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Seizer v. Sessions

filed: May 3, 1996.


Superior Court of Clark County. Superior Court Docket No. 92-2-02635-3. Date Filed in Superior Court: March 18, 1994. Superior Court Judge Signing: Thomas Lodge.

Written By: Wiggins,*fn* Ptj, Concurred IN By: Fleisher, Ptj, Bridgewater, J

Author: Wiggins

WIGGINS, J.*fn* -- Rosalie Sessions, first wife of the late Elmer Sessions, and Barbara Sessions, Elmer's third wife, each claims a portion of lottery proceeds won by Elmer before his death. Elmer abandoned Rosalie in Texas almost 40 years ago and later married Barbara while living in Washington. Rosalie claims that Elmer never divorced her. Ownership of the lottery proceeds depends on the choice of law. Under Texas law, Rosalie might be entitled to one-quarter of the proceeds if she can prove that Elmer never divorced her. Under Washington law, Barbara might be entitled to the entire proceeds if Barbara can prove that Rosalie's marriage with Elmer was defunct. We hold that Texas has the most significant relationship to the distribution of the marital assets and we reverse and remand for application of Texas law.


Elmer and Rosalie Sessions married on November 21, 1941, in Houston, Texas. Their daughter Bonnie, now Bonnie Seizer (Seizer), was born in 1942. Rosalie and Elmer lived in Houston until approximately 1948. From 1949 until 1954 the family travelled throughout the country, living in eight cities during those 5 years. Elmer's work in the oil business required frequent moves.

In 1954, while living in New York State, Rosalie Sessions was hospitalized for the treatment of mental illness.*fn2 After the hospital released Rosalie, Elmer moved the family back to Houston. Rosalie became ill again during the drive back. In Houston, Elmer left Rosalie and Seizer living with Rosalie's parents. Elmer then returned to New York to work. While in New York, he corresponded with the family. In late 1954 or early 1955, Elmer visited the

12-year-old Seizer and her grandparents for a few days. Rosalie was in a mental hospital at the time. Then Elmer "just announced he was leaving." No one knew where he was going. During 1956 and 1957 Elmer contacted the family infrequently as he moved around the country.

After 1957, neither Rosalie nor Seizer talked with Elmer, and Elmer did not provide any financial assistance to his family. Seizer said that she and her grandparents believed Elmer had started a new life and would not be returning. Seizer attempted unsuccessfully on a couple of occasions to contact her father. Seizer was unaware if Rosalie had considered filing for divorce or separation.

Seizer believes, but does not know for sure, that her mother did not contact or communicate with Elmer after 1957. According to Seizer, Rosalie has been "out of touch with reality" since 1954. She and Rosalie did not discuss Elmer because "it was a sensitive area with [Rosalie] . . . she was ill." Since 1954, Rosalie's parents and daughter have handled her financial matters.

While separated from Rosalie, Elmer married Mary Anastos in July 1955; Elmer and Mary divorced in 1982. In 1984, Elmer and Barbara Sessions married. Barbara was unaware of his pre-existing marriage to Rosalie. The couple lived in Washington during their marriage.

In September 1989, Elmer and Barbara visited Tucson, Arizona, on an extended business trip. On September 27, 1989, either Barbara or Elmer purchased a ticket in the Arizona State lottery and won $2,576,908.30, with a net annual payment to Elmer of $97,922.53 for 20 years. The beneficiary of the annuity is Barbara M. Sessions.

Elmer died on August 19, 1991. Don Sessions (Sessions) is the personal representative of the estate of Elmer Sessions. In 1992, Seizer, as Rosalie's guardian, filed this action seeking Rosalie's community property interest in the Arizona lottery proceeds. Seizer sought a partial summary judgment that the law of Texas applied. Barbara Sessions

moved for summary judgment dismissing the case.*fn3 On March 18, 1994, the trial court granted summary judgment in favor of Barbara, holding that as a matter of Washington law, the marriage was defunct and that RCW 26.16.140 precluded recovery. Seizer appeals.

Disputed Facts

The parties dispute who purchased the winning ticket, Elmer or Barbara.

The lottery ticket is treated as bearer paper, similar to cash. Whoever signs the ticket is entitled to payment. Elmer completed and signed the winner claim form for the lottery ticket. Elmer also signed an "Annuity Information" sheet identifying Elmer as the lottery annuity recipient and Barbara M. Sessions as the beneficiary.

In her affidavit, Barbara claims she purchased with her own money the winning lottery ticket at a Circle K store. She spent September 27 with her friend, Rosetta Low. Low claims she witnessed Barbara purchase lottery tickets between 5 p.m. and 5:30 p.m. at the Miracle Mile Drive Circle K. But a lottery official stated that the lottery ticket was purchased at approximately 3:02 p.m. on the day of the drawing.

We review the summary judgment order de novo, performing the same inquiry as the trial court.*fn4 We affirm a summary judgment if the parties have failed to present to the trial court evidence of a genuine issue of material fact and, further, if the moving party is entitled to judgment as a matter of law.*fn5 We view the facts in a light most favorable to the nonmoving party.*fn6 All reasonable

inferences must be made in favor of the nonmoving party.*fn7 Viewing the facts in the light most favorably to Rosalie, we treat the lottery ticket as Elmer's acquisition and not a gift.


Seizer argues that the trial court erred in determining as a matter of law that Washington law applies.

Actual Conflict

We first determine whether Texas and Washington law actually conflict.*fn8 When the parties dispute choice of law, an actual conflict between the law of Washington and the law of another state must be shown to exist before Washington courts will engage in a conflict of laws analysis.*fn9 If the laws and interests of the concerned states do not conflict, we view the result as a "false" conflict or no conflict at all.*fn10 In the absence of a conflict, the forum applies its own law.*fn11

Texas law differs from Washington law. Under Washington's separate and apart statute, after a marriage becomes defunct, earnings and accumulations are the acquiring spouse's separate property.*fn12 A marriage is considered defunct when both parties to the marriage no

longer have the will to continue the marital relationship.*fn13 A finding that a marriage is defunct will defeat the presumption that all property acquired during marriage is community property.*fn14

The Family Code of Texas does not treat marriages as defunct even if the spouses live separate and apart. Once a marriage exists, under Texas law, it is terminated only by death or court decree.*fn15 Under Texas law, the first spouse and the subsequent putative spouse each has an interest in assets acquired by the twice-married spouse.*fn16

The differences in Washington and Texas law lead to differing results in this case. Under Washington law, if the trial court found the marriage defunct,*fn17 Rosalie would have no interest in the lottery proceeds since Elmer acquired this asset after their separation, and Elmer could freely dispose of his separate property by designating Barbara as his beneficiary. Under Texas law, if Rosalie demonstrates that Elmer did not obtain a divorce, she would recover one-quarter of the lottery proceeds.*fn18 Under Texas law, Barbara would be entitled to half of the community property acquired by herself and Elmer plus a further ...

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