                                                                          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WILLIAM BROUILLET,                             )         UNPUBLISHED OPINION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 of prejudice 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, "If the proceeding is one within the meaning of the

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

policy. It must be granted as a matter of right." 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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In re Hall and Brouillet


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 of the record. I

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

and petition for modification of the 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 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.



       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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       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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No. 31322-1-111
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 of that decree, is a
       new proceeding. It presents new issues arising out of new facts occurring
       since the entry of the decree. It is not ancillary to or in aid of the
       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 of prejudice because the requested

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

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

rights arising out of new facts occurring since the rendering of that 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 of the current RCW 4.12.040 See REM. 1915 CODE § 209-1 ("No judge
of a superior court of the 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 time-

at his Seattle area home, or in the Mead area-had been addressed in the earlier action.

But their skepticism about the substantive merits of Ms. 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 of the affidavit is conclusive, the court must take the petition at

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

This mandate makes sense in light of the 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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