IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JESSICA LEE BODGE, ) No. 78055-7-1 ) (Consolidated with 78157-0-1, Appellant, ) 78384-0-1, 78583-4-1, ) 78854-0-1) V. ) ) DIVISION ONE BRIAN EUGENE BODGE, ) UNPUBLISHED OPINION Respondent. ) ) ) FILED: November 18, 2019
HAZELRIGG-HERNANDEZ, J. - Jessica Lee Badge seeks reversal of an order
denying her motion for a change of judge in a parenting plan modification action.
Because the modification action was a separate proceeding from the action in
which the parenting plan was entered and she requested a change of judge before
any rulings had been issued in the modification, she was entitled to the relief
sought. We reverse and remand with instructions to vacate any subsequent
rulings by the disqualified judge in the modification action.
FACTS
On September 27, 2017, final orders, including a final parenting plan, were
entered in the divorce of Jessica and Brian Badge. The following February,
Jessica1 filed a petition to modify the parenting plan. The same day, she filed a
1 For clarity, the parties will be referred to by their first names. We intend no disrespect. No. 78055-7-1/2
motion for change of judge and affidavit of prejudice stating her belief that she
would not receive a fair and impartial hearing before Judge Eric Lucas.
On March 21, 2018, a superior court commissioner ruled that Jessica had
not presented sufficient facts to establish adequate cause to modify the parenting
plan and granted Brian’s cross-motion for CR 11 sanctions and attorney fees.
Jessica filed a motion for revision of the commissioner’s orders. Judge Lucas
denied the motion for revision on April 12, 2018.
On May 4, 2018, the court denied Jessica’s motion to recuse Judge Lucas,
stating:
This court retained jurisdiction in this matter. There has been no break in that jurisdiction that would provide an opportunity to affidavit the judge. Moreover, this is a continuing enforcement action of the trial court’s prior orders. That a litigant is unhappy with the decision of the court is not a basis for recusal for bias. It is at most a basis for appeal.
Jessica then filed another petition to modify the parenting plan. On August
2, 2018, the superior court denied Jessica’s motion for adequate cause and
dismissed the second petition to modify the parenting plan. The order stated that
the court lacked jurisdiction over the modification matter because “the Parenting
Plan Petitioner seeks to modify is under review by the Washington Court of
Appeals Division I.” On June 14, 2019, Judge Lucas recused himself from the
case, citing his inability to be effective in the case going forward.
Jessica filed numerous notices of appeal seeking review of multiple rulings
by the superior court. All of her appeals were consolidated into the instant case. 2
The parties submitted briefing on the appealability of some of the challenged orders to a 2
commissioner of this court, but did not fully argue the issue of appealability. We accept review
-2- No. 78055-7-1/3
DISCUSSION
I. Disqualification of Judge
Jessica contends that the court erred in ruling that the parenting plan
modification action was not a “new action” for purposes of RCW 4.12.040 and .050
and denying her motion for a change of judge.
As an initial note, Brian argues briefly that this issue is rendered moot by
Judge Lucas’ voluntary recusal from this matter on June 14, 2019. “A case is
technically moot if the court can no longer provide effective relief.” State v. Hunley,
175 Wn.2d 901, 907, 287 P.3d 584 (2012). Jessica responds that the issue is not
moot because Judge Lucas made rulings after he was properly disqualified that
are still in effect, including an order awarding Brian attorney fees. Because those
orders were not vacated when Judge Lucas voluntarily recused himself, we can
still provide relief and will consider the merits of the argument.
Appellate courts “interpret statutes as they are plainly written, unless a literal
reading would contravene legislative intent by leading to a strained or absurd
result.” Marine Power& Eciuiii Co. v. Indus. Indem. Co., 102 Wn.2d 457, 461, 687
P.2d 202 1984). We review de novo whether a judge was statutorily disqualified
from hearing a case. In re Parenting Plan of Hall, 184 Wn. App. 676, 681, 339 P.3d
178 (2014).
Subject to certain limitations, a party to an action in superior court may
disqualify a judge from hearing a matter by filing a notice of disqualification before
the judge has made any discretionary ruling in the case. RCW 4.12.050(1).
without deciding the appealability of these orders and deny Brian’s request to dismiss the notices of appeal.
-3- No. 78055-7-114
Provided the statutory requirements are met, disqualification is available as a
matter of right. State v. Chamberlin, 161 Wn.2d 30, 41, 162 P.3d 389 (2007). No
party may disqualify more than one judge per matter. RCW 4.12.050(1)(d). A
judge may not sit to hear or try any action or proceeding from which they have
been properly disqualified. RCW 4.12.040(1).
The current versions of the disqualification statutes went into effect on July
23, 2017. Laws of 2017, ch. 42, § 2. The previous statutory scheme required a party seeking a change of judge to file a motion and supporting affidavit stating
“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.” Former RCW 4.12.050 (2009).
The party was not required to substantiate the claim of prejudice and was entitled
to one change of judge as a matter of right on a timely motion and affidavit.
Chamberlin, 161 Wn.2d at 41.
Washington courts have long recognized a petition to modify a parenting
plan as a new action for purposes of RCW 4.12.040 and .050:
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 of judges as a matter of right.
State ex rel. Mauerman v. Super. Ct. for Thurston Cty., 44 Wn.2d 828, 830, 271
P.2d 435 (1954). Division Three of this court recently found this rule to require
“only that a modification petition be based on allegations of changed conditions[,]”
-4- No. 78055-7-1/5
regardless of the merits of the petition. ~ 184 Wn. App.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JESSICA LEE BODGE, ) No. 78055-7-1 ) (Consolidated with 78157-0-1, Appellant, ) 78384-0-1, 78583-4-1, ) 78854-0-1) V. ) ) DIVISION ONE BRIAN EUGENE BODGE, ) UNPUBLISHED OPINION Respondent. ) ) ) FILED: November 18, 2019
HAZELRIGG-HERNANDEZ, J. - Jessica Lee Badge seeks reversal of an order
denying her motion for a change of judge in a parenting plan modification action.
Because the modification action was a separate proceeding from the action in
which the parenting plan was entered and she requested a change of judge before
any rulings had been issued in the modification, she was entitled to the relief
sought. We reverse and remand with instructions to vacate any subsequent
rulings by the disqualified judge in the modification action.
FACTS
On September 27, 2017, final orders, including a final parenting plan, were
entered in the divorce of Jessica and Brian Badge. The following February,
Jessica1 filed a petition to modify the parenting plan. The same day, she filed a
1 For clarity, the parties will be referred to by their first names. We intend no disrespect. No. 78055-7-1/2
motion for change of judge and affidavit of prejudice stating her belief that she
would not receive a fair and impartial hearing before Judge Eric Lucas.
On March 21, 2018, a superior court commissioner ruled that Jessica had
not presented sufficient facts to establish adequate cause to modify the parenting
plan and granted Brian’s cross-motion for CR 11 sanctions and attorney fees.
Jessica filed a motion for revision of the commissioner’s orders. Judge Lucas
denied the motion for revision on April 12, 2018.
On May 4, 2018, the court denied Jessica’s motion to recuse Judge Lucas,
stating:
This court retained jurisdiction in this matter. There has been no break in that jurisdiction that would provide an opportunity to affidavit the judge. Moreover, this is a continuing enforcement action of the trial court’s prior orders. That a litigant is unhappy with the decision of the court is not a basis for recusal for bias. It is at most a basis for appeal.
Jessica then filed another petition to modify the parenting plan. On August
2, 2018, the superior court denied Jessica’s motion for adequate cause and
dismissed the second petition to modify the parenting plan. The order stated that
the court lacked jurisdiction over the modification matter because “the Parenting
Plan Petitioner seeks to modify is under review by the Washington Court of
Appeals Division I.” On June 14, 2019, Judge Lucas recused himself from the
case, citing his inability to be effective in the case going forward.
Jessica filed numerous notices of appeal seeking review of multiple rulings
by the superior court. All of her appeals were consolidated into the instant case. 2
The parties submitted briefing on the appealability of some of the challenged orders to a 2
commissioner of this court, but did not fully argue the issue of appealability. We accept review
-2- No. 78055-7-1/3
DISCUSSION
I. Disqualification of Judge
Jessica contends that the court erred in ruling that the parenting plan
modification action was not a “new action” for purposes of RCW 4.12.040 and .050
and denying her motion for a change of judge.
As an initial note, Brian argues briefly that this issue is rendered moot by
Judge Lucas’ voluntary recusal from this matter on June 14, 2019. “A case is
technically moot if the court can no longer provide effective relief.” State v. Hunley,
175 Wn.2d 901, 907, 287 P.3d 584 (2012). Jessica responds that the issue is not
moot because Judge Lucas made rulings after he was properly disqualified that
are still in effect, including an order awarding Brian attorney fees. Because those
orders were not vacated when Judge Lucas voluntarily recused himself, we can
still provide relief and will consider the merits of the argument.
Appellate courts “interpret statutes as they are plainly written, unless a literal
reading would contravene legislative intent by leading to a strained or absurd
result.” Marine Power& Eciuiii Co. v. Indus. Indem. Co., 102 Wn.2d 457, 461, 687
P.2d 202 1984). We review de novo whether a judge was statutorily disqualified
from hearing a case. In re Parenting Plan of Hall, 184 Wn. App. 676, 681, 339 P.3d
178 (2014).
Subject to certain limitations, a party to an action in superior court may
disqualify a judge from hearing a matter by filing a notice of disqualification before
the judge has made any discretionary ruling in the case. RCW 4.12.050(1).
without deciding the appealability of these orders and deny Brian’s request to dismiss the notices of appeal.
-3- No. 78055-7-114
Provided the statutory requirements are met, disqualification is available as a
matter of right. State v. Chamberlin, 161 Wn.2d 30, 41, 162 P.3d 389 (2007). No
party may disqualify more than one judge per matter. RCW 4.12.050(1)(d). A
judge may not sit to hear or try any action or proceeding from which they have
been properly disqualified. RCW 4.12.040(1).
The current versions of the disqualification statutes went into effect on July
23, 2017. Laws of 2017, ch. 42, § 2. The previous statutory scheme required a party seeking a change of judge to file a motion and supporting affidavit stating
“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.” Former RCW 4.12.050 (2009).
The party was not required to substantiate the claim of prejudice and was entitled
to one change of judge as a matter of right on a timely motion and affidavit.
Chamberlin, 161 Wn.2d at 41.
Washington courts have long recognized a petition to modify a parenting
plan as a new action for purposes of RCW 4.12.040 and .050:
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 of judges as a matter of right.
State ex rel. Mauerman v. Super. Ct. for Thurston Cty., 44 Wn.2d 828, 830, 271
P.2d 435 (1954). Division Three of this court recently found this rule to require
“only that a modification petition be based on allegations of changed conditions[,]”
-4- No. 78055-7-1/5
regardless of the merits of the petition. ~ 184 Wn. App. at 683 (emphasis
omitted). Because the petition to modify is a new action, a party is entitled to a
change of judge even if the trial judge has retained jurisdiction in the underlying
case. ki.; In re Marriage of Rounds, 4 Wn. App. 2d 801, 807, 423 P.3d 895 (2018).
Jessica filed an affidavit of prejudice and motion for change of judge on the
same day that she filed the initial petition to modify the parenting plan based on
changed circumstances. Although the pleadings she submitted comported with an
outdated version of the relevant statutes, they were sufficient to provide notice that
she was seeking disqualification of Judge Lucas. Because the modification action
was a new proceeding under RCW 4.12.050 and Judge Lucas had not made any
rulings in the action, Jessica was entitled to a change of judge as a matter of right.
The court erred in denying the motion for a change of judge.
II. Subsequent Orders
Jessica next argues that, because the superior court judge should have
recused himself after she filed the first affidavit of prejudice, all subsequent orders
entered by that judge in the parenting plan modification action are void. When a
party properly disqualifies a judge from an action, “the judge loses all jurisdiction
over the case.” State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984). If the
court improperly denied a motion for a change of judge, any actions taken by that
judge in the matter should be vacated on remand. ~jj~jj, 184 Wn. App. at 684.
Jessica clarifies in her reply that she is seeking vacation only of Judge
Lucas’ subsequent orders in the parenting plan modification action, not any other
-5- No. 78055-7-1/6
orders related to enforcement of the parenting plan. The only orders that she
challenges are the April 12, 2018 order denying revision of the commissioner’s
ruling and awarding Brian attorney fees and the portion of the May 4, 2018 order
denying the motion to recuse. Because we have ruled that the motion for change
of judge was denied in error, the portion of the May 4, 2018 order denying the
motion is reversed.
After the motion for change of judge and accompanying affidavit of prejudice
were filed, Judge Lucas was divested of authority to enter orders in the
modification action. The April 12, 2018 order concerned a motion for revision of
the commissioner’s ruling dismissing the petition to modify the parenting plan and
awarding Brian sanctions. Acts of commissioners are subject to revision by the
superior court. RCW 2.24.050. When a party moves for revision, the superior court
reviews the commissioner’s findings of fact and conclusions of law de novo. State
v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). The superior court’s ruling
on revision is reviewable by this court, but the commissioner’s ruling is not. Id.
The order on revision concerned a commissioner’s ruling on the
modification petition and is therefore part of the separate modification action from
which Judge Lucas was disqualified. Accordingly, the April 12, 2018 order on
revision must be vacated. Because we are reviewing only the court’s ruling on the
motion for revision, the commissioner’s underlying order is not disturbed.
-6- No. 78055-7-1/7
III. Dismissal for Lack of Jurisdiction
Jessica also contends that the court erred in dismissing her second
parenting plan modification action for lack of jurisdiction because the parenting
plan was under review by this court.
After review of a case has been accepted by the appellate court, the trial
court has limited authority to act in that case. RAP 7.2(a). The trial court retains
the authority to hear and determine “actions to change or modify a decision that is
subject to modification by the court that initially made the decision.” RAP 7.2(e)(2).
The trial court will hear the motion to modify and decide the matter. j~j~ If the trial
court’s decision on the motion to modify will change the ruling under review by the
appellate court, “the permission of the appellate court must be obtained prior to the
formal entry of the trial court decision.” j4~
The trial court is empowered to modify a parenting plan if a substantial
change in circumstances has occurred and the modification is in the best interest
of the child. RCW 26.09.260(1). Because the trial court had the authority to modify
the parenting plan, the court erred in determining that it was unable to hear the
motion to modify while the parenting plan was under review.
We reverse the portion of the trial court’s August 2, 2018 order dismissing
the petition to modify the parenting plan for lack of jurisdiction, reverse the portion
of the May 4, 2018 order denying the motion for change of judge, and remand with
instructions to vacate the April 12, 2018 order on revision and transfer the petition
to another department of the court.3
~ Because Brian is not the prevailing party, his requests for sanctions and attorney fees and costs are denied.
-7- No. 78055-7-1/8
Reversed and remanded.
‘A,
WE CONCUR:
-8-