Opinion
No. 24517-9-III.
May 1, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-2-05816-8, Gregory D. Sypolt, J., entered August 26, 2005.
Reversed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Schultheis, J.
In this community property dispute, Frida Anton, widow of Michael Anton, appeals the trial court's disregard of the Antons' community property agreement when granting summary judgment to persons claiming accounts belonging to Mr. Anton at his death, Leroy Joseph Loudiana and Debra Kay Jeffries. We reverse, because (1) the temporary order entered in the separation suit did not serve to convert the community property into separate property, and (2) material facts remain regarding the couples' intent to abandon their community property agreement. Finally, we decide Ms. Anton is not judicially estopped to assert her claims.
FACTS
On February 22, 1984, the Antons executed a community property agreement (after 48 years of marriage) granting full title in all property to the survivor. In October 2003, the court appointed Cathy Anton and Nina Finney, two of the Antons' children, as Frida Anton's legal guardians. On January 23, 2004, the guardians petitioned for the Antons' legal separation, mainly alleging the need to access community funds to provide for Ms. Anton's unmet health care needs. The guardians pleaded their parents' health problems, partly decrying their father's deficiencies in caring for their mother if he did not take his medication, and requested a fair and equitable property division.
Frida Anton did not personally sign the petition, state her intentions, or mention the community property agreement. On February 9, 2004, Mr. Anton filed an affidavit opposing the legal separation, partly averring: "I do not want a legal separation. . . . I want to share what life we have left, together. . . . I know that I cannot physically care for her now. . . . I have provided for her all these years, and am willing to continue providing for her until we die." Clerk's Papers (CP) at 137. On February 19, 2004, he executed a new Last Will and Testament leaving his entire estate to a church.
On March 11, 2004, the court entered a "Temporary Order" with "Temporary Relief" equally dividing the Antons' marital assets, mainly liquid assets in a blocked account and social security income, and requiring each party to be responsible for his or her own debts out of the divided marital assets as of March 1, 2004. CP at 68, 70. The court required Mr. and Ms. Anton to "have their own separate bank accounts and neither party shall interfere or have access to the other's checking or savings account." CP at 70. The court ordered: "Both parties are restrained and enjoined from transferring, removing, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life and requiring each party to notify the other of any extraordinary expenditures." Id.
On May 13, 2004, Mr. Anton opened a money market account and purchased a certificate of deposit at Washington Trust Bank, naming Mr. Loudiana and Ms. Jeffries as the payees-on-death. On September 1, 2004, Mr. Anton died.
Mr. Loudiana, Ms. Jeffries, and Frida Anton each claimed the money held by Washington Trust Bank, which in turn filed this interpleader suit. Mr. Loudiana and Ms. Jeffries successfully filed a motion for summary judgment. The court found: (1) Mr. Loudiana and Ms. Jeffries were entitled to the funds as the payees-on-death; (2) Mr. and Ms. Anton mutually intended to abandon their community property agreement; (3) the March 11, 2004 order rendered the Antons' community property agreement inoperable and converted their community property to separate property; and (4) Ms. Anton was judicially estopped from raising a community property argument based on an inconsistent position in her separation action. Ms. Anton appeals.
ANALYSIS
The issue is whether the trial court erred in granting summary judgment to Mr. Loudiana and Ms. Jeffries. Ms. Anton contends the temporary separation order did not convert the marital community property to separate property since no final order was entered. She argues no evidence shows a mutual intent by her and Mr. Anton to abandon their community property agreement.
We review a trial court's summary judgment order de novo. Hubbard v. Spokane County, 146 Wn.2d 699, 706, 50 P.3d 602 (2002). We view the facts most favorably for the nonmoving party. Id. at 707. Summary judgment is appropriate if no genuine issues of material fact exist and we can decide the issues as a matter of law. Id.
A community property agreement is a contract and may be set aside under one of two circumstances without an express revocation clause. In re Estate of Bachmeier, 147 Wn.2d 60, 64, 52 P.3d 22 (2002); Stranberg v. Lasz, 115 Wn. App. 396, 402, 63 P.3d 809 (2003). First, it "may be rendered inoperable by a final divorce [or separation] decree," or second, it "may be rescinded by mutual assent." Id. A party's death "prior to entry of a final decree completely nullifie[s] [an] interlocutory decree of [separation], and . . ., as a consequence, the property settlement agreement therein contained [i]s, likewise, nullified." In re Estate of Janssen, 56 Wn.2d 150, 152, 351 P.2d 510 (1960). Second, "the parties must clearly demonstrate a mutually-manifested intention to abandon the agreement." Stranberg, 115 Wn. App. at 402.
Acts manifesting a mutual intent to abandon a community property agreement include: "conduct of one party [that] is inconsistent with the continued existence of the contract [where] that conduct is known to and acquiesced in by the other." In re Estate of Lyman, 7 Wn. App. 945, 948-49, 503 P.2d 1127 (1972), aff'm, 82 Wn.2d 693, 512 P.2d 1093 (1973). The court has, in limited circumstances, found this to include the parties' acts in living separate and maintaining property separately for many years after the entry of an interlocutory dissolution decree. Janssen, 56 Wn.2d at 151-53 (parties lived and owned property separately for 30 years after entry of an interlocutory dissolution decree); Togliatti v. Robertson, 29 Wn.2d 844, 845, 852, 190 P.2d 575 (1948) (parties lived and owned property separately for 18 years after entry of an interlocutory dissolution decree).
Unilateral acts by one or both parties do not evidence a mutual intent and are insufficient to rescind a community property agreement. Bachmeier, 147 Wn.2d at 65-67. Unilateral acts include: the initiation of legal separation proceedings and the execution of a will disposing of community property without the knowledge and approval of the other spouse. Id. at 67.
Here, Ms. Anton filed for legal separation and Mr. Anton vigorously opposed the action. Inconsistently, weeks later, Mr. Anton executed a new will, disposing of his "entire estate" to a church while making no provision for his "estranged wife Frida Anton" or his "estranged children." CP at 13. Ms. Anton did not know about the will and its distributions, so her lack of objection is unsurprising. The will was executed before the March 2004 temporary order.
The temporary order divided the Antons' liquid assets and directed them to place the assets in individual accounts. No final order or distribution occurred changing the temporary status. Given these facts, we cannot say the Antons intended to abandon their community property agreement as a matter of law. Nothing shows Ms. Anton had knowledge of or acquiesced to Mr. Anton's inconsistent acts. Inferences are available that Mr. and Ms. Anton lived separate solely to accommodate their declining ability to physically or financially care for each other.
Even the guardians acknowledged that Mr. Anton's poor health and his failure to continue his medications motivated their filing the separation petition for their mother: "When he was on his medications he was actually really nice." CP at 126. The guardians' affidavits do not recite any intent by Frida Anton personally regarding separation from Mr. Anton. Mr. Anton's affidavit expressed no desire for separation.
Indeed, Mr. Anton wanted to care for Frida Anton until her death separated them, not a court order. Living apart and maintaining separate bank accounts for six months after the temporary order was entered does not meet the substantial evidence standard in Janssen, 56 Wn.2d at 151-53.
Given all, we conclude the community property agreement was not so clearly abandoned as to justify summary judgment. Bachmeier, 147 Wn.2d at 64-65, 67; Janssen, 56 Wn.2d at 151-53. No evidence shows a final order was even sought in this case. The record does not show the parties expressed a mutual intent to abandon the community property agreement. Bachmeier, 147 Wn.2d at 64-65, 67.
Further, Frida Anton is not judicially estopped from claiming the community property agreement is valid. "Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by [successfully] asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position." Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222, 224-25, 230-31, 108 P.3d 147 (2005) (failing to disclose a personal injury claim in a bankruptcy action then bringing the personal injury suit after the bankruptcy). Ms. Anton did not personally express a position in the separation suit and never mentioned the community property agreement. Thus, Ms. Anton did not take an inconsistent position to that expressed in this suit. Cunningham, 126 Wn. App. at 224-25, 230-31.
Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, C.J.
Schultheis, J.