Opinion
No. 53353-3-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 96-5-02756-2. Judgment or order under review. Date filed: 10/14/2003. Judge signing: Hon. Joan E Dubuque.
Counsel for Appellant(s), Richard Lamar Jr Pope, Attorney at Law, 1839 151st Ave SE, Bellevue, WA 98007-6101.
Counsel for Respondent(s), Jennifer Keith (SWIFT) (Appearing Pro Se), 24439 236th Court S.E., Maple Valley, WA 98038.
To disqualify a particular trial judge on the basis of prejudice, a party must raise the issue before the judge in question makes a discretionary ruling in the proceeding. Appellant Jason Foshee objected to a particular judge hearing a petition for the relocation of his child's residence, but because his affidavit of prejudice was untimely, the judge properly continued to hear the case.
Jennifer Keith and Foshee have a child who is the subject of a parenting plan. Keith, in June 2003, filed a notice of intention to relocate from Kirkland to Maple Valley, and with it a proposed modification to the parenting plan. Foshee filed an objection. Keith noted a hearing for a temporary order permitting the relocation. The hearing was set for July 28, 2003, before Judge Joan Dubuque. On July 22, Foshee filed a motion to strike the July 28 hearing. He also requested sanctions against Keith on the basis that she did not comply with local court rules when she noted the hearing.
At the hearing, Foshee appeared personally and requested a change of judge. He pointed out that the relocation trial had been assigned to a different trial court judge. He argued that Judge Dubuque lacked authority to hear the motion for a temporary order.
Judge Dubuque explained that the order assigning the case to a different judge was the result of an error, and that she actually was the judge assigned to the relocation case. Foshee said he was going to formally file an affidavit of prejudice against the judge.
Judge Dubuque heard argument on the merits of Keith's proposed order, and then entered a temporary order permitting relocation. Foshee filed a formal affidavit of prejudice against Judge Dubuque the same day.
Foshee then filed a motion and declaration for a change of judge. Judge Dubuque concluded she had already made discretionary rulings in the case before Foshee filed his affidavit of prejudice, and denied the motion as untimely.
Clerk's Papers at 15.
On October 15, 2003, Judge Dubuque presided over the relocation trial. She entered an order allowing Keith to relocate with the child, but with no modification of the parenting plan. From this order, Foshee appeals. He contends he is entitled to a new trial on relocation before a different judge.
A party to a superior court proceeding has the right to one change of judge if the party files a timely affidavit of prejudice. RCW 4.12.050; State v. Waters, 93 Wn. App. 969, 974, 971 P.2d 538 (1999). To be timely, the motion and affidavit must be filed and called to the attention of the judge before that judge has made any ruling in the case and before the judge has made any order or ruling involving the exercise of discretion. RCW 4.12.050.
RCW 4.12.050 states, in pertinent part:
`Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit 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 cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion.'
Judge Dubuque was assigned to proceedings involving these parties and their child by an August 2002 court order, before Keith's notice of intended relocation. Foshee argues that a notice of intended relocation initiates a new proceeding arising out of new facts, and therefore he was entitled to a change of judge as a matter of right. See State ex rel. Mauerman v. Superior Court for Thurston County, 44 Wn.2d 828, 830, 271 P.2d 435 (1954). Mauerman held that a judge who settles the issue of custody of children at the trial of a divorce case can still be disqualified from hearing a petition for modification because a modification is a new proceeding. The movant's right to move for a change of judge under RCW 4.12.050 is not defeated by an argument that the judge who heard the divorce is, as a practical matter, best suited to hear the modification. Arguably, this same reasoning could apply when a party to a finalized dissolution later initiates a relocation proceeding. But even if that is so, to exercise his statutory right to a change of judge, Foshee had to file his affidavit of prejudice before Judge Dubuque made any discretionary ruling pertaining to the proposed relocation.
Clerk's Papers at 71.
Before Keith noted a hearing on relocation, Foshee had moved to hold her in contempt for violating the parenting plan. On July 11, Judge Dubuque denied that motion. Foshee contends the order of July 11 was the only discretionary ruling made by the judge before he filed his affidavit of prejudice and that it does not affect the timeliness of his affidavit because it pertains to earlier disputes between the parties, not to relocation. Foshee overlooks at least two discretionary rulings pertaining to the relocation issue that Judge Dubuque made before Foshee filed an affidavit of prejudice. First, the judge denied Foshee's motion to strike the July 28 hearing and impose sanctions against Keith. Second, she granted Keith's motion for a temporary order permitting relocation. Because Foshee did not file a timely motion and affidavit of prejudice under RCW 4.12.050, Judge Dubuque properly heard the relocation matter. Affirmed.
Although there is no written order included in the record denying Foshee's motion, his motion was filed, considered by the court, and apparently denied.
BECKER, KENNEDY, COLEMAN, JJ.