      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN THE MATTER OF THE ESTATE
                                                                                         f*0

                                                     No. 69214-3-1
                                                                                         en
               OF
                                                                                         m
                                                     DIVISION ONE
CALVIN H. EVANS SR., Deceased.

SHARON EADEN, VICKI SANSING,
AND KENNETH EVANS,                                                                             up
                                                                                               en

                      Respondents,                   UNPUBLISHED OPINION

               v.



CALVIN H. EVANS JR.,

                      Appellant
                                                     FILED: December 21, 2015

       Spearman, C.J. — In a proceeding under the Trust and Estate Dispute

Resolution Act (TEDRA), chapter 11.96A RCW, the trial court found that Calvin

Evans Jr. had financially abused his father, Calvin Evans Sr. and thus precluded

him from inheriting any of his father's property. Calvin Evans Jr. appeals,

claiming the trial court erred because the evidence was insufficient to find that he

willfully intended to inflict injury to his father's property or that his father was a

"vulnerable adult" at the time of the acts alleged to constitute the abuse. He also

claims the trial court failed to consider his contributions and improvements to his

father's property and failed to apply RCW 11.84.170 which allows a financial

abuser to inherit the property of the abused person under certain circumstances.
No. 69214-3-1/2


Finally, he claims the trial court erred when it denied his motion to reconsider.

We find no error and affirm.

                                       FACTS


       Calvin H. Evans, Sr. (Cal Sr.) was born on March 8, 1933. He owned and

operated a successful excavation construction business. At the time of his death,

Cal Sr. was no longer married and had four children: Kenneth Evans, Vicki

Sansing, Sharon Eaden (Sharon), and Calvin H. Evans Jr. (Cal Jr.). Cal Sr.

suffered from a medical condition called polycythemia, a thickening of the blood,

which predisposed him to stroke. He suffered his first stroke in 2000.

       In 2003, Cal Sr. purchased a 40-acre ranch in Sultan, Washington. Soon

after, he purchased another 70-acre parcel nearby. In June 2004, Cal Sr. sold his

twin engine Cessna 310C airplane to Cal Jr. for $80,000. Cal Jr. paid $20,000

down and gave a promissory note for the remaining $60,000. The note provided

for monthly payments of $1000. After purchasing the plane, Cal Jr. convinced Cal

Sr. that the plane had mechanical problems and that Cal Sr. should be

responsible for purchasing a new engine. Cal Sr. paid $24,000 for a new engine,

while Cal Jr. paid $8,000 for the installation of the new engine and an unknown

amount of money for other improvements. Cal Jr. made no payments on the note

and in June 2005, suggested that he and his father create an LLC for the

ownership of the plane, with sixty percent in Cal Sr. and forty percent in Cal. Jr.

       In December 2004, Cal Sr. asked Cal Jr. and his family to move to the

ranch to take care of him and manage the ranch activities. Cal Sr. had previously

stated his intention to Cal Jr. and others that if Cal Jr. agreed to do so, that Cal
No. 69214-3-1/3


Jr. would inherit the ranch property. In early 2005, Cal Jr. and his family moved

from Idaho to the Sultan ranch. While they lived on the ranch, Cal Jr. and his

family provided little personal care for Cal Sr., with the exception of some meals

provided by Cal Jr.'s then wife.

       Upon his arrival, Cal Jr. assumed responsibility for the ranch operations.

His intention was to establish the ranch as a first class horse facility because it

would provide him a greater income. Cal Jr. performed work on the ranch such

as leveling the ground, cutting blackberries, burning trash, grading trails, fixing

the barn floor and plumbing, painting the barn, leveling and compacting the

indoor arena, and adding an outdoor arena. Cal Jr. also claimed to have built a

road on the east side of the barn. In March 2005, Cal Sr. suffered another stroke

after which his health continued to decline.

       In June 2005, Cal Jr. convinced Cal Sr. to purchase a dump truck for

$20,000. Cal Jr. registered the truck in the name of Calvin H. Evans, with no

other designation. That summer he also installed a heat pump using $8,613 of

Cal Sr.'s funds. Around the same time, Cal Jr. borrowed $75,000 from Cal Sr. to

make improvements to the ranch. Sharon insisted that Cal Jr. document the

$75,000 loan and prepared a draft promissory note. After Cal Jr. revised

Sharon's draft, he and Cal Sr. signed it.

       In 2005, Cal Jr. used $15,000 of Cal Sr.'s money to purchase a park

model mobile home. He also purchased a new stovetop for the house, using Cal

Sr.'s funds. Cal Jr. also convinced Cal Sr. to enter into a contract to add onto the

barn, including 18 new stalls, for $75,000. The contractordid not finish the work
No. 69214-3-1/4


and Cal Jr. withheld $12,000 of the borrowed $75,000.

       On December 28, 2005, Sharon filed a guardianship petition alleging that

Cal Sr. was incapacitated. Charles Diesen, Cal Sr.'s attorney since 1970, was

appointed to represent him. On December 28, 2005, Erv DeSmet was appointed

guardian ad litem for Cal Sr.

       On January 28, 2006, Cal Sr. underwent a medical examination to assess

his need for a guardian. Psychologist Dr. Eisenauer diagnosed him with

dementia secondary to stroke. The doctor found that he had memory impairment,

mild disorientation, disturbances in executive functioning, and impaired judgment

and insight.

       In early 2006, Cal Jr. and his wife helped Cal Sr. prepare a will that

designated Diesen as the personal representative and left the Sultan ranch and

this Cessna airplane to Cal Jr.1 This will reduced Sharon's share of the estate to

$25,000; gave approximately 77 acres of pasture land to Vicki and Ken; gave Cal

Sr.'s personal effects to Cal Jr., Vicki, and Ken, and created a trust for the benefit

of Cal Jr., Vicki, Ken, and Cal Sr.'s grandchildren. On March 7, 2006, Cal Sr.

executed the will. At the time, Diesen and his law partner, Carol Johnson,

believed Cal Sr. had testamentary capacity.

        Cal Sr. had another stroke in November 2006. He was placed in limited

guardianship in June 2008, with Unlimited Guardianship Services of Washington
(UGS) appointed as guardian. Under the guardianship, Cal Jr. was allowed to



        1 There was an earlier will that Cal Sr. had executed on May 18, 2004, that divided the
estate equally among his four children.
No. 69214-3-1/5


remain on and operate the ranch as long as Cal Sr. wanted him to, and Cal Jr.

was ordered to pay the taxes and insurance on the ranch and manage the

property so that it maintained its value. Cal Jr. did not pay any taxes or insurance

and, during the pendency of the guardianship, liquidated ranch assets and kept

the proceeds. Cal Jr. also received six or seven of Cal Sr.'s social security

checks, which he deposited into his own account and used the funds for his own

purposes. Cal Jr. was required to reimburse the funds.

        UGS petitioned for dismissal as Cal Sr.'s guardian in spring 2010, after

which Sharon was appointed successor guardian. Cal Sr. was receiving full time

home care when he died on April 5, 2011. His 2006 will was filed for probate on

April 29. 2011. On July 14, 2011, petitioners Sharon Eaden, Ken Evans, and

Vicki Sansing (collectively, Eaden) brought a TEDRA petition seeking a

declaration that the will was invalid due to lack of competency and undue

influence, and seeking to declare Cal Jr. an "abuser" under RCW 11.84.010.2
        A trial on the petition was heard in March 2012. At the conclusion of the

trial, the court upheld Cal Sr.'s 2006 will, concluding that at the time Cal Sr.

signed the will he had the testamentary capacity to do so. The court also found,

however, that as early as 2004, Cal Sr. was a vulnerable adult because he was

over 60 years of age and lacked the functional, mental, and physical ability to

care for himself. The court concluded that Cal Jr. had financially exploited his



        2 Sharon Eaden also filed a separate petition for a declaration of rights on September 7,
2012, seeking not to apply the anti-lapse statute to Cal Sr.'s estate. The trial courtdenied the
petition and this court affirmed in In the Matter ofthe Estate of Evans, 181 Wn. App. 436, 326
P.3d 755 (2014).
No. 69214-3-1/6


father and, pursuant to RCW 11.84.030, .040, deemed him to have predeceased

Cal Sr. Judgment was entered against Cal Jr. on May 31, 2012, in the amount of

$85,536.27, including a discretionary award of attorneys' fees and costs. Cal Jr.'s

motion for reconsideration was denied.

        He appeals.3

                                          DISCUSSION

        We review the superior court's findings for substantial evidence. Scott v.

Trans-Svs.. Inc.. 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003).4 We defer to the trier

of fact on the persuasiveness of the evidence, witness credibility, and conflicting

testimony. Morse v. Antonellis. 149 Wn.2d 572, 574, 70 P.3d 125 (2003);

Burnside v. Simpson Paper Co.. 123 Wn.2d 93, 108, 864 P.2d 937 (1994) (citing

State v. O'Connell. 83 Wn.2d 797, 839, 523 P.2d 872 (1974)). We review

questions of law de novo. Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d

873, 880, 73 P.3d 369 (2003). It is also well settled that "[w]e will not review an

issue, theory, argument, or claim of error not presented at the trial court level."

Lindblad v. Boeing Co.. 108 Wn. App. 198, 207, 31 P.3d 1 (2001) (quoting




        3 Cal Jr. appeals the trial court'sdenial of his motion for reconsideration and for a new
trial under CR 59(a)(4), (7), and (9), and for relief from judgment under CR 60(b)(1), (3), (4) and
(11). Jd. He argues that the trial court failed to consider the effect of his contributions to the
property, and the fact that Cal Sr. benefited from these contributions. Id. This court reviews the
denial of a motion for reconsideration for abuse of discretion. Lilly v. Lynch. 88 Wn. App. 306,
321, 945 P.2d 727 (1997). Cal Jr. fails to meet any of the stated grounds for reconsideration,
relief from judgment, or a new trial.

        4 Cal Jr. argues for some higher standard based on the requirement that the trial court
make findings of clear, cogent, and convincing evidence. Substantial evidence is still the standard
on review; findings can only be sustained if they are supported by "substantial evidence which the
lower court could reasonably have found to be clear, cogent, and convincing." In re Detention of
Labelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986).
No. 69214-3-1/7


Demelash v. Ross Stores. Inc.. 105 Wn. App. 508, 527, 20 P.3d 447 (2001)). If

an issue raised for the first time on appeal, however, is "'arguably related' to

issues raised in the trial court," a reviewing court may exercise its discretion to

consider it. Lunsford v. Saberhagen Holdings, Inc.. 139 Wn. App. 334, 338, 160

P.3d 1089 (2007).

          Here, for the first time on appeal, Cal Jr. argues that the trial court erred

when it found that he financially abused his father because there was no clear,

cogent, and convincing evidence that he willfully intended to inflict financial injury

on Cal Sr. as required by RCW 11.84.160(b). That statute provides that in

determining whether a person is an abuser the court must find by clear, cogent

and convincing evidence that "[t]he conduct constituting financial exploitation was

willful action or willful inaction causing injury to the property of the vulnerable

adult." By its own terms the statute does not expressly require a finding of intent

to cause injury to the victim's property. Nonetheless, Cal Jr. argues that proof his

"willful" conduct caused injury to Cal Sr.'s property is insufficient to show he is an

abuser. He now contends it must be shown that he "intentionally" caused the

injury.

          Cal Jr. argues that he preserved this issue for appeal because, in his trial

brief, he noted that one of the legal questions presented for trial was whether

"Calvin Evans Sr. (sic) was an abuser of Calvin Evans Sr. as set forth in RCW

11.84?" Clerk's Papers (CP) at 627. He also observed that "RCW 11.84.160

gives evidence factors for determining an abuser...." CP at 637. And he attached

a copy of the statute. But Cal Jr. cites to no place in the record where he argued
No. 69214-3-1/8


to the trial court that it was required to find that he intentionally caused injury to

Cal Sr.'s property. Cal Jr. also argues that he may raise this issue on appeal for

the first time because "willfulness is an essential element of [Sharonj's burden...

and therefore raised." Reply Br. at 4, n.2. We reject this argument. That the trial

court made findings regarding Cal Jr.'s willful action, does not preserve Cal Jr.'s

right to raise a new argument about whether the trial court was also required to

find that he intentionally caused injury to Cal Sr.'s property. Because the issue

was not properly preserved below, we decline to consider it on appeal. "We do

not review the trial court's actions as to questions not brought to its attention."

Kane v. Smith, 56 Wn.2d 799, 806, 355 P.2d 827 (1960).

       Cal Jr. next contends that the findings of fact regarding his father's status

as a vulnerable adult are not supported by clear, cogent, and convincing

evidence and are too vague as to the time period. Insofar as is relevant here, a

vulnerable adult is a person who is "[sjixty years of age or older who has the

functional, mental, or physical inability to care for himself or herself[.]" See RCW

11.84.010(6) and RCW 74.34.020(21 ).5 Cal Jr. concedes that Cal Sr. was well
over60 year old during the time period the trial court found the financial
exploitation occurred, 2005 through Cal Sr.'s death in 2011. But he claims the
evidence showed that Cal Sr. was capable of caring for himself "at least until his

third stroke in November 2006." Br. of Appellant at 38. In support of this assertion

he cites evidence that:




        5Subsections of RCW 74.34.020 were renumbered in 2015 but the text is unchanged;
therefore, we will cite to the current subsection.

                                             8
No. 69214-3-1/9


   (1) there was no guardianship put in place until June 2008, (2) there was
   no licensed home care until after June 2008, (3) Cal SR's trusted attorney
   believed that Cal SR was competent all this time; (4) the trial court itself
   found that Cal SR was competent and able to resist attempts at undue
   influence in March 2006 when he executed his will, (5) Petitioner Sharon
   Eaden's own diary demonstrates that Cal SR had mental clarity in August
   2005, (6) Petitioner Vicki Sansing borrowed $30,000 from Cal SR in
   November 2006, and (7) no examination or medical evidence precedes
   the January 2006 evaluation performed by Dr. Eisenhauer.

Br. of Appellant at 37.

       But the cited evidence does not contradict the trial court's finding that Cal

Sr. was unable to care for himself. That Cal Sr. was not subject to a guardianship

or in licensed home care are relevant considerations but do not in themselves

establish he was able to care for himself.

       Cal Jr. also seems to argue that because Cal Sr. was competent to attest

to a will he was also functionally, mentally or physically able to care for himself.

But one does not necessarily establish the other. "The possession of

testamentary capacity involves an understanding by the testator of the

transaction in which he is engaged, a comprehension of the nature and extent of

the property which is comprised in his estate, and a recollection of the natural
objects of his bounty." Dean v. Jordan, 194 Wash. 661, 668, 79 P.2d 331 (1938).
One could, as the trial court found, satisfy this test but still be unable to care for

oneself.

       Nor does the fact that Cal Sr.'s daughter, Vicki, borrowed money from him

or an isolated observation by his other daughter, Sharon, undermine the trial

court's finding that Cal Sr. was unable to care for himself. The trial court heard
considerable evidence on the issue. Sharon testified that during the 2004
No. 69214-3-1/10


Thanksgiving holiday, Cal Sr. was unable to find his way to and from her home to

his motel. She also observed that Cal Sr. "was confused," that "[h]is short term

memory was not tracking," that he "would tell the same stories over and over

again." Verbatim Report of Proceedings (VRP) (03/14/12) at 156. He also had

"trouble eating" and "couldn't find his keys." Id. Sharon further testified that prior

to 2004 "there were signs of him being unable to balance his checkbook and

keep track of his checkbook because his neat and tidy marks in the 2004 check

register suddenly turned into stuff you just couldn't recognize." VRP (3/19/12) at

516. She concluded that "he was deteriorating at the end of 2004, but he

continued to deteriorate all the way through the end of 2005 and beyond." VRP

(3/15/12) at 370. In addition, in 2005 Sharon observed that Cal Sr. was unable to

start the backhoe even though it was a piece of equipment that he had operated

for years. "It was very, very apparent that he was kind of lost." VRP (3/14/12) at

137.6

        Many of Sharon's observations were substantiated by the evaluation

performed by Dr. Eisenhauer in January 2006, well before Cal Sr. suffered his

third stroke. She reported that Cal Sr. suffered from dementia, which appeared in

the form of "memory impairment, mild disorientation, disturbances in executive

functioning and impaired judgment and insight." Respondent's Exhibit 47 at 2. Dr.

Eisenhauer concluded that because of Cal Sr.'s impaired executive functioning,

he was "vulnerable to make decisions and take actions that will harm him

without recognizing the possible consequences;" Resp. Ex. 47 at 6, "that due


        6Finding of fact 69 erroneously attributes this testimony to Cal Jr. instead of Sharon.

                                                10
No. 69214-3-1/11


to his impoverished cognitive functioning that he needs financial assistance;"

that he was "vulnerable to undue influence" ]d. at 8, and that he was "unable

to live independently without support." jU at 9. With regard to financial

matters, such as signing contracts, the doctor concluded: Cal Sr. "would not be

able to sufficiently understand it to act knowledgably. Furthermore, he does not

have sufficient appreciation of his deficits to know these limitations. He needs

assistance from an informed neutral party who does not have a stake in his

assets." Id.


        Cal Jr. seems to argue that the trial court erred in finding that Cal Sr. was

a vulnerable adult because some of the evidence regarding Cal Sr.'s abilities was

disputed. But the mere fact that evidence is disputed does not establish that the

trial court's findings are inadequately supported. Where the testimony and

evidence is conflicting, we defer to the trial court to resolve issues of credibility

and weight. Niemann v. Vaughn Community Church, 154 Wn.2d 365, 377-78,

113 P.3d 463 (2005). We reject Cal Jr.'s challenge to the trial court's finding that

Cal Sr. was a vulnerable adult because it is amply supported by substantial

evidence.7

        Cal Jr. also challenges the trial court's finding that he financially exploited

his father. "Financial exploitation" is defined as the "improper use, control over, or

withholding of the property, income, resources, or trust funds of the vulnerable



        7 Finding of fact 203 appears to be a clerical error; the trial court found that the GAL
recommended "an order for a less restrictive alternative" that was "entered by the Court in the
guardianship proceeding in lieu of establishing a guardianship." VRP (4/19/12) 1972. No finding
was made of a limited guardianship.



                                                 11
No. 69214-3-1/12


adult by any person or entity for any person's or entity's profit or advantage"
other than for the vulnerable adult's profit or advantage." RCW 11.84.010(3) and

RCW 74.34.020(7). Financial exploitation includes but is not limited to:

     (a) "[t]he use of deception, intimidation, or undue influence by a
     person or entity in a position of trust and confidence with a vulnerable
     adult to obtain or use the property, income, resources, or trust funds
     of the vulnerable adult for the benefit of a person or entity other than
     the vulnerable adult;

     (b) The breach of a fiduciary duty, including, but not limited to, the
     misuse of a power of attorney, trust, or a guardianship appointment,
     that results in the unauthorized appropriation, sale, or transfer of the
     property, income, resources, or trust funds of the vulnerable adult for
     the benefit of a person or entity other than the vulnerable adult; or

     (c) Obtaining or using a vulnerable adult's property, income,
     resources, or trust funds without lawful authority, by a person or
     entity who knows or clearly should know that the vulnerable adult
     lacks the capacity to consent to the release or use of his or her
     property, income, resources, or trust funds, jd.

       Cal Jr. first claims that his actions were proper because he had a legal

contract with Cal Sr. to care for the ranch and the improvements were

"consideration flowing to Cal SR" in exchange for Cal Jr.'s inheritance. Br. of

Appellant at 42. In support of this argument, he cites his own testimony that "[Cal

Sr.] said that Debbie and I could move onto the property. We could have the

house. He would take over the apartment above the garage. He said that he had

plenty of money. I didn't have to worry about money again." Reply Brief at 19. He

contends that a reasonable person would understand Cal Sr.'s statement as an

oral contract that "Cal SR would fund most of the ranch expenses" and provide

Cal Jr. "an expected minimum income of $3000 per month. . . ." ]d. He cites to no

other evidence of an oral agreement.



                                         12
No. 69214-3-1/13


       But again, because this issue was not presented to the trial court, it cannot

be raised for the first time on appeal. Despite Cal Jr.'s claim that he raised the

issue in closing argument and on reconsideration, the only references found in

the record are to an agreement that Cal Sr. would receive $3,000 per month from

the ranch tenant and that Cal Jr. knew he did not have title to the ranch when he

made improvements. On appeal, our review is limited to determining "whether

there exists the necessary quantum of proof to support the trial court's findings."

Bentzen v. Demmons, 68 Wn. App. 339, 347, 842 P.2d 1015 (1993) (quoting ]n

re Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973)). Because the trial court did

not have the opportunity to make findings regarding this issue, we decline to

consider it on appeal.

       Next, Cal Jr. argues that even if there were no oral agreement, the trial

court erred when it concluded that Cal Sr. did not benefit from Cal Jr.'s

investment of time and money in the ranch. According to him, the trial court erred

when it failed "to weigh Cal JR's personal financial contributions to Cal SR's

property when considering the question of willful financial abuse." Reply Br. at

10. He disputes several of the trial court's findings of fact related to

circumstances surrounding the promissory note, the work on the ranch, the

accounting of ranch expenses, the purchases he made, and the construction of

the new road. We disagree. Cal Jr.'s argument fails because he is trying to offer

apples to offset oranges. Any alleged benefit to Cal Sr. did not arise from Cal

Jr.'s improper conduct. Cal Sr. may have arguably benefited from Cal Jr.'s

investment of time and money into the ranch, but none of Cal Jr.'s improper


                                          13
No. 69214-3-1/14


conduct was undertaken for Cal Sr.'s benefit or advantage. Cal Jr. fails to cite to

any authority or make a convincing argument as to why his financial contributions

should offset his financial exploitation or abuse.

        Cal Jr. next argues that his conduct was not improper because Cal Sr.

consented to all of the expenditures and improvements.8 Again, these are apples

offered to offset oranges. Even if Cal Sr. had consented to the improvements,

there is still sufficient evidence in the record to support the trial court's findings

related to Cal Jr.'s financial exploitation of his father, including the conversion of

Cal Sr.'s social security checks, the registration of vehicles in Cal Jr.'s name, the

sale of Cal Sr.'s personal property and keeping the proceeds, and other notes

and loans to Cal Jr. for which there was no accounting.

        Cal Jr. argues that the trial court failed to conduct the required statutory

analysis that would have allowed him to inherit even if he did financially exploit

his father. Cal Jr. argues that Cal Sr. knew of the exploitation and subsequently

ratified his intent to transfer by consenting to expenditures and later making a will

that left the ranch to Cal Jr. But again, we conclude that Cal Jr. waived this




          8Cal Jr. testified that Cal Sr. wanted the fencing to be redone and that the barn needed to
be repaved for the new horse trainers. He testified he "happened to walk in the house one day,
and Dad says, "Tm going to buy a motorcycle.'" VRP (3/31/12) at 1028-29. According to him, Cal
Sr. purchased a scooter. Cal Jr. testified that he had discussions with Cal Sr. about the heat
pump and that it provided heating and cooling to Cal Sr.'s living area. He testified that he
discussed buying a hay baler. He testified that Cal Sr. bought the new dump truck, because he
wanted to help out a lady he knew, and that he put the truck in Cal Jr.'s name. Cal Jr. also
testified that they discussed the purchase of the mobile home and the stovetop. He testified that it
was Cal Sr.'s idea to clean the ranch, including taking out stumps, cleaning up bushes,
completing the driveways, and painting the riding area. According to his testimony, there was
"never a time when dad wasn't consulted about changes." Jd. at 1318. He testified that he and Cal
Sr. had discussions about all the money Cal Jr. spent, and that he passed every decision by Cal
Sr. and he had no displeasure.



                                                 14
No. 69214-3-1/15


argument because he failed to bring it before the trial court. Cal Jr. argues that

he raised the issue of consent in his trial brief, and that suffices to preserve his

ratification argument. We disagree. RCW 11.84.170 requires the trial court to find

whether clear, cogent, and convincing evidence supports knowledge and

ratification of intent. Because Cal Jr. did not raise this issue at trial, there are no

findings to review.

       Finally, Cal Jr. argues that the trial court failed to exercise its discretion

under RCW 11.84.170 to allow him to inherit as a matter of equity. RCW

11.84.170(2) permits, the trial court to allow an abuser to acquire or receive an

interest in property or other benefit in any manner that it deems equitable. In

determining what is equitable, the court may consider the various elements of the

decedent's dispositive scheme, his or her likely intent given the totality of the

circumstances, and the degree of harm resulting from the financial exploitation.

Id. Cal Jr. cites nothing in the statute that requires the trial court to address this

issue even though it was not raised by a party. Because Cal Jr. did not raise this

issue below, we decline to consider it here.

       Both parties request an award of reasonable attorneys' fees and costs on

appeal pursuant to RCW 11.96A. 150(1) and RAP 18.1 (a). RCW 11.96A. 150(1)

allows for a discretionary award of attorney fees to any party, against any party

or against the estate, on both the trial and appellate court levels. We deny Cal




                                           15
No. 69214-3-1/16


Jr.'s request for fees and grant the respondents' their reasonable attorneys' fees

and costs incurred in defending this appeal.

      Affirmed.




                                                       £>clt^*^ l^J,
WE CONCUR:




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                                         16
