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D. Lowdermilk v. S. Lowdermilk (2/7/92), 825 P 2d 874
Notice: This 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
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THE SUPREME COURT OF THE STATE OF ALASKA
DIANE G. LOWDERMILK, )
Appellant, ) Supreme Court File No. S-3565
) Superior Court File
v. ) 3AN-88-7422 CI
SAMUEL E. LOWDERMILK, ) O P I N I O N
Appellee. ) [No. 3806 - February 7, 1992]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Victor D. Carlson, Judge.
Appearances: Allison E. Mendel, Anchorage, for
Appellant. William T. Ford, Anchorage, for
Before: Matthews, Chief Justice, Rabinowitz,
Burke, Compton and Moore, Justices.
MATTHEWS, Justice, with whom BURKE, Justice,
joins, dissenting in part.
I. DID THE TRIAL COURT ERR IN DENYING DIANE'S
MOTION TO DISQUALIFY SAMUEL'S ATTORNEY FOR
CONFLICT OF INTEREST?
Diane was represented by Homer Burrell in a custody
dispute with Philip Holman concerning their child Jamie. Diane
and Samuel eventually became concerned about the quality of
Burrell's work. Samuel asked William Ford, his attorney in other
matters including a domestic violence proceeding involving Diane,
to look into the adequacy of Burrell's representation of Diane in
the custody dispute over Jamie. Ford says he told Samuel he did
not want to get involved because Samuel had consulted Ford about
a divorce, creating a potential conflict of interest. Samuel
nevertheless brought Burrell's case file to Ford, who "did not
review" it, but only "glanced through"it. Ford also reviewed
the court file.
Burrell stated to the court that his file contained no
mental impressions or attorney work product, but only mirrored
the contents of the court file plus billings and copies of legal
opinions. He also stated that during the only conversation he
had with Ford about the matter he expressed no opinion concerning
Diane's suitability as a parent.
The trial court denied Diane's motion to disqualify
Ford, stating that it was unable to find that there was a former
professional relationship between him and Diane and that there
was no substantial possibility that Ford gained any knowledge in
his contacts with Burrell and exposure to the file which could be
used against her.
We will reverse a trial court's decision concerning a
motion to disqualify opposing counsel only when it constitutes an
abuse of discretion. Munn v. Bristol Bay Hous. Auth., 777 P.2d
188, 196 (Alaska 1989).
This court has stated:
We believe that an attorney may not
represent a third party against a former
client where there exists a substantial
possibility that knowledge gained by him in
the earlier professional relationship can be
used against the former client, or where the
subject matter of his present undertaking has
a substantial relationship to that of his
Aleut Corp. v. McGarvey, 573 P.2d 473, 474-75 (Alaska 1978). The
superior court found that no professional relationship existed.
This finding is supported by evidence that Diane never consulted
with Ford and that Ford did not have access to confidential
information about Diane. Since Ford did not have access to
confidential information, there was nothing he could possibly use
against Diane. Since there was no "prior representation," we
need not determine whether the subject matter in this case has a
substantial relationship to the custody dispute between Diane and
Philip Holman. The order is affirmed on this issue.
II. PROPERTY DIVISION.
At the time of the parties' marriage, Samuel owned and
operated full-time a car business, known as Alaska Motor Doctor,
out of his garage. During the marriage, he continued to operate
the Alaska Motor Doctor full-time, except for a nine-month to one-
year period during which he took a second job and worked at the
Alaska Motor Doctor part-time.
Diane also worked at the Alaska Motor Doctor during the
marriage, though evidence as to the extent of her involvement is
conflicting. The evidence indicates that at least she picked up
parts at various times and performed some administrative tasks
for the business.
The superior court determined that Alaska Motor Doctor
was Samuel's separate property.
A 1985 Ford Bronco was purchased during the marriage.
Diane made the down payment, but the evidence is conflicting as
to whether Samuel reimbursed her fully or only for half of it.
Samuel made the monthly payments out of his separate retirement
account, and at one point he borrowed $5,000 to redeem it from
repossession after he fell behind in the payments. The superior
court found that Samuel repaid Diane for the funds she advanced
and that the Bronco was Samuel's separate property.
Samuel sought reimbursement for roughly $17,000 worth
of time and money he claimed he expended on two houses which were
Diane's separate premarital property. As proof of expenditures
he introduced some of the checks he remembered were expenditures
for material used on Diane's properties. He had no receipts or
other record of expenditures, and Diane testified she had "no
doubt" that she paid for all of the materials used on her houses
out of her separate account. Samuel claimed he spent 460 hours
of labor on the houses, 163 of which he performed before the
marriage. The superior court determined he was entitled to
reimbursement for half of his claimed expenditures and labor.
When a marriage is of long duration or assets are
commingled, the method for determining property division is
governed by Wanberg v. Wanberg, 664 P.2d 568 (Alaska 1983), and
Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). When the
marriage is of short duration and the parties do not commingle
assets, an alternative method is to treat property division as if
it were contract rescission. Rose v. Rose, 755 P.2d 1121 (Alaska
1988). In Bell v. Bell, 794 P.2d 97, 102 (Alaska 1990), we held
the alternative method was unavailable, even though the marriage
was of short duration, because the couple had "combined thousands
of dollars to acquire and improve various property." Bell is not
apposite here because the Bells' commingling of assets was
significantly more substantial than the Lowdermilks'. However,
the superior court did not use the alternative method of Rose,
which requires that it put the parties back to the positions they
were in before the marriage. The superior court instead
reimbursed Samuel for his efforts both before and during the
marriage, while giving him the entire benefit of Diane's efforts
towards Motor Doctor during the marriage.
The correct method of property division in this case is
the method set forth in Wanberg and Merrill. It involves (1)
identifying the specific property available for distribution, (2)
determining the value of this property, and (3) determining the
most equitable division of the property, beginning with the
presumption that an equal division is most equitable. Bell, 794
P.2d at 101; Wanberg, 664 P.2d at 570, 574-75.
C. Did the Superior Court Err in Finding that
The Alaska Motor Doctor and All of its Assets
were Samuel's Separate Property?
The superior court found that Alaska Motor Doctor was
Samuel's separate property. Diane asserts that any increase in
Alaska Motor Doctor's tangible assets acquired after the
marriage, including inventory and accounts receivable, is marital
property subject to division. We agree.
Alaska Statute 25.24.160 allows the trial court to
divide the property, whether joint or separate, acquired only
during marriage, in a just manner. The time and energy of both
spouses during the marriage is to be considered in dividing
marital property. See, e.g., Bussell v. Bussell, 623 P.2d 1221,
1223-24 (Alaska 1981). Samuel should not be allowed to take his
contributions of time and energy out of the marital estate by
rolling them back into a business which he began before the
marriage. Diane devoted much of her time and energy during the
marriage to caring for the couple's child and keeping the family
home. It is also undisputed that she made some direct
contribution to the business during the marriage. It is "an
abuse of discretion for the trial court to shield the property
from equitable distribution merely by affixing to the property
the label of `pre-marital asset.'" Wanberg, 664 P.2d at 572.
This is exactly what the superior court did with Alaska Motor
Doctor. Our comments in Wanberg apply equally well to this case:
There may well be reason for granting
less than an even share in this property to
[the other spouse], but we hold that such a
determination must be made through the
exercise of the trial court's equitable
discretion, to be guided by the factors
relevant to such determinations, and to be
articulated in terms of those factors.
D. Did the Trial Court Err in Classifying
the Bronco as Separate Property?
Property purchased during a marriage, yet paid for out
of one party's separate assets, may be considered a premarital
asset so long as the parties did not demonstrate an intent to
jointly hold the property. See Carlson v. Carlson, 722 P.2d 222,
224-25 (Alaska 1986). Samuel presented evidence that he
ultimately paid for the Bronco entirely out of his own premarital
property. The superior court accepted Samuel's evidence and
found that the Bronco was Samuel's separate property. This
finding is not clearly erroneous.
E. Did the Trial Court Err in Reimbursing
Samuel for Work Accomplished on Diane's
The superior court accepted Samuel's testimony about
his expenditures on Diane's separate property, and found that he
was entitled to reimbursement for half that amount. This finding
is not clearly erroneous in light of the evidence presented.
Samuel's evidence consisted of his own recollection of the work
he performed. Although he had no receipts for materials
purchased, he presented independent documentary evidence
consisting of a sampling of checks he said were for materials for
Diane's properties. Diane testified that she had "no doubt"that
she paid all of the separate property expenses out of her own
account. Jim Black, who worked on Diane's properties on jobs for
which Samuel claimed reimbursement rights, testified that many of
the jobs Samuel listed were either not done or took substantially
less time to accomplish than Samuel claimed. On the record as a
whole, we are not left with a definite and firm conviction that
the trial court made a mistake.
However, the trial court failed to distinguish pre-
marital from post-marital expenditures. Samuel is not entitled
to reimbursement for expenditures made gratuitously and not in
contemplation of marriage. The trial court must determine what
portion of the 163 hours of labor performed prior to the
marriage, if any, are subject to reimbursement.
III. DID THE TRIAL COURT ERR IN AWARDING CUSTODY
OF CHRISTOPHER TO SAMUEL?
The issue of custody must be remanded for
reconsideration, in light of the inadequacy of the record to
support certain findings, consideration of improper factors, and
failure to consider mandated factors. The trial court may take
additional evidence on interim conditions when reconsidering
The trial court considered improper factors and at the
same time failed to consider statutorily mandated factors. See
McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986). The court's
written findings state:
DIANE LOWDERMILK was generally not a
credible witness and it was difficult to
believe anything she said. She also projects
her feelings onto other persons. The court
specifically finds that DIANE LOWDERMILK is
unstable. The court believes the testimony
of Dr. Cassell regarding both parties. The
comments and findings made by the court in
Holman v. Lowdermilk apply in this case as
well. The court also finds DIANE LOWDERMILK
does not see the world as the average person
sees it, and would therefore not be a good
role model for the child. The court finds
that DIANE LOWDERMILK has undermined the
child/father relationship by her conduct and
the court had no confidence that this is
likely to change in the future.
It was improper to consider that Diane "does not see
the world as the average person sees it"without any articulated
explanation of what these statements mean and how such factors
affect her parenting ability.1 This finding bears on her mental
state, and there must be a nexus between mental state and
parenting ability for it to be a proper consideration. See Morel
v. Morel, 647 P.2d 605, 608 (Alaska 1982).
The court ignored the issue of spousal abuse, a factor
it is required to consider by AS 25.24.150(c)(7), despite
extensive evidence of spousal abuse in the record. Although
detailed findings on every factor mandated by AS 25.24.150(c) are
not required where the factor is not at issue, spousal abuse was
unquestionably at issue in this case. The court abused its
discretion by failing to make findings in regard to spousal
abuse, its effect on Diane, and its effect -- if any -- on
Diane's apparently unacceptable mental state, i.e. her
IV. DID THE TRIAL COURT ERR IN DENYING DIANE'S
COUNTERCLAIM SEEKING COMPENSATION FOR
INJURIES RESULTING FROM DOMESTIC VIOLENCE
In its written findings of fact, the superior court
stated: "The court finds that as to the assaults alleged in the
counter claim, that they were not intentionally inflicted, but
came about because of DIANE LOWDERMILK'S own actions." We are
unable to discern from this statement the basis of the superior
court's denial of Diane's tort claim. Samuel admitted that he
intended the contact which resulted in Diane's injuries. A
person is liable for assault and battery if the person intends to
cause harmful or offensive contact. Merrill v. Faltin, 430 P.2d
913, 917 (Alaska 1967). Intent to cause physical injury is not
required. It is unclear from the finding quoted above whether
the superior court found Samuel was not liable because he had an
affirmative defense or for some other reason, or that the court
applied the incorrect legal standard. This issue is remanded to
the superior court for redetermination.
The superior court's order denying Diane's motion to
disqualify Mr. Ford for conflict of interest is AFFIRMED. The
decree of divorce is AFFIRMED in part, REVERSED in part, and
REMANDED for proceedings consistent with this opinion.
MATTHEWS, Justice, with whom BURKE, Justice, joins,
dissenting in part.
I agree with the majority opinion except as to part
III, relating to the award of custody to Samuel. With respect to
that issue, I would affirm the decision of the superior court.
In my view, the court's findings are sufficient to demonstrate
the reasons for the court's conclusion that it was in the best
interest of the child, Christopher, that Samuel be awarded
I will discuss each of the reasons given by the
majority opinion for its conclusion that custody must be
1. The finding that Diane "does not see the world as the
average person sees it."
The trial court's written statement that Diane "does
not see the world as the average person sees it" was also
expressed in the court's oral decision, but in a more detailed
context. The court said:
And, I don't know why she didn't
understand that her impact upon the trier of
fact would be directly impacted by what a
reasonable person would find to be her
misleading the trier of fact by omission.
That bears out, of course, what Dr. Cassell
has said on the witness stand here and said
And, I have seen no evidence that
Mrs. Lowdermilk has made any effort to deal
with what I consider to be a very significant
problem. I do not know how a child deals
with the fact that his parent does not see
the world the same as the average person sees
the world in very important respects. Mrs.
Lowdermilk does not see the world as the
average person sees it. I expected the child
allowance for that,2 but it may be that the
child buys into seeing the same as his mother
sees it and I think that would be very, very
serious and that is one of the most troubling
aspects of this case.
There was evidence that Diane has perceptual problems.
Dr. Cassell, Diane's treating psychiatrist, described Diane as
having "a hysterical character disorder." He said Diane lacked
insight into her condition and was unwilling to shoulder
responsibility for her problems. At one point Dr. Cassell
referred to "her paranoia and borderline thought disorder." Dr.
Cassell said that the prognosis for one in Diane's condition was
not good in the absence of insight into her condition.
Despite therapy, Diane did not improve. Dr. Cassell
was asked whether Diane's apparent lack of insight would be a
significant factor which the court should weigh in determining
custody. In response, Dr. Cassell questioned whether such a
person would serve as a good role model for children "as they
[the children] want to mature beyond adolescence themselves."
Further, Dr. Cassell expressed concern that a child of such a
parent might be drawn into the parent's world of conflict and
blame: "If they are involved in a whole lifestyle of conflictual
relationships, then the child will be a party to this." Finally,
the doctor thought the physical health of a child might be
affected: "And, as I testified previously with the infant son,
the history of stress picked up by the child, lowering their
resistance to infection and so on, all these things would be a
major concern . . . ."
Dr. Cassell was not alone in noting Diane's mental
outlook. Custody Investigator Yeotis wrote:
Investigator believes that Mrs.
Lowdermilk has difficulty accepting her
portion of the responsibility for the turmoil
and chaos in her relationships. She appears
to be unwilling or unable to perceive how her
behavior impacts on others and tends to
"blame" her partners when things go wrong.
Although Mrs. Lowdermilk has spent
considerable time in therapy with a variety
of therapists, she appears to have made
little progress in becoming independent and
responsible for herself and her actions.
The trial court's finding that Diane "does not see the
world as the average person sees it"is understandable in the
context of the evidence that she suffers from a hysterical
character disorder with paranoid features, lack of insight, and
an unwillingness to accept personal blame. Further, in view of
the above evidence, the finding is not clearly erroneous.
The trial court also related the challenged finding to
the well being of the child, for it found that because of her
mental outlook Diane "would therefore not be a good role model
for a child." Dr. Cassell's testimony, which was explicitly
accepted by the trial court, also directly reflects on Diane's
parenting ability. As noted, the doctor expressed concern that a
person suffering from her disorder would be a poor role model who
might, in various ways, pass on her disorder to her children. He
further observed that the stressful environment that a person
with such a disorder tends to create can be physically damaging
to children. Thus, there is an obvious nexus between Diane's
mental state and her parenting ability.
2. The finding that Diane is unstable.
In a footnote, the majority opinion mentions that the
trial court also found that Diane was "unstable" without
explaining what this term means. Again, in context, it is
reasonably clear that this is a reference to the hysterical
personality disorder from which she suffers and its various
3. The question of domestic violence.
I do not agree with the majority that the trial court
ignored the issue of spousal abuse. AS 25.24.150(c) requires the
court in determining custody to consider a number of factors
including "(7) any evidence of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history of
violence between the parents." In his oral decision, the trial
court demonstrated that he had considered the history of violence
between the parents, finding that the injuries which Diane
claimed she suffered were not inflicted intentionally. Most
importantly, counsel for Diane asked the trial court to make
findings "about any potential risks to the child for violence by
Mr. Lowdermilk." The court, in response to this request, found
that the child was not at risk from Mr. Lowdermilk. Thus, it
seems plainly wrong to say that the court did not consider
evidence of domestic violence.
Diane argues that the trial court's finding that she
had undermined the relationship between Christopher and Samuel is
clearly erroneous. The court's finding in this respect states:
"The court finds that Diane Lowdermilk has undermined the
child/father relationship by her conduct and the court has no
confidence that this is likely to change in the future." This
finding relates to one of the statutory factors which the court
should consider in determining custody, that is, "the desire and
ability of each parent to allow an open and loving, frequent
relationship between the child and the other parent." AS
There is ample evidence of conduct on the part of Diane
which would tend to undermine the child/father relationship. For
example, according to Samuel, Diane, without notice, moved to
Georgia with Christopher in July of 1988. Thereafter, Samuel was
in the southeastern United States twice and both times requested
visitation. He testified that both times visitation was denied.
When, after Diane left for Georgia, Samuel attempted to contact
Christopher by telephone, an effort he would evidently make every
Sunday, he would normally only be able to talk to an answering
machine. He testified that these calls were never returned.
Although Samuel testified that he had an "outstanding"
visit or series of visits with Christopher just prior to and
during the trial, the visits were not a demonstration of Diane's
desire to reunite father and son. As one example, when Samuel
was visiting Christopher and Diane's other son, Jamie, at a
daycare center, Diane terminated the visit by calling the police.
Similarly, after another visit either immediately before or
during the trial, Diane perceived that Christopher had been
physically abused and called the police. The trial court found
that there had been no physical abuse.
Custody Investigator Yeotis testified as an expert in
child custody decision making. After extensive contact with both
parties, including a two and a half day visit to Diane and
Christopher in Georgia and two home visits in Alaska, she
recommended strongly that Samuel be given custody of Christopher.
Among her reasons for this recommendation were her "concerns
regarding Mrs. Lowdermilk's ability to allow Mr. Lowdermilk to
have an open and loving relationship with his son . . . ." These
concerns were based in part on indications that Diane had denied
or restricted access to her older son, Jamie, to Jamie's father.
They are also based in part on Diane's request that Samuel's
visitation be closely supervised; Diane wanted it to take place
only at Samuel's father's home in West Virginia, and only if
Samuel posted a bond.
In summary, my review of the record has convinced me
that the trial court's findings concerning custody are legally
and factually sufficient. Therefore, I would affirm the trial
court's custody decision.
1The trial court also found that Diane was "unstable,"
without any articulated explanation of what it meant in using
such a conclusory term. Some explanation of the term in context
may be helpful.
2This may be a transcription error, the court seems likely
to have said "I expect the child allows for that."