In Re Lada S. Mnatsakanova

• Court: Court of Appeals of Washington
• Decided: February 20, 2024
• Docket: 85014-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of No. 85014-8-I

DIVISION ONE LADA S. MNATSAKANOVA UNPUBLISHED OPINION

SMITH, C.J. — Artur Markarov and Lada Mnatsakanova were married for

28 years before Mnatsakanova passed away. Shortly before her death,

Mnatsakanova executed an updated will that disinherited Markarov and left her

property to Ernest Arutiunov, her caretaker and close friend. Despite the will, the

trial court ordered a family support award to Markarov of $838,300, which

exhausted Mnatsakanova’s estate. On appeal, Arutiunov argues the court erred

in failing to reduce Markarov’s family support award by the probate property he

received, the remaining mortgage on the house, the value of the now-sold

personal property, and the money lost by selling the house before probate

began. Finding his arguments unpersuasive, we affirm.

FACTS

Lada Mnatsakanova and Artur Markarov married in Russia in 1993.

Mnatsakanova immigrated to the United States as an Armenian refugee that

same year. Markarov followed in 1998. They bought a house together in

Bellevue, Washington, in 2000. Mnatsakanova had no children. Markarov had

one child with another woman, both of whom he left in Russia. Ernest Arutiunov, No. 85014-8-I/2

a close friend of both Mnatsakanova and Markarov, similarly immigrated to the

Seattle area and stayed in close contact with the couple.

In March 2021, Mnatsakanova suffered a stroke, which limited her

physical ability. Markarov initially refused to take her to the hospital because the

couple had no health insurance. He also refused to pay for a caregiver or

rehabilitation after her release from the hospital because Mnatsakanova had

been the sole wage earner. Instead, Arutiunov stepped in as Mnatsakanova’s

caregiver and visited her daily. Arutiunov later testified that Mnatsakanova

seemed progressively less sociable and sometimes afraid.

In May 2021, Mnatsakanova’s aunt called the police, alleging that

Markarov had been physically abusing Mnatsakanova. Markarov was arrested

and charged with four counts of domestic violence assault in the fourth degree.

He pleaded guilty and served 26 days in jail. The court also imposed a

no-contact order. Upon his release from jail, Markarov relocated to Oklahoma to

live with family, citing the no-contact order as his reason for not returning to

Bellevue. Despite the move, Markarov insisted that he intended to remain

married to Mnatsakanova.

Also in May 2021, Mnatsakanova executed an updated will, disinheriting

Markarov and leaving all of her property to Arutiunov. She then gave an attorney

$10,000 to file a marriage dissolution. A few months later, Mnatsakanova

passed away because of complications from the stroke. At that time,

Mnatsakanova and Markarov were still legally married despite not having been in

contact since Markarov’s arrest.

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Shortly after Mnatsakanova’s death, Markarov hired a real estate agent to

sell the couple’s Bellevue home. The agent listed the home for $740,000 and

eventually sold it for $866,000 in September 2021. This price was consistent

with two separate appraisals of the property.

In late September 2021, Arutiunov petitioned for the probate of

Mnatsakanova’s will. After filing the petition, Arutiunov’s attorney tried to stop the

sale of the Bellevue home but it had already been finalized. A few days later,

Markarov signed an affidavit stating there was no will that would affect the sale.

Markarov later claimed that he did not have notice of the probate proceedings

because Arutiunov’s attorney did not mail the copy of the probate petition until

October 2021.

After the will was admitted to probate, the trial court appointed Craig

Coombs, an experienced probate attorney, as personal representative. Coombs

estimated that the final probate value of Mnatsakanova’s estate, including the

money from the sale of the home, was $273,000. Coombs’s estimate of the

estate did not include Markarov’s share of the community property.

In March 2022, Markarov petitioned for a family support award under

chapter 11.54 RCW. Arutiunov filed a response to Markarov’s petition as an

interested party, challenging Markarov’s right to the award. He also filed a will

contest under the Trust and Estate Dispute Resolution Act (TEDRA), chapter

11.96A RCW, claiming he was Mnatsakanova’s only heir at law. The parties

initially attempted to mediate their dispute but were unsuccessful.

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In response to the petition, Coombs stated that Markarov was entitled to

the full family support award and that the award would exhaust Mnatsakanova’s

limited estate. In opposition to the petition, Arutiunov claimed that a family

support award was inappropriate because Markarov had listed the house below

market value, sold it in a “fire sale” to obtain the proceeds before probate, and

committed perjury and fraud by signing the lack of probate affidavit. Arutiunov

requested that the court either deny Markarov’s petition or reduce the family

support award based on the value of the community property, an alleged

encumbrance on the house, and the value of the now-sold personal property.

At the hearing on the petition, Arutiunov testified that Mnatsakanova had

retained an attorney to file for divorce after Markarov’s arrest and therefore,

Markarov was not entitled to a family support award as a surviving spouse. He

claimed that she had signed a retainer agreement and paid a retainer but that no

initiating documents had been filed.

A court commissioner granted Markarov’s request for a family support

award of $838,300. The commissioner also found that the award would exceed

and exhaust Mnatsakanova’s estate, thereby rendering the will contestation

moot. Arutiunov moved for revision but the superior court affirmed and adopted

the commissioner’s ruling. Arutiunov appeals.

ANALYSIS

Family Support Award

Arutiunov asserts that the court erred in failing to reduce Markarov’s family

support award because the award should have been offset by the probate

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property he received, the remaining mortgage on the house, the value of the

now-sold personal property, and the money lost by selling the house before

probate began. There was no error.

In general, the standard of review in probate proceedings for decisions

based on declarations, affidavits, and written documents is de novo. Estate of

Bowers, 132 Wn. App. 334, 339-40, 131 P.3d 916 (2006). However, where, as

here, the trial court weighed the evidence, our review is limited to determining

whether the court’s factual findings are supported by substantial evidence and, if

so, whether the findings support the court’s conclusions of law. Sunnyside Valley

Irrig. Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). Substantial

evidence is evidence sufficient to persuade a rational, fair-minded person of the

asserted premise. Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).

A surviving spouse may petition the court for a family support award from

the property of a decedent. RCW 11.54.010(1). Because the award serves the

same purpose as the former homestead award or award in lieu of a homestead,

the amount of the award must be the amount of the RCW 6.13.030(2) homestead

exception regarding lands, which was $838,800 at the time of Mnatsakanova’s

death. The award takes priority over all other claims made on the estate and

may be made from either the community or separate property of the decedent.

RCW 11.54.060(1)-(2).

There are only three situations in which the court may decrease the basic

family support award. Estate of Hein, 17 Wn. App. 2d 243, 255, 485 P.3d 953

(2021); RCW 11.54.050. First, the court may reduce the amount of the award if

5 No. 85014-8-I/6

the recipient will receive probate or nonprobate property “by reason of the death

of the decedent.” RCW 11.54.050(1). Second, the court may reduce the award

if the decedent has surviving children who are not the children of the surviving

spouse, and the award would limit the amounts otherwise distributable to those

children. RCW 11.54.050(2)(a). And third, the court may reduce the award if it

would decrease the amount otherwise distributable to any minor children of the

decedent. RCW 11.54.050(2)(b). In any of these circumstances, the court has

discretion to reduce the family support award but “ ‘by no more than the value of

such other property as is received by reason of the death of the decedent.’ ”

Hein, 17 Wn. App. 2d at 255 (quoting RCW 11.54.50(1)).

Here, Mnatsakanova did not have any children. Therefore, the court could

only reduce the amount of the family support award based on any probate or

nonprobate property that Markarov was entitled to receive. Arutiunov contends

the court made three errors related to this basis for a reduction in the award:

(1) that the court erred by not considering Markarov’s community property as

probate or nonprobate property; (2) that the court erred in not offsetting the value

of the probate or nonprobate property by the remaining mortgage on the Bellevue

house; and (3) that the court erred in relying on the sale price of the Bellevue

house, which was artificially low. Each argument is addressed in turn.

1. Community Property as Probate or Nonprobate Property

Arutiunov first asserts that the trial court erred in failing to decrease the

family support award by the value of the community property Markarov received

through the sale of the house and the personal property he received through

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probate. Markarov argues that receipt of his own community property is not a

permissible basis for reducing the award. Markarov is correct.

Arutiunov asserts that Markarov’s share of the money from the sale of the

Bellevue home constitutes probate property the court should have removed from

the family support award. We disagree. A family support award may only come

from the property “of the decedent.” RCW 11.54.010. And the award may only

be decreased by property gained “by reason of the death of the decedent.”

RCW 11.54.050. Here, Markarov’s share of the community property is separate

from Mnatsakanova’s separate or community property. And Markarov’s

community property is not the result of Mnatsakanova’s death. Because

Markarov and Mnatsakanova purchased the property after they were married,

Markarov had a one-half community property interest in the home from the

beginning. Markarov’s community property share of the Bellevue home is not

property derived from the probate of Mnatsakanova’s estate.

Arutiunov also argues that the value of Mnatsakanova’s personal property

constitutes probate property that Markarov received under the residuary clause

of Mnatsakanova’s will. We disagree. Mnatsakanova removed Markarov from

her will altogether, including any property that would pass under a residuary

clause. And, as the personal property Mnatsakanova owned at her death was

likely acquired during the marriage, it would have been community property. To

the extent that Mnatsakanova possessed separate personal property at the time

of her death, her updated will makes clear that such property would not pass to

Markarov. Markarov held a one half share in all community property, unimpacted

7 No. 85014-8-I/8

by Mnatsakanova’s death. Because half of the property was community property

Markarov already held a share in, and none of the rest would have passed to

Markarov via Mnatsakanova’s will, Markarov did not receive any probate

property.

Finally, although Arutiunov does not point to nonprobate assets as reason

to decrease the family support award, it is worth noting that Coombs stated he

had no knowledge of any nonprobate assets in the estate. Because Markarov

did not receive any probate or nonprobate property by reason of Mnatsakanova’s

death, the court did not err in failing to reduce the family support award.

2. Mortgage on the Real Property

Arutiunov next argues that the court erred in failing to reduce the family

support award by the amount of the mortgage on the Bellevue home. Markarov

counters that no mortgage on the house exists and, in any event, that a

mortgage is not a permissible basis for reducing a family support award.

Because there are only three bases by which to decrease a family support

award, and an encumbrance on a property is not one of them, we agree with

Markarov.

As previously discussed, RCW 11.54.050 allows only three grounds from

decreasing a family support award. The statute does not list encumbrances on

property as a basis for decreasing the award. RCW 11.54.050. However, if a

property is subject to an encumbrance, the value of the property must be

decreased by the amount of the encumbrance. RCW 11.54.060(2).

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Relying on RCW 11.54.060(2), Arutiunov asserts that the value of the

house must be decreased by the amount of the outstanding mortgage. This

argument is unpersuasive as no outstanding mortgage exists. Here, Markarov

paid off the existing mortgage with the proceeds from the sale of the home.

Since Markarov sold the house to a cash buyer, no additional encumbrance

occurred. Therefore, RCW 11.54.060 does not apply. The court did not err in

failing to decrease the family support award based on a paid-off mortgage.

3. “Fire Sale” of the Real Property

Finally, Arutiunov contends that the court erred in failing to reduce the

family support award by the difference between the actual sale price and a

speculative price had Markarov not conducted a “fire sale” to avoid the probate

process. Markarov asserts that the court did not err in giving more weight to his

certified appraisal reports than the market assessment Arutiunov presented. We

conclude that the court did not err in its valuation of the house.

Under RCW 11.54.040(3)(b), the court has discretion to set the value of

the family support award, including considering the impact it would have on

provisions made for third parties under the decedent’s will.

Here, RCW 11.54.040(3)(b) permitted the court to consider whether

Markarov’s sale of the property diminished the estate. The court concluded that

Markarov sold the home for fair market value and then found that the value of the

house was $866,000. This finding is supported by substantial evidence.

Markarov presented two independent certified appraisals of the property:

one he commissioned and one Coombes commissioned. Both appraisals were

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conducted by certified appraisers, licensed by the Certified Real Estate Appraiser

Act, chapter 18.140 RCW. Both appraisals valued the property at approximately

$866,000. These appraisals were buttressed by the fact that the property sold

for exactly $866,000. In rebuttal, Arutiunov presented a market assessment not

performed by a licensed appraiser who estimated the value of the house to be

between $1,121,000 to $1,235,000.

After considering the assessments, the court noted that Arutiunov’s

proffered appraisal was “not entitled to weight in light of the contradictory

opinions of the value made by the certified appraisers.” It would be a mistake as

a matter of law to give the market assessment more weight than the appraisals.

Accordingly, Markarov’s two appraisals, performed by licensed professionals,

provide sufficient evidence to convince a rationally-minded person that the house

sold at fair market value.

Also, even if Markarov had sold the house for an amount closer to

Arutiunov’s estimate, the family support award would still have exhausted

Mnatsakanova’s estate. Coombs’s response to Markarov’s initial petition

included the calculation using Arutiunov’s estimated value. Had the estate sold

the house for $1,235,000, Arutiunov’s highest estimate, the estate value would

have only increased to $496,581. That amount is still well below the $838,300

family support award.

The court did not err in failing to reduce the family support award based on

Markarov’s speedy sale of the property.

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Attorney Fees

Both Arutiunov and Markarov request attorney fees under RCW

11.96A.150. Markarov additionally contends that Arutiunov’s appeal was

frivolous, inviting a fee award. We decline to award fees.

1. Equitable Fees

RCW 11.96A.150 grants courts the authority to award attorney fees in any

action initiated under Title 11 RCW. RCW 11.96A.150(2); Estate of Berry, 189

Wn. App. 368, 379, 358 P.3d 426 (2015). Under RCW 11.96A.150(1), a court

may award fees at its discretion, as it deems equitable, considering any and all

factors it determines to be relevant and appropriate.

Because we affirm, we do not award fees to Arutiunov. But awarding fees

to Markarov is not equitable either. After Markarov pleaded guilty to domestic

assault, the court imposed a protection order separating the spouses. The

record reflects that Mnatsakanova had no intention of continuing her marriage to

Markarov. Mnatsakanova hired an attorney to file divorce papers. She signed a

new will, completely disinheriting Markarov and intending for her property to pass

to Arutiunov. And yet Markarov received the entirety of Mnatsakanova’s estate.

Given the amount of money Markarov received through the award and

Mnatsakanova’s personal property, it would not be equitable to require Arutiunov

to pay Markarov’s legal fees.

2. Frivolous Appeal

RAP 18.9(a) allows a court to order a party or counsel who files a frivolous

appeal to pay compensatory damages or sanctions. Appropriate sanctions

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include an award of attorney fees and costs. Kinney v. Cook, 150 Wn. App. 187,

195, 208 P.3d 1 (2009). “An appeal is frivolous if, considering the entire record,

the court is convinced that the appeal presents no debatable issues upon which

reasonable minds might differ and that it is so devoid of merit that there is no

possibility of reversal.” Kinney, 150 Wn. App. at 195 (quoting Lutz Tile, Inc. v.

Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007)). However, “ ‘[a]n appeal

that is affirmed merely because the arguments are rejected is not frivolous.’ ”

Kinney, 150 Wn. App. at 195 (quoting Halvorsen v. Ferguson, 46 Wn. App. 708,

723, 735 P.2d 675 (1986)).

Markarov contends that, as Arutiunov simply reframed his trial court

arguments without identifying any errors he claimed the trial court made, the

appeal is frivolous. We find this unpersuasive. Arutiunov did fail to specifically

identify findings of fact he believed to be in error. But that is not enough to

establish there were no debatable issues or that the claim was so devoid of merit

that there is no possibility of reversal. And Arutiunov’s position was clear as to

how he believed the court erred. The fact that we reject Arutiunov’s arguments is

not enough to consider the appeal frivolous. We decline to award any fees.

We affirm.

WE CONCUR: