Opinion
No. 23053-8-III
Filed: May 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No: 02-3-00355-9. Judgment or order under review. Date filed: 04/23/2004. Judge signing: Hon. Evan E. Sperline.
Counsel for Appellant(s), Barbara J. Black, Attorney at Law, PO Box 1118, Moses Lake, WA 98837-0169.
Counsel for Respondent(s), Steven Lane Jones (Appearing Pro Se).
Kelly Jones-Buche filed a motion for contempt alleging that Steve Jones had violated provisions of their parenting plan and the order for child support. When the commissioner denied this motion, Ms. Jones-Buche filed a motion for revision in superior court. On appeal, Ms. Jones-Buche challenges the superior court's denial of her motion. She contends the superior court applied the wrong standard of review when considering the commissioner's decision. We reverse and remand.
FACTS
Ms. Jones-Buche filed a motion alleging Mr. Jones had violated provisions of their parenting plan by willfully disobeying the court's order requiring him to contribute to uninsured medical expenses and by willfully violating the parenting plan.
This motion was heard without testimony before a commissioner. The commissioner denied this motion, finding that Mr. Jones was not in contempt of court. Ms. Jones-Buche filed a timely motion to revise the commissioner's ruling in superior court.
Because the issue here is whether the superior court applied the proper standard of review, it is important to examine the wording of each ruling and order entered by the superior court.
Motion for Revision. The motion for revision was heard by the superior court. The superior court took the matter under advisement and it issued a letter ruling one month later.
(1) Letter ruling applying the substantial evidence/error of law standard.
In this letter, the superior court stated, in part:
The standard now applied to motions for revision in family law matters is the error of law standard. Under this form of review, the judge considers the record as it existed at the time of the commissioner's decision to determine whether factual findings are supported by substantial evidence, and, if so, whether the commissioner erred in applying the law to those findings to reach conclusions.
Clerk's Papers (CP) at 17.
The court also concluded:
If the commissioner accepted as true Respondent's version of events, there certainly would have been a basis to find Petitioner in contempt. Equally true, if the commissioner accepted as true the Petitioner's version, there is substantial evidence to support the findings and conclusions reached by the commissioner. The commissioner is entitled to give the competing declarations such credibility as seems appropriate.
CP at 19. The court, then applying a substantial evidence test, concluded:
The findings made by the commissioner are supported by substantial evidence. Those findings properly support a conclusion that Petitioner's failures to wholly comply were neither willful nor committed in bad faith. The motion for revision is denied.
CP at 19.
(2) Order applying substantial evidence/error of law standard. The order based on this ruling was entered on January 23, 2004, and in it the court stated:
4. The standard applied to Motions for Revision in family law matters is the error of law standard. The Court first considers the record as it existed at the time of the Commissioner's decision to determine whether factual findings are supported by substantial evidence. If so, the Court then looks at whether the Commissioner erred in applying the law to his findings to reach conclusions[.]
CP at 22.
Motion for Reconsideration. Ms. Jones-Buche then filed a motion for reconsideration alleging that the court made an error of law in applying an abuse of discretion standard rather than conducting a de novo review. Alternatively, Ms. Jones-Buche asked the court to reconsider the commissioner's abuse of discretion in reaching his decision.
The hearing on the motion for reconsideration was noted in February 2004, but the court exercised its discretion and took the matter under advisement, setting a briefing schedule and a note for decision in March 2004.
(1) Letter ruling applying substantial evidence and error of law/abuse of discretion standard and de novo review. The court issued a letter ruling, and, later, an order denying the motion for reconsideration.
In the letter ruling, the court stated that, based on its review of recent decisions, it had applied the proper standard in its earlier decision. The court also stated its opinion that on revision:
[T]he judge examines the commissioner's findings of fact under the substantial evidence standard, and reviews the commissioner's conclusions of law under the error of law/abuse of discretion standard.
CP at 43 (emphasis in original). The court further stated:
It is suggested that the commissioner's conclusions should be reviewed de novo. Even if that standard were applied to this case, the findings incorporated in [the commissioner's] order . . . would lead me to the same conclusions regarding contempt.
CP at 43 (emphasis in original).
(2) Order on reconsideration. The order denying the motion for reconsideration stated once again that in family law cases, the judge reviews the commissioner's findings under the substantial evidence standard and the commissioner's conclusions of law under the error of law or abuse of discretion standard. Also, in a handwritten footnote, the court added:
Further, regardless of which standard of review is applied, the Court is led to the same conclusions regarding the lack of contemptuous acts by the Petitioner.
CP at 51.
ANALYSIS
The superior court's authority to review a commissioner's ruling derives from RCW 2.24.050 and article IV, section 23 of the Washington Constitution. RCW 2.24.050 provides, in part:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner[.]
On revision, the court apparently applied the substantial evidence standard to the commissioner's findings of fact, and either the abuse of discretion standard or the de novo standard to the commissioner's conclusions of law. But this combination of standards is not correct. When considering a commissioner's ruling on revision, the superior court reviews both the commissioner's findings of fact and conclusions of law de novo, examining only the evidence and issues presented to the commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). We reverse and remand.
On remand, Ms. Jones-Buche has asked us to direct that the case be assigned to a different judge. She argues that she will not receive a fair hearing because the trial court has already indicated how it might rule. In deciding whether to reassign a case to a different judge, we first determine whether the trial court has some personal bias. Next, we look for unusual circumstances that might support reassignment. For instance, reassignment may be based upon our conclusion that the trial court would have substantial difficulty overlooking its previously-stated views and findings. Also, reassignment may be required for the purpose of preserving the appearance of justice. In re Ellis, 356 F.3d 1198, 1211 (9th Cir. 2004).
Here, there is nothing in the record that shows personal bias on the part of the trial court. While we understand Ms. Jones-Buche's concern regarding the judge's statement, we are not convinced that the trial court would have substantial difficulty reexamining the case and applying the correct standard. Nor are we convinced that the appearance of justice requires reassignment to a new judge.
Attorney Fees. Ms. Jones-Buche seeks an award of attorney fees under RCW 26.09.140. In view of our disposition, we remand the issue of attorney fees to the superior court.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., Concur.