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UNPUBLISHED OPINION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
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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.
3