Olver v. Fowler

• Decision Date: 20 September 2007
• Docket Number: No. 78321-7.
• Citation: Olver v. Fowler, 168 P.3d 348, 161 Wn.2d 655 (Wash. 2007)
• Court: Washington Supreme Court
• Parties: Michael L. OLVER, special administrator of the estate of Thuy Thi Thanh Nguyen Ho, Respondent, v. Julie K. FOWLER, special administrator of the estate of Cung Van Ho; and Vu Nguyen, guardian ad litem for Dianna Nguyen, a minor child, Petitioners.

168 P.3d 348

161 Wn.2d 655

Michael L. OLVER, special administrator of the estate of Thuy Thi Thanh Nguyen Ho, Respondent, v. Julie K. FOWLER, special administrator of the estate of Cung Van Ho; and Vu Nguyen, guardian ad litem for Dianna Nguyen, a minor child, Petitioners.

No. 78321-7.

Supreme Court of Washington, En Banc.

Argued February 13, 2007.

Decided September 20, 2007.

Terry James Barnett, Attorney at Law, Stanley Jay Rumbaugh, Rumbaugh Rideout Barnett & Adkins Tacoma, WA, for Petitioners.

Michael L. Olver, Betts Patterson & Mines PS, Seattle, WA, for Respondent.

BRIDGE, J.

¶ 1 Cung Ho's and Thuy Nguyen Ho's 14-year relationship ended when they and several others were killed in a car accident. We must determine whether the trial court abused its discretion when it allowed a party asserting a tort claim against the couple's property to intervene in an action between their estates. We must also determine whether Washington's law of meretricious¹ or committed intimate relationships can be applied where both partners are deceased. Finally, the intervenor asks that we resolve whether tort claims against one committed intimate partner may be made against the other partner's estate under a theory of joint tort liability.

¶ 2 We agree with the well reasoned and thoughtful analysis of the Court of Appeals. The trial court did not abuse its discretion when it granted intervention. The law of committed intimate relationships can be applied to divide assets between committed partners' estates where both partners are deceased. Finally, neither the trial court nor the Court of Appeals addressed whether principles of joint tort liability extend to committed intimate partners in this case, concluding instead that the more appropriate forum for resolution of that issue was the separate suit filed against Thuy Nguyen Ho's estate. For the same reasons, we too decline to address this issue.

I Facts and Procedural History

¶ 3 The parties do not dispute that Cung Ho (Cung) and Thuy Nguyen Ho (Thuy) lived in a committed intimate relationship for at least 14 years, and they had two children together, Harry and Rebecca Ho.² Thuy and Cung began living together in 1988 or 1989, they had a religious wedding ceremony in 1990, and they presented themselves to the community as husband and wife, though they were never legally married. Their children were born in 1991 and 1992. Cung and Thuy both worked full time developing and running the family business. They pooled their money and purchased assets, which they titled in Cung's name according to custom in their culture. They were jointly listed on their automobile insurance policy. In Cung's will, he referred to Thuy as his wife.

¶ 4 In July 2003, the Ho family went on vacation in Idaho with Duong Nguyen, Kathy Nguyen, and Kathy's two children, Dalena and Dianna. On the morning of July 4, they were all traveling together in a large SUV (sports utility vehicle) driven by Cung. According to the accident report, Cung swerved left to avoid colliding with cars that had stopped in front of him. He crossed the center line and collided head on with an oncoming car. Cung, Thuy, their daughter Rebecca, Duong, Kathy, and her daughter Dalena were all killed. Cung and Thuy, who were in seats on the left side of the SUV, were both killed instantly. Harry and Dianna were the only survivors in the SUV. The driver and the passenger in the other car both survived. Dianna's father, Vu Nguyen, was not in the car.

¶ 5 Julie Fowler was appointed special administrator of Cung's estate, while Michael Olver was appointed special administrator of Thuy's estate. Fowler submitted to the King County Superior Court a probate asset inventory appraisement, which included all assets to which Cung held title. The assessment included the Ho family residence, the family business, three rental properties, several investment and bank accounts, life insurance, household furniture, and two cars. The real property was valued at approximately $716,250, the investment and banking accounts were valued at approximately $269,361, and the remaining property was valued at approximately $37,688. Thus, the property to which Cung held title at the time of his death was valued at approximately $1,023,300. The record reflects that Thuy's estate contained $2,893 in cash and checks that were in Thuy's purse at the time of her death. It is unclear from the record what else was in Thuy's estate, but the parties do not dispute that the vast majority of the couple's assets had been titled in Cung's name.

¶ 6 Cung left a will leaving his entire estate to Thuy. Thuy's will is not in the record, but documents in the record state that she left all of her estate to Cung. Neither provided for an alternate beneficiary. No party disputes that once the contents of each estate are established, intestacy will control their distribution.

¶ 7 Olver, as personal representative of Thuy's estate, filed a contradiction of inventory, arguing that Cung and Thuy were partners in a committed intimate relationship when they died and Thuy's estate was entitled to an equitable interest in all property acquired during that relationship. Olver asked that at least one-half of the inventoried property in Cung's estate be transferred to Thuy's estate. Olver then filed a motion for summary judgment.

¶ 8 The trial judge granted summary judgment in part, finding a committed intimate relationship, but leaving the equitable division of the property for trial. Then, a court commissioner revoked nonintervention powers in Cung's probate estate and ordered the parties into mediation, which the parties agreed would be binding. The commissioner required Thuy's estate to present prima facie evidence that the inventoried assets were acquired during the committed relationship.

¶ 9 The mediator found that neither Cung nor Thuy owned substantial assets prior to their union and all of the assets inventoried in Cung's estate were acquired jointly during the committed intimate relationship. The couple's property was titled in Cung's name, an established practice in the Vietnamese culture. Neither party received substantial separate property after they began living together. The mediator concluded that 50 percent of the assets in Cung's estate should be transferred to Thuy's estate. The mediator asked the parties to prepare the necessary order for presentation to the superior court.

¶ 10 Following the mediator's directive, Olver sought to present corresponding findings of fact, conclusions of law, and a judgment disbursement in the superior court. On the day that judgment was entered, Vu, Dianna's father,³ objected on Dianna's behalf, contesting the findings, conclusions, and disbursement. Specifically he argued that the law does not allow application of the meretricious relationship doctrine (hereafter referred to as Washington's law of committed intimate relationships), where both partners are deceased. He also argued that applying the doctrine here would be unjust to Dianna because it could theoretically shield some of Cung's assets from her reach. Finally, he asserted that if the doctrine did apply, it should not prevent Dianna from gaining access to those assets if she were to prevail in her liability claim. On the day before oral argument on these issues, Vu filed a formal motion to intervene.

¶ 11 The trial judge considered briefing and oral argument and granted the motion to intervene. But the trial court declined to amend the findings of fact, conclusions of law, and judgment. The trial judge concluded that Cung and Thuy lived in a committed intimate relationship from 1988 or 1989 until their deaths in 2003, and each of their estates was entitled to an undivided 50 percent interest in all assets inventoried in Cung's estate. The trial judge also explained that the legal effect of the committed intimate relationship upon a tort creditor's claim should be determined in the context of the liability case. The trial judge ordered that one half of the property inventoried in Cung's estate be disbursed to Thuy's estate.

¶ 12 Vu appealed, arguing that the trial court erred as a matter of law by disbursing Cung's property according to committed intimate relationship equity after both partners had died. Vu also asserted that even if the doctrine could be applied upon the death of both partners, it should not be applied in this case because doing so served the sole purpose of putting property beyond Dianna's reach. Finally, Vu argued that the trial court should have made it clear that Thuy's estate could be subject to joint liability for Cung's negligence. Olver cross appealed, arguing that the trial court erred as a matter of law when it granted Vu's motion to intervene.

¶ 13 The Court of Appeals concluded that the trial court did not abuse its discretion when it permitted Vu to intervene. Olver v. Fowler, 131 Wash.App. 135, 140, 126 P.3d 69 (2006). The court then held that "where unmarried, committed intimate partners are separated by death, as when they separate during life, any property acquired during the relationship that would have been community property [had the parties been married] is jointly owned and subject to a just and equitable division" between their estates. Id. at 146, 126 P.3d 69. Once their jointly acquired property is equitably divided, then the relevant wills or statutes operate on each estate. Id. at 145, 126 P.3d 69. Finally, because the trial court did not rule on the issue, the Court of Appeals declined to decide whether assets in the estate of one partner are subject to joint tort liability where the partners were engaged in a committed intimate relationship, deferring resolution of this issue to the suit against Thuy's estate. Id. at 146 n. 41, 126 P.3d 69.

¶ 14 Vu filed a petition for review in this court. In his answer, Olver again argued that the trial court erred when it allowed Vu to intervene.⁴ We granted review of the issues...