Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                    FILED

                                                                MAR 08, 2012

                                                          In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of The Estate of:                           No.  29674-1-III
                                                )
LINDA C. DAVILA,                                )
                                                )
                             Deceased.          )
                                                )
Eliseo Figueroa,                                )
                                                )
                             Respondent,        )         Division Three 
                                                )
         v.                                     )
                                                )
HECTOR CHAVEZ, Personal                         )
Representative of The Estate of Linda           )
C. Davila, Deceased,                            )
                                                )
                             Appellant.         )         UNPUBLISHED OPINION
                                                )

       Korsmo, J.  --  The estate of Linda Davila appeals the trial court's decision to 

invalidate the prenuptial agreement Ms. Davila entered into with her husband, respondent 

Eliseo Figueroa.  Although the result certainly frustrates her intent, we agree that the 

prenuptial agreement was invalid and affirm. 

No. 29674-1-III
In re Estate of Davila

                                            FACTS

       The parties married on September 29, 2007, after living together four years.  Mr. 

Figueroa was an illegal alien supervised by the Immigrations and Customs Enforcement 

Agency (ICE); Ms. Davila had posted a $5,000 bond with ICE to stay his deportation.  

Mr. Figueroa had roughly $1,500 in savings, a car he had signed over to Ms. Davila in 

case of deportation, and a small amount of personal property.  Ms. Davila owned a house 

in Sunnyside valued at $60,000 to $70,000 that was subject to a $2,700 mortgage.  She 

owned two older cars in addition to the one Mr. Figueroa had signed over to her, as well 

as some personal property.

       Ms. Davila had grandchildren she had adopted as her own, and a nephew she 

treated as a stepchild.  Maria Nunez, a close friend, advised her to have a prenuptial 

agreement since Ms. Davila desired to leave her property to the grandchildren.  She 

purchased a prenuptial agreement, written in English, from a stationary store that sold 

legal forms.  Mr. Figueroa does not speak or write English; Ms. Davila did.  Both were 

fluent in Spanish.

       The day before the wedding, the parties signed the prenuptial agreement in front of 

a notary.  They did not exchange any words, but Ms. Davila gestured at Mr. Figueroa to 

sign when it was his turn.  It took approximately five minutes to execute the agreement.

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In re Estate of Davila

       The agreement provided that the separate property of the parties remained 

separate, including earnings from the property, and the parties retained their sole 

authority to manage their separate property.  Any community property was subject to 

division, and the parties agreed that there would be no support in case of dissolution, 

separation, or death.  

       Ms. Davila died November 5, 2008.  She left a will that excluded Mr. Figueroa 

and left her estate to her grandchildren and nephew.  During probate, it was discovered 

that she was not the person who signed her name to the will; it was withdrawn.  Mr. 

Figueroa moved to intervene, asserting a statutory interest in the estate.  The matter was 

set for trial concerning the validity of the prenuptial agreement.
       Mr. Figueroa filed a motion that sought to declare the agreement invalid.1 The 

Honorable Michael J. Schwab heard the matter April 8, 2010.  Mr. Figueroa testified at 

the hearing that he had never seen the agreement before he signed it and did not speak to 

an attorney before signing.  He also was unaware of any assets that Ms. Davila owned 

       1 The motion was styled as a summary judgment and much of the documentation 
refers to it as a summary judgment proceeding.  However, testimony is not taken at a 
summary judgment and the court does not resolve factual disputes, nor does it enter 
findings.  CR 56; Humbert v. Walla Walla County, 145 Wn. App. 186, 192 n.3, 185 P.3d 
660 (2008).  In light of the actual nature of the proceedings, and of the subsequent order 
and findings entered after the reconsideration, it appears that the matter was handled in 
accordance with the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A 
RCW.  We view the original motion and the subsequent proceedings through that lens.  

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No. 29674-1-III
In re Estate of Davila

other than the house or the two cars.  The notary testified concerning the signing in the 

manner described above.  Ms. Nunez testified that after the marriage, Ms. Davila told her 

that Mr. Figueroa had signed the prenuptial agreement, but "didn't know what he signed."

       Judge Schwab denied the motion, ruling that RCW 5.60.030 (the "deadman's 

statute") precluded consideration of all the relevant evidence Mr. Figueroa had submitted.  

Mr. Figueroa moved for reconsideration.  On December 17, 2010, Judge Schwab reversed 

himself and concluded that the prenuptial agreement was defective in light of In re 

Marriage of Bernard, 137 Wn. App. 827, 155 P.3d 171 (2007), aff'd, 165 Wn.2d 895, 

204 P.3d 907 (2009).  

       The presentation of the order was set for December 30, 2010, one day before 

Judge Schwab's retirement.  The estate's attorney and representative appeared at the 

appointed time but found the courtroom closed and no judge or staff present.  After 

inquiring at the clerk's office, counsel for the estate learned that Mr. Figueroa's attorney 

had appeared ex parte before the judge on December 29, had obtained the judge's 

signature, and had filed the order with the clerk.  Mr. Figueroa's attorney notes in his 

brief that the change in day resulted from a mix-up over an order shortening time, which 

was required because of Judge Schwab's pending retirement.  He also told this court 

during oral argument that the change of date had been approved by opposing counsel's 

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No. 29674-1-III
In re Estate of Davila

office over the telephone.  The parties located the judge and held a brief telephone 

hearing on the afternoon of December 30.  The court held that the matter was concluded 

as previously decided. 

       The estate then timely appealed to this court.

                                         ANALYSIS
       The primary issue in this appeal involves the validity of the prenuptial agreement.2

We conclude that there was sufficient admissible evidence to determine that the 

agreement was invalid.

       The Trust and Estate Dispute Resolution Act (TEDRA) is a broad grant of power 

to the trial courts to act to resolve disputes in the administration of trusts and estates. See 
generally chapter 11.96A RCW.  Former RCW 11.96A.030 (2008) allows a beneficiary3

to bring a "matter"4 before the superior court.  RCW 11.76.050 provides that courts 

       2 Counsel for the estate argues eloquently and at some length concerning the 
confusion over the presentation hearing.  While we share his concern about the matter, 
we fail to see any prejudice to the estate.  Counsel was permitted to make objections and 
express concerns about the findings, which is the purpose of a presentation hearing.  
Because the only substantive matter at issue is the trial court's determination that the 
prenuptial agreement was invalid, a legal matter we do address on the merits, there is no 
prejudice from the manner in which the reconsideration order was entered.  
       3 Former RCW 11.96A.030(4)(e) defines a "beneficiary" as a "party" for purposes 
of chapter 11.96A.
       4 A "'matter' includes any issue, question, or dispute involving: . . . (b) The 
direction of a personal representative or trustee to do or to abstain from doing any act in a 
fiduciary capacity; [or] (c) The determination of any question arising in the 

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No. 29674-1-III
In re Estate of Davila

hearing a petition for distribution have authority to "make partition, distribution and 

settlement of all estates in any manner which to the court seems right and proper."  

Similar is RCW 11.96A.020(2), which provides a trial court with "full power and 

authority to proceed with such administration and settlement in any manner and way that 

to the court seems right and proper" in actions arising under the TEDRA chapter.  We 

believe the trial court was acting under these authorities in its handling of this action.

       To determine the enforceability of a prenuptial agreement, this court uses a two-

pronged analysis.  In re Marriage of Matson, 107 Wn.2d 479, 482-83, 730 P.2d 668 

(1986).  Under the first prong of the analysis, the court determines whether the agreement 

is substantively fair by making fair and reasonable provision for the party not seeking 

enforcement.  Id. at 482.  The substantive fairness of the agreement is evaluated as of the 

time of the execution, rather than based on the parties' circumstances at the time of 

enforcement.  In re Marriage of Zier, 136 Wn. App. 40, 47, 147 P.3d 624 (2006), review 

denied, 162 Wn.2d 1008 (2007).  The spouse seeking enforcement of the agreement bears 

the burden of proof.  Friedlander v. Friedlander, 80 Wn.2d 293, 300, 494 P.2d 208 

(1972).  This is entirely a question of law unless there are factual disputes that must be 

resolved in order to interpret the meaning of the contract.  In re Marriage of Foran, 67 

administration of an estate or trust."  Former RCW 11.96A.030(1).  

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In re Estate of Davila

Wn. App. 242, 251 n.7, 834 P.2d 1081 (1992).  If the agreement makes a reasonable and 

fair provision for the spouse not seeking its enforcement, then the agreement is 

enforceable.  Whitney v. Seattle-First Nat'l Bank, 90 Wn.2d 105, 111, 579 P.2d 937 

(1978).  However, if the agreement is found to be substantively unfair to the spouse not 

seeking enforcement of the agreement, then the court proceeds to the second prong of the 

analysis.

       Under the second prong, the court determines whether the agreement is 

procedurally fair by using a two-part test.  First, the court looks at whether the spouses 

made a full disclosure of the amount, character, and value of the property involved.  

Matson, 107 Wn.2d at 483.  Second, the court determines whether the agreement was 

freely entered into on independent advice from counsel with full knowledge by both 

spouses of their rights.  Id. If the court determines the agreement is procedurally fair, 

then an otherwise unfair distribution of property is valid and binding.  Id. at 482.  Review 

of analysis under the second prong is de novo, but undertaken in light of the trial court's 

resolution of the facts.  Foran, 67 Wn. App. at 251.

       In Bernard, the wife filed for dissolution and moved for summary judgment, 

challenging the enforceability of a prenuptial agreement the parties signed.  137 Wn. 

App. at 831-832.  At the time the parties married, the wife owned an estimated $38,000 in 

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No. 29674-1-III
In re Estate of Davila

assets, whereas the husband was worth about $25 million.  Id. at 830.  The husband and 

his lawyer advised the wife to obtain independent counsel to review the prenuptial 

agreement, but did not provide a draft of the agreement until 18 days before the wedding.  

Id. The wife met with a lawyer three days before the wedding, and that night she 

received another working draft of the agreement that was substantially different from the 

first.  Id. at 830-831.  The day before the wedding, the wife received a letter from her 

attorney identifying five problem areas in the agreement.  The wife signed the agreement 

the day before the wedding, with the understanding that it would be amended to deal with 

the five areas of concern.  Id.

       The court in Bernard first determined that the agreement as amended was 

substantively unfair.  Id. at 834-835.  The court determined that the agreement was unfair 

because it severely restricted the creation of community property, eliminating community 

property rights in the short term while permitting the husband to enrich his separate 

property at the expense of the community.  Id. at 834.  The court also noted that the 

agreement was unfair because the provisions it made for the wife were disproportionate 

to the means of the husband: it limited the wife's inheritance rights, prevented her from 

seeking spousal maintenance, and did not provide for reimbursement for any 

contributions to the husband's separate property.  Id. at 834-835. Under the second part

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No. 29674-1-III
In re Estate of Davila

of the analysis, the court concluded that the agreement was also procedurally unfair

because the wife did not have the benefit of independent counsel since there was not 

enough time for her and her attorney to adequately review the prenuptial agreement, her 

bargaining position was grossly imbalanced, and "at no time did [she] have full 

knowledge of her legal rights."  Id. at 835.

       The estate concedes that Bernard sets forth the correct standard for determining 

the validity of a prenuptial agreement.  However, the estate argues that the immediate 

case is distinguished from Bernard by virtue of the completely speculative nature of the 

evidence presented by Mr. Figueroa, which the trial court already determined was barred 

by the deadman's statute.

       The parties do not challenge the trial court's ruling concerning the deadman's 

statute and we need not consider that question because there was sufficient admissible 

evidence to establish that the prenuptial agreement was invalid.  We reach that conclusion 

from three uncontested facts that are not subject to the deadman's statute: (1) Ms. Davila 

had substantially more property than Mr. Figueroa, (2) Mr. Figueroa does not read 

English, and (3) Mr. Figueroa did not have the benefit of counsel before signing the 

agreement.

       The first fact is critical to the initial inquiry -- whether the agreement was

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No. 29674-1-III
In re Estate of Davila

substantively unfair.  Matson, 107 Wn.2d at 482.  This agreement was.  Ms. Davila's

primary asset, her house, was 40 times more valuable than the total sum of Mr. 

Figueroa's personal belongings and savings.  While that disparity alone is not dispositive, 

the agreement also purported to eliminate any support or inheritance for Mr. Figueroa no 

matter how long the marriage lasted. In light of these two facts, the agreement was 

significantly slanted in Ms. Davila's favor.  The trial court correctly determined that the 

agreement was substantively unfair.

       The remaining issue is whether the agreement was procedurally unfair.  Id. at 483.  

While it appears that Mr. Figueroa knew the nature and approximate value of Ms. 

Davila's assets from living with her for four years, the fact that he does not read English

confirms that he did not know the nature of the agreement he was signing.  This court has 

previously found that a prenuptial agreement written in a language that one of the parties 

did not understand was invalid because there could be no meeting of the minds.  In re 

Marriage of Obaidi, 154 Wn. App. 609, 616-617, 226 P.3d 787, review denied, 169 

Wn.2d 1024 (2010).  This agreement fails for that same reason.

       The agreement was also procedurally unfair for a second reason.  Mr. Figueroa did 

not have the benefit of counsel.  Bernard, 137 Wn. App. at 835.  While the absence of 

counsel is not as serious a concern as it is in the case where one party has an attorney, we 

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No. 29674-1-III
In re Estate of Davila

believe this factor still has significant weight in view of the fact that Mr. Figueroa does 

not read English and does not appear to have been aware of the terms of the prenuptial 

agreement.  This concern would be less weighty if he had been represented by counsel 

before entering the agreement.

       In light of these facts, we agree with the trial court that this agreement was invalid.  

It was substantively unfair in light of the vast disparity of the parties' assets, and it was 

procedurally unfair because it was written in a language foreign to one of the parties and 

who lacked counsel.  The estate has not established the validity of the agreement it seeks 

to enforce.  Although it is clear that Ms. Davila hoped to provide for her grandchildren 

instead of her new spouse, her efforts failed because the procedure she used was not fair.

       Affirmed.

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

Washington Appellate Reports but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _______________________________
                                                    Korsmo, J.
WE CONCUR:

________________________________

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No. 29674-1-III
In re Estate of Davila

Kulik, C.J.

________________________________
Brown, J.

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