In Re: Scott Hagerman, V. Tara Bevan

• Court: Court of Appeals of Washington
• Decided: August 9, 2021
• Docket: 80990-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of No. 80990-3-I SCOTT R. HAGERMAN, DIVISION ONE Respondent,

and UNPUBLISHED OPINION TARA BEVAN,

Appellant.

PER CURIAM — Under RCW 4.12.040(1), “[n]o judge of a superior court of

the state of Washington shall sit to hear or try any action or proceeding if that

judge has been disqualified pursuant to RCW 4.12.050.” Under RCW

4.12.050(1), any party may disqualify a judge subject to the following limitations

relevant here: “(a) [n]otice of disqualification must be filed and called to the

attention of the judge before the judge has made any discretionary ruling in the

case” and “(d) [n]o party . . . is permitted to disqualify more than one judge in any

matter.”

A motion to modify a parenting plan under RCW 26.09.260 initiates a new

proceeding in which a party is entitled to a new judge as a matter of right under

the foregoing statutes. In re Marriage of Rounds, 4 Wn. App. 2d 801, 807, 423

P.3d 895 (2018). Even though a trial judge may in an appropriate case retain

jurisdiction to resolve disputes arising under a parenting plan, the judge is

“ ‘powerless’ ” to deprive a party of their statutory right to a new judge in a No. 80990-3-I/2

proceeding to modify the parenting plan. Rounds, 4 Wn. App. 2d at 807 (quoting

In re Hall, 184 Wn. App. 676, 684, 339 P.3d 178 (2014)). We review de novo

whether a trial judge is under a duty to step aside in accordance with RCW

4.12.040 and .050. Hall, 184 Wn. App. at 680-81.

Here, after making rulings in an ongoing dispute between Tara Bevan and

Scott Hagerman arising from a 2016 final parenting plan, the trial judge retained

jurisdiction to resolve further disputes in the case. Subsequently, on December

19, 2019, Hagerman filed a petition to modify the 2016 parenting plan. Four days

later, Bevan filed a notice of disqualification as to the trial judge who had retained

jurisdiction. The judge refused to disqualify himself even though he had made no

rulings since Hagerman filed the modification petition and even though Bevan

had not disqualified another judge in the modification proceeding. Under the

authorities cited above, this was error.

We are unpersuaded by Hagerman’s argument that the modification

petition was merely a continuation of earlier proceedings arising under the 2016

parenting plan. See State ex rel. Mauerman v. Thurston County Superior Court,

44 Wn.2d 828, 830, 271 P.2d 435 (1954) (“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 is a ‘proceeding’ within

the meaning of the cited statutes,[1] and the petitioner is entitled to a change of

judges as a matter of right.”). We are also unpersuaded by Hagerman’s

1 The “cited statutes” were REM. REV. STAT. § 209-1 and REM. REV. STAT. § 209-2 (Supp. 1941) (codified with slight changes in RCW 4.12.040 and .050). See Mauerman, 44 Wn.2d at 829.

2 No. 80990-3-I/3

argument that Bevan waived her statutory right to a new judge by acceding to the

trial judge’s entry of certain rulings after he denied Bevan’s disqualification

request and before this court granted Bevan’s request for a stay of further

modification proceedings pending the resolution of our review.

We reverse and remand to the trial court with instructions to transfer the

modification proceeding to another department of the superior court pursuant to

RCW 4.12.040(1). Because Bevan did not file a timely financial affidavit as

required under RAP 18.1(c), we deny her request for an award of attorney fees

under RCW 26.09.140.2

FOR THE COURT:

2 Bevan also requests an award of costs. This request should be directed to a commissioner or court clerk as provided in Title 14 RAP.