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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Parenting No. 72742-7-1 and Support of
Z.L.P., Child.
MICHAEL CHRISTOPHER PERKINS,
Appellant,
and UNPUBLISHED OPINION
JENNIER LYNN HOPPER, FILED: November 23, 2015
Respondent.
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 I would change the custody of
the child to you."1 But Perkins did not provide us with a record of the alleged statement.
Even if we 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 I would 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 of the first day oftrial, Perkins argued that Judge Churchill was biased against him because of some 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, I guess you would say, that I may 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. 4 Report 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 I would 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 if a 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 of actual 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 by the 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
8 Tatham v. Rogers, 170 Wn. App. 76, 95, 283 P.3d 583 (2012). 9 State 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 by Judge 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.
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r,-r:ir'\..:lr '. il;|3 ti'J 1 d.O r<
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Parenting No. 72742-7-1 and Support of
Z.L.P., Child.
MICHAEL CHRISTOPHER PERKINS,
Appellant,
and UNPUBLISHED OPINION
JENNIER LYNN HOPPER, FILED: November 23, 2015
Respondent.
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 I would change the custody of
the child to you."1 But Perkins did not provide us with a record of the alleged statement.
Even if we 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 I would 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 of the first day oftrial, Perkins argued that Judge Churchill was biased against him because of some 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, I guess you would say, that I may 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. 4 Report 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 I would 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 if a 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 of actual 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 by the 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
8 Tatham v. Rogers, 170 Wn. App. 76, 95, 283 P.3d 583 (2012). 9 State 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 by Judge 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 if the 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 relations form for parenting plans is a "Designation of Custodian," which provides, "The children named in this parenting plan are scheduled to reside the majority of the 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, 170 Wn. 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 of fairness doctrine provides Perkins greater procedural
protection than the minimum requirements of the 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:
l^^kc y { JS
22 Matter of Johnston, 99 Wn.2d 466, 478, 663 P.2d 457 (1983).