In re Marriage of Ladner v. Ladner, No. 59664-1-I (Wash. App. 3/31/2008), 59664-1-I.

• Decision Date: 31 March 2008
• Docket Number: No. 59664-1-I.,59664-1-I.
• Parties: In re the Marriage of: PAULETTE L. LADNER, Respondent, v. WILLIAM HENRY LADNER, Appellant.
• Court: Washington Court of Appeals

Page 1

Unpublished Opinion

In re the Marriage of: PAULETTE L. LADNER, Respondent, v. WILLIAM HENRY LADNER, Appellant.

No. 59664-1-I.

Court of Appeals of Washington, Division One.

Filed: March 31, 2008.

Appeal from Whatcom County Superior Court. Docket No: 05-3-00437-1. Judgment or order under review. Date filed: 03/05/2007. Judge signing: Honorable Charles Russell Snyder.

Counsel for Appellant(s), Gregory Louis Kosanke, Smith Kosanke & Wright PLLC, 105 5th St Ste 201, Po Box 632, Lynden, WA, 98264-0632.

Counsel for Respondent(s), Nancy Sherar Berg, Attorney at Law, 119 N Commercial St Ste 250, Bellingham, WA, 98225-4440.

Valerie A Villacin, Edwards, Sieh, Smith & Goodfriend, 1109 1st Ave Ste 500, Seattle, WA, 98101-2988.

Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA, 98101-2988.

BECKER, J.

During his divorce trial, William Ladner attacked the validity of a community property agreement he signed in Canada nine years earlier that converted his inheritance into a community asset. William argues that medication rendered him incompetent at the time of signing and that the Washington State notary lacked authority to witness the signatures in Canada. Because substantial evidence supports the finding that William was competent and an alleged error in the notarization process would not affect the validity of the agreement, we affirm.

William and Paulette Ladner married in 1991. In 1995, William received an inheritance from his father consisting of approximately $400,000 in cash and stock as well as a 1915 family home in Point Roberts, Washington.

Paulette filed for divorce in 2004. At the dissolution proceeding, the trial court found that their community property agreement was valid and divided the property accordingly.

According to the trial court's unchallenged findings, William deposited the inheritance money in a joint account set up at Charles Schwab in April 1996. The opening balance was over $447,000. Both Paulette and William had access to this money. They used it to pay bills, fund part of the cost of remodeling the Point Roberts house, and buy William a new truck.

William had a massive heart attack on May 3, 1997. Paulette drove him to the nearest hospital which was across the international border in Tsawwassen, British Columbia. According to lab reports introduced at trial, William received a combination of drugs to stabilize his condition, including a hypnotic drug to help him sleep, an anti-anxiety medicine, morphine, and blood thinners. Doctors expressed concern that William remained in danger of sudden death and was in need of heart surgery.

Two days after William's heart attack, Paulette came to the hospital with a community property agreement. Accompanying her was James Julius, a real estate broker and notary public from Point Roberts who had known William for a long time. The agreement, prepared upon a standard form, read:

This agreement, made and entered into this 5th day of May, 1997, by and between William Henry Ladner III and Paulette Lucia Marie Ladner, husband and wife, of Whatcom County, State of Washington, pursuant to the provisions of § 26.16.120 RCW, permitting agreements between husband and wife fixing the status and disposition of community property to take effect upon the death of either, Witnesseth: That, in consideration of the love and affection that each of us has for each other, and in consideration of the mutual benefits to be derived by each of us, it is hereby agreed, covenanted, and promised as follows:

I.

That all property of whatsoever nature or description whether real, personal or mixed and wheresoever situated now owned or hereafter acquired by us or either of us, including separate property, shall be considered and is hereby declared to be community property, and each of us hereby conveys and quit claims to the other his or her interest in any separate property he or she now owns or hereafter acquires so as to convert the same to community property.

II.

That upon the death of either of us, title to all community property as herein defined shall immediately vest in fee simple in the survivor.¹

Paulette testified that William read and signed the document without discussion. Paulette also signed the agreement. A nurse at the hospital and a real estate associate from Mr. Julius's office witnessed these signatures and signed to that effect. Mr. Julius then took the agreement back to his office in Point Roberts and affixed his notary public seal and certificate of attestation. The notary attestation states:

This is to certify on this 5th day of May, 1997, before me James H. Julius a Notary Public in and for the State of Washington duly commissioned and sworn, personally came William Henry Ladner III and Paulette Lucia Marie Ladner husband and wife, to me known to be the individuals described in and who executed the within instrument, and acknowledged to me that they signed the same as their free and voluntary act and deed for the uses and purposes therein mentioned.²

Mr. Julius signed below this attestation.

The trial court determined that the agreement was facially valid and became effective on the date it was signed. William contends the agreement is not valid and enforceable because Mr. Julius, a notary public for the State of Washington, did not have authority to take acknowledgments in Canada and could not remember whether or not he did so.

We need not address whether Mr. Julius performed a notarial act outside the scope of his authority under the Washington statutes concerning notaries. Even if he did, a defect in the notarization process does not invalidate an otherwise proper contract. Ockfen v. Ockfen, 35 Wn.2d 439, 213 P.2d 614 (1950). In that case, Sophia Ockfen conveyed her 160-acre farm to her son John by means of a quitclaim deed. Sophia died eight months later. The administrator of Sophia's estate and her four other children brought an action to cancel the deed. The trial court found that Sophia did not appear before or talk to the notary who had signed the acknowledgment. The trial court nevertheless entered a judgment upholding the quitclaim deed. On appeal, the Supreme Court readily affirmed. Ockfen, 35 Wn.2d at 441. See also Skagit State Bank v. Rasmussen, 109 Wn.2d 377, 389, 745 P.2d 37 (1987) (false acknowledgment by notary did not prevent bank from enforcing the mortgage lien); Davidson v. National Can Co., 150 Wash. 370, 376, 273 P. 185 (1928) (lack of notarial seal on a notice of a construction lien at the time it was recorded "cannot be urged to defeat the lien by anyone other than a subsequent innocent purchaser who relies on the record."); Melovitch v. City of Tacoma, 135 Wash. 533, 539, 238 P. 563 (1925) (failure of notary to affix notarial seal on a claim presented to the city did not bar action).

Williams has not cited authority showing that a defect in an acknowledgment by a notary renders the agreement unenforceable. Instead, he argues that affirming the trial court's ruling will unwisely establish a carte blanche rule that community property agreements need not be notarized, opening the door to endless litigation. However, parties have their agreements notarized precisely because they wish to forestall claims of forgery and coercion. To maintain the utility of notarization, it is not necessary to hold that community property agreements are rendered unenforceable by a defect in the notarization process. Such a holding would elevate a technical form over the much more important substance of a contractual agreement.

On an alternative basis, William contends the community property agreement is invalid because he was not competent when he signed it. H...