is ... no situation

where Iwould change the custody of the child to you."3 It is unclear from the record

before us whether Perkins ever noted his motion to reconsider for consideration by a

judge. We have not been provided with any ruling on the motion.

In August 2014, Judge Churchill presided over a three-day trial to establish a

final parenting plan and child support. At the end ofthe first day oftrial, Perkins argued

that Judge Churchill was biased against him because ofsome past contact she had had

with his mother. Judge Churchill responded, "We're going to stop here, and we're going

to start at another time because, Mr. Perkins, I have no idea what you're talking about."4

When trial resumed, Judge Churchill stated,

Mr. Perkins had attempted to get some information in about some

sort of contact, Iguess you would say, that Imay or may not have had

with Mrs. Perkins, Christine Perkins. The fact is, I'm sorry to say this, it's

2 CP at 362.

3 CP at 327.

4Report of Proceedings (RP) (Aug. 15, 2014) at 179.
No. 72742-7-1/3

an issue with me a lot because I have a lot of people that are in and out of

my life, but, Mrs. Perkins, we may have had some contact in the past, but,

frankly, it was so insignificant to me that I don't recall it. And so that

means that whatever may be something that you remember, is just simply

nothing that I do.

I do not want to hear about it because I don't want my memory

refreshed on anything like that. For me, you were just somebody that's

coming in and testifying.^

After the trial concluded, Judge Churchill entered a judgment establishing the final

parenting plan and designating Hopper as the primary residential parent. The final

parenting plan increased Perkins's residential placement with his daughter above his

temporary residential placement. Hopper again was designated as custodian of the

child solely for purposes of all state and federal statutes requiring such a designation.

On October 19, 2014, Perkins filed a motion for reconsideration of the final

parenting plan. In this motion, he asked the superior court to "[rjeconsider that Judge

Churchill is biased given the familiarity with my family and the falling out that she had

with my mother."6 Again, it is unclear from the record whether Perkins's motion was

ever noted for consideration by the superior court. The record does not contain any

ruling on the motion to reconsider.

Perkins appeals the judgment establishing the final parenting plan.

ANALYSIS

Perkins argues Judge Churchill violated the appearance of fairness doctrine

because, in making her ruling on the amended temporary parenting plan, she allegedly

stated, "There is ... no situation where Iwould change the custody of the child to you."7

5 RP (Aug. 21, 2014) at 184.

6CPat21.

7 CP at 327.
No. 72742-7-1/4

"Washington's appearance of fairness doctrine seeks to prevent the problem of a

biased or potentially interested judge."8 A judicial proceeding satisfies the appearance

of fairness doctrine "'only ifa reasonably prudent and disinterested observer would

conclude that all parties obtained a fair, impartial, and neutral hearing.'"9 "The test for

determining whether the judge's impartiality might reasonably be questioned is an

objective test that assumes that 'a reasonable person knows and understands all the

relevant facts.'"10 Because the superior court is presumed to perform its functions

regularly and properly without bias or prejudice, "[wjithout evidence ofactual or potential

bias, an appearance of fairness claim cannot succeed and is without merit."11

Perkins's entire argument on appeal is based upon Judge Churchill's alleged

statement that she would not change custody of his and Hopper's daughter to him. He

claims this statement "foretold the outcome of the custody issue long before the trial

even began" because [wjhile the parenting plan issued after the trial concluded awarded

[him] more time with his daughter than had been previously ordered, the question of

who would be the child's primary caregiver had been already decided bythe judge at

the August 12, 2013 hearing on temporary orders."12 But Perkins failed to provide this

court with the full verbatim report of proceedings from the August 12, 2013 hearing.13

8Tatham v. Rogers, 170 Wn. App. 76, 95, 283 P.3d 583 (2012).

9State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (quoting State v.

Ladenburq, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992)).

10 Sherman v. State, 128Wn.2d 164, 206, 905 P.2d 355 (1995) (quoting ln_re

Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).

11 State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992).

12 Reply Br. at 10.

13 See CP at 295-324.
No. 72742-7-1/5

The record before us does not include the alleged statement made byJudge Churchill

during that hearing.

"The party seeking review has the burden of perfecting the record so that this

court has before it all of the evidence relevant to the issue."14 In the absence of an

adequate record, we cannot review the merit of Perkins's argument.

Even ifwe ignore the inadequate record and assume the alleged statement was

made at the temporary hearing,15 context is everything. Here, Perkins is appealing the

final judgment establishing the parenting plan. A party asserting a violation of the

appearance of fairness doctrine "must produce sufficient evidence demonstrating bias,

such as personal or pecuniary interest on the part of the decision maker; mere

speculation is not enough."16

The limited record here reveals that Perkins's and Hopper's daughter was having

a difficult time adjusting to the existing temporary residential schedule given her young

age.17 In the context of a motion seeking to amend the temporary plan to better

address the daughter's adjustment, it is not troublesome ifthe judge announces that a

major change of "custody" or residential placement was not an option for that hearing.

And there is the possibility that such a reference to "custody" was related to the

provision of the temporary plan designating a "custodian" for purposes of state and

14 Olmsted v. Mulder, 72 Wn. App. 169, 183, 863 P.2d 1355 (1993); RAP 9.2(b).

15 See CP at 295-324, 358-65.

16 In re Pers. Restraint of Havnes, 100 Wn. App. 366, 377 n.23, 996 P.2d 637

(2000).

17 See CP at 304-06.
No. 72742-7-1/6

federal laws requiring such a designation.18 Without a more complete record, we

cannot analyze the context and meaning of the alleged statement.

At trial, Perkins offered vague allegations about a prior interaction between the

judge and his mother. The judge expressly told Perkins that she did not remember

having any contact with his mother.19 On appeal, Perkins offers no evidence of actual

or potential bias related to the trial judge's alleged statement at the temporary hearing

or interactions between the judge and his mother. Accordingly, Perkins's appearance of

fairness claim fails.

Perkins also argues Judge Churchill violated the due process clause by not

recusing herself from the matter. We disagree.

"The Due Process Clause entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases.'"20

"Despite the breadth with which the United States Supreme Court

has expressed the right to a 'fair trial in a fair tribunal,' 'most questions

concerning a judge's qualifications to hear a case are not constitutional

ones, because the Due Process Clause of the Fourteenth Amendment

establishes a constitutional floor, not a uniform standard.'"[21]

18 Included in the mandatory domestic relationsform for parenting plans is a

"Designation of Custodian," which provides, "The children named in this parenting plan

are scheduled to reside the majority ofthe time with (name) . This parent is

designated the custodian of the child(ren) solely for purposes of all other state and

federal statutes which require a designation or determination of custody. This

designation shall not affect either parent's rights and responsibilities under this

parenting plan." 22A Scott Horenstein, Washington Practice . Family andCommunity

Property Law Handbook, WPF PS 01.0400 at 497-98 (2015 ed.).

19 See RP (Aug. 15, 2014) at 179; RP (Aug. 21, 2014) at 184.

20 Tatham, 170Wn. App. at 90 (quoting Marshall v. Jerrico, Inc., 446 U.S. 238,

242, 100 S. Ct. 1610, 64 LEd.2d 182 (1980)).

21 jd,(quoting Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d

712 (1975); Bracv v. Gramlev, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L Ed. 2d 97

(1997)).
No. 72742-7-1/7

Here, the appearance offairness doctrine provides Perkins greater procedural

protection than the minimum requirements ofthe due process clause.22 Because

Perkins's appearance of fairness claim fails, he necessarily fails to establish any due

process violation.

We affirm.

WE CONCUR:

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22 Matter of Johnston, 99 Wn.2d 466, 478, 663 P.2d 457 (1983).

7