Opinion
No. 51221-8-I
Filed: August 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-4-00093-0. Judgment or order under review. Date filed: 09/24/2002. Judge signing: Hon. Michael Heavey.
Counsel for Appellant(s), Jean Marie Schiedler-Brown, Attorney at Law, 606 Post Ave Ste 101, Seattle, WA 98104-1445.
Counsel for Respondent(s), Brian Paul Russell, Attorney at Law, 140 SW 153rd St, Seattle, WA 98166.
Clara Isackson appeals the trial court's dismissal of her claim against the estate of her deceased spouse, Earl Isackson. The trial court concluded Clara and Earl maintained the separate status of the assets they brought into the marriage and Clara was not entitled to an award of Earl's separate property. We conclude Clara failed to establish Earl's separate property was commingled or converted to community property and affirm.
Facts
When Earl and Clara Isackson married in 1972, they were 58 and 60. They were both retired and both had children from previous marriages. Earl's income consisted of a federal pension and Clara collected social security. At the time of the marriage, Earl owned two houses and Clara owned a house. Shortly after they married, Clara sold her house and deposited the proceeds into a savings account in her name only. Earl sold one of his houses and put the proceeds in a separate account. The couple lived in Earl's other house. During the marriage, both Clara and Earl had separate bank accounts, and they maintained a joint checking account.
Earl died on December 21, 2001. In his will, he named his daughter Judith Anderson, as the executrix of his estate. According to Earl's will, upon his death, Clara was to receive the balance in their joint checking account. Clara was also to receive one-half of any community property, although Earl stated in his will that `at the time of making this Will, there is no community property.' Earl's two daughters were to receive the money from his separate bank account and equal shares in the house he acquired before his marriage to Clara.
The balance at the time of Earl's death was approximately $27,000.
CP 52.
It appears that Earl had a separate account at two different banks during his marriage to Clara, but at the time of his death, only one account remained.
On April 26, 2002, Clara filed a motion for an `Award to Surviving Spouse.' Clara asked the court to confirm the `possession and control' of her one-half share of community property in Earl's house and his separate bank account. In the alternative, she asked that the court set aside Earl's will and award her the portion of the Estate she would have received if Earl had died intestate and to award property to her as the surviving spouse under RCW 11.54.010.
CP 40. Clara has Alzheimer's disease and has been declared incompetent. Her step-son from her previous marriage commenced this action on her behalf.
RCW 11.54.010 allows a surviving spouse to petition the court for an award of property from the estate of a deceased spouse.
After a two-day bench trial, the trial court granted the Estate's motion for a directed verdict. The court determined there was no evidence that the parties' separate assets were commingled or converted from separate to community property. The court also denied Clara's request to set aside Earl's will and for an award of Earl's separate property under RCW 11.54.010. The court awarded attorney fees to the Estate.
Characterization of Property
Clara argues the trial court erred in concluding that Earl's property retained its status as separate property. Clara claims that their separate assets were commingled and she has a community property interest in Earl's house and his separate bank account.
The classification of property as separate or community is a question of law. In re Marriage of Martin, 32 Wn. App. 92, 94, 645 P.2d 1148 (1982). The character of property as separate or community is established at the point of acquisition. In re Marriage of Skarbeck, 100 Wn. App. 444, 447, 997 P.2d 447 (2000). Separate property is property acquired before marriage or acquired after marriage by gift, bequest, devise, or descent. RCW 26.16.010, .020; Brown v. Brown, 100 Wn.2d 729, 737, 675 P.2d 1207 (1984). An asset acquired during a marriage is presumed to be community property. In re Marriage of White, 105 Wn. App. 545, 550, 20 P.3d 481 (2001). When separate funds become so commingled with community funds so it is no longer possible to trace and identify them, the asset becomes community. In re Estate of Witte, 21 Wn.2d 112, 125, 150 P.2d 595 (1944). Once established as separate or community property, its status is presumed to remain the same unless the evidence establishes that its character has been changed. Skarbeck, 100 Wn. App. at 447; Witte, 21 Wn.2d at 125. The status of property is presumed to remain the same through changes and transitions, as long as it can be traced and identified. Witte, 21 Wn. 2d at 125.
The burden is on the spouse claiming that separate property has been commingled or converted to community property to prove the change in character by clear and convincing evidence. In re Marriage of Shannon, 55 Wn. App. 137, 140, 777 P.2d 8 (1989). Likewise, if an asset is presumptively community property, the burden is on the spouse claiming it is separate property to present clear and convincing evidence tracing the asset to a separate source. In re Estate of Binge, 5 Wn.2d 446, 466, 105 P.2d 689 (1940).
Clara failed to prove that Earl's separate property was commingled, and thus converted to community property. As evidence that Earl's separate property was commingled, Clara relies on a $26,000 check from the couple's joint account Earl wrote several years before his death and deposited into his separate account. But the separate account did not exist when Earl died and there was no evidence of why this money was withdrawn or how it was spent. Based on this record, the trial court did not err in concluding that the evidence about this transaction did not rebut the presumption of the continuing separate character of Earl's and Clara's assets.
Clara also argues that her social security checks were used for the mortgage payments on the house Earl owned and she is entitled to a portion of his home as community property. Clara's social security check of $619 was deposited each month into their joint account. Clara claims that this money must have been used to make the mortgage payments on Earl's house because otherwise, the balance in this account after thirty-years of accumulation would have been approximately $250,000. Instead, the balance at the time of Earl's death was approximately $28,000. The funds in Earl's and Clara's joint account were presumably used for their joint expenses. There is no evidence that Clara's funds were used to make the mortgage payments on Earl's house. Clara's argument is based on speculation and the evidence did not rebut the presumption that Earl's house retained its separate status.
Clara also challenges the trial court's exclusion of several exhibits, which she argues would have demonstrated commingling of the parties' assets. Clara sought to admit bank statements, two Form 1099 tax statements from Earl's separate accounts, and a photocopy of the check for $26,000 drawn on the joint account. This court reviews a trial court's decision to admit or exclude evidence for abuse of discretion. See In re Twining, 77 Wn. App. 882, 891, 894 P.2d 1331 (1995). Although the trial court sustained the Estate's objections to these exhibits and excluded them, the witnesses were permitted to testify about the information contained in the documents. As to the bank and tax statements, the testimony did not demonstrate the commingling of separate and community assets. And Clara offers no argument or explanation about how the bank and tax statements would show commingling. With respect to the photocopy of the $26,000 check, Clara's son testified that Earl withdrew $26,000 from the joint account and deposited it in his separate account. As explained, this evidence alone did not establish commingling. In addition, when Clara moved to admit the photocopy of the $26,000 check as an exhibit, the trial court reserved ruling on its admissibility until Earl's daughter, the executrix of his estate, testified. But when Earl's daughter testified, Clara did not ask any questions about the check and did not request admission of the exhibit. Having failed to obtain a final ruling on the admissibility of the evidence, this issue has not been preserved for appellate review. See e.g. State v. Jamison, 105 Wn. App. 572, 586-877, 20 P.3d 1010 (2001) (where a trial court makes a tentative ruling and invites a party to submit additional materials in support of a motion and the party fails to do so, the issue is not preserved for appeal); Sturgeon v. Celotex Corp., 52 Wn. App. 609, 622-23, 762 P.2d 1156 (1988) (parties may rely on a definite ruling to preserve an issue for review).
All of the bank statements Clara sought to admit at trial are not included in the record on appeal. A statement for the joint Washington Mutual account confirms the $26,000 withdrawal three years before Earl died, in 1998. No other bank statements are in the record.
Report of Proceedings (RP) (8/22/02) at 111.
Award of Property to Surviving Spouse
Clara argues the trial court abused its discretion in denying her an award of Earl's separate property based on RCW 11.54.010. Under RCW 11.54.010, the surviving spouse of a decedent may petition the court for an award from the property of the decedent. The decision to grant an award under RCW 11.54.010 is within the discretion of the trial court. In re Estate of Garwood, 109 Wn. App. 811, 38 P.3d 362 (2002).
RCW 11.54.010 states, in pertinent part:
1) Subject to RCW 11.54.030, the surviving spouse of a decedent may petition the court for an award from the property of the decedent. If the decedent is survived by children of the decedent who are not also the children of the surviving spouse, on petition of such a child the court may divide the award between the surviving spouse and all or any of such children as it deems appropriate. If there is not a surviving spouse, the minor children of the decedent may petition for an award.
The trial court decided not to award property under RCW 11.54.010 after considering Clara's assets, her health insurance and her income: including income of approximately $2,200 a month, the money she received from the joint bank account, and approximately $28,000 from her separate account. We conclude the trial court did not abuse its discretion in denying Clara's request under RCW 11.54.010 for an award of Earl's separate property.
Attorney Fees
The trial court ordered Clara under RCW 11.96A.150 to pay attorney fees of $13,376.25 to the Estate. Clara argues it was inequitable to award fees because the Estate's assets are greater than her assets. She requests the fee award be reversed or reduced.
RCW 11.96A.150 provides:
(1) Either the superior court or the court on appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs to be paid in such amount and in such manner as the court determines to be equitable.
(2) This section applies to all proceedings governed by this title, including, but not limited to proceedings involving trusts, decedent's estates and properties, and guardianship matters.
An award of attorney fees under RCW 11.96A.150 is discretionary. In re Estate of Black, 116 Wn. App. 476, 66 P.3d 670, review denied, 150 Wn.2d 1020 (2003). The appellate court needs an adequate record to exercise its supervisory role to ensure that discretion is exercised on articulable grounds. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). The trial court must enter findings of fact and conclusions of law supporting an award of attorney fees. Id.
The trial court did not enter findings of fact and conclusions of law to support its decision to award attorney fees. The record does not indicate that the trial court found the services of the attorneys were reasonable or essential to the outcome, whether there were any duplicative or unnecessary services, or if the hourly rates were reasonable. Remand is necessary because on this record, we are unable to review the trial court's decision to award attorney fees. See Mahler, 135 Wn. 2d at 435.
The Estate also requests fees on appeal under RCW 11.96A.150. We decline to award fees incurred on appeal.
CONCLUSION
We affirm the dismissal of Clara's claims against the Estate and the trial court's conclusion that Clara failed to present clear and convincing evidence that Earl's separate property was commingled or converted to community property. We also affirm the trial court's denial of her request for an award of property to the surviving spouse. We remand the award of attorney fees to the trial court for proceedings consistent with this opinion.
SCHINDLER, GROSSE and KENNEDY, JJ., concur.