                                                                                 FILED
                                                                          COUNT OF APPEALS
                                                                                DIVISI     it



       IN THE COURT OF APPEALS OF THE
                U                                                S
                                                                 STATA GT ON
                                                                          STATE OF WASMNGTOd
                                                   DIVISION II

4In
  -
  re   the   Estate of.
                                                                           BY
                                                                                   E UTY
                                                                          No. 42078 3 II
                                                                                    - -


LARRY CAPPS,

                           Deceased.


                                                                   UNPUBLISHED OPINION




         PENOYAR, J. —          After Larry Capps's death, his children from a previous marriage

petitioned the trial court for a declaratory judgment that his home remained separate property and
belonged      to them under his will.        Despite a lengthy marriage to Linda Capps, the trial court

concluded that the family home remained Mr. Capps's separate property until his death. The

trial court also rejected Mrs. Capps's claim for reimbursement of expenses related to the home
and concluded that the marital community owed rent to Mr: Capps during his lifetime and that

the rental obligation continued for Mrs. Capps during the time she resided in the home following
Mr. Capps's death. Because Mr. Capps purchased the home before his marriage to Mrs. Capps,

the trial court did not err by concluding that it was his separate property. Additionally, the trial

court did not err by denying Mrs. Capps's reimbursement claims because she failed to prove that

community       funds   were   used to   improve   the home. We affirm.
42078 3 II
      - -




       Mr. Capps's estate's personal representative (PR) advised Mr. Capps's children, Larry

and Kimberly, and Mrs. Capps that the North Huson Street home's separate character had been

commingled with the community over the course of 30 years such that it had become a

community asset that Mrs. Capps would inherit under the terms of Mr. Capps's will,which left

his separate property to his children and all community property to Mrs. Capps. The children

filed a declaratory judgment action, asking the trial court to establish the home as their father's

separate property. The trial court ruled on summary judgment that the home was Mr. Capps's
separate property. Following the adverse summary judgment ruling, Mrs. Capps filed a formal
creditor's claim, which the estate rejected.

       Eventually, the trial court conducted a full trial on Mrs. Capps's reimbursement claims,
which the trial court rejected for lack of sufficient evidence. The trial court also imposed rent for

the months Mrs. Capps resided in the home after Mr. Capps's death, offset this rent against the
expenditures she made on the home during that same post death period, and awarded attorney
                                                        -
fees to the children. This appeal stems from the trial court's rulings relating to the character,

disposition, and settlement of claims involving Mr. Capps's estate.


1 For clarity, we refer to Mr. Capps's children from his first marriage Larry A. Capps and
                                                                        —
Kimberly Scaleraby their first names. We intend no disrespect.
                —
2
  While the 2007 probate action was still pending, Mrs. Capps's second attorney filed a separate
action directly against the estate's PR and Mr. Capps's children in 2010, seeking equitable
reimbursement for personal monies she had contributed to the home. The trial court consolidated
Mrs. Capps's new reimbursement claim action with the 2007 probate action; this consolidation
appears to have been the source of much confusion.
        In March 2011, the trial court entered an order stating that the trial would focus on Mrs.
Capps's equitable reimbursement claim, which was not a creditor's claim. The trial proceeded in
the probate action with Mrs. Capps pursuing her claim against the estate for reimbursement of
sums she claimed the estate owed her for contributions to the home. When the trial. nded, the
                                                                                  e
trial court dismissed Mrs. Capps's 2010 equitable reimbursement action because. she had not
supported her reimbursement claims with sufficient evidence.
                                                  2
42078 3 II
      - -




       Contending that the trial court was biased against her, Mrs. Capps argues on appeal that

the trial court erred by ( )
                         1 granting partial summary judgment to Larry and Kimberly on grounds

that the home was Mr. Capps's separate property; 2)
                                                 ( denying her motion for reconsideration of

the court's characterization of the home as Mr. Capps's separate property; ( )denying her
                                                                           3

motion for leave to litigate the separate property issue at trial; 4)
                                                                   ( concluding that, as a surviving

spouse, (a)she must file a creditor's claim against the estate before pursuing a claim for

equitable reimbursement from the estate assets and (b) could not pursue a "direct action"for
                                                      she

equitable reimbursement against the estate PR and estate beneficiaries; ( )failing to consider
                                                                        5

applicable community property presumptions when ruling on her equitable reimbursement claim;

6)imputing rental value to her for the period she had lived in the home during her marriage to
Mr. Capps and using this imputed rental value to offset her equitable reimbursement claim; 7)
                                                                                           (
determining that her trial testimony was not credible; 8)admitting expert testimony about the
                                                       (

home's value; and (9)awarding Larry and Kimberly attorney fees and costs for the trial court

proceedings..
            Mrs. Capps also challenges several of the trial court's findings of fact and
conclusions of law, and she requests that, if we reverse and remand for a.new trial,we order that

her case be assigned to a different trial judge.




3
 Because we affirm the trial court's rulings below and see no indication that the trial court was
prejudiced against Mrs. Capps, we deny her request for remand to a different judge.
                                                   3
42078 3 II
      - -



                                            FACTS


I.     BACKGROUND


       Mr. Capps and his previous wife had purchased a Tacoma residence on North Huson

Street in July 1975. When they divorced a year later, Mr. Capps was awarded the home as his

sole and separate   property." Clerk's Papers (CP) at 67. They had two children, Larry and

Kimberly.

       In August 1976, Mr. Capps's future wife, Linda Capps, began living with him in the
North Huson Street home.     They married in February 1977, after which they comingled their

funds in joint bank accounts. They lived together in the home for 30 years until Mr. Capps's

death in January 2007, at which point all their bank accounts were jointly owned, with Mrs.

Capps designated as the sole surviving joint tenant.

       A.      Prenuptial Agreement and Quitclaim Deed

       On February 22, 1977, Mr. Capps and Mrs. Capps signed a prenuptial agreement, which

provided that (1) person's then -existing separate property would remain his or her separate
                each
property after marriage and (2)all property acquired after marriage would be considered
community property. Section four of this prenuptial agreement, however, further explained that

all rents, issues, profits, income, and proceeds of separate property would be characterized as

community property:

       Except for gifts and inheritances[,] rents, issues, profits, income or proceeds of
                                          all
       property, including separate property owned before the marriage, and property
       acquired jointly or as community property, shall be regarded as community
       property. The products of the parties' labor and their incomes shall be community
       property.

CP at 199 (
          emphasis   added).
42078 3 II
      - -




        According to the prenuptial agreement, at the time of their . arriage, Mrs. Capps owned
                                                                    m

only personal   property. Mr. Capps had (1)over $ 000 in separate bank accounts and an
                                                80,

account receivable and (2) interest in a real estate contract involving the North Huson Street
                          an

home, valued at $ 000, on which he still owed $ 000. About two months after marrying
                 50,                          15,

Mrs. Capps, on April 21, 1977, Mr. Capps satisfied the $ 000 balance he owed on the North
                                                       15,

Huson Street home's real estate contract and received a statutory warranty deed to the home.

        Two weeks later, on May 6, Mrs. Capps executed a quitclaim deed, affirming that the

North Huson Street home belonged to Mr. Capps as his "sole and separate property."CP at 64.

The quitclaim deed further provided, " his deed is to confirm that said property is and will
                                     T

remain the separate property of Mr.Capps]." at 64 (emphasis added).
                                [         CP
        B.      Mortgage; Marital Expenses

        A week after Mrs. Capps executed the quitclaim deed, Mr. Capps borrowed $ 2, 00 from
                                                                                4 5

a bank, using the home as security. He deposited the loan proceeds into a bank account that he

shared jointly with Mrs. Capps; this money was spent during their marriage for "community

purposes." Report of Proceedings (RP)March 15, 2011) at 118. Title to the home, however,
                                     (

remained solely in Mr. Capps's name.

         According to Mrs..Capps, she and Mr. Capps had taken out the $ 500 mortgage with
                                                                      42,

hopes of fixing up the North Huson Street home for their retirement, and they had invested

significant funds to refurbish the home, converting it from a triplex into a single family home.

4 Mrs. Capps owned no real property. Although not mentioned in the prenuptial agreement, Mrs.
Capps later asserted that she had deposited $ 750 in proceeds from the sale of her previous
                                            22,
separate home into a bank account that she shared with Mr. Capps.
s
    The record does not show the source of the funds Mr. Capps used to pay off his real estate
contract. But the $ 0, 00 in his separate bank accounts at the time of his marriage to Mrs. Capps
                  8 0
would have been more than sufficient to cover this $ 5, 00 balance.
                                                   1 0
                                                5
42078 3 II
      - -




But Mrs. Capps did not know whether any of the mortgage loan proceeds had been used for these

purposes. Nor had she retained any records of the cost of refurbishing or repairing the home or

the source of funds used to make such improvements. Nevertheless, according to Mrs. Capps,

for the next 14 years after Mr. Capps obtained this loan, she and Mr. Capps used community

funds to pay the $
                 350 monthly mortgage until they fully repaid it in 1991.

       According to Mrs. Capps, in the late 1980s (1)she and Mr. Capps had been in a car

accident, for which. she had received a $75, 00 personal injury settlement award in 1991,
                                           0

independent of Mr. Capps's 3, settlement award, and (2)she had used a portion of her
                           $000

separate award to pay off the home mortgage and to pay for other "home improvements." CP at

32. Mrs. Capps did not, however, produce any records showing that she had received such a
settlement award, that she had kept her settlement award separate from the couple's joint bank

accounts, or that her own settlement funds had actually been used to pay off the mortgage or to

pay for any home improvements.
       Neither Mrs. Capps nor the marital community paid rent to Mr. Capps's separate estate

during the 30 years that Mr. and Mrs. Capps had lived together in the home during their marriage

February     1977   through January 2007). But they did pay yearly property taxes on the home.

The tax assessor's records showed that,between 1977 and 2006, the total amount of property

taxes paid on the home was $
                           72.
                           101, 34. Mrs. Capps had no records of the source of funds used
                              4
for such payments.

       C.       Mr. Capps's Will;Mrs. Capps's PostDeath Expenses
                                                  -




6
  The trial court did not find credible Mrs. Capps's testimony that these funds were her separate
property and that the funds had been spent on Mr. Capps's separate property.
                                                 6
42078 3 II
      - -



       After Mr. Capps died      on   January 15, 2007, his   will   was    probated. Mr. Capps's will,

executed 28 years earlier on February 26, 1979, left his separate property to Larry and Kimberly

and left his community property to Mrs. Capps. The North Huson Street home, valued at around

755, 00 a year and a half after Mr. Capps's death, was the only significant separate property in
   0

the estate. In addition to receiving Mr. Capps's share of the community property, Mrs. Capps

received between $ 00, 00 and $
                 8 0          in
                              900, OO.certificates of deposit and other non -probate assets.
                                 O

       Mrs. Capps continued to live in the North Huson Street home until September 2009,

during which   time she   paid   no   rent to Mr.   Capps's separate       estate.   Mrs. Capps provided

documents showing that between February 1, 2007, and September 31, 2009, she paid

41
13, 95. in property taxes, 2,02 in home insurance, 6618. for new windows, 1,
  7                        $ 5                     78
                                                   $ ,                    20
                                                                          $ 660.
for a new deck, 350 for exterior painting, 50 for new door locks, and $
                $                          $                          400 for a new garage

door opener.

II.    PROCEDURE


       After Mr.Capps's death, the estate's PR notified Larry and Kimberly that he believed the

home had been "co-
                 mingled" sic] with community funds and had become community property
                          [

that would pass to Mrs. Capps under the will; consequently, Larry and Kimberly would inherit

nothing from their father. CP at 370.

       A.      Probate Action; Larry and Kimberly's Motion for Partial Summary Judgment

       The PR initiated probate proceedings in superior court. Larry and Kimberly petitioned
the trial court for a declaratory judgment that the home remained Mr. Capps's separate property

and that it passed to them under his will, and they moved for partial summary judgment on the
home's status as Mr. Capps's separate property.



                                                    7
42078 3 II
      - -



        They based their separate property argument on ( ) Capps acquiring the home before
                                                       1 Mr.

he married Mrs. Capps; ( )Mrs. Capps quitclaiming her interest in the home to him; and (3)
                       2

Mrs. Capps's deposition testimony that at the time of her quitclaim deed there were no

community property agreements or other agreements that would have changed the home's

character from separate to community     property. Mrs. Capps did not respond to Larry and

Kimberly's summary judgment motion allegations; instead, she relied solely on a declaration and
a   memorandum that she had filed in      an   earlier   proceeding   on   a   different   issue.   These


documents did not mention Mr. and Mrs. Capps's prenuptial agreement or the effect that this

agreement might have had on the home's separate or community property character.

        The trial court granted partial summary judgment to Larry and Kimberly, concluding that

the home was Mr. Capps's separate property and, therefore, had passed to Larry and Kimberly

under Mr. Capps's will. The trial court also orally ruled that Mrs. Capps. ould potentially have a
                                                                         c




7 At the time of Mrs. Capps's deposition and the trial court's summary judgment hearing, she had
apparently forgotten that she and Mr. Capps had signed a prenuptial agreement.
8 Mrs. Capps had submitted these declarations in connection with an earlier motion to relieve her
of rent obligations during the probate proceedings. She had requested an extension of time to
file a memorandum.in response to Larry and Kimberly's partial summary judgment motion and
the trial court had granted her request, but she did not submit a memorandum by the extended
new deadline.
                                                  8
42078 3 II
      - -




claim for equitable reimbursement for the contributions she had made to the home from her

separate funds and from community property funds.
       B.      Mrs. Capps's Motions to Stay, to Reconsider, and to Grant Equitable Lien

       Mrs. Capps filed a motion to stay delivery and or recordation of the deed, a motion to
                                                      /

determine community property interest and terms of payment, and a motion for reconsideration

and relief from judgment. In her reconsideration motion, she presented, for the first time, a copy

of the prenuptial agreement, but she argued only that, under section four of the agreement,

everything worked on or paid for [on the home] after the date of marriage [was] community

property. "   CP at 131. The trial court denied Mrs. Capps's motions for reconsideration and to

stay delivery and or recordation of the. eed transferring the home's title to Larry and Kimberly.
                  /                    d
       In her " otion to Determine Community Property Interest and Terms of Payment,"
              M                                                                     Mrs.

Capps purported to assert a claim for equitable reimbursement for her separate and community

property contributions   to the home.    CP at 122.    Larry and Kimberly opposed the motion,

arguing that (1)Mrs. Capps had not yet pleaded a claim for equitable reimbursement; 2)
                                                                                    ( before

9 The trial court orally ruled:

       I' not addressing what may be or may not be any equitable lien issue. But, I
        m
       agree that the law is clear, in my mind, that the time of the acquisition is separate
       property. . . .   And [ Mrs. Capps], you know, all these years, I understand,
       executed a Quitclaim Deed, confirming that [the home] is [Mr. Capps's]       separate
       property. And I think that's the law.

        You have your own claim. I' not telling you what to do, but I think there is a
                                     m
        claim Lfor equitable reimbursement],you know, an equitable lien.

RP ( ept. 4,2009)at 23 (emphasis added).
   S

10 Mrs. Capps did not argue that the prenuptial agreement should supplant the quitclaim deed,
which she had filed two months later, expressly confirming that the home was Mr. Capps's
separate property. Nor did she argue that the prenuptial agreement's mere existence should
affect the trial court's view of her intent in executing the quitclaim deed.
                                                  9
42078 3 II
      - -



she could assert an equitable reimbursement claim, she needed to file a creditor's claim with Mr.

Capps's probate estate under RCW 11. 0.and (3)
                                 010;
                                   4          because she had not yet filed a creditor's

claim and the two year statute of limitations had run under RCW 11. 0.her motion should
                  -                '                            051,
                                                                  4

fail. The trial court denied Mrs.' s motion to determine community property interest and
                                 Capps'

payment terms. But it ruled that ( ) was not "time barred"from filing a claim for equitable
                                 1 she

reimbursement protected by an equitable lien on the home and (2)she could file such claim

within two weeks of this order denying her motion. CP at 385.

         C.        Creditor's Claim,Action for Equitable Reimbursement, and Consolidation

         In October 2009, Mrs. Capps apparently filed a creditor's claim with Mr. Capps's estate

seeking "$ 000 or the current fair market value"of the home. CP at 389. The estate denied
        755,
Mrs.   Capps's     creditor's claim.   She then filed a separate civil action against the PR and the

children to enforce the     rejected   creditor's claim. She later amended that action to include an


equitable     reimbursement claim      against   the PR and the children.,   Before trial, the court

consolidated the civil action with the probate action. The parties also stipulated that the only

issue at trial was Mrs. Capps's equitable reimbursement claim, which was not based on her

previous creditor's claim.

          Before trial on her equitable reimbursement claim, however, Mrs. Capps moved for leave
to   relitigate   the home's character.    She argued that (1)a partial summary judgment order is

interlocutory," ( a trial court may revise such order at any time before trial, and (3) trial
              2)                                                                       the
court should allow her to introduce evidence of the home's community property character at trial

because her previous counsel had failed to argue the legal significance of the prenuptial

agreement and its importance to interpreting the legal effect of her subsequent quitclaim deed.
CP at 414. The trial court denied this motion.

                                                     10
42078 341
      -



       D.      Trial on Mrs. Capps's Equitable Reimbursement Claim

       Mrs.   Capps proceeded    to   a   bench trial   on   her   equitable   reimbursement claim. In her


opening statement, Mrs. Capps asserted that she was entitled to reimbursement for "practically

the value of the house"because of the length of time that had passed and the amount of money

she had put into it. RP (March 15, 2011) at 6. On direct examination, Mrs. Capps testified as

summarized earlier in this opinion, without producing documentation to support many of her

assertions that she had spent her separate property or community property -funds on

improvements    to   the home.   On cross -examination, she also testified that (1)the marital

community, not Mr. Capps's separate estate, had received the full benefit and use of the $ 500
                                                                                         42,

proceeds from his home loan; ( )she and Mr. Capps had used the money for community
                             2
purposes, and it had enabled them to acquire over a million dollars in assets during their
marriage; 3)she did not know if any of the loan money had been used to refurbish the home;
          (
and (4)because the marital community had received all of the loan money, it had been fair for
the community to repay the mortgage.

       Real estate appraiser Tim Richmond testified about the reasonable rental value of the
home during the time that Mrs. Capps had lived in it during her marriage to Mr. Capps and after
his death, from 1977 to 2009. Without objection from Mrs. Capps, Richmond testified that (1)
the total rental value of the home from 1977 to 2009 was $
                                                         322, 00; 2) average monthly rent
                                                            0     ( the

for that period would have been $ 40; and (3) reasonable rental value of the home for the two
                                8           the
and a half years between Mr. Capps's death in January 2007 and Mrs. Capps moving out of the
home in November 2009 was $ 500 a month.
                          1,




                                                        11
42078 3 II
      - -



         The trial court found "not credible" Mrs. Capps's testimony about selling her separate

home for $ 750, bringing the proceeds into the marriage, using them for community purposes,
         22,

and using her $ 000 personal injury settlement award, which was "solely for [her] pain and
              75,

suffering," repay the $ 500 North Huson Street home mortgage. CP at 584 85. The trial
          to          42,                                               -
court concluded that the evidence Mrs. Capps had presented at trial was insufficient to sustain

her claimed right to reimbursement because (1)Mr. Capps had brought more than $ 000 in
                                                                              80,

separate property into the marriage, which was enough to pay the home's then -existing
obligations on his separate real estate contract on the home and to compensate the marital
community for any contributions toward the new $ 2, 00 post -marriage home mortgage; 2)
                                               4 5                                   ( Mr.

Capps had taken out the $42, 00 mortgage for the . community's benefit, so no right to
                           5
reimbursement would have arisen'even if community funds had been used to repay the mortgage;

and (3) marital community had received the benefit of living in the home rent free during the
       the                                                                     -
marriage, representing a rental value of $286, 60, which fully offset any community
                                             5
contributions that may have been made to the home.

         The trial court dismissed Mrs. Capps's equitable reimbursement claim for her separate

and   community property    contributions to the home   during marriage.   The trial court then


calculated the amount of funds that Mrs. Capps proved that she had expended on the home after

Mr. Capps's death, offset this amount against Mrs. Capps's rent for this post death period, and
                                                                              -

awarded Larry and Kimberly attorney fees and costs. The trial court entered a final judgment

against Mrs. Capps, ordering her to pay (1)25, 84 in rent for the period she had lived in the
                                            $0

home after Mr. Capps's death, from February 1, 2007, to September 30, 2009; 2) $ 704.for
                                                                            ( 60,
                                                                              70
Larry and Kimberly's reasonable attorney fees; and (3)1, in miscellaneous fees and
                                                      40
                                                      $ 338.
costs.

                                                12
42078 3 II
      - -




       Mrs. Capps appeals.

                                           ANALYSIS


I.     SEPARATE PROPERTY CHARACTER OF MR. LAPPS'S HOME


       The primary focus of several of Mrs. Capps's arguments is a challenge to the trial court's

1)reliance on two written documents expressly retaining the marital home's character as Mr.

Capps's separate property the parties' prenuptial agreement and Mrs. Capps's quitclaim deed
                          —

to Mr. Capps and 2)
             —   ( refusal to consider.later raised extrinsic evidence of Mrs. Capps's alleged

contrary intent. These arguments fail.

       Mrs. Capps argues that the trial court erred by -ruling that the home was Mr. Capps's

separate property in three contexts: entry of the partial summary judgment, denial of her motion
for reconsideration, and denial of her motion for a trial on the issue. We find no error in the trial

court's ruling in any of the contexts because the overwhelming evidence was that the Huson

Street house was Mr. Capps's separate property.

       We begin by recognizing basic Washington community property law principles and

presumptions. The character of property as separate or community property is determined at the

date of acquisition, and it depends on whether it was acquired by community funds and

community credit or by separate funds and separate credit. In re Estate of Borghi, 167 Wn. d
                                                                                         2

480, 484, 219 P3d 932 (2009);
                            Cummings v. Anderson, 94 Wn. d 135, 139, 614 P. d 1283
                                                       2                  2

1980).Under the `inception of title' theory, property acquired subject to a real estate contract
       "

or mortgage is acquired when the obligation is undertaken." Borghi, 167 Wn. d at 484. Once
                                                                          2
the separate character of property is established, we presume that the property remained separate

property absent "direct and positive evidence to the contrary."Borghi, 167 Wn. d at 484 (citing
                                                                             2
Guye v. Guye, 63 Wash. 340, 352, 115 P. 731. ( 911)).
                                             1      Any increase in value of the separate
                                                 13
42078 3 II
      - -




property is also presumed separate property. In re Marriage of Elam, 97 Wn. d 811, 816, 650
                                                                          2

P. d 213 (1982).
 2

       To overcome these presumptions, a party must present clear and convincing evidence that

the party owning the separate property intended to change its character from separate to

community property. Borghi,        167 Wn. d at 484 85, 490.
                                         2          -               Where, as here, real property is at

issue, an acknowledged writing, such as a quitclaim deed or a community property agreement, is

generally required   to   change   the   property's   character.   Borghi,   167 Wn. d at 485.
                                                                                   2              Later


community property contributions to pay separate property obligations, improvements, or

mortgages .may give rise to a community "right [to] reimbursement" protected by an equitable

lien, but such later actions do not change the property's character from separate to community.

Borghi, 167 Wn. d at 491 n. .
              2           7

       Here, undisputed evidence showed that Mr. Capps had purchased the home and had

acquired its associated real estate contract obligations before his marriage to Mrs. Capps. Absent

a showing of direct and positive evidence to the contrary, the home and its later increased value,
therefore, were presumptively Mr. Capps's separate property. The prenuptial agreement was

consistent with the home's continuing separate property character. Mrs. Capps had the

opportunity to offer evidence of Mr. Capps's intent that the home or its increased value should
instead be community property. She presented no such evidence. Nor did she attempt to counter

Larry and Kimberly's summary judgment motion assertions, which had included excerpts of her
deposition testimony denying the existence of any community property agreements or another
written transfer of Mr. Capps's separate property to her. Because Mrs. Capps failed to present

evidence overcoming the effect of the prenuptial agreement or the presumption that the home

and its increased value were Mr. Capps's separate property, we hold that the trial court did not
                                                      14
42078 3 II
      - -



err in granting partial summary judgment to Larry and Kimberly or in denying Mrs. Capps's

motions for reconsideration and to try the issue.

II.      CREDITOR'S CLAIM; EQUITABLE REIMBURSEMENT CLAIM

         Mrs. Capps next argues that the trial court erred by concluding that Washington law does

not recognize a "direct action" for a surviving spouse's equitable reimbursement claim and by

dismissing her claim on the ground that she needed to file a creditor's claim with the estate

before   bringing     her   independent equitable   reimbursement lawsuit.   Despite questions raised

about the necessity for and timeliness of the creditor's claim, the parties eventually went to trial

on    Mrs.   Capps's underlying equitable    reimbursement claim.    We first address whether Mrs.


Capps was required, under these facts, to file a creditor's claim. We then address the merits of
Mrs. Capps's equitable reimbursement claim.

         A.       Necessity of Creditor's Claim

         Mrs. Capps argues that the trial court erred when it concluded that she was required to
file a creditor's claim in order to receive equitable reimbursement. Because the claim did not

arise until Mr. Capps's death, we agree.

         The creditor's claim statutes, chapter 11. 0 RCW, apply to persons with claims against a
                                                  4

decedent.      To constitute a claim against a decedent, a debt must be incurred by or for the

decedent     during   his lifetime.   Olsen v. Roberts, 42 Wn. d 862, 865, 259 P. d 418 ( 1953)
                                                             2                  2

quoting 3
        '      BANCROFT'S PROBATE PRACTICE 512, 526 ( 2d           ed.)).is unnecessary to file a
                                                                       It

creditor's claim with an estate when the claim did not arise until after the decedent's death.

Foley v. Smith, 14 Wn. App. 285, 294, 539 P. d 874 (1975).T] e filing of a creditor's claim is
                                           2              "[h

not a condition precedent to an action by a former spouse to recover his or her share of


                                                      15
42078 3 II
      - -




community property accumulated during. the marriage."Smith v. MCLaren, 58 Wn. d 907, 909,
                                                                            2

365 P. d 331 (1961).
     2

       Here, Mrs. Capps's equitable reimbursement claim is               not   a   debt of Mr. Capps. Mrs.


Capps's right    of reimbursement did not arise until after Mr.           Capps died. This action is an

attempt to recover what Mrs. Capps believes is community property. A creditor's claim is not

necessary in such a situation. See Smith, 58 Wn. d at 909;. v. Young, 168 Wn. App. 211,
                                               2          Witt

218, 275 P. d 1218 (2012).
          3

       B.        Equitable Reimbursement Claim

       Mrs. Capps argues that the trial court erroneously calculated her reimbursement amount
and concluded that she had failed to introduce sufficient evidence at trial to prove her equitable

reimbursement claim. We disagree. Mrs. Capps challenges the trial court's conclusions that she
was not entitled to equitable reimbursement for the following expenses: (1)repayment of the
15, 00 balance on Mr. Capps's separate real estate contract, ( )repayment of later $ 500
  0                                                          2                     42,

mortgage loan secured by the home, 3)
                                   ( property taxes paid for the home during marriage, and

4) proportionate share of the home's increased value from inflation/market factors.
 her
         We review a trial court's decision to recognize a right to reimbursement protected by an

equitable lien to determine if the trial court exercised its discretion in a manifestly unreasonable
manner    or   exercised it   on   untenable   grounds    or   for untenable reasons.    In re Marriage of

Miracle, 101 Wn. d 137, 139, 675 P. d 1229 (1984);
               2                  2              State ex rel. Carroll v. Dunker, 79 Wn. d
                                                                                       2

12, 26, 482 P. d 775 (1971). The
             2                            person alleging a right to reimbursement has the burden of

proving by clear and convincing evidence both the existence of that right and the claimed
reimbursement amount. See Elam, 97 Wn. d at 816 17; 19 KENNETH W. WEBER, WASHINGTON
                                     2          -

PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW: REIMBURSEMENT AND EQUITABLE LINES-
                                                         16
42078 3 II
      - -



BURDEN OF PROOF       AND   QUANTUM    OF   EVIDENCE 193 ( 1997). Mrs.   Capps failed to meet her

burden here.


                 1.     Repayment of 15, 00 on Real Estate Contract
                                     $ 0

          First, Mrs. Capps argues that the trial court erred by failing to reimburse the community

for the $ 000 that Mr. Capps used to satisfy the home's real estate contract two months after
        15,

their marriage, allegedly because Mr. Capps had used a portion of the later-
                                                                           acquired $ 500
                                                                                    42,

loan to pay off this real estate contract. But at trial, Mrs. Capps testified that ( ) Capps had
                                                                                   1 Mr.

over $ 000 in separate cash assets at the time of marriage; ( )this money was more than
     80,                                                    2

enough to pay off the real estate contract; and (3) $ 2, 00 loan proceeds that had gone into a
                                                  the 4 5
community account,"were used for "community purposes,"and did not benefit Mr. Capps's

separate estate. RP (March 15, 2011)at 118, 123.

          If both separate and community property funds are available and there are sufficient
separate funds to pay a separate obligation, the court will presume that the payments for the
separate obligation were made from the separate funds. Pollock v. Pollock, 7 Wn. App. 394,
404, 499 P. d 231 (1972); re Marriage ofPearson -Maines, 70 Wn. App. 860, 867, 855 P. d
          2             In                                                          2

1210 (1993).The uncontroverted evidence at trial showed that Mr. Capps had sufficient separate

property assets at the time of marriage to pay off his separate obligation on the real estate
contract, and Mrs. Capps made no positive showing that any funds from the $ 500 loan were
                                                                          42,

used to pay off the real estate contract. We hold, therefore, that the trial court did not err by

declining to credit Mr. Capps's 15, 00 real estate contract payoff amount to the community
                                $ 0
estate.




                                                  17
42078 3 II
      - -



                  2.       Repayment of 42, 00 Mortgage
                                        $ 5

       Mrs. Capps argues that the trial court erred by failing to reimburse her for the

contributions she had made to repay the $
                                        42, 00 mortgage
                                          5                        during   the   marriage.   Ms. Capps

testified at trial that she and Mr. Capps had repaid the $ 500 mortgage with $
                                                         42,                 350 monthly

payments from community funds until the mortgage was fully repaid in 1991. But instead of

establishing that the $ 500 was Mr. Capps's separate obligation or that loan proceeds benefited
                      42,

Mr. Capps's separate estate, Mrs. Capps testified on cross -examination that ( ) $ 500 loan
                                                                             1 the 42,

was put into a community account and used for community purpose; 2) marital community
                                                                 ( the

got the full benefit and use of the money, not Mr. Capps's separate estate; 3) loan helped the
                                                                            ( the

community acquire over a million dollars in assets during the marriage; and (4) did not know
                                                                               she

ifany of the loan proceeds had been used to refurbish the home.

       A court may impose an equitable lien to protect a person's right to reimbursement

whenever property of one of the three characters ( separate property of husband, separate

property of wife, or community property) is used to improve property of either of the other two
sorts." In   re   Estate   of Trierweiler,.5   Wn.   App. 17,   22 23, 486 P. d 314 ( 197
                                                                   -        2                 1).
                                                                                               12   Here,


however, the undisputed trial evidence showed that Mr. Capps had used his separate property

home, for which he had previously paid off the real estate contract and had acquired full


11 In addition to the $
                      350 monthly community property payments toward the $ 500 mortgage,
                                                                         42,
Mrs. Capps also asserts that the trial court failed to credit her for her separate property
contribution to the home because she and Mr. Capps fully repaid the mortgage in 1991 with
money from her $ 000 separate property, personal injury settlement. But as we describe in
                  75,
more detail later, the trial court found her testimony to.his effect not credible. And we do not
                                                         t
review the trial court's credibility determinations. In re Marriage of Rich, 80 Wn. App. 252,
259, 907 P. d 1234 (1996).
          2
12
  See also WASHINGTON STATE BAR ASSOCIATION, WASHINGTON COMMUNITY PROPERTY
DESKBOOK, 3 134 ( d ed. 2004).
            -   3
                                                     18
42078 3 II
      - -




ownership, merely as collateral for the $ 500 mortgage loan. Because the loan was acquired
                                        42,
                                                                                                              13
during   the   marriage, it      was   presumptively   a   community   debt that would benefit the   community.

Consistent with this presumption was Mrs. Capps's trial testimony that all of the loan proceeds

were put into a community account, used by the community for community purposes, and

benefited the community. Mrs. Capps made no positive showing that any of the loan proceeds

were used to refurbish the home.


         Mrs. Capps failed to show that her separate property or community property was used to

improve        Mr.   Capps's separate          home.       Accordingly, she failed to prove her right to

reimbursement for any funds used to pay off the $ 500 loan. We hold that the trial court did
                                                42,

not err by failing to credit the community with this amount.

                     3.         Increase in Home's Value from,
                                                             Inflation


         Mrs. Capps also argues that the trial court erred by failing to reimburse her for the

inflation value of her "proportionate contributions"to the home. Br. of Appellant at 40. As we

explained above, we presume that any increase in the value of separate property resulting from

inflation is also separate property absent "direct and positive evidence that the increase is
attributable to community funds or labors."Elam, 97 Wn. d at 816 (emphasis added). This
                                                      2                            "

rule entitles each spouse to.the increase in value during the marriage of his or her separately

owned property, except to the extent to which the other spouse can show that the increase was
attributed to community contributions."Elam, 97 Wn. d at 816 17. Again, Mrs. Capps offered
                                                  2          -

13
   Debt incurred by either spouse during marriage is presumed to be a community debt; the key
test is whether, at the time the obligation was entered into,there was a reasonable expectation the
community would materially benefit. Sunkidd Venture, Inc. v. Snyder-       Entel, 87 Wn. App. 211,
215, 941 P. d 16 ( 1997). Although a spouse may rebut this presumption with "clear and
             2

convincing evidence that the debt was not contractedfor community benefit,"       Mrs. Capps's trial
testimony failed          to   rebut this   presumption. Sunkidd Venture, 87 Wn. App. at 215 (emphasis
added).
                                                              19
42078 3 II
      - -




no evidence at trial about the specific improvements she and Mr. Capps had made to "refurbish"

the home during their marriage or that such improvements were the reason the home had
                   14
increased in value.      Therefore, she failed to overcome the presumption that increases in the

home's value were Mr. Capps's separate property. We hold that the trial court did not err by

failing to credit the community with this increased value amount.

              4.        Property Taxes during Marriage

       Mrs. Capps also argues that the trial court erred by failing to reimburse her for.

72
101, 34.in property taxes (averaging $ 76 per month) that she and Mr. Capps paid for
   4                                 281.

the home during their marriage, from 1977 to 2006. Though Mrs. Capps testified that these taxes

were paid with community funds, she offered no documentary proof. The trial court rejected her
                                               15
testimony and found     that her   proof failed.    Credibility determinations are for the trier of fact,

and we do not review those determinations or substitute our own judgment for the trial court's.

Rich, 80 Wn. App. at 259. This claim fails for lack of proof.

       C.      Imputed Rent during Marriage before Mr. Capps's Death

       Mrs. Capps also argues that the trial court erred by (1)imputing to her $286, 60
                                                                                   5
approximately $ 40 per month)as the rental value of living in the home rent free during her 30-
              8                                                              -

year marriage to Mr. Capps and ( 2) offsetting this rental value against her equitable

14 Mrs. Capps submitted two declarations as part of her pretrial motions, listing some of the
improvements made to the home during marriage, but these declarations did not list the amount
of money expended on these improvements or positively state that such improvements increased
the value of the home. Mrs. Capps also submitted the declaration of real estate appraiser Jay
Latteri with her motion for reconsideration. This declaration showed that the home was valued
at $ 55, 00,but it was not admitted as an exhibit at trial.
   7 0

15 "Even if Linda Capps had proven that those taxes were paid with community funds, which she
did not, no right for reimbursement secured by an equitable lien would arise because the
reasonable rental value received by the marital community for the use of Mr. Capps' home far
exceeded the amount of property taxes paid."CP at 588 (CL V).
                                                     20
42078 3 II
      - -



reimbursement claim and any contributions that she may have made to the home over the 30-

year period, thereby negating her right to reimbursement. Because the trial court concluded that

the community had no equitable reimbursement claim, we need not evaluate the trial court's

conclusion regarding imputed rent as, in this circumstance, it amounts to a legal aside.

          D.      Rent and Other Expenses after Mr.Capps's Death

          Mrs. Capps proved at trial that she had paid property taxes and expenses for the home
after Mr. Capps's death.      She introduced evidence that, after her husband died, she had paid

41
13, 95. in property taxes on the home, 2502 in home insurance, and $
  7                                    $ ,                         78
                                                                   6, for new
                                                                     618.

windows, resulting in a total expenditure of $ 2, 16.which benefited Mr. Capps's separate
                                             19,
                                             2 9
        16
estate.      The trial court credited Mrs. Capps for this entire $ 2, 16.amount.
                                                                 19
                                                                 2 9

          The trial court then offset this $
                                           19
                                           22, 16.amount against the reasonable rental value for
                                             9

the 32 month period that Mrs. Capps had lived in the home after Mr. Capps's death, which
       -
terminated the community, caused the home to pass to his separate estate, and made Mrs. Capps

responsible for paying rent to his separate estate. The undisputed evidence at trial showed that
the reasonable rental value for this period was $1,00 a month, for a total of $ 000.
                                                  5                           48,

Subtracting Mrs. Capps's 22, 16.credit for the taxes and expenses she paid from the $ 8, 00
                         19
                         $9                                                         4 0
she owed in rent left her owing Mr. Capps's separate estate a balance of 25, 83.which the
                                                                         81,
                                                                         $ 0

trial court rounded up to $ 084. We hold that the trial court did not err by calculating this
                          25,

balance that Mrs. Capps owed to the estate for rent for the time she lived in the home after her
husband died and ownership of the home had passed to his children.

16
     Mrs. Capps apparently also paid $ , for a new deck, 350 for exterior painting, 50 for
                                     20
                                     1660.               $                          $
new door locks, and $
                    400 for a new garage door opener. The trial court did not reimburse her
for these expenses because the deck failed and the other expenses would have been incurred by a
tenant and should not be set     off   against   rent.    It was within the trial court's discretion to not
reimburse her for these amounts.
                                                         21
42078 3 II
      - -



III.     OTHER TRIAL COURT RULINGS


         A.      Credibility

         Mrs. Capps assigns error to the trial court's credibility determinations regarding several

points of her testimony. Such credibility determinations are the exclusive province of the trial

court; we neither review those determinations nor substitute our judgment for that of the trial

court.    Rich, 80 Wn. App.          at 259.      Thus, we do not.review the trial court's credibility

determinations here.


         B.      Expert Testimony on Home's Value

         Mrs. Capps also argues that the trial court erred by allowing Richmond's expert

testimony about the reasonable rental value of living in the' home both before and after Mr.
Capps's   death because Richmond            was   not   qualified   as an   expert. To challenge a trial court's

admission of evidence on appeal, a party must have raised a timely and specific objection at trial.

State v. Gray, 134 Wn. App. 547, 557, 138 P. d 1123 (2006). If a party fails to make such an
                                           3

objection at trial,she waives any evidentiary error on appeal. ER 103( )( v. Black, 109
                                                                  1);a State
Wn. d 336, 340, 745 P. d 12 (1987). Mrs. Capps did not object to Richmond's expert witness
  2                  2
qualifications   at trial   or   to his   testimony about his real          estate valuation methods.   We hold,


therefore, that she has waived this error on appeal.

IV.      ATTORNEY FEES


         A.      Trial


         Lastly, Mrs. Capps argues that the trial court abused its discretion in awarding attorney

fees to Larry and Kimberly under RCW 11. 6A.for the proceedings below. We disagree.
                                     150
                                       9

         In probate matters, RCW 11. 6A.gives the trial court discretionary authority to
                                 150(
                                    1)
                                    9

award attorney fees and costs to any party to the proceedings and "in such amount and .. .
                                                           22
42078 3 II
      - -



manner as the court determines to be equitable."In re Estate ofBlack, 116 Wn. App. 476, 489,

66 P. d 670 (2003).In exercising its discretion, the trial court may consider " ny and all factors
    3                                                                         a

that it deems to be relevant and appropriate,"
                                             including whether the litigation benefits the estate

or trust involved. RCW 11. 6A. We will not interfere with such a decision unless it is
                       150(
                          1).
                          9

manifestly unreasonable or rests on untenable grounds or reasons. Black, 116 Wn.App. at 489.

        Here, the trial court awarded attorney fees to Larry and Kimberly because Mrs. Capps's

actions had caused Larry and , Kimberly to endure protracted litigation over the separate or

community property character of Mr. Capps's home, even after the trial court had repeatedly

ruled against her on this issue based on the terms of her prenuptial agreement and the quitclaim

deed. Mrs. Capps then commenced other actions, including a claim against Larry and Kimberly

personally, and pursued her equitable reimbursement claim to trial, even though she lacked the
requisite evidentiary support for her claim. Mrs. Capps's action increased attorney fees and costs
for Larry and Kimberly and perhaps even to the estate in defending the probate distribution.
Based on these facts, we - old that the trial court acted within its broad discretion in awarding
                         h

attorney fees and costs to Larry and Kimberly for the proceedings below.

       B.      Appeal

       Larry and Kimberly also request attorney fees on appeal under RCW 11. 6A. RAP
                                                                         150.
                                                                           9

a),
18. ( allows (to award reasonable attorney fees where, as here, a statute provides for
  1 b)       us

such fees and the parties request the fees in a separate section of their opening brief. Dice v. City

of Montesano,    131 Wn.   App. 675, 693, 128 P. d
                                               3        1253 ( 2006).    Although recognizing our

discretion under RCW 11. 6A. to award attorney fees and costs as we deem equitable, we
                     150
                       9

decline to award further attorney fees and costs in this case.


                                                 23
42078 3 II
      - -




       We hold that the trial court ( ) not err by concluding that the home was Mr. Capps's
                                    1 did

separate property and that it passed to Larry and Kimberly under Mr. Capps's will at his death

2) did not err by ruling that Mrs. Capps's evidence was insufficient to prove her claims for
  and

equitable reimbursement for separate and community property contributions to the home before
Mr. Capps's death. We affirm.


       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:




             vI      IGI
       Hunt, J.




       Armstr ,    T
                   J. .
                    P




                                              24
