In Re The Estate Of: Gary M. Rusing, Laurene Rusing, App v. Christopher Rusing, Resp

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of: DIVISION ONE GARY M. RUSING, No. 80719-6-I Deceased. UNPUBLISHED OPINION LAURENE RUSING, individually, and as Personal Representative of the Estate of Garrett Rusing, and as representative of minors heirs Justice Rusing and Grace Rusing,

Appellant,

v.

CHRISTOPHER RUSING, individually, and as Personal Representative for the Estate of Gary M. Rusing,

Respondent.

DWYER, J. — Laurene Rusing appeals from the dismissal of her complaint

on behalf of her children, against the estate of her ex-husband, Gary Rusing,

alleging that Gary breached an obligation arising from an order of child support

requiring that, upon his death, he bequeath or devise 50 percent of his net estate

in trust for their children. Because Gary breached this obligation, we reverse the

order of dismissal and remand the cause to the trial court to fashion and impose

an appropriate remedy. No. 80719-6-I/2

I

Gary Rusing and Laurene Rusing were married between July 20, 1996

and April 21, 2005. Gary 1 had one son from a prior relationship, Christopher

Rusing. During Gary and Laurene’s marriage, they had three children: Garrett

Rusing, born in 1997, Michael Rusing, born in 1998, and Justice Rusing, born in

2002. 2 Garrett had a disability. Pursuant to the decree of dissolution, Gary and

Laurene agreed to the entry of an order of child support for the three children.

The order provided that:

Father shall provide a trust naming the three children as irrevocable beneficiaries of no less than 50% of his net estate upon his demise.

Sadly, Michael died on July 21, 2005. Subsequently, the order of child

support was adjusted. The adjusted order of child support listed the two children

for whom support is required as Garrett M. Rusing and Justice N. Rusing. The

trust provision was edited to read:

Father shall provide a trust naming the children as irrevocable beneficiaries of no less than 50% of his net estate upon his demise.

The issue of whether support for Garrett should continue into his

adulthood because of his continued dependency due to his disability was

reserved, but was never revisited.

In 2010, five years after their dissolution was finalized, Gary and Laurene

had another child together using invitro fertilization, Grace Rusing. The order of

1 Members of the Rusing family are referred to by first name for clarity. No disrespect is intended. 2 The record indicates several times that Justice was born in December 2002. However, there is one reference to Justice’s birth in December 2003. Whether Justice was born in 2002 or 2003 makes no difference to our analysis.

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child support was not modified after Grace’s birth. Gary provided Laurene with

support for Grace informally as needed.

In 2017, Gary executed a last will and testament leaving his entire estate

to his oldest son, Christopher. The will also appointed Christopher as executor of

the estate.

Gary died on December 28, 2018. At the time of his death, there were no

liquid assets in his estate. The net value of the estate was appraised at

$753,479.51. Several months after the death of his father, Garrett also

unfortunately passed away.

After Gary died, Laurene refused to relinquish a 2016 Mercedes SUV that

Gary had purchased for Justice’s use upon her 16th birthday, even after the

superior court determined that it was an asset of the estate. The estate was

required to pursue replevin at its own cost.

Laurene filed a creditor’s claim against the estate on behalf of her children

with Gary, seeking 50 percent of his net estate in trust for the children. The

estate denied the claim. Laurene then filed this lawsuit, seeking specific

performance of the trust obligation set forth in the order of child support. Both

parties sought summary judgment. The trial court dismissed the complaint by

granting the estate’s motion for summary judgment, determining that (1) the

children were sufficiently supported by survivor benefits, (2) Gary Rusing’s

obligations under the child support order terminated upon his death, and (3) the

intent of the trust provision in the order of support was limited to the purpose of

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supporting the children in their minority. The trial court denied Laurene’s

summary judgment motion.

Laurene appeals.

II

Laurene contends that the order of child support obligated Gary to place at

least 50 percent of his net estate in a trust for the benefit of the designated

children. Because the plain language of the order created such an obligation, we

agree.

A

We review the trial court’s decision on cross-motions for summary

judgment de novo. Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 196 Wn.2d

506, 514, 475 P.3d 164 (2020). “Thus, we engage in the same inquiry as the trial

court.” Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App.

665, 681, 151 P.3d 1038 (2007). Summary judgment is appropriate when the

pleadings, affidavits, depositions, and admissions on file demonstrate that there

is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs.,

116 Wn.2d 217, 220, 802 P.2d 1360 (1991). All reasonable inferences from the

evidence must be construed in favor of the nonmoving party. Green, 137 Wn.

App. at 681 (citing Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588

P.2d 1346 (1979)).

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B

Laurene and the estate each assert that, to show that, Gary was obligated to

create a trust for the benefit of the designated children, Laurene had to

demonstrate the existence of a contract to devise by proving that (1) Gary agreed

to will or bequeath the children certain property, (2) the services contemplated as

consideration for the agreement were actually performed, and (3) the services

were performed in reliance on the agreement. But this is the standard by which

Laurene would be required to prove the existence of an oral contract to

devise. See Bale v. Allison, 173 Wn. App. 435, 453, 294 P.3d 789 (2013)

(citing Cook v. Cook, 80 Wn.2d 642, 645-46, 497 P.2d 584 (1972)). Here, the

obligation at issue does not arise from an alleged oral contract to devise. Rather,

it is a written obligation memorialized in an agreed upon court order.

When a parent voluntarily agrees to do more for the parent’s children than

the law would otherwise require, such an agreement creates a legally

enforceable obligation so long as it is clearly and unmistakably spelled out. Riser

v. Riser, 7 Wn. App. 647, 650-51, 501 P.2d 1069 (1972); O’Neal v. Morris, 7 Wn.

App. 157, 160-61, 498 P.2d 326 (1972). In addition, “[u]nless otherwise agreed

in writing or expressly provided in the decree, provisions for the support of a child

are terminated by emancipation of the child or by the death of the parent

obligated to support the child.” RCW 26.09.170(3).

Here, the order of child support states:

Father shall provide a trust naming the children as irrevocable beneficiaries of no less than 50% of his net estate upon his demise.

5 No. 80719-6-I/6

This language makes clear that Gary agreed and was obligated to provide

a trust in the amount of 50 percent of his net estate, upon his death, for the

benefit of his two minor children with Laurene who were extant at the time of the

agreement. The language “upon his demise” makes obvious that Gary’s

obligation was intended to continue beyond his death. Accordingly, the trial

court’s conclusion that the obligation terminated upon Gary’s death was

erroneous.

However, there is nothing in the agreement or the child support order to

indicate that Gary’s obligation extended to his future children with Laurene,

deceased children with Laurene, or children who reached adulthood prior to

Gary’s death. Given that Grace had not yet been born at the time of the order,

Michael died prior to the adjusted order, and Garrett reached adulthood prior to

Gary’s death, 3 Gary’s obligation to provide a trust extended only to Justice.

Accordingly, Gary was obligated to provide a trust in the amount of 50

percent of his net estate for the benefit of his daughter, Justice. It is undisputed

that Gary failed to do so.

The estate contends that if the order of child support obligated Gary to

provide a trust solely for the benefit of Justice, it should be limited to one third of

one half of Gary’s net estate. It supports this proposition citing insurance

cases, In re Marriage of Sager, 71 Wn. App. 855, 864, 863 P.2d 106 (1993),

3 Laurene contends that the order applies to minor and “incapacitated” children, and that,

as Garrett was permanently disabled, he remained entitled to be a beneficiary. We disagree. The child support order reserved the issue of Garrett’s need for support past the age of 18 due to his continued dependency, but no further action was ever taken to resolve the matter. Thus, Laurene’s contention fails.

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and Riser, 7 Wn. App. at 650-51. In each of these cases, a dissolution decree

required a father to maintain his minor children as beneficiaries of his life

insurance. When each reached the age of majority, that child’s share of the

proceeds reverted to the father “as owner of the insurance policies.” Riser, 7

Wn. App. at 649; see also Sager, 71 Wn. App. at 864.

By contrast, here, the plain language of Gary’s obligation makes clear

that the amount that Gary was required to place in trust for the benefit of his

minor children with Laurene referenced in the order of child support was 50

percent of his net estate, regardless of how many such children existed. This is

evidenced by the fact that the child support order, as modified after Michael’s

death, did not reduce the amount that Gary was required to place in trust for the

remaining two children. It remained at 50 percent.

Accordingly, we hold that Gary was obligated to, and failed to, place 50

percent of his net estate in a trust for the benefit of his daughter, Justice.

III

The estate contends that the trial court’s denial of specific performance

was not an abuse of discretion and was, therefore, not erroneous. However,

because the trial court determined that specific performance was not appropriate,

it did not exercise its discretion in an attempt to fashion an appropriate remedy.

Our Supreme Court has explained:

[W]e review the fashioning of equitable remedies for an abuse of discretion because trial courts have “broad discretionary power to fashion equitable remedies.” In re Foreclosure of Liens, 123 Wn.2d 197, 204, 867 P.2d 605 (1994). Thus, the standard of review depends on the question presented, because “[w]hile the fashioning of the remedy may be reviewed for abuse of discretion, the

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question of whether equitable relief is appropriate is a question of law.” Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005).

Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d 199, 206, 471 P.3d 871

(2020). Questions of law are reviewed de novo. Bill & Melinda Gates Found. v.

Pierce, 15 Wn. App. 2d 419, 429, 475 P.3d 1011 (2020).

Accordingly, we review de novo the issue of whether equitable relief is

appropriate.

“‘When a court’s legal powers cannot adequately compensate a party’s

loss with money damages, then a court may use its broad equitable powers to

compel a party to specifically perform its promise.’” Pardee v. Jolly, 163 Wn.2d

558, 568, 182 P.3d 967 (2008) (quoting Crafts v. Pitts, 161 Wn.2d 16, 23-24, 162

P.3d 382 (2007)). “When determining whether damages would provide adequate

compensation, courts inquire as to (i) the difficulty of proving damages with

reasonable certainty, (ii) the difficulty of procuring a suitable substitute, and (iii)

the likelihood that an award of damages could not be collected.” Crafts, 161

Wn.2d at 24 (citing RESTATEMENT (SECOND) OF CONTRACTS § 360 (1981)).

Specific performance should be granted when an agreement is definite enough

as to material terms to allow enforcement without the court supplying the material

terms. Setterlund v. Firestone, 104 Wn.2d 24, 25-26, 700 P.2d 745 (1985).

Here, Justice is not entitled to half of Gary’s net estate. Rather, she is

entitled to be the beneficiary of a trust comprised of half of Gary’s net estate.

Because trustees have broad discretionary power to act on behalf of a trust’s

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beneficiaries, proving damages with reasonable certainty would be extremely

difficult. See RCW 11.98.070.

The estate avers that the terms of the trust provision were not definite

enough to order specific performance. However, the child support order makes

clear: (1) what value must be placed in the trust (half of Gary’s net estate) and (2)

the beneficiary of the trust (Justice Rusing). No greater specificity is required to

create a trust. See RCW 11.98.011. Although no trustee is appointed, the trial

court has broad power to remove and appoint trustees. See In re Marriage of

Petrie, 105 Wn. App. 268, 274-75, 19 P.3d 443 (2001).

Finally, the estate asserts that Laurene was not entitled to equitable relief

because she came to court with unclean hands by “seeking relief to which she

was not entitled.” As we have explained, Justice is entitled to relief as a result of

this claim. Accordingly, Laurene’s action seeking relief on Justice’s behalf does

not result in unclean hands that preclude relief. 4

Because equitable relief is appropriate, we remand to the trial court to

fashion an appropriate remedy.

4 The trial court’s determination that Laurene had unclean hands appears to be primarily related to its dismissal of her insurance claim (an issue we addressed in a separate opinion), which it described as without “merit or even decency.” By contrast, the trial court determined that Laurene’s claim on behalf of the children was a “meritorious question that required litigation to settle.” Furthermore, there is nothing in the record suggesting that any of Laurene’s misconduct related directly to the transaction here at issue: Gary’s breach of his child support obligation. As our Supreme Court explained long ago: The principle [of unclean hands] does not repel all sinners from courts of equity, nor does it disqualify any claimant from obtaining relief there who has not dealt unjustly in the very transaction concerning which he complains. The inequity which will repel him must have an immediate and necessary relation to the equity for which he sues. J.L. Cooper & Co. v. Anchor Sec. Co., 9 Wn.2d 45, 73, 113 P.2d 845 (1941). Although the trial court determined that Laurene’s refusal to return a motor vehicle to the estate was “childish, impertinent, and basically criminal,” this behavior was completely unrelated to her claim on behalf of the children with regard to Gary’s obligation to create a trust.

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IV

Laurene contends that the estate was collaterally estopped from litigating

the issue of whether Gary was required to provide a trust for Garrett and Justice.

Because this issue had not previously been litigated, we disagree.

Collateral estoppel bars the litigation of an issue when (1) the issue

decided in the prior adjudication was identical to the one presented in the action

in question, (2) there was a prior final judgment on the merits, (3) the party

against whom the plea is asserted was a party or in privity with a party to the

prior adjudication, and (4) the application of the doctrine will not work an injustice

on the party against whom the doctrine is to be applied. McDaniels v. Carlson,

108 Wn.2d 299, 303, 738 P.2d 254 (1987). Collateral estoppel precludes only

issues that have actually been litigated and determined, it does not bar issues

that could have been raised in prior litigation but were not. McDaniels, 108

Wn.2d at 305.

Here, the meaning of the provision in the order of child support that

required Gary to provide a trust has never previously been litigated. Accordingly,

collateral estoppel does not apply.

V

Finally, both parties request an award of attorney fees on appeal. We

decline to grant fees to either.

The Trust and Estate Dispute Resolution Act, chapter 11.96A RCW,

provides that awards of attorney fees are available on appeal, but are awardable

solely at the discretion of the court. “[A]ny court on an appeal may, in its

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discretion, order costs, including reasonable attorneys’ fees, to be awarded to

any party . . . [f]rom any party to the proceedings.” RCW 11.96A.150(1)(a). As

Laurene brought this action on behalf of three children, and we hold that only

Justice is entitled to relief, neither Laurene nor the estate is entirely the prevailing

party.

Laurene also contends that a separate agreement, the “Antenuptial

Agreement” between her and Gary, entitles her to an award of attorney fees. As

this action arises from the order of child support, the fee provision of the

Antenuptial Agreement is inapplicable. And, in any event, neither Laurene nor

the estate is a clear prevailing party.

Reversed and remanded.

WE CONCUR: