### IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON

In the Matterofthe 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 DONA SEELY, D.D.S., UNPUBLISHED OPINION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 ofthe estate of Curtis E. Carlson Respondent. FILED: October 14, 2019
PER CURIAM

— Seely seeks discretionary review of the trial court’s order granting partial summaryjudgment infavorofthe Estate regarding Seely’s interest in ayacht. Reviewisdenied because Seelyfailstoshowprobableerrorwarranting 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 childfrom a priormarriage. Seely is an orthodontist, and Carlson was an orthodontistand a periodontist before his death. They maintained separate practices, but shared a floor of an office building theyowned together.No. 78772-1-112

In 1991, Seelyand Carlson prepared estate planning documents, including
a property agreement (1991 Agreement). The 1991 Agreement provided that “all ofthe property either or both ofthem now owns or hereafter acquires during their marriage istheircommunity property.” The 1991 Agreement provided each party’s
own practice—and the income derived therefrom—remained his or her own separate property. The 1991 Agreementwas signed byboth parties and notarized. In 2006, Seely and Carlson purchased a yacht, Conundrum, for $900,000. Thetitle documents showthatthe parties heldtitle in theyachtasjointtenantswith rights ofsurvivorship. 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 ofthe community propertywith respectto the yacht:

The parties intend thatthe items listed

. . . above shall betheir community property, but that atthe death ofthe first ofthem to die, the amountssetforth abovewill be paidfrom the communityproperty 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 Agreementwas 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 ofthe parties’ property (2013 Agreement). The 2013Agreementcomprises five unnumbered, typewritten liststitled as follows: (1) “Community Propertyof Dr. Curtis E. Carlson & Dr. Dona Seely”; (2) “Assets ofDr. 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 ofthe 2013Agreementwas signed by both parties and notarized.1 Seelyand Carison separated on orabout December2, 2013. On December 11, 2013, they each changed the beneficiary designations on their respective individual retirementaccounts (IRA). Carlson removed Seelyas beneficiary of his IRA and named the Estate of Curtis E. Carlson (Estate) as the sole beneficiary. On January27, 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 adeclarationfrom the notarywhowitnessed both Dr. Seely and Dr. Carlson sign the documents. 3No. 78772-1 -114

Seely recognized Carlson’s handwriting and initials on the document. Underthe section marked ‘Property,” the draft petition provides, The petitioner’s recommendation for the division of property is set forth below. Each partyshould be awarded his/herseparate property. The wife’s separate property consists ofthe 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 ofthe 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 orfurnishings 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 myview and our marital community having terminated and a petition for dissolution ofour marriage having been prepared.”

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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 overthe course ofseveral days in September2017. Following testimonyfrom 12 witnesses and the admission of28 exhibits, the court entered 29 pages of findings of fact and conclusions of law. The trial court concluded that Carlson lacked testamentarycapacityto executethe March 13 and 14, 2014 documents and that the documents were a result of Seely’s undue influence. Specifically, itfound, Petitioner has established by clear, cogent and convincing evidence thatthe 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 ofmind is obviously important evidence, bearing directly on the prospect that his or her free will is overcome

. . .“ In re fEstate ofiMelter, 167Wn. 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 ofthe IRA in exchange forthe 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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On January 17, 2018, a superior court commissioner certified for trial various disputes related to the characterization ofthe parties’ property, including the yacht. The Estate moved forpartial summaryjudgmenton 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 thejointtenancy in the yachtthus passed to the Estate. On June 15, 2018, a hearing was held on the Estate’s motion. Based on the pleadings and the argument ofparties, thetrial courtfound that Seelyqualified
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 bythe estate. One, I think [the September2014] findings make it clearthat 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 transfertook effect immediately, and that constitutes the exertion of impropercontrol underthe language ofthe statute. And it is clear that Dr. Seely’s actions were willful within the intent ofthe law. It is also

-- it is appropriateto makethatfinding based on CR 56. The estate has laid outa primafacie casethat

--the basicfacts asto how Dr. Seely can be found to be an abuser under the statute, and Dr. Seely has not comeforward with any evidence that raises a genuine issue of material factwith regard to herstatus underthe statute. The court alsofound thatthe yachtwas a community property asset.

Ct. App. August 5, 2019). (unpublished), http://www.courts.wa.gov/opinions/pdf/ 778811 .pdf. 6No. 78772-1-1/7 Secondly, it is clear that the Conundrum remains a

-- either community property asset orjoint tenant with right of survivorship asset. Itclearlywas--there is a 1991 agreementthat--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 characterofthe ownership ofthe asset, and so absent something changing its character, it remains either community property or joint tenants with right of survivorship property, and the effect ofthe abuserand slayerstatute isto provide that halfof 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 oreitherofthem. This agreement, whatever it is, doesn’t provide forthe 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 RCW26.09.070. So the

-- you know, there may be some effectthatthe agreement of 2013 has, and obviously that is something the court can address at trial, butwhatever 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 ofthe statute. Itdoesn’taffirmativelychangethe 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 whatthe parties thinktheircurrent oryou know a list of property. The trial court issued awritten ordergranting partial summaryjudgment in favorof the Estate and making the following findings offact 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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2. Pursuant to RCW 11.84.020, Dona Seely shall not in any way acquire anypropertyor receive any benefitas a resultofthe death ofthe Decedent. 3. Pursuant to RCW 11.84.050(1), the Decedent’s one-halfshare of thejointtenancywith right ofsurvivorship in theyacht Conundrum passed to the Estate of Curtis Carlson effective his date ofdeath. 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 of50% 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 instanceswherethe alleged erroris reasonablycertain 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 Mayburyv. 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 setforth in RAP 2.3(b):

(1) The superior court has committed an obvious errorwhich would renderfurther 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 thefreedom ofa partyto act;

~ Seely timely filed a notice of discretionary review. RAP 6.2(b) required thatshe file her motion fordiscretionary reviewwithin 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 reviewthe merits ofthe motion.
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(3) The superior court has so far departed from the accepted and usual course ofjudicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review bythe 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 ofthe litigation. RAP 2.3(b). Seely seeks review under RAP 2.3(b)(2). This court reviews summaryjudgmentorders de novo, performing the same inquiryasthe superiorcourt. Hislev. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). This court reviews atrial court’s reconsideration decision for an abuse of discretion. Rivers v. Wash. State Conf. of Mason Contractors., 145Wn.2d 674, 685, 41 P.3d 1175 (2002). Atrial courtabuses 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). Seelyfirst argues thatthe 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 eitherspouse, acting alone, may manage and control communityproperty,” Seely argues that “the transfer of community funds from an account managed by one spouse to an account managed bythe otherspouse can not constitute an ‘injury’ under RCW 11.84.160.”

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RCW 11.84.020 provides thatan “abuser” may not“acquire any propertyor 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, orwithholding ofthe property, income, resources, ortrustfunds ofthe 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 oftrust and confidence with a vulnerable adult to obtain or usethe property, income, resources, ortrustfunds ofthe vulnerable adult for the benefit of a person or entity otherthan the vulnerable adult. RCW74.34.020(7)(a) (emphasis added). Seely appealed the September2017 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 thatsufficientevidence 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 decedentto his orherestate, and the otherhalfshall passto his orherestate upon the death ofthe slayerorabuser, unlessthe slayerorabuserobtains a separation orseverance ofthe property ora decree granting partition.” 10No. 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 oflaw, that holding will befollowed in later stages ofthe same litigation.”), affd, 163 Wn.2d 664, 185 P.3d 1151 (2008); see •~j~ RAP 12.2 (“Upon issuance ofthe mandate ofthe appellate court as provided in [RAP] 12.5, the action taken ordecision made bythe 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 ofthe [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 jointtenancy 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 inthe name ofboth spouses orboth domesticpartners. Any such interest passes to the survivorofthe spouse orsurvivorof the domestic partner as provided for property held in joint tenancy, but in all other respectsthe interest istreated as communityproperty.

~ Seely does not argue thatthe trial court erred in failing to consider either the2012Agreementorthe draft petition fordissolution in making its determination.
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RCW 64.28.040(1). Moreover, all property acquired during a marriage is
J presumed to be community property. ROW26.16.030; 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 ofthe property’s separate character.” jç~ (citing Kolmorgan v. Schaller, 51 Wn.2d 94, 98, 316 P.2d 111 (1957)). Here, it is undisputed thatthe parties, at all times, held title to the yacht as jointtenantswith rights ofsurvivorship. And, theyachtwas acquired bythe parties during the marriage. Thus, the question forthe trial court was whether the 2013 Agreementwas sufficientto 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 bythem orafterwardsto be acquired, totake 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 inthesame manneras deeds to real estate are required to be, underthe laws ofthe state. ROW26.16.120. Aspouse seeking to enforce such an agreement must establish with clear and convincing evidence both (1) the existence ofthe agreement and

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(2) thatthe parties mutuallyobserved the terms ofthe agreementthroughouttheir marriage. Mueller, 140 Wn. App. at 504. The 2013Agreement appearsto have been drafted bythe parties. While it lists the assets and liabilities ofeach party, it does not specificallystate that each party’s assets constitute theirseparate property. And, itdoes not indicate that it is intended to revoke orsupersede prioragreements. Nordoes it in anyway purport to convert orseverthejointtenancy. Seelyfails to demonstrate thatthetrial court committed probable error in finding the 2013 Agreement insufficient to overcome the strong presumption thatthe yacht remained community property atthetime 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 ofthe yacht when itwas not asked to do so by the Estate’s motion forpartial summaryjudgment. But, thetrial courtdid not make a written finding as to whether the yacht was community or separate property. Rather, the trial courtfound that the yacht was held in ajoint tenancy—all that is necessaryforchapter 11 .50 RCWto apply.
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