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                                                                              2014 OCT 23                  AM H:           3(3


                                                                               BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II



In Re Marriage of:                                                   No. 45235 -9 -II
                                                                    Consolidated with
BRIAN LEE MASSINGHAM,                                                  45238 -3 -II
                                  Appellant,


        v.



 KAREN NICOLE MASSINGHAM, n.k.a                                UNPUBLISHED OPINION
 THEIL,


                                  Respondent.


       HUNT, J. P. T. t —   We granted. Brian Massingham' s petition for discretionary review of the

superior court' s post -dissolution ( 1) denial of his motions for a change of judge and affidavit of

prejudice in a parenting plan modification proceeding and ( 2) order addressing counseling in a

contempt proceeding.        Asserting that both the contempt and modification proceedings were

separate from the underlying dissolution action, Massingham argues that the superior court erred

in failing to grant his motions for a change of judge, in modifying .the parenting plan without

making the requisite findings under RCW 26.09.260 and . 270, and in addressing counseling in a

contempt   proceeding.   Holding that Massingham was not entitled to change the assigned judge,

who had previously issued discretionary rulings in the case, we affirm the trial court' s denial of




I Judge J. Robin Hunt was a member of the Court of Appeals at the time oral argument was heard
on this matter. She is now serving as a judge pro tempore of the court pursuant to CAR 21( c).
No. 45235 -9 -II consolidated with 45238 -3 -II




Massingham' s motions. We remand to the superior court to enter statutorily required findings for

the parenting plan modification (including any counseling) under RCW 26. 09.260.

                                                    FACTS


          In May 2012, the Lewis County Superior Court dissolved the marriage of Brian Lee

Massingham and Karen Nicole Thiele, and entered a parenting plan for their two children, then

aged    13    and   11.   The plan provided that ( 1) the parents would share decision -making authority

over the children' s non -emergency health care; and ( 2) the children would have approximately

equal residential time with each parent.


          The next month, Thiel filed a notice of intended relocation with the children from Adna


    Lewis County) to Olympia. Massingham objected.2 On September 14, the relocation proceedings

trial judge, Judge Nelson Hunt,3 entered a temporary order allowing Thiel' s relocation to Olympia.

             In January 2013, Massingham moved for change of judge from Judge Hunt and for a

change of venue to Thurston County. On February 26, the trial court ruled that ( 1) Massingham' s

affidavit of prejudice was untimely because the court had already made two discretionary rulings

before Massingham filed his affidavit; and (2) Massingham' s motions " for a new judge and change

of venue were        factually baseless   and without   authority." Clerk' s Papers ( CP) at 55. The trial court


dismissed Massingham' s affidavit of prejudice and denied his motions for a new judge and for



1
    Formerly known as Karen Nicole Massingham.

2 On July 30, 2012, the superior court also granted Thiel a six -month anti -harassment protection
order against Massingham.


3 Lewis County Superior County Judge Nelson Hunt is not related to Court of Appeals Division
Two Judge J. Robin Hunt.




                                                           2
No. 45235 -9 -II consolidated with 45238 -3 - II



change     of venue.      The trial court also entered an order allowing Thiel to take the children to

counseling.


         While Massingham' s Lewis County Superior Court motions for change of judge and

change of venue were            pending, (      1) he withdrew his Lewis County Superior Court objections to

Thiel' s relocation; and ( 2) filed a petition to modify the parenting plan under a new cause number

in Thurston        County       Superior Court, citing Thiel'            s    relocation    as   a "   substantial change in


circumstance."           CP     at   193.      Thiel     moved   under       RCW 4. 12. 030( 3)        to change venue for


Massingham' s petition' s from Thurston County Superior Court to Lewis County Superior Court.

On April 19, the Thurston County Superior Court granted Thiel' s motion " based upon convenience

of witnesses and         the    ends    of   justice,"   transferred venue to Lewis County Superior Court, and

awarded     Thiel $ 1,   500 in attorney fees. CP at 77.

           On May 10, Thiel moved in Lewis County Superior Court for an order to show cause

regarding contempt against Massingham based on his " failure to comply with" the Lewis County

Superior Court' s February 26, 2013 order allowing Thiel to take the children to counseling. CP at

267.    One week later, Massingham filed an affidavit of prejudice against Judge Hunt and again

moved      for   a new   judge.      On July 12, the trial court ( 1) denied Massingham' s motion for a new

judge and affidavit of prejudice; and ( 2) issued findings of fact, conclusions of law, and an order


on motions regarding counseling, contempt, affidavit of prejudice, and attorney fees, declining to

find Massingham in contempt, giving Thiel sole authority to select a counselor for the children,

and    awarding Thiel $ 500 in attorney fees for Massingham'                     s"   intransigence."     CP at 351.


           Massingham          sought   discretionary review of three orders: ( 1) the Thurston County Superior

Court' s   order   transferring      venue     to Lewis    County for his      parenting   plan contempt      proceeding; ( 2)
No. 45235 -9 -II consolidated with 45238 -3 -II




the Lewis County Superior Court' s July 12, 2013 order denying his motion for new judge and

affidavit of prejudice in his parenting plan modification proceeding; and ( 3) the Lewis County

Superior Court' s July 12, 2013 order on motions regarding counseling, contempt, affidavit of

prejudice and attorney' s fees. We granted review of the two July 12, 2013 Lewis County Superior

Court orders; we denied review ofthe Thurston County Superior Court' s transfer of venue to Lewis

County.

                                              ANALYSIS


                                      I. RCW 4. 12. 050 RECUSAL


        Massingham argues that the trial judge erred in refusing to recuse himself from the post -

dissolution   contempt   and   parenting   plan   modification   proceedings.   He contends that these


proceedings were " new,"   thus entitling him to file an affidavit of prejudice requiring Judge Nelson

Hunt to recuse himself under RCW 4. 12. 050. Thiel counters that the trial judge properly denied

both of Massingham' s motion for change ofjudge accompanied by affidavits of prejudice because

neither motion was a " new" proceeding for RCW 4. 12. 050 purposes and the judge had already

ruled in the case before Massingham filed these two motions. We agree with Thiel. ,

        The record supports Thiel' s assertion that the trial judge had made rulings in the case before


Massingham filed his two motions and affidavits of prejudice under RCW 4. 12. 050 requesting a

different judge. We hold, therefore, that Massingham had no right to seek the trial judge' s recusal

by filing these motions and affidavits of prejudice.




                                                      4
No. 45235 -9 -II consolidated with 45238 -3 - II



                                            A. Standard of Review


         RCW 4. 12. 0504 allows parties to obtain a new judge by filing a motion and affidavit of

prejudice   only before the     assigned   judge   makes   any   discretionary   rulings   in the proceeding. 5 We


review a judge' s refusal to recuse for abuse of discretion. In re Marriage ofMeredith, 148 Wn.

App. 887,    903, 201 P. 3d 1056 ( 2009). "         A trial court abuses its discretion when its order is


manifestly unreasonable or based on untenable grounds. A trial court would necessarily abuse its

discretion if it based its ruling   on an erroneous view of       the   law." Washington State Physicians Ins.


Exch. & Ass 'n    v.   Fisons   Corp.,   122 Wn.2d 299, 339, 858 P. 2d 1054 ( 1993) ( internal citations


omitted).




4 RCW 4. 12. 050( 1) provides, in part:
         Any party to or any attorney appearing in any action or proceeding in a superior
         court, may establish such prejudice by motion, supported by affidavit that the judge
         before whom the action is pending is prejudiced against such party or attorney, so
         that such party or attorney cannot, or believes that he or she cannot, have a fair and
          impartial trial before such judge: PROVIDED, That such motion and affidavit is
         filed and called to the attention of the judge before he or she shall have made any
          ruling whatsoever in the case .. .
          AND PROVIDED FURTHER, That no party or attorney shall be permitted to make
          more than one such application in any action or proceeding under this section and
          RCW 4. 12. 040.
    Emphasis added).

5
    Only if the challenged judge has not yet made a discretionary ruling in the case, does the judge
lack discretion   and must recuse and        transfer the proceeding to      another   judge.   In re Marriage of
Hennemann, 69 Wn. App. 345, 346, 848 P. 2d 760 ( 1993).



                                                           5
No. 45235 -9 -II consolidated with 45238 -3 - II



             B. Post -trial Motions Made in Same Case in Which Judge Had Already Ruled

         Massingham contends that, because the contempt and parenting plan modifications were

new proceedings separate from the original dissolution,6 he was entitled to file motions for a

change of judge, accompanied by statutory affidavits of prejudice, and to request a new judge to

hear both     post -trial       motions.        Massingham is correct that the contempt and parenting plan

modification proceedings were distinct from the parties' underlying original dissolution trial. But

Massingham is incorrect that these requests for change ofjudge proceedings were " new" for RCW

4. 12. 050   purposes:      Instead, the contempt and modification proceedings became part of the same


ongoing case in which Judge Hunt had originally dissolved their marriage. See State v. Hawkins,

164 Wn.      App.   705, 713, 265 P. 3d 185 ( 2011),               review denied, 173 Wn.2d 1025 ( 2012). 7 Thus,

these proceedings also were not " new" for RCW 4. 12. 050 purposes.


                                           1.    First motion for change of judge


         We hold that the trial judge properly denied Massingham' s first motion for change ofjudge,

filed on January 9, 2013, because the judge had already made rulings in the parties' original



6 Massingham also contends that his objection to Thiel' s relocation was a different proceeding
than his petition to modify the existing parenting plan; but he fails to show support this contention.
7
    Similarly, a retrial following reversal on appeal is " a continuation of the original action and,
therefore,    is the      same case    for      purposes   of   RCW 4. 12. 050," even though it might present new
issues arising from new facts that have occurred                       since   the entry of final judgment.       See State v.
Hawkins, in which Division One of our court
         refused     to treat    a retrial after a mistrial as a new case,        noting that "` case'   ...   involves
         pretrial,     trial,   posttrial and appellate proceedings[,]" [            because Hawkins' postrial]

         hearing was not based on new issues arising from new facts but was simply the
         most recent in a chain of posttrial proceedings that were all part of the original
         action.

 164 Wn.     App.    at   713 -14 (   emphasis added) (         quoting State v. Clemons, 56 Wn. App. 57, 59, 782
P. 2d 219 ( 1989)).



                                                                   6
No. 45235 -9 -II consolidated with 45238 -3 - II



dissolution proceeding, plus two subsequent discretionary rulings in the case, by the time.

Massingham filed his first             motion        and    affidavit    of prejudice:      a September 14, 2012 ruling

 allowing the respondent to temporarily relocate to Olympia" and a November 2, 2012 ruling

 denying    the   petitioner' s motion         for   a guardian ad       litem." CP at 347. RCW 4. 12. 050( 1) entitles


a party to a judge' s recusal only if the party files its motion and affidavit of prejudice " before [ the

trial judge]   shall    have   made    any ruling whatsoever            in the   case." ( emphasis added).     Because Judge


Hunt had already made discretionary rulings in this same case, RCW 4. 12. 050 did not entitle

Massingham to the trial judge' s recusal.


                                        2. Second motion for change ofjudge


        We further hold that the trial judge properly denied Massingham' s May 17, 2013 motion

for change of judge because RCW 4. 12. 050 also precludes a party from making " more than one

such [ recusal]     application       in any    action      or   proceeding      under   this   section."   RCW 4. 12. 050( 1)


 emphasis added).         As with Massingham' s first motion for change ofjudge, this second motion for


change of judge, and its accompanying affidavit of prejudice, were also filed in the same

underlying dissolution action. Therefore, Massingham was not entitled to file this second motion

for change of judge under the statute.


        We affirm the trial court' s denials of Massingham' s two motions for change of judge.

                                  II. JURISDICTION To HEAR CONTEMPT MOTION


        Massingham             also   argues    that ( 1)    the trial judge "      exceeded his jurisdiction, power, or


authority   by    not   recusing himself        and   deciding     the   merits of [Thiel' s]     contempt motion ";   and ( 2)


therefore, we must reverse the contempt order. Br. of Appellant at 20. Massingham contends that


his motions for change of judge and affidavits of prejudice immediately divested the trial judge of



                                                                    7
No. 45235 -9 -II consolidated with 45238 -3 -II



jurisdiction to hear further proceedings and, consequently, the trial judge lacked authority to enter

an order on Thiel' s contempt motion. We have already held that the trial judge did not exceed his

authority in denying Massingham' s motions to recuse; thus, this argument about divestment of the

trial court' s authority to hear the contempt motion also fails.

                                               III. APPEARANCE OF FAIRNESS


          Massingham next argues that the trial court erred in denying his motions for a new judge

based on the appearance of bias or prejudice. Thiel counters that the trial judge showed " no actual

or apparent    bias."    Br.   of   Resp' t   at   11.   The record supports Thiel' s assertion.


          Massingham       asserts     that the trial judge'        s "'   impartiality may be reasonably questioned"

because the trial court' s July 12, 2013 order denying his motion for new judge and affidavit of

prejudice purported to require him to show " actual prejudice" to obtain the judge' s recusal under


RCW 4. 12. 050. Br. of Appellant at 29 ( quoting Meredith, 148 Wn. App. at 903).

           Massingham further contends that the trial judge' s July 12 order used an improper legal

standard     in ruling that he ( Massingham) "'                did not present any evidence or file an affidavit as

required by RCW 4. 12. 050, that would substantiate that Judge Hunt is prejudiced against the

petitioner or    his   counsel. '     Br.     of   Appellant   at   29 ( emphasis   added) (   quoting finding of fact 11 at

CP   at   347 -48).    Massingham ( 1) asserts that this quoted language is evidence that the trial judge

applied an incorrect " actual prejudice "8 standard to his motions; and ( 2) argues that the trial judge

should have evaluated his ( Massingham' s) affidavit of prejudice using the legal standard asking




8 Br. of Appellant at 29.



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No. 45235 -9 -II consolidated with 45238 -3 -II



whether      the trial   judge'     s "`    impartiality   may reasonably be          questioned '   and then recused himself.


Br.   of   Appellant     at   29 ( quoting Meredith, 148 Wn.              App.   at   903).   Massingham' s argument fails.


            First, Massingham fails to show that the trial court applied an incorrect " actual prejudice "9

legal standard. Rather, the trial judge' s order rejected Massingham' s motion for a new judge on


the grounds that he ( the trial judge) had already made discretionary rulings before Massingham

moved for a change of judge, not on Massingham' s failure to show prejudice.


            Second, as the proponent on appeal that the trial judge should have recused for bias,


Massingham has the burden to provide evidence of the trial judge' s actual or potential bias. State


v.   Lundy, 176      Wn.      App.         96, 109, 308 P. 3d 755 ( 2013).       Massingham fails to fulfill this burden:


He fails to show any actual or potential bias by the trial judge at any point in the proceedings

below, including, as he contends, in finding of fact 11 of the trial court' s order on petitioner' s

motion for new judge and affidavit of prejudice. And despite Massingham' s assertion that the trial

court' s     criticisms       of   his      counsel   in   finding   of   fact 11      evinced   the "   appearance of bias or


prejudice, "10 we hold that the trial judge did not make any improper statements warranting recusal.

Massingham' s argument fails.


                                                      IV. COUNSELING ORDER


            Last, Massingham argues that the trial court abused its discretion when it modified the May

2012 permanent parenting plan by giving Thiel sole decision making authority over the children' s

counseling without following the required procedures in RCW 26. 09. 260 and .270. Thiel counters




9 Br. of Appellant at 29.

1°
     Br.   of   Appellant     at   3.
No. 45235 -9 -II consolidated with 45238 -3 -II



that the trial court did not improperly modify the parenting plan because ( 1) the trial court' s order

was merely temporary, and (2) the trial court acted in the children' s best interests by giving Thiel

only temporary       power   to   choose a counselor.         To the extent that the trial court failed to comply

with RCW 26. 09. 260, we agree with Massingham.


          A [ parenting      plan] modification ...          occurs when a party' s rights are either extended


beyond    or reduced      from those originally intended in the decree."             In re Marriage of Christel &

Blanchard, 101        Wn.    App.      13,    22,   1   P. 3d 600 ( 2000).     Modification is different from a


  clarification, "' which     is "'   merely a definition of the rights which have already been given and

those   rights   may be completely           spelled out   if necessary. "'   In re Marriage of Holmes, 128 Wn.

App.    727, 734 -35, 117 P. 3d 370 ( 2005) ( quoting Christel, 101 Wn.                App.   at   22).   Here, the trial


court modified the parties' May 2012 permanent parenting plan' s original explicit provisions that

the   parties were   to   make    non -emergency health        care   decisions jointly:   The court' s July 12, 2013

order on motions regarding counseling, contempt, affidavit of prejudice, and attorney' s fees

removed this joint decision -making and gave Thiel the unilateral right to choose the children' s

counselor, a non -emergency           health    care provider.     This ruling reduced Massingham' s rights and

extended Thiel' s rights beyond those in the dissolution' s original parenting plan. Thus, it was a

parenting plan modification.


          When modifying a parenting plan or custody decree, the trial court must follow the




                                                              10
No. 45235 -9 -II consolidated with 45238 -3 -II


                                                       11
procedures    in RCW 26. 09. 260 and . 270.                  RCW 26. 09. 260( 1);          In   re   Parentage of C.M.F., 179


Wn.2d 411, 419, 314 P. 3d 1109 ( 2013).                     For   example,   the   trial   court must      find   a "` substantial



change   in   circumstances '      in order to modify a parenting plan or decree, even if the proposed

modification    is   minor.   In re Marriage of Kirshenbaum, 84 Wn. App. 798, 807, 929 P.2d 1204

 1997) ( quoting RCW 26. 09. 260( 1)).          Thus, in modifying the parenting plan at issue here, the trial

court was required to follow RCW 26. 09. 260 and . 270, including finding whether a substantial

change in circumstances had occurred; but it did not. We hold that the trial court erred in failing

to make the required statutory findings. 12
         We affirm the trial court' s denial of Massingham' s two motions to change judge, with their

                                                  13
accompanying         affidavits   of prejudice.             With respect to the trial court' s modification of the


parties' parenting plan provision for decision -making authority over counseling for the children,



11 RCW 26. 09. 260( 1) sets forth the statutory requirements for modifying a parenting plan, which
include, in part, that
         the court shall not modify a prior custody decree or a 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 of the prior decree or plan, that a substantial change
         has occurred in the circumstances of the child or the nonmoving party and that the
         modification is in the best interest of the child and is necessary to serve the best
         interests of the child.


12 Thiel contends that RCW 26. 09. 260 and .270 did not apply because the July 12 parenting plan
counseling modification was merely temporary. But the record before us on appeal does not show
that the trial court specified that this parenting plan modification was temporary; nor did it set a
date when this modification would expire. We agree with Massingham that the plain meaning of
the trial   court' s order made     Thiel'   s right    to   choose a counselor permanent.                 Thus, the trial court

was required to comply with RCW 26. 09.260 before making such permanent change to the
parenting plan.


13 Because Massingham is not the substantially prevailing party, we decline to award him
attorney' s fees. RAP 18. 1.



                                                                  11
No. 45235 -9 -II consolidated with 45238 -3 -II



we remand to the trial court to enter the necessary supporting findings in compliance with chapter

26. 09 RCW.14

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




 We concur:




         n, A.C. J.
                      A,c




14 If on remand the trial court does not enter the requisite findings, then it shall vacate its order
modifying the parenting plan to give Thiel sole decision -making authority over the children' s
counseling.



                                                  12
