Olver v. Fowler

• Citation: 131 Wn. App. 135,126 P.3d 69
• Decision Date: 09 January 2006
• Docket Number: No. 55167-1-I.,55167-1-I.
• Court: Washington Supreme Court
• Parties: Michael L. OLVER, Special Administrator of the Estate of Thuy Thi Thanh Nguyen Ho, Respondent/Cross-Appellant, v. Julie K. FOWLER, Special Administrator of the Estate of Cung Vu Nguyen, and Vu Nguyen, Guardian Ad Litem for Dianna Nguyen, a minor child, Intervenor/Appellant.

126 P.3d 69

131 Wn. App. 135

Michael L. OLVER, Special Administrator of the Estate of Thuy Thi Thanh Nguyen Ho, Respondent/Cross-Appellant, v. Julie K. FOWLER, Special Administrator of the Estate of Cung Vu Nguyen, and Vu Nguyen, Guardian Ad Litem for Dianna Nguyen, a minor child, Intervenor/Appellant.

No. 55167-1-I.

Court of Appeals of Washington, Division 1.

January 9, 2006.

COPYRIGHT MATERIAL OMITTED

Terry James Barnett, Stanley Jay Rumbaugh, Rumbaugh Rideout Barnett & Adkins, Tacoma, WA, for Appellant/Cross-Respondent.

Michael L. Olver, Attorney at Law, pro se.

Julie K. Fowler, Attorney at Law, Bellevue, WA, for Other Parties.

ELLINGTON, J.

¶ 1 Washington common law applies equitable principles to determine ownership of property acquired during a meretricious relationship. Until they were killed in a car accident, the parties here shared such a relationship, raising a family, running a business, and owning property. The question here is whether equity applies to allocate the division of their property. Washington cases already apply the doctrine after death of one party. We hold it applies where both have died, and affirm the probate court's equitable division of property.

BACKGROUND

¶ 2 This case arises out of a tragic car accident that left all but three members of two families dead.¹ On July 4, 2003, the Ho and Nguyen families were vacationing together, traveling in a single sports utility vehicle. The driver, Cung Ho, swerved to avoid a rear-end collision with a car ahead of him and collided head on with a truck traveling in the opposite direction. The crash killed six of the vehicle's eight occupants on impact, including Cung, his life partner, Thuy Ho, and their daughter Rebecca. Survivors included the Hos' son Harry, Vu Nguyen, and Nguyen's daughter Dianna.

¶ 3 Cung and Thuy Ho had lived together for nearly 15 years, since 1988. They had a religious wedding ceremony in 1990, but never legally married. They built a business together, raised their children together, and were jointly listed on their automobile insurance policy. Neither owned substantial property before their relationship began, but by 2003 they owned their business, their home, three rental properties, and held assets in several bank accounts. All the property was held solely in Cung's name, and all of the property was initially inventoried in Cung Ho's estate.

¶ 4 Thuy was the sole beneficiary under Cung's will. Under the simultaneous death act, chapter 11.05 RCW, Thuy is considered to have predeceased Cung, so Cung effectively died intestate.²

¶ 5 The only adult survivor of the accident, Vu Nguyen, filed a claim against Cung's estate on behalf of his surviving daughter Dianna, seeking damages arising from the accident.³ He also intervened in Cung's probate.

¶ 6 Michael Olver, as administrator of Thuy Ho's estate, filed this action seeking partition of the property between Cung's and Thuy's estates, apparently to ensure some financial security for the Hos' only surviving child, Harry. In May 2004, the trial court ruled on summary judgment that Cung and Thuy had shared a meretricious relationship and that an equitable property division would be determined at trial.

¶ 7 Representatives of both estates then participated in a mediation on the question of what property should be inventoried in Thuy's estate. The parties agreed the mediated outcome would be binding. Intervenor Nguyen did not participate, ostensibly because only the inventory itself was at issue. The mediation resulted in entry of agreed findings of fact, conclusions of law, and a judgment of disbursement transferring half the inventory to Thuy's estate.

¶ 8 Nguyen immediately moved to amend the judgment to prevent the transfer. Though he was permitted to intervene in Thuy's probate, his motion to amend the judgment was denied.

¶ 9 Nguyen appeals the denial of the motion to amend the judgment. Olver cross-appeals the order permitting intervention. Disbursement to Thuy's estate was stayed pending this appeal.

ANALYSIS

¶ 10 Intervention. Under CR 24(a), an intervenor must make "timely application."⁴ After a judgment is entered, intervention requires a strong showing considering all circumstances, including prior notice, prejudice to the other parties, and the length of and reasons for delay.⁵ The rule, however, is liberally construed to favor intervention.⁶ A trial court's determination of timeliness is reviewed for abuse of discretion.⁷

¶ 11 Nguyen did not seek to intervene in Thuy's probate until after his motion to amend the judgment drew an objection that he lacked standing to participate. He contended his status as intervenor in Cung's probate gave him standing in any action involving that estate, but he nonetheless moved to intervene in Thuy's estate. He attributed his delay to the fact that the personal representative of Cung's estate had adequately represented his interests until her nonintervention powers were revoked, and asserted that he was not alerted that his interests diverged from those of Cung's estate until entry of the findings and conclusions derived from the mediation.

¶ 12 After extensive colloquy about the timing of the motion, the court found Nguyen's assertions both credible and adequate, and permitted intervention. The decision was based on tenable grounds and was not an abuse of discretion.

¶ 13 Recognition of Thuy's Property Rights. Because Washington does not recognize common law marriage, the common law has developed a means of equitable distribution of property acquired by unmarried partners in committed intimate relationships⁸ (often referred to as meretricious relationships⁹). Courts make a "just and equitable" division of such property,¹⁰ applying community property laws by analogy.¹¹ All property acquired during the relationship is "presumed to be owned by both parties."¹²

¶ 14 Equity goes only so far, however. Unlike the division of property upon dissolution of a marriage, when both community and separate property are before the court for equitable division, a court dividing property acquired during a committed intimate relationship may exercise its discretion only as to property that would have been community property had the parties been married.¹³

¶ 15 The trial court found that Cung and Thuy Ho shared a meretricious relationship from 1988 or 1989 until their deaths in 2003. Nguyen does not challenge this finding. Rather, Nguyen asserts the doctrine permitting equitable division of property has never been applied where the relationship ends with death, and that the rationale underlying the doctrine does not apply in such circumstances. A review of the cases, however, reveals that Nguyen is mistaken on both counts.

¶ 16 No Washington court has refused to apply the doctrine on grounds that one or both partners has died. The most recent Supreme Court ruling on this subject, Vasquez v. Hawthorne,¹⁴ involved a claim by a surviving partner against the estate of the man with whom he lived and shared an intimate romantic relationship for many years. The Washington Supreme Court remanded for trial to determine whether their relationship constituted a meretricious relationship, a partnership, or an equitable trust.¹⁵ Although two justices argued that the meretricious relationship doctrine should not apply after death of a partner, the majority drew no such distinction.¹⁶ The court's ruling allowed the trial court on remand to award an equitable division of property to the surviving partner if a committed intimate relationship was found to have existed. Several other cases have involved determinations made after the death of one partner.¹⁷

¶ 17 None of these courts showed any reluctance to apply the doctrine after death, and a review of the development of the doctrine demonstrates there is no such limitation.¹⁸

¶ 18 Washington first recognized a nontitleholder's rights in property accumulated by joint efforts in the "innocent spouse" cases, involving partners who believed they were married.¹⁹ Initially, the doctrine applied only where the parties chose to end their relationship.

¶ 19 In In re Brenchley's Estate,²⁰ the Washington Supreme Court announced that an equitable doctrine available to living partners should also be available where one party has died. The Brenchley court held that a woman who believed she was married to her deceased long-time domestic partner was entitled to an equitable property division, reasoning that since the property would have been divided equitably had the deceased man still lived, the man's heirs could not have "better rights" simply because of his death.²¹

¶ 20 In time, a similar equitable doctrine emerged to recognize property entitlements of partners fully aware of their unmarried status.²² When first presented with the question, our Supreme Court ruled that in the absence of evidence to the contrary, whichever partner held title to the property would be presumed its rightful owner.²³ This rule, labeled the "Creasman presumption," was often cited, rarely applied, and roundly criticized.²⁴

¶ 21 In In re Lindsey, the court recognized that "[i]n application, the Creasman presumption has been restricted to its own particular facts—one party dead and the other silenced by the deadman's statute,"²⁵ with the result that the presumption "made the law unpredictable and at times onerous."²⁶ The court formally overruled the Creasman presumption and adopted a general equitable theory of joint ownership of property acquired during the relationship, regardless of titleholder.²⁷

¶ 22 The most direct effect of removing the Creasman presumption was to permit equity to divide property after death of one partner without reference to title.

¶ 23 The two justices who concurred in Vasquez relied on Peffley-Warner v. Bowen²⁸ for the proposition that the doctrine does not apply after death. As indicated above, the majority in Vasquez was unmoved by this argument. It is useful, however, to review Peffle...