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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UNPUBLISHED OPINION FILED: November 23, 2015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 offairness claim fails. Here, Michael Perkins argues thejudge violated the appearance offairness 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 ButPerkins did not provide us with a record of the alleged statement. Even ifwe were to ignore the inadequate record, itappears the statement was made in the context of a hearing to amend a temporary parenting plan, yet Perkins is appealing thejudgment establishing the final parenting plan. Inthat 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 orderfor 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 forreconsideration. 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 unclearfrom 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-daytrial to establish a 

### final parenting plan andchild support. Atthe end ofthefirst day oftrial, Perkins argued that Judge Churchill was biased againsthim because ofsome pastcontact she had had with hismother. Judge Churchill responded, "We're going to stop here, and we're going to start at another timebecause, Mr. Perkins, Ihave no idea what you'retalking about."4 When trial resumed, Judge Churchill stated, Mr. Perkins had attempted to get some information in about some 

### sort of contact, Iguess youwould say, that Imay or may not have had withMrs. 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 Ihave a lot ofpeople that are in and out of my life, but, Mrs. Perkins, we may have had some contact inthe past, but, frankly, itwas so insignificant to me that Idon't recall it. And so that means that whatever may be something that you remember, isjust simply nothing that Ido. Ido not want to hear about itbecause Idon't want my memory refreshed on anything likethat. For me, you werejust somebody that's 

### coming in and testifying.^ Afterthe 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 ofthe child solely for purposes of all state and federal statutes requiring such a designation. On October 19, 2014, Perkins filed a motion for reconsideration ofthe final parenting plan. In this motion, he asked the superior court to "[rjeconsiderthat 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 thejudgment establishing the final parenting plan. ANALYSIS Perkins argues Judge Churchill violated the appearance offairness 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 offairness doctrine seeks to prevent the problem of a biased or potentiallyinterestedjudge."8 Ajudicial proceeding satisfies the appearance offairness doctrine "'onlyifa reasonably prudent and disinterested observer would 

### conclude thatall partiesobtained a fair, impartial, and neutral hearing.'"9 "The testfor determining whether thejudge's impartiality might reasonably be questioned is an 

### objective test thatassumes that 'a reasonable personknows and understandsall the relevant facts.'"10 Because the superior court is presumed to perform its functions 

### regularly andproperly without bias orprejudice, "[wjithoutevidence ofactual orpotential 

### bias, anappearance offairness claim cannot succeed and is without merit."11 Perkins's entire argument on appeal is based upon Judge Churchill's alleged statementthat 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 afterthe trial concluded awarded 

### [him] more time with his daughterthan had been previously ordered, the question of who would be the child's primary caregiver had been alreadydecided bythe judge at 

### the August 12, 2013 hearing on temporary orders."12 But Perkins failed to provide this courtwith the full verbatim report ofproceedings 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 notinclude the alleged statement made byJudge Churchill during that hearing. 

### "The party seeking reviewhas the burden of perfecting the record so that this court has before it all ofthe evidence relevant to the issue."14 In the absence ofan 

### adequate record, we cannot review the merit ofPerkins'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 offairness doctrine "must produce sufficient evidence demonstrating bias, such as personal or pecuniary interest on the part ofthe 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 motionseeking to amend the temporary plan to better address the daughter's adjustment, it is not troublesome ifthejudge 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 ofthe 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 ofthe 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 contactwith his mother.19 On appeal, Perkins offers no evidence of actual
orpotential bias related to the trialjudge'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 herselffrom the matter. We disagree. 

### "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civiland criminal cases.'"20 

### "Despite the breadthwith which the United States Supreme Court 

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

### concerning a judge'squalifications to hear a case are notconstitutional ones, because the DueProcess 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 ofCustodian," which provides, "The children named in this parenting plan are scheduled to reside the majority ofthetime with (name)
. This parent is 

### designated the custodian ofthe child(ren) solelyfor purposes ofall other state and federal statutes which require a designation ordetermination ofcustody. This 

### designation shall not affect either parent's rights and responsibilities underthis 

### parenting plan." 22A Scott Horenstein, Washington Practice .FamilyandCommunity 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, 43L. Ed. 2d 

### 712 (1975); Bracvv. 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 processclause.22 Because Perkins's appearance offairness claim fails, he necessarily fails to establish any due process violation.
We affirm.

WE CONCUR:



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

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