Barovic v. Pemberton

• Decision Date: 19 March 1999
• Docket Number: 95-4-01492-8
• Court: Washington Court of Appeals
• Parties: <PartyHeader> IN THE MATTER OF THE TESTAMENTARY TRUSTS CREATED FOR THE BENEFIT OF DONALD M. BAROVIC, APPELLANT, v. TANYA PEMBERTON, RESPONDENT. </PartyHeader>

[1]
[2]	IN THE MATTER OF THE TESTAMENTARY TRUSTS CREATED FOR THE BENEFIT OF DONALD M. BAROVIC, APPELLANT,; v.; TANYA PEMBERTON, RESPONDENT.
[3]	No. 23719-9-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Pierce County Docket No: 95-4-01492-8 Judgement or order under review Date filed: 09/24/1997 Judge signing: Hon. Arthur W. Verharen
[6]	March 19, 1999
[7]	Counsel: Counsel for Appellant(s) Donald M. Barovic (Appearing Pro Se) 35929 Pacific Highway S Federal Way, WA 98003 Counsel for Respondent(s) Thomas G. Krilich Thompson Krilich Laporte etal 524 Tacoma Ave. S. Tacoma, WA 98402-5416
[8]	The opinion of the court was delivered by: Seinfeld, J.
[9]	Judges: Authored by Karen G. Seinfeld Concurring: J. Dean Morgan David H. Armstrong
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	Trust income beneficiary Donald M. Barovic appeals a trial court order authorizing the sale of a trust asset. He argues that the sale violates the terms of the trust and that the presiding Judge pro tempore, a recently retired superior court Judge, was not qualified to preside over the matter. Finding no reversible error, we affirm.
[12]	FACTS
[13]	A testamentary trust named Barovic as the sole income beneficiary with the residuary going to his wife and daughters upon his death.*fn1 A provision of the trust directed the trustee to confer with the decedent's daughters "as to any distribution of principal from the trust estate prior to its distribution." *fn2 The Parkland Theater property is an asset of the trust. At one time, Barovic was the trustee. In 1995 or 1996, Barovic petitioned the superior court to allow him as trustee to sell the Parkland property to himself for $435,000. The court rejected Barovic's petition.
[14]	After an earlier Judge recused himself, the various Barovic cases were reassigned to Pierce County Superior Court Judge Thomas Swayze. In 1996, acting upon a petition from one of the trust's remaindermen, Judge Swayze removed Barovic as trustee and appointed Tanya Pemberton as successor trustee.
[15]	On August 1, 1997, Pemberton petitioned the superior court for approval to sell the Parkland property for $970,000 cash. She used the cause number that the court clerk had assigned to Barovic's earlier petition and said that it was a continuing action related to the trust. The guardian ad litem (GAL) for Barovic's youngest daughter supported the sale and both Pemberton and the GAL contended that it was necessary to sell the non-income producing Parkland property to acquire property that would generate income for the trust.
[16]	Along with the petition, Pemberton submitted a copy of the signed agreement for the sale of the property. The agreement included a provision reserving the trust's right to collect the proceeds from an insurance claim arising out of a fire on the property. Under this provision, if the buyer helped the trust obtain the insurance benefits, the buyer would receive seven percent of the insurance proceeds.
[17]	On August 25, 1997, then retired Judge Swayze presided over an evidentiary hearing on the petition for sale.*fn3 At the start of the hearing, Judge Swayze advised the parties that he was presiding as Judge pro tempore pursuant to constitutional provisions.
[18]	Barovic, acting pro se, contested the petition and produced a witness who testified in support of an alternative proposal that Barovic had for the property. The court approved the sale, concluding that Pemberton's plan would obtain a purchase price far in excess of the property's assessed value, that the terms were fair and reasonable, that the sale would benefit the trust beneficiaries and remaindermen, and that Barovic's alternative plan came too late and was too indefinite. The trust subsequently closed the sale on the Parkland property.
[19]	Barovic appeals, arguing (1) that the sale would damage the trust, (2) that trust provisions forbid the sale, and (3) that retired Judge Swayze was not qualified to preside over the matter.*fn4
[20]	DISCUSSION
[21]	I. Barovic's Standing
[22]	Citing RAP 3.1 and State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1994), Pemberton argues that Barovic lacks standing because: (1) as income beneficiary, he was not a party to the petition to sell the Parkland property; and (2) even if he were a party, he was not "aggrieved" by the court's granting of the petition.
[23]	"Only an aggrieved party may seek review of a superior court decision." In re Estate of Wood, 88 Wn. App. 973, 976, 947 P.2d 782 (1997) (citing RAP 3.1). "An aggrieved party is someone whose proprietary, pecuniary, or personal rights are substantially affected." Wood, 88 Wn. App. at 976 (citing In re Guardianship of Lasky, 54 Wn. App. 841, 848, 776 P.2d 695 (1989)). The appealing party must have a substantial interest in the

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