State ex rel. Mauerman v. Superior Court for Thurston County
| Decision Date | 04 June 1954 |
| Docket Number | No. 32875,32875 |
| Citation | 44 Wn.2d 828,271 P.2d 435 |
| Parties | STATE ex rel. MAUERMAN, v. SUPERIOR COURT FOR THURSTON COUNTY. |
| Court | Washington Supreme Court |
Trena Belsito, Olympia, for plaintiff-relator.
Lynch & Lynch, Olympia, for respondent.
Is the petitioner in a proceeding to modify the child custody provisions of a divorce decree entitled to a change of judges from the judge who entered that decree, upon filing a motion and affidavit of prejudice in compliance with Rem.Rev.Stat., § 209-1, and Rem.Supp.1941, § 209-2 ()?
Respondent's return shows the following facts: After a trial before respondent judge, relator and her former husband were divorced by a decree entered July 1, 1953. This decree deprived relator of the custody of a minor child. March 22, 1954, she filed a petition for the modification of these custody provisions, based upon allegations of changed conditions since the divorce. On the same day, her present attorney, who did not appear for her in the divorce proceeding, filed an affidavit asserting the prejudice of respondent judge against her (counsel). After a hearing that day, the court entered an order, upon plaintiff husband's motion to quash the affidavit, in which it found that it had 'no prejudice personally' against defendant or her counsel, and that the affidavit of prejudice, having been filed after the hearing on the merits in the divorce action, 'is not timely made, and said affidavit and motion for change of venue, as so construed, is disregarded and held for naught.'
On the next day, March 23, 1954, relator presented a motion for change of judges, supported by her affidavit asserting the prejudice of respondent judge against her. After a hearing that day, this motion was denied 'as being untimely made.' March 24, 1954, relator obtained an alternative writ of mandate from this court in this cause, requiring respondent judge to transfer the modification proceeding to the other department of the superior court for Thurston county or show cause for not doing so.
Counsel for respondent contend that, because the divorce action was submitted to and heard by respondent judge, he cannot be disqualified from hearing the modification proceeding. We cannot indulge the argument that, because the judge who settles the issue of custody of children at the trial of a divorce case is acquainted with the problem, he should not be disqualified from later proceedings upon that issue. If the proceeding is one within the meaning of the cited statutes, a motion for a change of judges presents no question of discretion or policy. It must be granted as a matter of right. State ex rel. Nissen v. Superior Court, 1922, 122 Wash. 407, 411, 210 P. 674; State ex rel. American Soc. of Composers, Authors and Publishers v. Wright, 1936, 186 Wash. 194, 195, 57 P.2d 323, and cases cited. Nor is a question of fact presented by such a motion. Prejudice is established by the filing of the affidavit. State ex rel. Lefebvre v. Clifford, 1911, 65 Wash. 313, 315, 118 P. 40; State ex rel. Talens v. Holden, 1917, 96 Wash. 35, 40, 164 P. 595; State ex rel. Mead v. Superior Court, 1919, 108 Wash. 636, 638, 185 P. 628.
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. Bedolfe v. Bedolfe, 71 Wash. 60, 61, 1912, 127 P. 594; State ex rel. Foster v. Superior Court, 1917, 95 Wash. 647, 653, 164 P. 198. See State ex rel. Buttnick v. Superior Court, 1923 127 Wash. 101, 104, 219 P. 862, involving modification of alimony.
Respondent contends that the 1927 amendment to the second section of the statute in question, Laws of 1927, chapter 145, § 2, p. 129, passed after the cited cases were decided, requires a different result. We do not agree. The amendment provides that the motion must be filed and called to the attention of the judge before he shall have made any ruling in the case. This, in substance, was the interpretation of the 1911 statute by this court, prior to the amendment. State v. Vanderveer, 1921, 115 Wash. 184, 187, 196 P. 650; State ex rel. Douglas v. Superior Court, 1922, 121 Wash. 611, 615, 209 P. 1097, and cases cited.
Respondent further contends that this mandamus proceeding must fail because it purports to be directed to the order of denial entered upon relator's second motion, dated March 23, 1954, and not to the order entered on March...
To continue reading
Request your trial
-
McClenny v. Superior Court of Los Angeles County
...Featherstone (1942) 64 Idaho 312, 130 P.2d 853, 143 A.L.R. 407; Bedolfe v. Bedolfe (1912) 71 Wash. 60, 127 P. 594; State v. Superior Court (1954) 44 Wash.2d 828, 271 P.2d 435.) Nevertheless, the principles which underlie Jacobs prevention of 'judge-shopping' and disqualification of the judg......
-
Lucas v. Lucas
...are: Pirkle v. Pirkle, 212 Ga. 752, 95 S.E.2d 663 (1956); Damm v. Damm, 77 R.I. 24, 72 A.2d 839; State ex rel. Maureman v. Superior Court, 44 Wash.2d 228, 271 P.2d 435; Cooney v. Cooney, 25 Cal.2d 202, 153 P.2d It is our view that a strict adherence to the rule, that the court which renders......
-
Leitner v. Lonabaugh
...329; State ex rel. Stokes v. Second Judicial District Court in and for Washoe County, supra; State ex rel. Mauerman v. Superior Court for Thurston County, 44 Wash.2d 828, 271 P.2d 435, 437. In the instant case the decree entered by Judge Guthrie had been in effect for a period of almost one......
-
In re Marriage of DeFelice
...judges presents no question of discretion or policy. It must be granted as a matter of right.' State ex rel. Mauerman v. Superior Court for Thurston County, 44 Wn.2d 828, 830, 271 P.2d 435 (1954). `Prejudice is established by the filing of the affidavit.' Id. In Mauerman, the court rejected......
-
§40.6 Analysis
...a change of judge as a matter of right. McDaniel v. McDaniel, 64 Wn.2d 273, 391 P.2d 191 (1964); State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954). A determination of actual prejudice is not necessary; the filing of the motion and affidavit are deemed to have estab......
-
Table of Cases
...of, 95 Wn. App. 592, 976 P.2d 157 (1999) . . 28.05[4], [f], [i]; 28.07[4][d][iii]; 65.05 Mauerman, State ex rel. v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954) . . . . . . 22.06[13]; 28.07[4][c] Maxfield, In re Marriage of, 47 Wn. App. 699, 737 P.2d 671 (1987) . . . . . 64.03[2][b][ii......
-
§28.07 Modifying The Child Support Order
...a new or separate proceeding for purposes of disqualifying the trial judge as a matter of right. State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954). [d] Grounds for Modification Statutory and nonstatutory grounds for modification are discussed below. [i] Nonstatutor......
-
§22.06 Depositions
...of a divorce decree is a new proceeding and subject to the provisions of RPPP 52.04); State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954) (a modification is a new proceeding within the meaning of the statute providing for a change of judges upon filing of motion and ......