IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
No. 78772-1 -I
CURTIS E. CARLSON.
DONA SEELY, D.D.S., UNPUBLISHED OPINION
Petitioner,
V.
DAVID WANDS, D.D.S., personal
representative of the estate of Curtis E.
Carlson
Respondent. FILED: October 14, 2019
PER CURIAM — Seely seeks discretionary review of the trial court’s order
granting partial summary judgment in favor of the Estate regarding Seely’s interest
in a yacht. Review is denied because Seely fails to show probable error warranting
review under RAP 2.3(b)(2).
FACTS
Dr. Dona Seely and Dr. Curtis Carlson married on February 14, 1982. The
parties had two children together, and Carison had one child from a prior marriage.
Seely is an orthodontist, and Carlson was an orthodontist and a periodontist
before his death. They maintained separate practices, but shared a floor of an
office building they owned together.
No. 78772-1-112
In 1991, Seely and Carlson prepared estate planning documents, including
a property agreement (1991 Agreement). The 1991 Agreement provided that “all
of the property either or both of them now owns or hereafter acquires during their
marriage is their community property.” The 1991 Agreement provided each party’s
own practice—and the income derived therefrom—remained his or her own
separate property. The 1991 Agreement was signed by both parties and notarized.
In 2006, Seely and Carlson purchased a yacht, Conundrum, for $900,000.
The title documents show that the parties held title in the yacht as joint tenants with
rights of survivorship.
In February 2012, Seely and Carlson created a new property agreement
(2012 Agreement). The 2012 Agreement explicitly states that it supersedes the
1991 Agreement. It listed several items declared to be Seely’s separate property,
including a condominium, an office building, an investment account, and ‘the first
$1,220,000 value of the parties’ boat ‘Conundrum.” The 2012 Agreement
specified that the yacht was community property. But, it provided that, upon the
death of either party, an additional $610,000 would be credited towards Seely’s
share of the community property with respect to the yacht:
The parties intend that the items listed . above shall be their
. .
community property, but that at the death of the first of them to die,
the amounts set forth above will be paid from the community property
share of CURTIS E. CARLSON and added to the community
property share of DONA M. SEELY, which amounts shall be a lien
against the community property share of CURTIS E. CARLSON of
such assets.
The 2012 Agreement was signed by both parties. Seely’s signature is notarized;
Carlson’s signature is not.
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The record also includes a third document, dated August 10, 2013,
addressing the characterization of the parties’ property (2013 Agreement). The
2013 Agreement comprises five unnumbered, typewritten lists titled as follows: (1)
“Community Property of Dr. Curtis E. Carlson & Dr. Dona Seely”; (2) “Assets of Dr.
Dana Seely”; (3) “Liabilities of Dr. Dona Seely”; (4) “Assets of Dr. Curtis E.
Carlson”; and (5) “Dr. Carlson’s Liabilities.” The page headed “Assets of Dr. Dona
Seely” includes “2006 — Yacht “CONUNDRUM” 67’ Regency.” Each page of the
2013 Agreement was signed by both parties and notarized.1
Seely and Carison separated on or about December 2, 2013. On December
11, 2013, they each changed the beneficiary designations on their respective
individual retirement accounts (IRA). Carlson removed Seely as beneficiary of his
IRA and named the Estate of Curtis E. Carlson (Estate) as the sole beneficiary.
On January 27, 2014, Carlson filed a petition to dissolve the marriage.
On February 15, 2014, Carlson was admitted to the hospital with
complications from lung disease. On March 13, 2014, Carlson signed a form
restoring Seely as the beneficiary of his IRA. The next day, he signed a form
immediately transferring the contents of his IRA to an account Seely owned.
Carlson passed away on March 19, 2014.
Sometime after Carlson’s death, Seely was cleaning the home when she
found a folder behind a desk in the home office the couple shared. Inside the
folder was a draft petition for dissolution. Though the petition was not signed,
The record also contains a declaration from the notary who witnessed both
Dr. Seely and Dr. Carlson sign the documents.
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No. 78772-1 -114
Seely recognized Carlson’s handwriting and initials on the document. Under the
section marked ‘Property,” the draft petition provides,
The petitioner’s recommendation for the division of property is set
forth below.
Each party should be awarded his/her separate property.
The wife’s separate property consists of the following:
Her professional dental corporation including one-half of the
orthodontic equipment and supplies in the office, the Burien office
building, located at 15507 Second Avenue S.W., Burien, WA 98166;
her condominiums (2) located at 900 Lenora Street #1007, Seattle,
WA 98166 and 820 Blanchard # 1507, Seattle, WA 98121, her INC
retirement funds, and the yacht “Conundrum” and the Ski
Nautique/Correct Craft boat, and the art work she paid for and the
furniture she purchased.
The husband’s separate property consists of: his retirement funds,
and his professional dental corporation, including all of the
periodontal equipment and supplies and one-half of the orthodontic
equipment and supplies.
The community property, consists of: the parties’ home located at
16730 Shore Drive N.E., Seattle, WA 98155, and the furnishings
therein (except art work or furnishings purchased by the wife); and
the Bellevue office building, located at 12148 112th St. N.E.,
Bellevue, Washington.
(Emphasis added.)
Carlson’s will was admitted to probate and Dr. David Wands, a longtime
friend of Carlson, was appointed the personal representative. Seely was
appointed the administrator over Carlson’s community property. Carlson’s will
explicitly made “no provision herein to benefit my wife, DONA M. SEELY,
considering that she is adequately provided for, our marriage having become
defunct in my view and our marital community having terminated and a petition for
dissolution of our marriage having been prepared.”
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No. 78772-1 -1/5
On March 20, 2017, the Estate sued Seely, seeking to declare the
documents Carlson signed in the hospital on March 13 and 14, 2014 null and void
based on (1) his lack of testamentary capacity to execute the documents, (2)
Seely’s undue influence, and (3) Seely’s financial exploitation.
A bench trial was held over the course of several days in September 2017.
Following testimony from 12 witnesses and the admission of 28 exhibits, the court
entered 29 pages of findings of fact and conclusions of law. The trial court
concluded that Carlson lacked testamentary capacity to execute the March 13 and
14, 2014 documents and that the documents were a result of Seely’s undue
influence. Specifically, it found,
Petitioner has established by clear, cogent and convincing evidence
that the beneficiary change signed March 13, 2014, and the transfer
form signed March 14, 2014, were the result of undue influence by
Dr. Seely. As described above, Dr. Carlson was clearly in such a
weakened state mentally and physically, that this Court finds he
lacked legal capacity. The decedent’s “strength of mind is obviously
important evidence, bearing directly on the prospect that his or her
free will is overcome . . In re fEstate of iMelter, 167 Wn. App. 285,
.“
310[, 273 P.3d 991] (2012). Dr. Seely had substantial participation
in effecting the transaction involving the IRA beneficiary change and
the funds transfer. The transaction directly contradicts Dr. Carison’s
established estate plan to exclude Dr. Seety from assuming his
asset. There was no oral agreement created on March 8, 2014 for
transfer of the IRA in exchange for the provision of patient services
because those terms were not proven, and Dr. Seely’s testimony to
the contrary lacks credibility.
The trial court removed Seely as the administrator over Carlson’s community
property.2
2 Seely appealed the trial court’s September 2017 order, challenging the
sufficiency of the evidence supporting the findings. This court affirmed in an
unpublished decision, In re Estate of Carlson, No. 77881-1-I, slip op. at 2 (Wash.
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No. 78772-1-1/6
On January 17, 2018, a superior court commissioner certified for trial
various disputes related to the characterization of the parties’ property, including
the yacht.
The Estate moved for partial summary judgment on the issue of (1) whether
Seely was an “abuser” as defined in chapter 11 .84 RCW, and (2) if so, whether
she was prohibited from receiving any interest in the yacht and Carlson’s share of
the joint tenancy in the yacht thus passed to the Estate.
On June 15, 2018, a hearing was held on the Estate’s motion. Based on
the pleadings and the argument of parties, the trial court found that Seely qualified
as an “abuser” as defined in RCW 11.84.010(1).
I agree that the that Dr. Seely does qualify as an abuser under
--
[RCW] 11.84[.010(1)]. Both in both fashions that has been
--
suggested by the estate.
One, I think [the September 2014] findings make it clear that
she qualifies as an abuser. It is clear that there was harm to Dr.
Carlson’s estate as of March 14, 2014, upon the because it the
-- --
transfer took effect immediately, and that constitutes the exertion of
improper control under the language of the statute.
And it is clear that Dr. Seely’s actions were willful within the
intent of the law.
It is also it is appropriate to make that finding based on CR 56. The
--
estate has laid out a prima facie case that the basic facts as to how
--
Dr. Seely can be found to be an abuser under the statute, and Dr.
Seely has not come forward with any evidence that raises a genuine
issue of material fact with regard to her status under the statute.
The court also found that the yacht was a community property asset.
Ct. App. August 5, 2019). (unpublished), http://www.courts.wa.gov/opinions/pdf/
778811 .pdf.
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No. 78772-1-1/7
Secondly, it is clear that the Conundrum remains a either --
community property asset or joint tenant with right of survivorship
asset. It clearly was--there is a 1991 agreement that--between the
parties making everything community property.
The yacht is acquired in 2006 as joint tenants with right of
survivorship. There is no testimony or documents or anything else
that reflects a change in the character of the ownership of the asset,
and so absent something changing its character, it remains either
community property or joint tenants with right of survivorship
property, and the effect of the abuser and slayer statute is to provide
that half of it passes to Dr. Carlson’s estate.
The 2013 agreement doesn’t change that, one because it
doesn’t qualify as a separation contract as Mr. Franklin suggested,
because as I look at the statute, [RCW] 26.09.070, it provides for a
separation contract that the parties may enter into a written
separation contract providing the disposition of any property owned
by both or either of them.
This agreement, whatever it is, doesn’t provide for the disposition of
any property. It simply says it is simply the list saying that “this
--
property is is,” you know, “jointly owned by us and this property is
--
separately owned by these different folks.” It has no operative
language that would make it a separation contract within the
contemplation of RCW 26.09.070.
So the you know, there may be some effect that the agreement of
--
2013 has, and obviously that is something the court can address at
trial, but whatever it is, it is not it doesn’t affirmatively act it doesn’t
--
qualify as a separation contract because it doesn’t meet the
requirements of the statute. It doesn’t affirmatively change the status
of any property because there is no operative language in it to
transfer any interest in the property. All it does is serve as a list of
what the parties think their current or you know a list of property.
The trial court issued a written order granting partial summary judgment in favor of
the Estate and making the following findings of fact and conclusions of law:
1. Pursuant to RCW 11.84.150(2) and chapter 11.96A RCW, Dona
Seely shall be and hereby is determined and declared to be an
abuser under RCW 11.84.010.
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No. 78772-1-1/8
2. Pursuant to RCW 11.84.020, Dona Seely shall not in any way
acquire any property or receive any benefit as a result of the death
of the Decedent.
3. Pursuant to RCW 11.84.050(1), the Decedent’s one-half share of
the joint tenancy with right of survivorship in the yacht Conundrum
passed to the Estate of Curtis Carlson effective his date of death.
4. The Personal Representative and Dona Seely shall cooperate in
marketing and selling the yacht Conundrum and shall divide the
net sale proceeds equally, with neither party receiving in excess
of 50% of net sale proceeds.
The trial court denied Seely’s motion for reconsideration. Seely seeks
discretionary review.3
DISCUSSION
Washington strongly disfavors interlocutory review, and it is available only
“in those rare instances where the alleged error is reasonably certain and its impact
on the trial manifest.” Minehart v. Morning Star Boys Ranch, Inc., 156 Wn. App.
457, 462, 232 P.3d 591 (2010). “‘Piecemeal appeals of interlocutory orders must
be avoided in the interests of speedy and economical disposition of judicial
business.” ki. (quoting Maybury v. City of Seattle, 53 Wn.2d 716, 721, 336 P.2d
878, 883 (1959)). This court grants discretionary review only on the four narrow
grounds set forth in RAP 2.3(b):
(1) The superior court has committed an obvious error which
would render further proceedings useless;
(2) The superior court has committed probable error and the
decision of the superior court substantially alters the status quo or
substantially limits the freedom of a party to act;
~ Seely timely filed a notice of discretionary review. RAP 6.2(b) required
that she file her motion for discretionary review within 15 days. Respondent notes
that Seely’s motion was filed on the morning of the 16th day, we exercise our
discretion under RAP 18.8(a) and review the merits of the motion.
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No. 78772-1-1/9
(3) The superior court has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such
a departure by an inferior court or administrative agency, as to call
for review by the appellate court; or
(4) The superior court has certified, or all the parties to the
litigation have stipulated, that the order involves a controlling
question of law as to which there is substantial ground for a
difference of opinion and that immediate review of the order may
materially advance the ultimate termination of the litigation.
RAP 2.3(b). Seely seeks review under RAP 2.3(b)(2).
This court reviews summary judgment orders de novo, performing the same
inquiry as the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,
860, 93 P.3d 108 (2004). This court reviews a trial court’s reconsideration decision
for an abuse of discretion. Rivers v. Wash. State Conf. of Mason Contractors.,
145 Wn.2d 674, 685, 41 P.3d 1175 (2002). A trial court abuses its discretion when
it bases its decision on untenable grounds or reasons. In re Estate of Peterson,
102 Wn. App. 456, 462, 9 P.3d 845 (2000).
Seely first argues that the trial court committed probable error in basing its
finding that she financially exploited Carlson on the September 2017 finding
regarding the transfer of the IRA. Citing RCW 26.16.030, which provides that
either spouse, acting alone, may manage and control community property,” Seely
argues that “the transfer of community funds from an account managed by one
spouse to an account managed by the other spouse can not constitute an ‘injury’
under RCW 11.84.160.”
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No. 78772-1-1/10
RCW 11.84.020 provides that an “abuser” may not “acquire any property or
receive any benefit as the result of the death of the decedent.”4 An “abuser” is
defined as “any person who participates, either as a principal or an accessory
before the fact, in the willful and unlawful financial exploitation of a vulnerable
adult.” RCW 11.84.010(1). “Financial exploitation” is “the illegal or improper use,
control over, or withholding of the property, income, resources, or trust funds of the
vulnerable adult by any person or entity for any person’s or entity’s profit or
advantage other than for the vulnerable adult’s profit or advantage. RCW
74.34.020(7). The statute provides a non-exclusive list of examples of financial
exploitation, including
[t]he use of deception, intimidation, or undue influence by a person
or entity in a position of trust and confidence with a vulnerable adult
to obtain or use the property, income, resources, or trust funds of the
vulnerable adult for the benefit of a person or entity other than the
vulnerable adult.
RCW 74.34.020(7)(a) (emphasis added).
Seely appealed the September 2017 findings and this court affirmed in an
unpublished opinion, In re Estate of Carlson, No. 77881-1-I, slip op. at 2 (Wash.
Ct. App. August 5, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/
778811 .pdf. In doing so, this court held that sufficient evidence supported the trial
court’s finding that Dr. Seely exercised undue influence over Dr. Carlson with
‘~‘The statute contains provisions for the distribution of various types of
property. Relied upon by the parties here is RCW 11.84.050(1), which provides
that “[o]ne-half of any property held by the slayer or abuser and the decedent as
joint tenants, joint owners or joint obligees shall pass upon the death of the
decedent to his or her estate, and the other half shall pass to his or her estate upon
the death of the slayer or abuser, unless the slayer or abuser obtains a separation
or severance of the property or a decree granting partition.”
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No. 78772-I-I/il
regard to the IRA. jçj, at 20. Our ruling is now law of the case. See State v.
Schwab, 134 Wn. App. 635, 644, 141 P.3d 658 (2006) (“[O]nce there is an
appellate holding enunciating a principle of law, that holding will be followed in later
stages of the same litigation.”), affd, 163 Wn.2d 664, 185 P.3d 1151 (2008); see
•~j~ RAP 12.2 (“Upon issuance of the mandate of the appellate court as provided
in [RAP] 12.5, the action taken or decision made by the appellate court is effective
and binding on the parties to the review and governs all subsequent proceedings
in the action in any court.”). Undue influence over a vulnerable adult in order to
gain control of property constitutes financial exploitation. RCW 74.34.020(7)(a).
Accordingly, Seely fails to show that the trial court committed probable error in
finding that she was an “abuser” as defined in RCW 11.84.010.
Seely next contends that the trial court committed probable error in finding
that the 2013 Agreement did not “reflect[] a change in the character of the
ownership of the [yacht].”5
This court reviews de novo the characterization of property. In re Marriage
of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). All property held in a
joint tenancy is presumed to be community property:
Joint tenancy interests held in the names of both spouses or both
domestic partners, whether or not in conjunction with others, are
presumed to be their community property, the same as other
property held in the name of both spouses or both domestic partners.
Any such interest passes to the survivor of the spouse or survivor of
the domestic partner as provided for property held in joint tenancy,
but in all other respects the interest is treated as community property.
~ Seely does not argue that the trial court erred in failing to consider either
the 2012 Agreement or the draft petition for dissolution in making its determination.
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No. 78772-1-1/12
RCW 64.28.040(1). Moreover, all property acquired during a marriage is
J
presumed to be community property. ROW 26.16.030; In re Marriage of Mueller,
140 Wn. App. 498, 504, 167 P.3d 568 (2007).
The law favors characterization of property as community property unless
there is no question of its separate character. ki. (citing In re Marriage of Brewer,
137 Wn.2d 756, 766-67, 976 P.2d 102 (1999)). “A spouse may overcome this
heavy presumption with clear and convincing evidence of the property’s separate
character.” jç~ (citing Kolmorgan v. Schaller, 51 Wn.2d 94, 98, 316 P.2d 111
(1957)).
Here, it is undisputed that the parties, at all times, held title to the yacht as
joint tenants with rights of survivorship. And, the yacht was acquired by the parties
during the marriage. Thus, the question for the trial court was whether the 2013
Agreement was sufficient to overcome this “heavy presumption.”
Spouses may change the status of their community property to separate
property by entering into mutual agreements. ki.
Nothing . shall prevent both spouses or both domestic partners
. .
from jointly entering into any agreement concerning the status or
disposition of the whole or any portion of the community property,
then owned by them or afterwards to be acquired, to take effect upon
the death of either. But such agreement may be made at any time
by both spouses or both domestic partners by the execution of an
instrument in writing under their hands and seals, and to be
witnessed, acknowledged and certified in the same manner as deeds
to real estate are required to be, under the laws of the state.
ROW 26.16.120. A spouse seeking to enforce such an agreement must establish
with clear and convincing evidence both (1) the existence of the agreement and
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No. 78772-1 -1/13
(2) that the parties mutually observed the terms of the agreement throughout their
marriage. Mueller, 140 Wn. App. at 504.
The 2013 Agreement appears to have been drafted by the parties. While it
lists the assets and liabilities of each party, it does not specifically state that each
party’s assets constitute their separate property. And, it does not indicate that it is
intended to revoke or supersede prior agreements. Nor does it in any way purport
to convert or sever the joint tenancy. Seely fails to demonstrate that the trial court
committed probable error in finding the 2013 Agreement insufficient to overcome
the strong presumption that the yacht remained community property at the time of
Carlson’s death. Discretionary review is not warranted.6 The motion for
discretionary review is denied.
FOR THE COURT:
6 Seely additionally argues that the trial court committed probable error by
making a finding on the character of the yacht when it was not asked to do so by
the Estate’s motion for partial summary judgment. But, the trial court did not make
a written finding as to whether the yacht was community or separate property.
Rather, the trial court found that the yacht was held in a joint tenancy—all that is
necessary for chapter 11 .50 RCW to apply.
13