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A. Doyle, Jr. v. P. Doyle (7/26/91), 815 P 2d 366
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ALLAN G. DOYLE, JR., )
)
Appellant, ) File No. S-3780
)
v. ) 4FA 89 472 CIV
)
PATRICIA A. DOYLE, ) O P I N I O N
)
Appellee. ) [No. 3723 - July 26, 1991]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Robert John, Law Offices of
William R. Satterberg, Jr., Fairbanks, for
Appellant. Robert B. Downes, Law Offices of
Robert B. Downes, P.C., Fairbanks, for
Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
Allan G. ("Grant") Doyle, Jr. and Patricia Doyle were
married in October 1966 and divorced in December 1989. The
marriage produced two children: a daughter, emancipated at the
time of the divorce; and a son, Allan G. Doyle III (Allan),
born April 25, 1972.
The Doyles separated in July 1987 and Patricia moved
into a place of her own. Allan, according to his own preference,
remained with Grant in the family home. Patricia filed a divorce
complaint in March 1989.
At the end of October and the beginning of November
1989, the superior court, Judge Richard D. Savell, held a two day
trial. The court entered an order on January 4, 1990, nunc pro
tunc to December 29, 1989, granting a decree of divorce and
addressing all other issues in the case.
As to property division, the trial court generally
adopted Patricia's version of personal and real property
valuation, and then allocated individual items of property
between Grant and Patricia in an explicit attempt to divide the
total in half. The trial court ordered Grant to pay Patricia
punitive substitution awards for certain items of missing
personal property. The court further ruled against Grant in its
child support and attorney's fees awards. Grant appealed each
aspect of the superior court's decision.
I
The trial court has broad discretion in property
division cases. AS 25.24.160(a)(4); Moffitt v. Moffitt, 749 P.2d
343, 346 (Alaska 1988). When a marriage is one of long duration
and the parties have commingled their assets,1 property division
in divorce proceedings essentially consists of three steps: (1)
determining what property is available for distribution; (2)
placing a value on that property; and (3) allocating the property
equitably. Moffitt, 749 P.2d at 346. If in the course of
determining what property is available the trial court makes
legal determinations, those legal determinations are reviewable
under the independent judgment standard. Id. Otherwise, we
review a trial court's determinations as to property available
for distribution under the abuse of discretion standard. Id.
The second step, valuation of available property, is usually a
factual determination to be upset on appeal only if there is
clear error. Id. (citing Alaska R. Civ. P. 52(a)). The final
step, a trial court's equitable allocation of property, is
reviewable under the abuse of discretion standard, and this court
will not disturb the trial court's allocation "unless it is
clearly unjust." Id. (quoting Wanberg v. Wanberg, 664 P.2d 568,
570 (Alaska 1983)).
Additionally, the trial court must render findings of
ultimate fact that support any decreed property division; the
findings must be explicit and sufficiently detailed to give this
court a clear understanding of the basis of the trial court's
decision. Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990); Lang
v. Lang, 741 P.2d 1193, 1195 (Alaska 1987); Merrill v. Merrill,
368 P.2d 546, 547-48 (Alaska 1962).
Grant appeals three aspects of the trial court's
division of property. We consider each in turn.
A
Grant first argues that the trial court improperly
chose the date of separation as the date on which to value the
marital property for division purposes. The choice of valuation
date especially affected division of the Doyles' real property,
which consisted of three parcels -- two in Fairbanks (the family
residence and an unimproved lot) and one in Port Charlotte,
Florida.
In 1985, the Doyles purchased the family home for
almost $160,000 and the unimproved Fairbanks lot for $25,000. By
the summer of 1987, when the Doyles separated, the family home
had depreciated significantly. Evidence at trial indicated that
the home continued to depreciate in 1988 and 1989, so that at the
trial date in December 1989 it was worth only about $118,000.
Evidence also indicated that the unimproved lot was worth about
$20,000 at the trial date. The court awarded both Fairbanks
properties to Grant, but valued them in its calculations as of
date of separation: the family home at $127,5002 and the
unimproved lot at $26,000.3 In contrast, the Florida property
had appreciated significantly during 1989. The court awarded
that property to Patricia, valuing it, apparently as of date of
separation, at $10,000.4
Grant argues that the trial court's use of separation
date as valuation date effectively overvalued the Fairbanks
properties he received and undervalued the Florida property
Patricia received. As a result, Grant concludes that the court
awarded Patricia approximately $25,000-$35,000 that does not
appear in the court's calculations. We do not necessarily agree
with the monetary figure that Grant offers as the erroneous
result of the trial court's misvaluation. We do agree with
Grant's assertion of error, however, inasmuch as he argues that
the trial court improperly chose to value the divisible marital
property according to its worth on the date of the Doyles'
separation.
As we recently made clear in Ogard v. Ogard, 808 P.2d
815, 819 (Alaska 1991), the date on which the trial court values
marital property generally "should be as close as practicable to
the date of trial." In special situations, the trial court may
value property as of the date of separation of the parties. See
id. at 820. However, "[i]n that event, there should be specific
findings as to why the date of separation is the more appropriate
choice for valuation." Id. In the present case, the trial court
did not explain why it considered the date of separation to be an
appropriate valuation date. Thus, on remand the trial court
should value all of the marital property, including the real
property, as of the date of the trial, unless the court
specifically finds that a special situation requires it to impose
a different valuation date.5
B
Grant next asserts that the trial court committed clear
error when it valued the parties' personal property according to
purchase price values that Patricia compiled. Grant argues that
the trial court should have employed the fair market value of
personal property in its calculations. Grant also argues that
the trial court could have estimated fair market value from the
testimony that his expert witness offered.
We have held that "[i]n valuing a marital asset, the
court should look to the asset's fair market value." Nelson v.
Jones, 781 P.2d 964, 970 (Alaska 1989). In Nelson, the asset at
issue was a corporation, and we rejected a "book value"appraisal
of the corporation's worth because it bore "little relationship
to [the corporation's] fair market value." Id. at 970. Also, in
Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), we rejected a
"replacement cost"valuation of office equipment and ordered the
trial court on remand to calculate the fair market value. Id. at
1214-15.
The personal property in the present case generally
resembles the fungible office equipment at issue in Richmond.
Thus, we conclude that fair market value is the appropriate index
of valuation for the personal property here. Likewise as in
Richmond, however, the fair market value evidence in this case,
offered by Grant's witness, appears flawed. Indeed, the expert
witness admitted on cross examination that she really did not
understand the meaning of "fair market value."6 On remand the
trial court should calculate, in light of all available evidence,
the fair market value of the personalty at the time of the trial,
unless special circumstances require another valuation date. See
id. at 1214-15.
C
When the Doyles married in 1966, Grant had been in the
Army approximately one year. In August 1985, almost exactly
twenty years after joining the Army, Grant retired with the rank
of major and began to receive a pension. The pension consisted
of two components: $1,073 per month ordinary retirement pay and
$413 per month disability pay. Upon dissolution of the marriage,
the trial court awarded Patricia 47.5% -- or, one-half (1/2) of
nineteen-twentieths (19/20) -- of the ordinary, nondisability
portion of Grant's military pension. Grant contests this award.
We disagree with Grant's assertion that the trial court abused
its discretion on this point.
We repeatedly have held that, under all applicable
federal and state laws, military pensions are divisible marital
property upon dissolution of marriage. Lang, 741 P.2d at 1196
(trial court can award former spouse part of a miliary pension
"if necessary to effectuate an equitable property division"); see
also Chase v. Chase, 662 P.2d 944, 945-46 (Alaska 1983) (citing
10 U.S.C. 1408(c)(1)). Thus, the trial court's decision to
include Grant's military pension as part of the divisible marital
property here was not an abuse of discretion.
The trial court also did not abuse its discretion in
its calculation of the precise portion of Grant's pension that
Patricia should receive. The trial court calculated Patricia's
share of the ordinary pension as 1/2 of 19/20 because Grant and
Patricia were married for approximately nineteen of the twenty
years that Grant served in the Army. In Chase, the divorcing
husband also had entered the military approximately one year
prior to the marriage and had retired after twenty years of
service. Chase, 662 P.2d at 945. We upheld an award in Chase of
"one-half (1/2) of nineteen-twentieths (19/20) of [the retiree's]
military retirement pay." Id. at 946. We likewise uphold the
trial court's use of the factor 1/2 of 19/20 here because it
fairly represents the wife's eligibility for a share of the
pension in proportion to the number of years the parties'
marriage and the husband's military service overlapped.7
II
Soon after Patricia filed for divorce, tension between
her on the one hand, and Grant and Allan on the other, turned to
overt hostility. This hostility was especially apparent as the
family attempted to achieve an interim division of personal
property. At an initial hearing in the case on May 10, 1989, the
superior court entered a temporary order instructing Grant to
relinquish certain items of personal property to Patricia. Allan
and Grant placed the personal property outside of their home,
under a tarp, and instructed Patricia to come for the property
over Memorial Day weekend of 1989. When Patricia arrived to
retrieve the property, some of the items the court had ordered
Grant to relinquish were not under the tarp. Grant and Allan
were not home. Someone acting on Patricia's behalf entered an
open window and unlocked the house, allowing Patricia to take
several items from inside.
On the next major holiday of the year, July 4, 1989,
Allan entered Patricia's home while she was not there and removed
several items of personal property. Allan left a note indicating
that his act was reprisal for Patricia's Memorial Day intrusion.
Among the items missing from Patricia's home after Allan's visit
were her gold wedding band, a gold necklace, and a gold nugget.
As part of its decree in this case, the trial court ordered the
missing three items of gold returned to Patricia. "If they are
not returned within [fifteen days of this decree]," stated the
court, "[Grant] shall pay [Patricia], within 60 days, $1,000 per
item not returned." Grant argues that the trial court erred by
imposing the $1,000 per item punitive substitution fine upon him.
We agree.
The trial court's own explanation for its punitive
order is not particularly clear. Some passages of the trial
court's statement of decision on the record suggest that the
court wished to punish Allan for his misconduct by punishing
Grant. Other passages suggest that the court intended to punish
Grant for his failure to control Allan in the past. As such, the
court's imposition of the punitive awards might be characterized
as an ill-advised attempt to exercise its criminal contempt
power.8 See AS 09.50.010(5); Diggs v. Diggs, 663 P.2d 950, 951
(Alaska 1983) (criminal contempt citations appropriate "in cases
involving past wilful flouting of the court's authority"). The
more plausible and defensible explanation for the trial court's
punitive awards, however, is that they constitute an exercise of
the court's civil contempt power, by which the court meant to
coerce Grant to abide, in the future, by the order to deliver the
three missing items to Patricia. See L.A.M. v. State, 547 P.2d
827, 832 (Alaska 1976) (attempt to coerce future conduct
distinguishes civil contempt from criminal contempt, which
punishes past conduct); see also Continental Ins. Co. v. Bayless
& Roberts, Inc., 548 P.2d 398, 405 (Alaska 1976) (elements of
both punitive and remedial punishments are present in most civil
contempt awards).
Such use of the civil contempt power in itself is not
an abuse of discretion.9 See, e.g., Continental Ins. Co., 548
P.2d at 405. We agree with Grant, however, that the trial
court's choice of an arbitrary $1,000 per item award constituted
an improper exercise of the contempt power in this case. Alaska
Statute 09.50.040 states that the trial court may both punish for
contempt and "give judgment in favor of the party aggrieved"in a
damages amount "sufficient to indemnify that party and to satisfy
the costs and disbursements of that party." The trial court here
did not allocate any portion of its punitive award as a penalty
payable to the court. Rather, all of the punitive award amounts
were payable to Patricia, the "party aggrieved" within the
meaning of AS 09.50.040. Moreover, we have interpreted AS
09.50.040 to mean that there must be a correlation between the
aggrieved party's actual damages and costs and the amount
assessed as damages. Hartland v. Hartland, 777 P.2d 636, 648
(Alaska 1989). On the present record, we find no correlation
between Patricia's actual loss of three unique items and the
three identical amounts that the court assessed against Grant.
Thus, the trial court abused its discretion by imposing the
specific award amounts payable to Patricia.
III
Grant next challenges the trial court's child support
award, arguing that the trial court erred both in its decision
not to make the award retroactive to the date of separation and
in its determination of the monthly amount Patricia must pay. We
find Grant's first argument deficient for several reasons; we
agree, however, with his second argument.
The question whether the trial court properly refused
to make its child support award retroactive to the date of
separation is more complex than Grant acknowledges. There are
actually two time periods at issue. Initially, we note that
Judge Hodges issued a temporary order in the case on May 10,
1989, in which he directed Grant to pay Patricia $400 per month.
As Patricia's counsel later argued, Judge Hodges apparently
considered many factors before deciding upon the temporary $400
per month award. Among those factors was Grant's continuing
support of Allan. Consequently, the trial court had sufficient
reason to conclude that its child support award should not cover
the period between May 10, 1989 and the date of dissolution.
As to the second period in issue -- the time between
the date of separation in July 1987 and the temporary order in
May 1989 -- Grant's proper claim is in the nature of an action on
a debt based on the parental duty to support a child. Ogard, 808
P.2d at 817 & n.1; Matthews v. Matthews, 739 P.2d 1298, 1299
(Alaska 1987). Whether Grant deserves reimbursement from
Patricia for any amount she, as a parent, owed for Allan's
support during the separation period is an individual claim Grant
did not raise below. Neither in his pretrial memorandum, nor at
closing argument did Grant advance such a claim.10 "It is well
established that matters not raised at trial will not be
considered on appeal." Brooks v. Brooks, 733 P.2d 1044, 1053
(Alaska 1987). As a result, we decline to consider Grant's
argument that the trial court erred by not ordering reimbursement
to him for his support of Allan from July 1987 to May 1989.
On the other hand, we agree with Grant's argument that
the trial court erred in its calculation of a minimal award of
$40 per month child support against Patricia. In its findings of
fact and conclusions of law, the trial court stated that its
award to Grant of child support for Allan was different than the
amount Civil Rule 90.3 would normally require the court to award.
See Alaska R. Civ. P. 90.3. The court explained:
The reason for the departure . . . is based
on the earning power disparity of the parties. In
addition, due to Allan's closeness to the age of
majority and the fact that visitation was
effectively thwarted because of the son's
emotional state, the Court is greatly concerned
about the role that [Allan] was permitted to play
and did play as he was allowed to become
personally involved in this divorce.
The dispositive question on review is whether any of
the reasons listed above conform to the requirements of Civil
Rule 90.3(c), which permits variance from the letter of Civil
Rule 90.3 for "good cause upon proof by clear and convincing
evidence that manifest injustice would result" without the
variance. Alaska R. Civ. P. 90.3(c)(1).
Civil Rule 90.3 includes examples of exceptional
circumstances that might amount to "good cause." See Alaska R.
Civ. P. 90.3(c)(1). In this case, none of the trial court's
stated reasons for varying from the formulae of Civil Rule 90.3
resemble any of those examples of "good cause"offered in the
Rule. Of course, the examples in Civil Rule 90.3 are not
exhaustive. Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989). The
meaning of the term "good cause,"however, is to "be determined
by the context in which it is used." Id. That context, for
Civil Rule 90.3 purposes, must focus first and foremost on the
needs of the children. See Civil Rule 90.3, commentary at sec.
I(B). The trial court in this case showed no signs of such a
focus. On the contrary, the court once again appears to have
used its power improperly to punish Grant and Allan. As a
result, the court did not vary from Civil Rule 90.3 in order to
avoid the sort of "manifest injustice" that may justify a
variance. We thus vacate and remand the support award for
recalculation pursuant to Civil Rule 90.3.
IV
Finally, Grant argues that there was not a sufficient
"disparity of earnings"between him and Patricia to support the
trial court's award of $2,500 in partial attorney's fees to
Patricia. We disagree.
The relevant considerations for determining attorney's
fee awards in divorce cases are the relative economic situation
and earning power of each party. Hartland, 777 P.2d at 644. If
the parties are in "comparable economic situations, each side
should bear [its] own costs." Id. If not, then an award of
attorney's fees in a divorce case is within the discretion of the
trial court. Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska
1987). Such an award "will not be disturbed on appeal unless it
is 'arbitrary, capricious, manifestly unreasonable, or stems from
an improper motive.'" Id. (quoting Brooks v. Brooks, 733 P.2d
1044, 1058 (Alaska 1987); Tobeluk v. Lind, 589 P.2d 873, 878
(Alaska 1979)).
Record evidence indicates that Grant's income at the
time of the divorce decree, including his part of the retirement
pension, was approximately $62,000 per year.11 Evidence further
indicates that Patricia's income, also including her part of the
pension, was approximately $40,000 per year.12 Additionally,
Grant has a B.S. degree in civil engineering, extensive
experience as an engineer, and current employment as an engineer.
In contrast, Patricia has two A.A. degrees, one in liberal arts
and one in dental hygiene. She has worked off and on since 1981
as a dental hygienist.
We find no abuse of discretion in the trial court's
conclusion that Grant and Patricia were not in comparable
economic situations. Both the actual earnings and earning powers
of the parties are significantly disparate. We thus affirm the
trial court's award of partial attorney's fees to Patricia.
The judgment is VACATED in part, AFFIRMED in part, and
REMANDED to the superior court for proceedings consistent with
this opinion.
_______________________________
1. For the law governing property division when a
marriage in divorce proceedings is of short duration and without
significantly commingled assets, see Rose v. Rose, 755 P.2d 1121,
1125 (Alaska 1988).
2. The trial court computed a negative equity value of
$13,714.55 for the family home by subtracting the amount still
owed on the Doyles' mortgage at date of trial -- $141,214.55 --
from the property value at date of separation. Grant's argument
essentially is that the negative equity value placed on his side
of the ledger should have been larger.
3. The trial court valued the unimproved Fairbanks lot at
$26,000 on the date of separation and then subtracted $2,500
still owed on the property at date of separation. Thus, the
unimproved lot entered Grant's side of the ledger with a total
value of $23,500.
4. The Doyles had purchased the Florida lot in 1970 or
1971 for $10,000. Grant's witness, a Florida real estate broker,
testified that the lot probably was still worth only $7,000 to
$10,000 in the summer of 1987. The broker also stated that real
estate speculation in 1988 and 1989 had driven the value of the
lot up to at least the $23,000 to $25,000 range. The trial court
found the broker's testimony utterly unpersuasive as to value in
1989, yet sufficiently persuasive as to value in 1987 to justify
imposition of the $10,000 figure.
5. Because the trial court used the date of separation
as valuation date, it ignored some payments on the Fairbanks
properties that Grant made during separation. On remand, the
trial court also should consider all payments during separation
in its redivision of the marital property.
6. Grant's valuation expert described her
understanding of the term "fair market value"as follows:
I've always considered fair market value
what anyone will pay for it. So . . . fair-
market value then, to me if I'm a seller,
would be what I can get for it. If I'm a
dealer, then fair-market value is what I can
sell it for. And they're two different
things.
By contrast, fair market value is a single, unitary
figure, commonly defined as "[t]he amount at which property would
change hands, between a willing buyer and a willing seller,
neither being under compulsion to buy or sell and both having
reasonable knowledge of the relevant facts." Black's Law
Dictionary 597 (6th ed. 1990).
7. Grant argues that the trial court should have
applied a factor of 1/2 of 225/240 -- 225 being the number of
months Grant alleges that the marriage overlapped his 240 months
of military service. It is true that in Lewis v. Lewis, 785 P.2d
550 (Alaska 1990) we endorsed marital property division of a
"contingent stock interest . . . similar to a nonvested pension"
according to a monthly ratio. Id. at 556 & n.9. However, in
Lewis, the period in which the marriage and the accruing stock
interest overlapped was quite brief -- less than 18 months. Id.
Thus, use of a monthly ratio in that case was sensible.
Moreover, we note that the record in this case does not clearly
support Grant's contention that his marriage overlapped his
military service for precisely 225 months.
8. We respect the superior court's conclusion that
Grant himself acted improperly during the period of his
separation from Patricia. We note, however, that the trial
court's power to consider one party's fault in marital property
division cases is extremely limited. See AS 25.24.160(6). On
the other hand, we also note that a party's improper post-
separation conduct, if specifically improper in respect to
marital assets or debts, may be a relevant factor in determining
a final, just division of the marital property. Oberhansly v.
Oberhansly, 798 P.2d 883, 885 (Alaska 1990) (husband's willful
mismanagement of marital assets during separation justified
unequal division of property); Hartland v. Hartland, 777 P.2d
636, 642 (Alaska 1989) (same); Moore v. Moore, 499 P.2d 300, 303
& n.3 (Alaska 1972) (in dividing marital property, court properly
considered wife's appropriation of marital funds during
separation); see also Merrill, 368 P.2d at 547 n.4 (providing
basis for decisions in Oberhansly, Hartland and Moore). Thus,
upon remand, the trial court may consider, in its final property
division determination, the extent to which Grant was at fault
for any misappropriation of marital assets in the case.
9. Grant, of course, properly would have received a
hearing to show cause why the court should not levy the contempt
awards against him. Alaska R. Civ. P. 90(b). At such a hearing,
the trial court could have considered further the question
whether Grant properly could be held in contempt for not
returning items allegedly misappropriated by Allan.
10. When the trial court announced its child support
decision, Grant's counsel inquired whether the court's award was
retroactive to the date of separation. The court said that the
award was not retroactive. That simple question-and-answer
exchange, initiated after the court had determined a support
award and with no reference to any prior argument in the case,
was as close as Grant came to raising the question of a debt owed
him based on the parental duty to support a child.
11. Grant earned $50,404 in 1988. His share of his
full disability pension and his part of the ordinary retirement
pension after its division by the trial court amounted to
approximately $11,716 per year.
12. Patricia earned $34,200 in 1988. The trial court
award of 1/2 of 19/20 of Grant's ordinary pension equaled
approximately $6,116 per year.
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