                                                                                                                      FILED
                                                                                                             COUNT        OF
                                                                                                                               AppLS
      IN THE COURT OF APPEALS OF THE STATE                                          OF WASHINGTON
                                                                                                  ISION ti
                                                                                                            2015 JUN - 4
                                                                                                                         Alf 8: 37
                                                        DIVISION II
                                                                                                            ST
                                                                                                                               SrINGTQH
    STANGEL FAMILY TRUST by                                                         No. 45926 -4 -II BY
    BEATRICE STANGEL, Trustee,


                                         Appellant,                           UNPUBLISHED OPINION


           v.




    ELLEN MARIE STANGEL,


                                         Respondent.


          SUTTON, J. —       The Stangel         Family    Trust ( Trust), through its Trustee, Beatrice Stangel,


appeals the trial court' s orders that entitled Ellen Stangel to possession of certain real property and

the right to obtain a purchase money mortgage or loan to buy the property from the Trust.1 The

Trust also appeals the amount of the judgment against Ellen and the award of the property' s equity

to Ellen. The Trust argues that several of the trial court' s findings of fact do not support its order


for reconsideration. Holding that the trial court' s challenged conclusions of law are not supported

by the findings, we reverse the order on reconsideration, lift the stay on the writ of restitution, and

remand for further proceedings consistent with this opinion.


                                                            FACTS


                                           I. THE STANGEL FAMILY TRUST


          In 1997, Beatrice and William Stangel purchased property located on East North Parkway

in Tacoma, Washington. Ellen, William' s daughter, moved into the home on the property in July

1997.      In 1999, Beatrice       and    William deeded the property to the Stangel                 Family      Trust.    In


November 2003, Beatrice and William amended the Trust through a document referred to as the



1
    We   refer   to the Stangels   by   their   first   names   for clarity. We intend   no   disrespect.
No. 45926 -4 -II



Second Amendment to Declaration of Trust of William J. Stangel and Beatrice F. Stangel ( the


Second Trust Amendment).           The Second Trust Amendment made two changes pertinent to the


Trust' s appeal.


        First, the Second Trust Amendment granted the Tacoma property as a specific gift to Ellen

to be distributed after the death of the surviving spouse. It provided:

                   If the residence in Tacoma, Washington, currently occupied by Husband' s
        daughter, [ Ellen], is part of the trust estate, then this asset shall be distributed to
         Ellen],    subject to any outstanding liens and encumbrances at the date of
        distribution.     However,         if [ Ellen]    survives   the   surviving   Settlor, then any

        outstanding mortgage or deed of trust lien shall be discharged from Ellen' s share
        of the residuary trust estate that she is entitled to receive pursuant to paragraph 4.4
        below. In     addition,   in the   event [   William] is the first of the Settlors to die, [ Ellen]
        shall have the right to remain in the Tacoma, Washington residence in the same
        manner and on the same terms that she currently occupies such residence, provided
        she signs an agreement with the Trustee acknowledging that following the death of
        the surviving Settlor, the balance outstanding of any mortgage or deed of trust lien
        on the residential property shall be paid from and charged against her share of the
        residuary trust estate pursuant to paragraph 4.4 below. [2]

Clerk' s Papers ( CP) at 76 -77 ( emphasis added).


        Second, the Second Trust Amendment restricted the Trustee' s power to engage in


transactions with trust property as to the Tacoma property, providing that:

        If the     residence   in Tacoma, Washington,      currently occupied by Husband' s
        daughter, [ Ellen], is part ofthe trust estate and still occupied by [Ellen], the Trustee

        shall have no power to sell, lease, encumber, or take any other action regarding this
        asset without the written consent of [  Ellen], who shall have the right to occupy this

        property as long as she pays all of the expenses related to the property including,
        without limitation, all mortgage payments, taxes, insurance, maintenance, and
        repairs.




2 Paragraph 4. 4 of the Trust was also amended in the Second Trust Amendment; that amendment
dealt with division of the residuary trust after the death of the surviving spouse.
                                                            2
No. 45926 -4 -II



CP    at   78 (   emphasis added).     Ellen paid the mortgage for two years, but she did not do so beyond


November 1999.


                                                    II. PROCEDURE


            The Trust demanded that Ellen make the mortgage payments, but Ellen did not comply.

On March 20, 2013, Ellen was served with a notice to quit premises requiring her to surrender the

premises          on or   before April 30.    After Ellen failed to vacate, the Trust filed a complaint for


ej ectment.


                               A. Findings of Fact, Conclusions of Law, and Judgment


            Following a bench trial, the trial court entered findings of fact, conclusions of law, and

judgment in favor of the Trust. The trial court found that the Second Trust Amendment required


Ellen to pay the mortgage, taxes, insurance, and maintenance on the property, that she had been

notified of that requirement, and that the Trust had demanded she make those payments but she


failed to comply, entitling the Trust to possession of the property. The trial court ordered Ellen to

pay the Trust $ 15, 048. 74,        which constituted three years of back mortgage payments ( according to

the   statute of     limitations that limited recovery to three        years),   less credit for two years of mortgage


payments          that Ellen   made   before November 1999.           The trial court ordered the Trust to list the


property for sale and give Ellen the proceeds as equity in the property that, as the trial court found,

Ellen was entitled to receive under the Second Trust Amendment.


                                             B. Order on Reconsideration


            Following Ellen' s motion for reconsideration, the trial court ordered that Ellen had the right

to obtain a purchase money mortgage or loan on the property sufficient to pay off her judgment

debt to the Trust and the Trust' s underlying mortgage on the property. Following completion of

that loan, the trial        court ordered   that the Trust'   s   interest in the property   would   be terminated   and
No. 45926 -4 -I1



that " there shall be no offset of [Ellen' s] ultimate distributions from the Stangel Family Trust as a

result of [the property' s] transfer" to Ellen. CP at 174. The Stangel Family Trust appeals.

                                                            ANALYSIS


          The Trust appeals findings of fact 1. 6, 3 1. 7, 4 and 1. 9, 5 which were mislabeled because they
are   conclusions       of     law.     The Trust    also   appeals   conclusions     of   law 2.4 ( staying the writ of


restitution rather than entitling the Trust to immediate possession) and conclusion. 2. 6 ( entitling
the Trust to a lower amount of back payments than the Trust believes it is entitled to be paid).


Finally,   the Trust      appeals       the trial court' s order on      reconsideration, which (    1)   entitled Ellen to


obtain a purchase        money         mortgage or   loan to   purchase    the property, ( 2)   stayed the writ, allowing

Ellen to retain possession of the property, and ( 3) extinguished the Trust' s claim of interest in the

property      without    reducing Ellen' s distribution from the Trust.               Here, the trial court' s challenged


conclusions of law and the order on reconsideration are not supported by and directly contrary to

unchallenged




3
    Finding   of   fact 1. 6   states, "[   Ellen] is entitled to the equity in the property."       CP at 150.

4
    Finding of fact 1. 7 states:
                       Ellen] was required to make all mortgage, insurance, and tax payments on
           the property. [           Ellen] made said payments for two years up to but not beyond
          November, 1999. The statute of limitations bars recovery of such payment except
           for the, last three        years   ending March 2013.         Credit for the years that [ Ellen] paid
           the mortgage will be deducted from those years, leaving a balance of $10, 622.64
           for that   period        owing [ the Trust]. An     additional $   4, 426. 10 is also owed [ the Trust]
           for payments from April 1, 2003 to August 31, 2013.

CP at 150.

5
    Finding   of   fact 1. 9   states, "[   The Trust] shall list the property for sale and apply the proceeds
from said sale as stated in paragraph 1. 6, no later than the time [ Ellen] vacates the premises and
leaves the     premises        in   a neat and   orderly   condition."   CP at 151.

                                                                  4
No. 45926 -4 -II



finding of fact 1. 4. 6

                                                      I. STANDARD OF REVIEW


             We review a trial court' s decision following a bench trial by asking whether the trial court' s

findings of fact are supported by substantial evidence and whether the conclusions of law are

supported by the findings of fact. Pub. Util. Dist. No. 2 ofPac. County v. Comcast of Wash. IV,

Inc., 184 Wn.           App.      24, 48, 336 P. 3d 65 ( 2014),   as amended on reconsideration, ( No.          70625 -0 -I)


    Feb 10, 2015). Our review is deferential, and we make all reasonable inferences in the light most


favorable to the prevailing party. Pub. Util. Dist. No. 2, 184 Wn.                       App.    at   48 -49. Unchallenged


findings      of   fact      are verities on appeal.     Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P. 3d

743 ( 2012).


             We    review questions of          law   and conclusions of     law de   novo.    Pub. Util. Dist. No. 2, 184


Wn.     App.      at   78.    If the trial court mislabels a conclusion of law as a finding of fact, we review it

as a conclusion of law de novo. Casterline, 168 Wn. App. at 381. Interpretation of a trust provision

is a question of law we review de novo. In re Wash. Builders Benefit Trust, 173 Wn. App. 34, 75,

293 P. 3d 1206,              review   denied, 177 Wn.2d 1018 ( 2013).         In construing a trust, the settlor' s intent

controls, which              is determined   by the   language   of   the trust instrument    as a whole.   Wash. Builders,


173 Wn. App. at 75.



6
    Finding of fact 1. 4 states:
                  On November 4, 2003, William and Beatrice Stangel amended the family
          trust by a document referred to as the Second Amendment to Declaration of Trust
             of William J. Stangel and Beatrice F. Stangel. The terms of the second amendment
             to   the     trust    required [   Ellen]   to   pay the    mortgage,    taxes,    insurance   and all
             maintenance of the property. [ Ellen] was notified of the terms of the amendment.

             Demand has been made by [ the Trust] for [Ellen] to make said payments but [Ellen]
             has failed to comply. [ Ellen] has made no payment since the second amendment to
             the trust.   Failure to make said payments entitled the trustee of the trust to
             possession of the property.
CP     at   149 -50.
No. 45926 -4 -II



        The trial court' s challenged conclusions of law are unsupported by the settlor' s intent as

determined        by   the Second Trust Amendment and unsupported                        by   the findings   of   fact. First, no


language in the Second Trust Amendment entitles Ellen to the property' s equity, contrary to the

conclusion        in   finding   of   fact 1. 6,   after she       failed to   make required mortgage payments.          Second,


the trial court' s calculation of Ellen' s debt to the Trust in finding of fact 1. 7 is unsupported by any

finding of fact on the amount of the monthly mortgage, taxes, insurance, or any rent amount that

the Trust may have been                entitled    to   receive.     Finding of fact 1. 7 also lacks authority to conclude

that Ellen'   s   debt    should      be   reduced      by   two   years.   It follows that conclusion of law 2. 6, entitling

the Trust to       a   judgment       amount of $        15, 048. 74, is unsupported by the findings of fact as well.

Thirdly, finding of fact 1. 9, requiring the Trust to sell the property and give Ellen the proceeds, is

contradicted by unchallenged finding of fact 1. 4, which found that because Ellen failed to make

mortgage payments the Trust is entitled to possession of the property. Because the Trust is entitled

to possession of the property, the Trust cannot also be simultaneously required to sell the property.

Finding of fact 1. 9 is an unsupported directive as it is clearly wrong. Therefore, conclusion of law

2. 4, which stayed issuance of the writ of restitution, is also incorrect because the Trust is entitled


to possession.



        Like the challenged conclusions of law, the order on reconsideration is contrary to finding

of fact 1. 4, entitling the Trust to the property, because Ellen failed to make required mortgage

payments. Further, the order on reconsideration lacks any findings of fact to support it. Thus, the

trial court' s order on reconsideration allowing Ellen to purchase the property from the Trust,

extinguishing the Trust' s interest in the property, and prohibiting the Trust from offsetting the

remaining mortgage value from Ellen' s share of the Trust proceeds, lacks any basis in the trial

court' s findings of fact. The order on reconsideration is directly contrary to the settlors' intent and



                                                                        6
No. 45926 -441



we reverse   it entirely.   The Trust is entitled to immediate possession of the property, the Trust is

not required to sell the property, and Ellen is not entitled to the property' s equity should the Trust

decide to sell it before the death of the surviving settlor of the Trust, Beatrice.

        We hold that the trial court' s challenged conclusions of law are not supported by the

findings.    We reverse the order on reconsideration, lift the stay on the writ of restitution, and

remand for further proceedings consistent with this opinion.


        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 2. 06. 040,

it is so ordered.




 We concur:




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