                                                           STAT£ OF V^iMr^u...

                                                           2013 OCT 28 AH* 38



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of                 NO. 67255-0-1

RANDALL J. LANGELAND.                          (Consolidated with
                                               No. 67659-8-1)
SHARON DROWN,

                     Appellant,                DIVISION ONE


      v.

                                               PUBLISHED OPINION
JANELL BOONE,

                     Respondent.               FILED: October 28, 2013


       Leach, C.J. — This case involves competing claims to the estate of

Randall J. Langeland asserted by his daughter, Janell Boone, and the woman

with whom he lived from 1991 until his death in 2009, Sharon Drown.       Drown

appeals several pretrial orders, a posttrial order memorializing an evidentiary

ruling made during trial, and the findings of fact and conclusions of law entered

after trial on her petition for accounting, determination of ownership, fair and

equitable division of assets, and other relief.     She alleges that the court

erroneously classified assets acquired during her committed intimate relationship

with Langeland as his separate property and inequitably divided those assets.
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She also challenges the court's determination that the dead man's statute1

prevented her from testifying to conversations with Langeland about the

character of certain property and its decision that the statute governing intestate

succession did not apply by analogy. Finally, Drown asserts that the trial court

should not have awarded attorney fees to Boone because this case involves

novel issues of law.


       In a cross appeal, Boone contests the trial court's rejection of her

challenge to Langeland's designation of Drown as the beneficiary of his Fidelity

IRA (individual retirement account) and its denial of her request for attorney fees

on this claim.


       We affirm the trial court's decisions about the laws for intestate succession

and the IRA beneficiary designations but do not reach the dead man's statute

challenge.   From our examination of the history and nature of the conflicting

presumptions invoked by the parties before the trial court, viewed in the context

of this case, we conclude that the presumption that property acquired during a

committed    intimate relationship   is jointly owned     should    prevail over a

presumption of correctness for an estate inventory. Therefore, we reverse the

trial court's division of probate assets and remand to the trial court for further

proceedings consistent with this opinion. To allow the trial court full discretion to


       1 RCW 5.60.030.
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make an equitable award following a correct characterization, we also vacate the

fee award to Boone.


                                     FACTS


      Randall Langeland and Sharon Drown met and began dating in 1983. In

1991, they began living together.    Boone has stipulated that they lived in a

committed intimate relationship. Beginning in 1999 and throughout the rest of his

life, Langeland suffered from numerous undiagnosable and untreatable ailments.

In 2009, he died from complications relating to an autoimmune disorder of

unknown etiology. Langeland did not have a will.

      Throughout Langeland's many illnesses, Drown served as his primary

caregiver. She traveled with him and assisted him with his business affairs; she

cared for his personal hygiene needs and administered his medications; she

attended all his medical appointments and was very involved with his treatment.

      The probate assets itemized in the personal representative's inventory as

Langeland's property, and now disputed on appeal, include the proceeds from a

software company Langeland founded in 1994, a house that he purchased with

Drown in 1999, and a 36-foot sailboat purchased in 1998. The court, relying on

the presumption of correctness for this inventory, required Drown to prove her

ownership interest. It rejected Drown's claim that the court should presume joint



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ownership of assets acquired while she and Langeland cohabited and applied

the dead man's statute to limit Drown's testimony.

      When Drown failed to meet the burden of proving that she owned any

interest in the contested assets, the court awarded nearly all of the assets to

Langeland's only heir, Boone.       It found that Drown proved her rights to the

Fidelity IRA, on which she was named as beneficiary, and 24.7 percent

ownership of the couple's Bellingham home, based upon a promissory note

executed by Drown and Langeland. Characterizing Drown's claims as baseless,

the court awarded attorney fees to the estate for defending against Drown's

claims.     It denied Boone's request for fees relating to the IRA award.    Drown

appeals the award of property and fees to Boone; Boone cross appeals the

award of the IRA to Drown and the court's denial of fees related to that claim.

                              STANDARD OF REVIEW


          Resolution of conflicting presumptions presents a question of law, which

we review de novo. When reviewing challenged findings of fact and conclusions

of law, we determine if substantial evidence supports the findings and if the

findings of fact, in turn, support the conclusions of law.2 Substantial evidence is




          2 Douglas v. Visser, 173 Wn. App. 823, 829, 295 P.3d 800 (2013).
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evidence sufficient to persuade a fair-minded, rational person that the finding is

true.3 Unchallenged findings offact become verities on appeal4
                                   ANALYSIS


       We first address resolution of the conflicting presumptions invoked by the

parties before the trial court. Drown contends that all property acquired while she

and Langeland lived together is presumed to be owned by both of them because

Boone stipulated that Drown and Langeland lived in a committed intimate

relationship.   She further contends that Boone has the burden of proving

otherwise by clear and convincing evidence. Boone contends that the personal

representative's inventory is presumed to be correct and that Drown has the

burden of proving the contrary. Pretrial, the trial court adopted Boone's position.

We disagree.

       When parties invoke conflicting presumptions, two viewpoints exist about

how to resolve the conflict.5 Under the first approach conflicting presumptions

cancel each other, while the second requires that the court determine which



       3 Recreational Equip., Inc. v. World Wrapps Nw., Inc., 165 Wn. App. 553,
558, 266 P.3d 924 (2011).
       4 In re Estate of Freeberq. 130 Wn. App. 202, 205, 122 P.3d 741 (2005).
Drown makes 39 assignments of error, challenging the court's refusal to apply a
community property-like presumption; its characterization of the house, the boat,
and the business as Langeland's separate property; and the conclusions of law
awarding a substantial majority of the property to Boone.
       51 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 4:59
(7th ed. 1992).
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presumption should prevail, based upon a variety of factors, which may include

public policy, logic, and an assessment of probabilities.6 Logically, jurisdictions
that adhere to the Thayer "bursting bubble" theory of presumptions7 should follow

the first approach, while jurisdictions giving different weight to different

presumptions8 should follow the second one.9

       Washington cases provide little guidance about how to resolve conflicting

presumptions. This lack of clarity exists, at least in part, because Washington

cases apply the Thayer theory to some, but not all, presumptions and provide no

general rule about when it applies.10 Other cases identify presumptions that shift

the burden of proof.11 To further complicate the problem, the quantum of

evidence required to overcome a burden-shifting presumption varies, and

Washington cases do not provide any general guidelines or standards.12 As a
result, "the subject of presumptions is one of impossible difficulty for lawyers, and

trial judges as well."13

       6 1 Fishman, §4:59.
       7Under the Thayer theory, a presumption places the burden of production
of evidence upon the party against whom it operates but disappears ifthat party
produces contrary evidence. 5 Karl B. Tegland, Washington Practice:
Evidence Law and Practice § 301.14, at 238 (5th ed. 2007).
       8 Often called the Morgan theory, under this approach a presumption shifts
the burden of proof as to the presumed fact. 5 Tegland, § 301.15, at 241.
       91 Fishman, § 4:59.
       10 5 Tegland, §§301.15-301.16.
       11 See 5 Tegland, §301.14, for a collection of these cases.
       125 Tegland, § 301.15, at 244.
       13 5 Tegland, § 301.14, at 238.
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      A leading commentator on Washington evidence law suggests that Parker

v. Parker,14 provides "some indication that if a choice is necessary[,] the

'stronger' presumption should be applied"15 and that conflicting presumptions of

equal weight cancel each other.16 We do not find this indication in the Parker

opinion.

       In Parker, the assignee of two promissory notes sued the deceased

maker's estate for payment.17       The executrix presented evidence of the

decedent's delivery of cash and bonds in the same amount as the notes to the

original note holder. She relied upon the presumption that money transferred

from one person to another is presumed to be in payment of the obligation

between them.18 The noteholder and assignee presented evidence that these

payments were gifts and sought to offset this presumption with another—that

since the notes remained in their possession, they were presumed to be

unpaid.19 The court did not resolve the conflict between these two presumptions.

       Instead, it decided the case using a third presumption not asserted by any

party. The court noted that the decedent had been married a number of years


       14 121 Wash. 24, 207 P. 1062 (1922).
       15 5 Tegland, § 301.17, at 249.
       16 5 Tegland, §301.17, at 250 (citing Prall v. Great N. Rv., 105 Wash. 24,
177 P. 637(1919)).
       17 Parker, 121 Wash, at 25.
       18 Parker. 121 Wash, at 26.
       19 Parker. 121 Wash, at 26-27.
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and had acquired the cash and bonds after his marriage, raising the presumption

that they were community property.20 After observing that "[t]his presumption is

not overcome in any way by any proof on behalf of the appellant," the court noted

that the decedent lacked the required consent of his wife to make a gift of

community property and held that any alleged gift of the cash and bonds was

void.21 The court's opinion does not purport to provide any rule for resolving

conflicting presumptions or identify any of the three described presumptions as

being stronger than the others.

      A number of states require that the trial court assess the comparative

weight of conflicting presumptions and apply the stronger one.22 Some states
have adopted this approach through judicial decision,23 and many others have

done so through evidence rule.24 A number of the evidence rules adopt the

approach of Rule 301(b) of the Uniform Rules of Evidence:

            (b) Inconsistent Presumptions.     If presumptions are
      inconsistent, the presumption applies that is founded upon
      weightier considerations of policy. If considerations of policy are of
      equal weight neither presumption applies.



      20 Parker, 121 Wash, at 27.
      21 Parker. 121 Wash, at 27-28.
      221 Fishman, §4:61.
      23 See, e.g.. Schmeizl v. Schmeizl, 184 Md. 584, 594-95, 42 A.2d 106
(1945): Palmer v. Palmer, 162 N.Y. 130, 56 N.E. 501 (1900): Young v. State. 111
Tex. Crim. 17, 10 S.W.2d 1008 (1928).
      24 See, e.g.. Ark. R. Evid. 301(b); Del. Unif. R. Evid. 301(b); Mont. R.
Evid. 301(c); Or. R. Evid. 310 (O.R.S. §40.130).
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The Federal Rule of Evidence 301 addresses presumptions but does not include

any provision for resolving inconsistent presumptions:

      In a civil case, unless a federal statute or these rules provide
      otherwise, the party against whom a presumption is directed has
      the burden of producing evidence to rebut the presumption. But
      this rule does not shift the burden of persuasion, which remains on
      the party who had it originally.

Washington has not adopted an evidence rule addressing presumptions.

      Washington cases have adopted individual presumptions for different

reasons with policies of varying strength behind them. Some shift the burden of

production, while others shift the burden of persuasion. Some are intertwined

with pertinent substantive law. As a result, we are skeptical of the wisdom of

attempting to provide a single rule to resolve all presumption conflicts. Instead,

from an examination of the history and nature of the two presumptions before us,

viewed in the context of this case, we conclude that the presumption that

property acquired during a committed intimate relationship is jointly owned

should prevail over a presumption of correctness for an estate inventory.

       In 1984, the Washington Supreme Court adopted a general rule requiring

a just and equitable division of property after the end of what we now call a

committed intimate relationship.25    In 1995, the court held that "income and

property acquired during a meretricious relationship should be characterized in a


       25 In re Marriage of Lindsev. 101 Wn.2d 299, 304, 678 P.2d 328 (1984).
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similar manner as income and property acquired during marriage. Therefore, all

property acquired during a meretricious relationship is presumed to be owned by

both parties."26       A party may overcome this rebuttable presumption "by

establishing by 'clear and convincing proof that the property is separate, i.e., by

tracing with some degree of particularity the separate source of funds used for

the acquisition."27

       In the same case where it recognized this presumption, the court also

       established a three-prong analysis for disposing of property when a
       meretricious relationship terminates. First, the trial court must
       determine whether a meretricious relationship exists. Second, if
       such a relationship exists, the trial court evaluates the interest each
       party has in the property acquired during the relationship. Third,
       the trial court then makes a just and equitable distribution of such
       property.[28]
This analysis applies when the relationship ends through the death of one

partner and the deceased partner's heirs have no greater rights than the

decedent would have, if living.29

       Thus, a party to a committed intimate relationship enjoys the benefit of a

burden of persuasion-shifting presumption that all income and property acquired

during the relationship are jointly owned and does not lose the benefit of that

       26 Connell v. Francisco. 127 Wn.2d 339, 351, 898 P.2d 831 (1995).
      27 Chesterfield v. Nash. 96 Wn. App. 103, 111, 978 P.2d 551 (1999) (citing
Connell. 127 Wn.2d at 350-51), rev'd on other grounds. In re Marriage of
Pennington. 142 Wn.2d 592, 14 P.3d 764 (2000).
       ^^Tennington. 142 Wn.2d at 602 (citing Connell. 127 Wn.2d at 349).
       29 Olver v. Fowler. 161 Wn.2d 655, 670-71, 168 P.3d 348 (2007).
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presumption through the death of the other partner. This presumption replaced

an earlier presumption that the court abandoned because its constricting dictates

"made the law unpredictable and at times onerous."30

       The presumption of an estate inventory's correctness appears to have

been recognized in Washington for the first and only time in In re Estate of

Shaner: "The burden of proof rested with respondent not only because she was

the plaintiff in the separate action which was brought, but also because she

challenges, in the estate proceeding, the inventory, which is presumed to be

correct."31 The Shaner opinion provides no discussion of this presumption and

does not apply it in its analysis. Instead, it analyzes the application of an entirely

different presumption, that of continued ownership.32           Nothing in Shaner
suggests that the presumption of correctness shifts the burden of proof or

survives after the production of contrary evidence. Shaner cites In re Estate of

Hamilton33 as its sole authority for this presumption.34

       Hamilton contains no reference to such a presumption.           Instead, in an

action where a surviving husband petitioned for an order striking four parcels

from the inventory he filed in his wife's estate on the basis that they were his


       30 Lindsev. 101 Wn.2d at 304.
       31 41 Wn.2d 236, 242, 248 P.2d 560 (1952).
       32 Shaner. 41 Wn.2d at 242-45.
       33182 Wash. 81, 89, 45 P.2d 36 (1935).
       ^Shaner. 41 Wn.2d at 242.
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separate property erroneously inventoried, the court stated, "The burden rests

upon appellant to prove by a preponderance of the testimony the allegations of

his petition, which allegations are inconsistent with practically all of his prior

actions and statements."35 This unremarkable observation appears to reflect

nothing more than a statement of the general proposition that a party seeking

judicial relief must establish those facts entitling that party to relief.

       In contrast to the joint property presumption, the inventory presumption

does not shift the burden of persuasion and does not appear to reflect any

significant particularized policy decision. Generally, a presumption shifting the

burden of persuasion should outweigh one that only shifts the burden of

production because the same factors that justify giving one presumption greater

impact also justify giving it greater weight than a presumption having less

procedural impact.36 Here, giving precedence to the inventory presumption does

not further any policy decision articulated by our Supreme Court, while giving

precedence to the joint property presumption furthers those policies articulated

by the court in In re Marriage of Lindsev.37 Connell v. Francisco.38 and Olver v.
Fowler.39 Finally, in the context of this case, giving precedence to the inventory


        35 Hamilton. 182 Wash, at 89.
        361 Fishman, §4:62.
        37 101 Wn.2d 299, 678 P.2d 328 (1984).
        38 127 Wn.2d 339, 898 P.2d 831 (1995).
        39 161 Wn.2d 655, 168 P.3d 348 (2007).
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presumption would frustrate the Olver court's statement that a deceased

partner's heirs should have no greater rights than the decedent would have, if

alive. The inventory presumption relieved Boone from an onerous burden of

persuasion that applied to Langeland and that she could not meet.

      We hold that the presumption that property acquired during an intimate

committed relationship is jointly owned prevails over the presumption of

correctness for an estate inventory.

      We next consider whether the trial court's failure to apply this presumption

prejudiced Drown.     Drown and Boone primarily contest ownership of three

probate assets, the proceeds from a software company Langeland founded, a

house that he purchased with Drown, and a 36-foot sailboat. All were acquired

during the Langeland/Drown committed relationship and subject to the joint

property presumption. The court received no evidence tracing any of these three

assets to funds owned by Langeland before his relationship with Drown began or

acquired by Langeland by gift or inheritance afterward. As a matter of law,

Boone failed to overcome the joint property presumption with respect to all three

contested probate assets.

       Boone contends that Drown's own testimony establishes the separate

character of the sailboat. Drown testified,

       Q.     I believe you testified that Mr. Langeland purchased the
              Catalina 36 sailboat with his own funds, correct?
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       A.      Correct.

But Boone's argument ignores the following clarifying testimony from Drown:

       Q.      Do you know where the funds came to purchase this boat,
               came from?
       A.      Urn, he saved all of his money for this boat.
       Q.      And was that savings that occurred during the time that you
               were in a committed intimate relationship starting in 1991?
       A.      Yes.

       Boone also contends that Drown failed to establish the existence of a

committed intimate relationship. This contention ignores Boone's stipulation filed

pretrial with the trial court:

               You and each of you will please take note that for the
       purposes of the proceedings herein, Janell Boone hereby stipulates
       that decedent and Sharon Drown were in an intimate committed
       relationship.

Boone provides no explanation why this stipulation does not control this issue.

        Even if the trial court mischaracterizes property as community or separate,

this court may uphold a division of property, so long as it is fair and equitable.40
Remand is required only where (1) the trial court's reasoning indicates that its

characterization of the property significantly influenced distribution of property

and (2) it is not clear that had the court properly characterized the property, it

would have divided it in the same way.41          Here, the findings of fact and

conclusions of law show that the trial court's belief that Drown had no equitable



        40 In re Marriage of Kraft. 119 Wn.2d 438, 449, 832 P.2d 871 (1992).
        41 In re Marriage of Shannon. 55 Wn. App. 137, 142, 777 P.2d 8 (1989).
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interest in the contested probate assets clearly influenced its decision to award

those assets to Boone. Therefore, we reverse the trial court's division of probate

assets and remand for further proceeding consistent with this opinion.          To

provide the trial court with full discretion to make an equitable division, we also

vacate its award of attorney fees to Boone.

       Contrary to the assumption contained in Drown's briefing filed with this

court, a determination that the contested probate assets were jointly owned does

not require that the trial court divide them equally between Drown and Boone.

The three-part analysis adopted in Connell requires that the trial court determine

what property is subject to division and make a fair and equitable division based

upon the factors identified in the court's opinion.42
       Because of our resolution of the characterization of the contested probate

assets, we need not address Drown's assignments of error to the trial court's

evidentiary rulings or its application of the dead man's statute.

       We next address Drown's claim that the trial court should have "applied,

by analogy, Washington intestate statutes," as regards community property to

award her, in equity, Langeland's interest in various assets. We must reject this

claim because we are bound by the Supreme Court's decision, holding:

       [U]nder Washington law, a surviving partner in a "meretricious"
       relationship does not have the status of a widow with respect to

       42Connell. 127 Wn.2d at 349.
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       intestate devolution of the deceased partner's personal property.
      The division of property following termination of an unmarried
      cohabiting relationship is based on equity, contract or trust, and not
      on inheritance.[43]

       On cross appeal, Boone alleges that the trial court erred by finding that

Drown was entitled to the funds in Langeland's Fidelity IRA.      Several months

before his death, Langeland transferred funds from an employer pension plan

into a Fidelity IRA account and named Drown the account beneficiary. Boone

characterizes this transaction as an inter vivos gift and argues that the gift was

invalid because Drown did not prove by clear and convincing evidence that

Langeland made the gift without any undue influence.

       Boone's argument depends upon her characterization of the beneficiary

designation as an inter vivos gift:

              In order to constitute a gift of personal property, one of the
       things necessary is that there must be a delivery, and that delivery
       must be such as will divest the donor of the present control and
       dominion over the property absolutely and irrevocably, and confer
       upon the donee the dominion and control.1441
Designating a life insurance beneficiary is not an inter vivos gift because the

designation is "merely a means of transmitting property at death"45 and the
beneficiary has no rights before the insured's death.       Similarly, naming the

beneficiary of an IRA is not an inter vivos gift. As a result, the cases involving


       43Pefflev-Warnerv. Bowen. 113 Wn. 2d 243, 253, 778 P.2d 1022 (1989).
       44 Decker v. Fowler. 199 Wash. 549, 551, 92 P.2d 254 (1939).
       45 Francis v. Francis. 89 Wn.2d 511, 514, 573 P.2d 369 (1978).
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inter vivos gift relied upon by Boone have no application. Drown did not have the

burden of proving by clear, cogent, and convincing evidence the validity of the

beneficiary designation and the absence of undue influence. The court heard

testimony from Drown about her role in assisting Langeland to create the rollover

IRA; it heard testimony from Boone's expert witness opining that Langeland's

signature on the transfer documents was a forgery; and it heard Drown's denial

of any wrongdoing. The court ultimately found the IRA beneficiary designation

valid. Substantial evidence supports the court's findings on this issue.

       Boone, on cross appeal, argues that the court should increase her fee

award to include fees relating to the IRA claim. As discussed above, the court

did not err in awarding the IRA to Drown; therefore, we deny Boone's request for

additional fees.


                                  CONCLUSION


       Because the court failed to apply the correct presumption to property

acquired during the Langeland/Drown committed intimate relationship, we




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reverse and remand to the trial court to reconsider the proper distribution of the

jointly acquired assets and the issue of attorney fees. Otherwise, we affirm.




WE CONCUR:




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