Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the Marriage/Parentage of No. 59969-4-II KHARA JENSEN-OLVERA. Appellant, UNPUBLISHED OPINION and SHANE OLVERA, Respondent. PRICE, A.C.J. — Khara Jensen-Olvera and Shane Olvera1 divorced in 2018. At the time, they had three minor children. In the dissolution, Khara was designated as the residential parent and sole decision maker for the three children, with financial assistance from Shane. In 2019 and 2020, one of the children, D.R.U., allegedly engaged in inappropriate conduct that prompted the trial court to grant a temporary parenting plan that awarded joint decision- making authority with the primary residence of the children remaining with Khara. In April 2021, the case was reassigned to Judge Banfield, and the matter went to trial. At the end of trial, Shane and Khara agreed to joint decision-making and, because of their history of being unable to agree on medical decisions, they agreed to cooperate in the appointment of a limited guardian for these decisions. 1 We refer to the parties by their first names to avoid confusion. No. 59969-4-II This agreement for the selection and use of a limited guardian was incorporated into the January 2023 final parenting plan. The trial court also inserted a provision that reserved the right to reconsider joint decision-making if either party obstructed the selection of a limited guardian. The parties could not agree on a limited guardian. Because of this disagreement, in March 2023, Shane filed a petition for a major modification, which sought, among other things, a change in the primary residence of one of the other children, D.O.N. Meanwhile, Khara was dissatisfied with Judge Banfield, so Khara filed a notice of disqualification in response to Shane’s March 2023 petition. Shane’s response included a new pleading—a CR 60 motion to vacate the 2023 final parenting plan. Ultimately, Judge Banfield refused to disqualify herself, granted the CR 60 motion to vacate the 2023 final parenting plan, and permitted a new trial on a new petition for a major modification under the original case. Khara appeals. Both parties request attorney fees on appeal. We hold that the trial court erred by failing to disqualify itself. Therefore, we reverse and remand to the trial court. We also award Khara appellate attorney fees and costs. FACTS Shane and Khara Olvera married in 1996 and divorced in 2018 with three minor children.2 In the dissolution, the trial court awarded Khara primary residential placement for all the children. The trial court also awarded Khara sole decision-making regarding healthcare decisions. 2 This appeal concerns two of Shane and Khara’s minor children, D.R.U. and D.O.N., age 16 and 13, respectively as of October 1, 2024. Their other child was 18 in 2023. 2 No. 59969-4-II D.R.U. allegedly engaged in inappropriate conduct in 2019 and 2020, resulting in Shane filing a petition to modify the 2018 parenting plan. Shane sought joint healthcare decision-making authority. In September 2020, the trial court granted a new temporary parenting plan. The trial court awarded Shane joint healthcare decision-making authority. Khara remained the primary residential parent for the children. In April 2021, the case was assigned to Judge Banfield. Throughout the following year, Shane and Khara’s relationship continued to experience problems, and they disagreed with the children’s care, especially D.R.U.’s care. Shane sought to make the 2020 temporary parenting plan permanent, and Khara sought sole decision-making authority. The matter went to trial in November 2022. As the trial ended and it became clear that Shane and Khara could not agree on medical decisions for D.R.U., Judge Banfield proposed that the parties use a limited guardian to make these healthcare decisions for D.R.U. Shane and Khara agreed to the proposal and committed to filing, in the near future, a petition for guardianship regarding D.R.U.’s medical decision-making. I. FINAL ORDERS— JANUARY 23, 2023 On January 23, 2023, Judge Banfield entered the final parenting plan. The final parenting plan included the parties’ agreement to obtain a limited guardian and specified that, essentially, the trial court would retain jurisdiction to reconsider joint decision-making if either party failed to cooperate with the appointment of a limited guardian: [J]oint decision-making is appropriate. Due to the high-conflict nature of this proceeding, the Court finds a Limited Minor Guardian should be appointed to assist making medical decision for [D.R.U.], and address whether [D.R.U.]’s medical 3 No. 59969-4-II records should be released to the parties. Based upon the Court’s directive, the parties agree that they will cooperate with the process of appointing a Limited Guardian for [D.R.U.]. . . . Both parents will be allowed to give input to the Limited Minor Guardian. If the parties disagree, the Limited Minor Guardian will make medical decisions that are in [D.R.U.]’s best interests. The Limited Minor Guardian will be appointed in a separate proceeding. If either party unreasonably obstructs the appointment of a Limited Guardian for [D.R.U.] to address medical decision/release of information, the Court may reconsider the designation of joint decision-making provisions of this order to remove decision-making authority from that parent. Clerk’s Papers (CP) at 588 (emphasis added). As things progressed, however, Khara refused to participate in the appointment of a limited guardian. II. MAJOR MODIFICATION PETITION—MARCH 23, 2023 As a result of Khara’s refusal to participate in the appointment of a limited guardian, on March 23, 2023, Shane filed a petition for a major modification and requested a change in decision- making authority. The March 2023 petition requested that D.O.N.’s primary residence be switched to Shane’s: “I ask the court to make a major change in the parenting schedule or to change the person [D.O.N.] lives with most of the time.” CP at 625. Shane requested that he receive sole decision-making authority because “[t]here has been a substantial change in circumstances due to Khara withdrawing support for the Minor Guardianship . . . The Final Parenting Plan hinged upon Khara’s support for the Minor Guardianship. Khara asserts she [sic] only agree[d] to the Minor Guardianship ‘under duress . . . .’ ” CP at 625-26. 4 No. 59969-4-II III. NOTICE OF DISQUALIFICATION—APRIL 14, 2023 On April 14, 2023, in response to Shane’s petition for a major modification—before any action was taken on the petition—Khara filed a notice of disqualification to remove Judge Banfield from any further proceedings. Four days later, Shane filed a response. Shane argued that the March 2023 petition was not a “new” proceeding because the January 2023 parenting plan contemplated modification if either parent “unreasonably obstructed” the limited minor guardianship proceeding, which Khara did. CP 685. But Shane also filed a separate pleading—a CR 60 motion to vacate the January 2023 final parenting plan. The CR 60 motion to vacate alleged that Khara committed fraud, misrepresentation, and misconduct when she signed the final parenting plan because she had signed under duress and had never intended to follow through on the appointment of a limited guardian. A. DISQUALIFICATION HEARING—APRIL 21 AND MAY 5, 2023 Judge Banfield heard arguments on April 21 and May 5, 2023. Judge Banfield first recognized that Shane’s March 2023 petition was a major modification and that, accordingly, Khara was within her right to disqualify her: The Court: Yeah, so I think that Ms. Olvera . . . can disqualify me on the [modification] because it would be a new filing . . . . .... Modifications are kind of like restarting a case. So in that case, she could’ve disqualified me . . . 1 Verbatim Rep. Proc. (VRP) (April 21, 2023) at 6, 10. 5 No. 59969-4-II In response, and apparently in order to keep Judge Banfield as the presiding judge, Shane decided to not move forward on his March 2023 petition and, instead, moved forward only on his CR 60 motion to vacate, stating, “If the Court is going to accept the disqualification on the major modification, . . . I’d strike that hearing, but I would still like to go forward with this CR 60 motion . . . .” 1 VRP (April 21, 2023) at 7. With the withdrawal of the March 2023 petition, Judge Banfield refused to disqualify herself. Shane’s CR 60 motion to vacate the January 2023 parenting plan was continued. On April 27, 2023, before the CR 60 motion could be heard, Khara filed a second notice of disqualification. At the subsequent hearing, Judge Banfield again denied disqualification, stating, “And so I don’t have a bias. I did try to use what the experts say to help me make my decisions. We did spend a ton of time doing something very creative wrapped around this . . . [S]o it’s unfortunate now that that’s being described as being bias . . . . I’m denying disqualification.” 1 VRP (May 5, 2023) at 29-30. In her substantive response to Shane’s CR 60 motion to vacate, Khara denied any misrepresentation in signing the January 2023 final parenting plan, which required her cooperation in the appointment of a limited guardian. She claimed that she was willing to follow the parenting plan and work with a limited guardian, but she was concerned about costs and it needed to be economically feasible. On June 16, 2023, Judge Banfield granted Shane’s CR 60 motion and vacated the January 2023 final parenting plan. Judge Banfield rejected Khara’s explanation as to why she did not follow through on the limited guardian, labeling it a “misrepresentation.” The Court: This is— this is not about cost though . . . . 6 No. 59969-4-II What we’re discussing currently is the fact that [Khara] said she did not agree with the guardianship and she had signed it under duress. She would be signing under duress. So that’s the misrepresentation . . . . .... Well, she signed off on it, which is an indication that she was [okay with the guardian] . . . I will agree with you now that she was never okay with it. And so that means her signing off on it, indicating that she was okay with it, is the misrepresentation. So I will find that there was misrepresentation and I will grant the CR 60 motion. 1 VRP (June 16, 2023) at 92. Immediately after the trial court’s ruling, Shane flagged that he was going to file for a broader modification than just addressing the provision about medical decision-making, stating, Well, to be perfectly honest, now that the modification is being reopened, since the CR 60 motion is granted, I’ll be preparing a motion to amend the petition. . . . 1 VRP (June 16, 2023) at 94. IV. AMENDED PETITION TO MODIFY PARENTING PLAN Six days later, on June 22, 2023, Shane filed an amended petition to modify the parenting plan. It mirrored the previously filed (but withdrawn) March 2023 petition in that he requested that D.O.N. primarily live with him and that the trial court award Shane sole decision-making authority. But the June 2023 petition went even farther by requesting additional items, including RCW 26.09.191 findings and an amended child support plan. Judge Banfield then presided over a number of hearings and made a number of decisions. Shane’s petition to modify the parenting plan was granted, adequate cause for a major change was 7 No. 59969-4-II found, temporary parenting plans were entered (placing D.O.N. with Shane on a 50/50 weekend alternative schedule and D.R.U. solely with Khara), and a second trial was held. In June 2024, Khara filed a motion to vacate all decisions made by Judge Banfield since the filing of the April 14, 2023, notice of disqualification. Khara’s motion was denied. Following the second trial, Judge Banfield granted a major modification; D.O.N.’s primary residence was with Shane and D.R.U.’s primary residence was with Khara. Judge Banfield also found that Khara abused D.O.N. and D.R.U. through her inaction, and that Khara suffered from long-term emotional problems that hindered her ability to parent. Shane was awarded sole decision-making authority over D.O.N. and Khara was awarded sole decision-making authority over D.R.U. Judge Banfield also entered limitation findings for Khara under RCW 26.09.191. She limited the duration of Khara’s visits with D.O.N. to two overnights unless the visit was supervised. The limitation remained in effect until D.R.U. completed behavioral treatment. Finally, Judge Banfield ordered Khara to pay Shane $7,000 in attorney fees because of her “pattern of intransigence” throughout the proceedings. CP at 1161. Khara filed a motion for reconsideration, arguing that Judge Banfield erred in granting the major modification without a substantial change, failed to consider expert evidence or relied on improper evidence, erred in imposing limitations under RCW 26.09.191, and erred in granting attorney fees. The trial court denied Khara’s motion for reconsideration. Khara appeals, arguing that all of Judge Banfield’s decisions after the April 14, 2023, notice of disqualification should be vacated. She also appeals Judge Banfield’s (1) denial of the motion for reconsideration, (2) amended final parenting plan, (3) a number of findings contained in the final order, (4) and final child support order. 8 No. 59969-4-II ANALYSIS Khara has a number of arguments about Judge Banfield’s modifications of the parenting plan. However, Khara also has a threshold argument; specifically, that Judge Banfield lost jurisdiction the moment Khara filed a notice of disqualification against Judge Banfield on April 14, 2023. Khara argues because Judge Banfield was without jurisdiction, all of Judge Banfield’s subsequent rulings were void. Shane responds by arguing that there was no “new proceeding” to which the disqualification could attach. He contends that he withdrew his petition for a major modification and pursued only his CR 60 motion to vacate. Considering that Judge Banfield was only acting in response to Shane’s motion to vacate when she vacated her previous orders, Shane contends that all further proceedings were within the existing case; in other words, Judge Banfield was only acting within the continuation of the January 23, 2023, parenting plan. Because Shane’s new motion for modification was within the existing case (after Judge Banfield granted the motion to vacate), Khara had no entitlement to disqualify Judge Banfield. We agree that the issue of Judge Banfield’s authority is a threshold issue that requires resolution at the outset. We define the issue this way—did Judge Banfield err by circumventing Khara’s statutory entitlement to disqualification when Judge Banfield granted Shane’s CR 60 motion to vacate and then, subsequently, permitted Shane to file for a major modification in the existing case. In other words, was Shane’s motion to vacate coupled with his petition for modification (made immediately after the vacation), essentially a “new proceeding” such that Judge Banfield lost jurisdiction to make further rulings. 9 No. 59969-4-II I. STANDARD OF REVIEW AND DUTY TO DISQUALIFY The power of a litigant to disqualify a judge in a particular matter is governed by statute, specifically RCW 4.12.040 and RCW 4.12.050. Under RCW 4.12.040(1), no superior court judge 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: “ Notice of disqualification must be filed and called to the attention of the judge before the judge has made any discretionary ruling in the case.” There is no need to show prejudice or bias. If a notice of disqualification is timely made, prejudice is deemed established as a matter of law, and the “ ‘judge to whom [the motion] is directed is divested of authority to proceed further into the merits of the action.’ ” Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 285, 803 P.2d 798 (1991) (quoting State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984)). This divestment of authority has been referred to as the loss of “jurisdiction.” Id. (stating once the disqualification is invoked, “ ‘the judge loses all jurisdiction over the case’ ”).3 Courts have held “that there is no discretion in granting a timely motion. Timely exercised, the statutory right deprives that particular judge of jurisdiction.” Id. at 291. 3 As we have recently noted, the term “jurisdiction” is one of “ ‘many, too many, meanings,’ ” which has led to inconsistent use of the term. Spanaway Concerned Citizens v. Pierce County, 37 Wn. App. 2d 215, 227 n.5, 590 P.3d 1166 (2026) (Veljacic, J. concurring) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)). We use the term “jurisdiction” here consistently with its usage in Harbor Enters., 116 Wn.2d at 285. 10 No. 59969-4-II We review de novo whether a trial judge is under a duty to step aside in accordance with RCW 4.12.040 and .050. In re Parenting Plan Hall, 184 Wn. App. 676, 680-81, 339 P.3d 178 (2014). MAJOR V. MINOR MODIFICATION OF PARENTING PLANS Parenting plans can be modified either through a major modification or a minor modification. The main feature distinguishing a major modification from a minor one is whether the proposed change would alter the residential placement of a child. In re Marriage of Snider, 6 Wn. App. 2d 310, 319-20, 430 P.3d 726 (2018); In re Marriage of Tomsovic, 118 Wn. App. 96, 103-04, 74 P.3d 692 (2003). A motion for a major modification of a parenting plan under RCW 26.09.260 automatically initiates a new proceeding. In re Marriage of Rounds, 4 Wn. App. 2d 801, 807, 423 P.3d 895 (2018). Because a new proceeding is initiated, a party is entitled to a new judge as a matter of right upon filing a notice of disqualification. RCW 4.12.040; Rounds, 4 Wn. App. 2d at 807; State ex rel. Mauerman v. Superior Court for Thurston County, 44 Wn.2d 828, 830, 271 P.2d 435 (1954). Not all disputes will trigger a major modification and, thus, a new proceeding. In appropriate cases, a trial judge may retain jurisdiction of a parenting plan for “ ‘a specific and limited period of time’ ” to review the efficacy of its decision and resolve disputes arising under the plan. E.g., Rounds, 4 Wn. App. 2d at 805 (emphasis added) (quoting In re Marriage of True, 104 Wn. App. 291, 298, 16 P.3d 646 (2000)); Hall, 184 Wn. App. at 683; See also In re Marriage of Hagerman, No. 80990-3-1, slip op. at 2, (Wash. Ct. App. Aug. 9, 2021) (unpublished) (holding that it was error for the trial judge to retain jurisdiction and refuse to recuse themselves after receiving a notice of disqualification when no rulings had been made since the petition to modify 11 No. 59969-4-II the parenting plan was received).4 But the retention of limited jurisdiction does not deprive a party of their right to a new judge if, in the future, a new proceeding is initiated by a motion for a major modification. E.g., Rounds, 4 Wn. App. 2d at 807. II. APPLICATION Shane’s main argument is that he withdrew his March 2023 modification petition and pursued only his CR 60 motion to vacate, so that Khara’s April 14, 2023, notice of disqualification was essentially mooted by the withdrawal of the petition for modification. We disagree. A. THE MARCH 2003 PETITION WOULD HAVE BEEN A NEW PROCEEDING. Preliminarily, we pause briefly to point out that Shane’s March 2003 petition would likely have led to a new proceeding. It is undisputed that Shane’s March 2023 petition, in addition to requesting sole decision-making authority, requested that D.O.N.’s primary residence be switched to Shane. The request to change D.O.N.’s residence means it was a request for a major modification. In re Snider, 6 Wn. App. 2d at 319-20. And a major modification creates a new proceeding. Rounds, 4 Wn. App. 2d at 807. As a new proceeding, Khara would have been entitled to disqualify Judge Banfield. In fact, Judge Banfield appeared to agree when she referred to the March 2003 petition and said “modifications are kind of like restarting of a case. So in that case, [Khara] could’ve disqualified me.” 1 VRP (April 21, 2023) at 10. However, because Shane withdrew his March 2023 petition following Khara’s initial notice of disqualification, we must press on to determine whether subsequent events constructively created a new proceeding. 4 https://www.courts.wa.gov/opinions/pdf/809903.pdf 12 No. 59969-4-II B. THE GRANTING OF SHANE’S CR 60 MOTION TO VACATE COUPLED WITH HIS JUNE 2023 PETITION FOR A MAJOR MODIFICATION RESULTED IN A NEW PROCEEDING. Shane defends Judge Banfield’s continued participation in the case with the facially straightforward claim that Khara was never entitled to file a notice of disqualification because all subsequent proceedings occurred within the context of the original case. He points out that once Judge Banfield granted the CR 60 motion to vacate the January 2023 final parenting plan, his June 2023 petition was in the context of the original case. Khara characterizes this maneuver as a “procedural workaround to evade disqualification.” Reply Br. at 8. We agree with Khara. First, it is true that Judge Banfield retained jurisdiction to reconsider portions of the January 2023 parenting plan, but the retained jurisdiction was limited exclusively to decision-making authority. The January 2023 final parenting plan stated: [J]oint decision-making is appropriate. Due to the high-conflict nature of this proceeding, the Court finds a Limited Minor Guardian should be appointed to assist making medical decision for [D.R.U.], and address whether [D.R.U.]’s medical records should be released to the parties. Based upon the Court’s directive, the parties agree that they will cooperate with the process of appointing a Limited Guardian for [D.R.U.]. . . . Both parents will be allowed to give input to the Limited Minor Guardian. If the parties disagree, the Limited Minor Guardian will make medical decisions that are in [D.R.U.]’s best interests. The Limited Minor Guardian will be appointed in a separate proceeding. If either party unreasonably obstructs the appointment of a Limited Guardian for [D.R.U.] to address medical decision/release of information, the Court may reconsider the designation of joint decision-making provisions of this order to remove decision-making authority from that parent. CP at 588 (emphasis added). By itself, this retention of limited jurisdiction to monitor the parties’ compliance was permissible. Our case law recognizes that a trial judge may retain jurisdiction for “ ‘a specific and 13 No. 59969-4-II limited period of time’ ” when resolving disputes arising under a parenting plan. E.g., Rounds, 4 Wn. App. 2d at 807. In Rounds, the court addressed the interplay of the ability of a trial court to retain jurisdiction of a parenting plan and the right of a party to disqualify the judge. There, a final parenting plan was put into place that appointed a case manager to resolve disputes and stated, “If the case manager cannot resolve the dispute, then court action is necessary. [The judge] reserves jurisdiction over this matter should return to court be necessary.” Id. at 804. When one of the parties wanted to disqualify the judge from the case, the issue was whether that judge could retain jurisdiction through that clause. The court in Rounds held that the judge’s retention of jurisdiction was permissible, concluding that under the particular facts of the case, the retention did not conflict with the objectives of a parenting plan. Id. at 804, 807. There was evidence that showed that the parents had a history of being unable to follow the parenting plan peacefully, and the judge would only be reinvolved if the parents refused to abide by the case manager’s resolution. Id. But the court underscored the limitation of the continuing jurisdiction and emphasized that if a major modification was requested, the result would be different and the judge could be disqualified from the case. “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 . . . [the judge] was ‘powerless’ to deprive [the party] of this right.” Id. at 807 (quoting Hall, 184 Wn. App. at 684). Similarly, in Hall, the judge oversaw the dissolution of two parents and the parentage of their daughter. 184 Wn. App. at 678. The final parenting plan stated that “this Court will retain jurisdiction over the parenting plan at least to the extent of any allegations as to parental conduct.” 14 No. 59969-4-II Id. Approximately eight months later, Hall filed a petition to modify the parenting plan, citing a substantial change in circumstances. Id. at 679. Hall subsequently filed a notice of disqualification before the specific judge had taken any action on the petition. Id. at 680. The judge denied the disqualification, deciding that the petition was not a new proceeding and that she retained jurisdiction over the existing parenting plan. Id. The appellate court in Hall reversed. It held that, notwithstanding the retention of jurisdiction in the language of the parenting plan, when a major modification is requested, it constitutes a new proceeding from which a party may disqualify the judge. Id. at 683. While it is possible for parties “to come back . . . for further review and relief short of modification,” the judge was “powerless” to deprive Hall of her right to petition under RCW 26.09.260 and exercise her right under RCW 4.12.050. Id. at 684. From these cases, the lesson is clear, limited retention of jurisdiction is permissible, but once the request exceeds those limitations and a major modification is being requested, the superior court is “powerless” to prevent a disqualification under RCW 4.12.050. Here, Judge Banfield’s retention of jurisdiction that was written into the January 2023 final parenting plan was permissibly limited. It was limited to reconsidering joint decision-making authority if “either party unreasonably obstructs the appointment of a Limited Guardian.” If Shane had limited his request for changes to the topic of joint decision-making and if Judge Banfield had restrained her decisions to that limited issue, it would follow that there would be no “new proceeding” and that Khara would not have had the ability to disqualify her. But Shane intended to expand the issues well beyond decision-making authority. Immediately after Judge Banfield vacated her January 2023 final parenting plan, Shane’s 15 No. 59969-4-II intentions were transparent; he stated, “now that the modification is being reopened, since the CR 60 motion is granted, I’ll be preparing a motion to amend the petition.” 1 VRP (June 16, 2023) at 94. And Shane did; he very quickly filed his June 2023 petition. From its breadth, this petition was clearly a request for a major modification. In fact, the June 2023 petition was broader than his then withdrawn March 2023 petition—the June 2023 petition not only requested a change in D.O.N.’s primary residence and sole decision-making authority, but it also asked for the imposition of RCW 26.09.191 limitations and changes to the child support plan. Following that point, instead of keeping the proceedings limited, Judge Banfield proceeded to hear and decide all of the new issues raised in the June 2023 petition, including holding a second trial, and made multiple decisions that clearly constituted a major modification of the January 2023 final parenting plan. Had the issues been limited to decision-making authority, this would be a different case. But under the guise of granting a motion to vacate under CR 60 and then permitting Shane’s June 2023 petition, the trial court well exceeded the scope of its retained jurisdiction and permitted a major modification while denying Khara the right to disqualify the judge.5 On these specific facts, 5 We question whether a CR 60 motion to vacate was the appropriate motion for Shane to make (and the trial court to grant), as opposed to something akin to a motion to reopen the January 2023 parenting plan’s provisions for decision-making authority. Shane’s motion to vacate framed Khara’s alleged obstruction of the appointment of the limited guardian as “misrepresentation,” as in, Khara misrepresented that she wanted the involvement of a guardian. To prevail on a CR 60(b)(4), there must be clear and convincing evidence that misrepresentation caused the entry of the judgment such that the losing party could not fairly or fully present their case or defense. In re the Marriage of Bresnahan, 21 Wn. App. 2d 385, 406, 505 P.3d 1218 (2022). The intention of the rule is to address judgments that were either unfairly obtained or factually incorrect. Id. Khara’s stated reasons for failing to engage with the appointment of a limited guardian would appear to fall outside of this concept of misrepresentation. But given our decision that the trial court erred for more generally failing to limit its jurisdiction, we need not further address the propriety of the use of a CR 60 motion to vacate. 16 No. 59969-4-II this sequence of events constructively allowed a new proceeding, and Khara had the statutory right to disqualify the judicial officer.6 We hold that in the face of granting Shane’s CR 60 motion to vacate and the immediate filing of the June 2023 petition, the decision to deny Khara’s April 14, 2023, notice of disqualification was error. And because this error invalidates all of the decisions that postdate this notice, we do not reach the merits of the remaining arguments. Accordingly, we reverse and remand with directions to transfer the modification proceeding to another department of the superior court under RCW 4.12.040(1) and with directions to vacate any actions by Judge Banfield after April 14, 2023. III. ATTORNEY FEES BELOW Khara argues that the trial court abused its discretion in awarding Shane attorney fees for her intransigence. Because we hold that the trial court erred in denying Khara’s motion to disqualify and remand to vacate all actions by Judge Banfield after April 14, 2023, we need not further discuss this issue. 6 As a separate argument, Shane contends that Khara invited any error. He contends that Khara waived her right to disqualification because she agreed to a limited guardian in the January 2023 final parenting plan and, further, agreed to allow Judge Banfield to reopen the case if she failed to cooperate with the appointment of a limited guardian. We spend little time addressing this argument. As shown above, Khara’s agreement to the limited retention of jurisdiction by the trial court was consistent with what is permissible under the case law. See Rounds, 4 Wn. App. 2d at 807; Hall, 194 Wn. App. at 683. As such, nothing about Khara’s agreement would reasonably constitute inviting error if the trial court exceeded the scope of that limited jurisdiction, which the trial court did here. 17 No. 59969-4-II IV. ATTORNEY FEES ON APPEAL AND CR 11 SANCTIONS Both parties request attorney fees on appeal. Khara requests attorney fees under RAP 14.2, RAP 18.1(a), and RCW 26.09.140. Shane similarly requests attorney fees on appeal and requests sanctions under CR 11 or RAP 18.9 because Khara’s brief is not grounded in fact, frivolous, and without merit. Because we conclude that the trial court erred in denying Khara’s motion to disqualify and vacate all subsequent actions, Khara is the substantially prevailing party. Thus, we award her appellate costs under RAP 14.2. Turning to the question of appellate attorney fees, RAP 18.1(a) allows us to award attorney fees on appeal if applicable law grants the party the right to recover attorney fees. And RCW 26.09.140 provides, “Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorneys’ fees.” Khara filed a financial affidavit. According to the documents, Khara’s expenses continue to exceed her income. Thus, we exercise our discretion to award Khara appellate attorney fees under RCW 26.09.140. We deny an award of attorney fees to Shane. CONCLUSION We reverse and remand to the trial court with instructions to transfer the modification proceeding to another department of the superior court under RCW 4.12.040(1), and to vacate any actions taken in the action by Judge Banfield after April 14, 2023. We also award Khara appellate costs pursuant to RAP 14.2 and appellate attorney fees under RCW 26.09.140. 18 No. 59969-4-II A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. PRICE, A.C.J. We concur: VELJACIC, C.J. GLASGOW, J. 19