Petitioner tells Court of Appeals trial should be stayed pending judge-disqualification review in McFarland case

SEATTLE — Petitioner’s attorney told the Washington Court of Appeals, Division II, on Thursday that the trial court erred by refusing to give effect to a timely notice of judicial disqualification in a family-law modification case and asked the panel to take discretionary review to prevent a potentially duplicative trial.

"I'm Jennifer Somerville of Northwest Justice Project, appearing on behalf of the petitioner, Carrie McFarland," counsel said in opening argument. Somerville argued the trial court's order refusing to honor the notice of disqualification was either "obvious or probable error" under the law and therefore appropriate for discretionary review.

Somerville told the panel the appellate decisions interpreting modification proceedings make clear that a modification seeks relief based on new facts arising after entry of the original decree, and thus can be a "new proceeding" for purposes of a fresh disqualification analysis. She cited the court of appeals and supreme court precedents she said establish that principle and argued the trial judge had applied the wrong legal standard.

The attorney also urged that denying review now would risk "a useless trial," telling the court, "If this error is not corrected prior to trial, there's a grave risk that Judge Yeager will hear trial, which subsequently is determined to be void due to [a] lack of authority to conduct that trial based on the petitioner's timely notice of disqualification." Counsel said such an error could force the parties and the court into duplicative proceedings, wasting resources and imposing emotional costs.

A commissioner pressed whether the cases Somerville cited squarely govern modification of spousal support; the panel referenced a 1997 Washington Supreme Court decision in McLean that, according to the commissioner, held that modification of child support is not a separate proceeding. The commissioner asked whether McLean undercuts Somerville's reading for spousal-support modifications.

Somerville said she had not reviewed McLean in detail during oral argument and asked for time to file a supplemental filing addressing how McLean affects her analysis. The panel granted that request, asking for the supplemental filing within about a week and saying the document could be titled a "supplemental motion" or similar briefing.

Somerville formally asked the court to accept review under RAP 2.3(b)(1), arguing the trial court's decision was "obviously erroneous" and that discretionary review was needed to avoid an unnecessary trial. The court took no immediate dispositive action and deferred ruling pending the requested supplemental filing.

The court's next step, as announced from the bench, is to await the petitioner's supplemental filing on McLean; the panel did not set a further oral-argument date when it recessed the matter.