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B. Murray v. D. Murray (7/23/93), 856 P 2d 463
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 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
BENJAMIN LEE MURRAY, )
) Supreme Court File No. S-4779
Appellant, ) Superior Court File No.
) 3AN-87-4921 Civil
v. ) O P I N I O N
DIANE LYNN MURRAY, ) [No. 3978 - July 23, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge.
Appearances: Kenneth P. Jacobus,
Anchorage, for Appellant. Terry C. Aglietti,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
MOORE, Chief Justice.
This is the second time Ben and Diane Murray's marital
property dispute has come before this court. See Murray v.
Murray, 788 P.2d 41 (Alaska 1990) (Murray I). In this appeal,
Ben argues that the superior court erred in entering its findings
of fact on remand without holding an adversary hearing or
receiving new evidence. Ben also challenges the court's refusal
to take into account his post-trial injuries when it reconsidered
the equitable division of the parties' marital estate.
I. Facts and Proceedings
Ben and Diane Murray were married in 1983 after living
together for five years. They permanently separated in 1987. In
the initial divorce proceedings, the parties disputed the extent
to which they were functioning as an economic unit while they
lived together. They also disputed whether Diane's pecuniary and
nonpecuniary contributions to certain properties in Homer,
acquired in Ben's name prior to the marriage, evidenced the
parties' intent to hold the property jointly.
At the close of the trial, superior court Judge Victor
D. Carlson concluded that Ben and Diane had "commingled their
financial affairs to such an extent [after they moved in
together] that the court is unable to find that [Ben] maintained
separate financial arrangements." Judge Carlson awarded Diane
three parcels of land in Homer, the house that sat on one of
those lots, her nonvested Teamsters pension, and other personal
property. He awarded Ben the remaining Homer parcel, his vested
Teamsters pension, a charterboat, a tractor, and other personal
property. Judge Carlson stayed the award pending Ben's appeal,
but required Ben, who was living in the Homer residence, to both
pay rent to Diane and make payments on the land.
In Murray I, we reversed Judge Carlson's property
division, holding that he had erred in concluding that
"commingling alone established the parties' intent to hold
property jointly." 788 P.2d at 42. We directed the trial court
"to distinguish separate from marital assets; to assess whether
the equities required invasion of separate assets under AS
25.24.160(a)(4); and if so, to enter explicit findings to that
On remand Judge Carlson granted Ben's motion to reopen
discovery in June 1990. A month later Diane submitted a
supplemental finding of fact, which identified Ben's separate
property as a $10,000 down payment on the Homer property, the
tractor, proceeds from the sale of Ben's trailer, and any pension
benefits Ben had accrued prior to the marriage. Invasion of
Ben's separate property was justified on the grounds that Diane
(1) had made substantial nonpecuniary contributions to Ben's
separate property; (2) had contributed approximately $50,000 to
the improvement of the Homer residence; and (3) had forgone
valuable career opportunities at Ben's request. The proposed
finding also awarded Diane judgment for the cost of any repairs
necessary on the residence because of lack of maintenance or
waste during Ben_s post-trial occupancy.
Almost a year later, Judge Karl Johnstone, who took
over the case from Judge Carlson, adopted Diane_s recommended
findings without comment. Ben moved for reconsideration and a
new hearing, offering considerable documentation in support of
his claim that Diane put no more than $10,000 of her own money
into the Homer property. Ben also argued that in equitably
dividing the marital estate, the court should take into account
two severe injuries that he suffered after the initial trial.
Judge Johnstone denied this motion without hearing any additional
evidence. This appeal followed.
A. Amended Findings on Remand
We normally remand a case for more specific findings
when the trial court_s findings are not detailed or explicit
enough to permit meaningful review. Sloan v. Jefferson, 758 P.2d
81, 86 (Alaska 1988). In Murray I we directed the trial court to
distinguish between marital and separate property and to
determine whether invasion of the parties' separate property was
necessary to balance the equities. 788 P.2d at 42. After
reviewing the amended findings adopted by Judge Johnstone, we
conclude that the court failed to meaningfully comply with our
We have consistently held that trial courts must follow
a three-step process in equitably dividing marital property.
First, the court determines what property is available for
distribution. Second, the court values the property. Third, the
court equitably divides the property. See Wanberg v. Wanberg,
664 P.2d 568, 570 (Alaska 1983); see also Chotiner v. Chotiner,
829 P.2d 829, 831 (Alaska 1992). If at the third step the court
finds that an equitable division is not possible using the
marital property alone, then the court must determine whether
invasion of separate property is necessary to balance the
equities. AS 25.24.160(a)(4). If invasion is necessary, then
the court must determine what separate property the parties own,
value it, and adjust the initial division as needed. Chotiner,
829 P.2d at 831.
Instead of setting out the analysis called for in
Wanberg and Chotiner, Judge Johnstone's amended findings of fact
simply name certain assets as separate property and deem them
invaded. Without a determination of the value of the marital
estate, it is impossible for us to determine to what extent
invasion of Ben's separate property was required, if at all.
Furthermore, since the court did not assign a value to the
nonmarital portion of Ben's Teamsters pension, we cannot
determine whether invasion of his separate share was either just
or necessary. Thus we must remand this case a second time for
findings sufficiently detailed and explicit to give us a clear
understanding of the trial court's decision. See Chotiner, 829
P.2d at 833.
B. Necessity for New Evidence on Remand
Ordinarily, a remand for additional findings does not
obligate the trial court to hear new evidence.1 We will reverse
a trial court_s refusal to receive new evidence on remand only
when the refusal constitutes an abuse of discretion, unless we
have expressly called for a new trial or evidentiary hearing.
Chugach Elec. Ass_n v. Northern Corp., 562 P.2d 1053, 1062
(Alaska 1977). In this case, Ben seeks to introduce
documentary evidence of his claim that Diane contributed no more
than $10,000 to the Homer property improvements. At trial, the
parties disputed the amount of Diane's contributions, but offered
little documentary evidence to support their figures. Judge
Carlson made no findings on this issue in his original decision.
Because the evidence presented to Judge Carlson on this
point was both sparse and conflicting, we conclude that Judge
Johnstone abused his discretion in adopting Diane's finding that
she had contributed approximately $50,000 to the Homer property
without conducting an evidentiary hearing. Judge Johnstone did
not preside at the earlier trial and had no opportunity to weigh
the credibility of the parties on this issue. See, e.g., Adrian
v. Adrian, 838 P.2d 808, 812 (Alaska 1992) (reversing a child
support order entered by a judge who had not presided over the
initial divorce proceedings because the record he relied on did
not provide support for his decision).
C. Valuation of Diane's Teamster Pension
In his original decision, Judge Carlson found that
Diane's nonvested pension was worth approximately $22,000 and
that Ben's vested pension was worth approximately $62,000. Ben
argues that Judge Johnstone erred in failing to revalue Diane_s
Teamster pension on remand because Diane's pension had then
vested and had substantially increased in value.
We have previously held that if the value of disputed
property has changed between the date of an original divorce
trial and the date of a new trial on remand, the court should
value the property as of the date of the new trial unless
specific circumstances would make such revaluation unjust.
Moffitt v. Moffitt, 813 P.2d 674, 678 (Alaska 1991). In this
case revaluation clearly "advances interests of accuracy and
fairness," Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991),
quoted in Moffitt, 813 P.2d at 678, because under our case law,
nonvested pensions should not be valued and distributed until the
time of vesting. See Laing v. Laing, 741 P.2d 649, 655-58
(Alaska 1987) (holding that although nonvested pensions are
marital property subject to equitable division, the court should
not divide them at the time of divorce, but instead should
reserve jurisdiction over them until the time when they vest).
Accordingly, the trial court should have revalued Diane_s pension
to reflect the pension's full vested value.
D. Ben's Post-trial Injuries
Ben argues that his post-trial injuries represent a
change in circumstances that Judge Johnstone was obligated to
consider on remand. Relying on Moffitt, 813 P.2d at 678, he
argues that because his disability arose before the entire
property division became final, the trial court must therefore
take his injuries into account when equitably dividing the
We agree. The reversal of a judgment means that the
judgment is vacated, "and the case is put in the same posture in
which it was before the judgment was entered." Shilts v. Young,
643 P.2d 686, 688 (Alaska 1981). Because we again reverse and
remand this case, the trial court should consider Ben_s current
needs and circumstances when reconsidering the property division.2
However, we emphasize that Ben_s current physical
condition is just one of many factors that enter into a
determination of an equitable property division. See Merrill v.
Merrill, 368 P.2d 546, 547 n.4 (Alaska 1962). The trial court
should also take into account any other compensation--such as
workers_ compensation, social security, or insurance payments--
that Ben receives or will receive for his injuries.
E. The Judgment for Waste and Costs of Repair
At the end of his amended findings of fact, Judge
Johnstone granted Diane judgment against Ben for any costs of
repairs to the Homer property, "[t]o the extent that the
structure has suffered from lack of maintenance or outright waste
during [Ben_s] post-trial occupancy." Ben argues that this
finding improperly grants a judgment for waste against Ben and
thus lies outside the scope of the remand.
We agree. Diane did not raise the issue of waste in
her pleadings or in a cross-appeal. Moreover, Judge Johnstone
made no finding that waste in fact occurred, and there is no
indication in the record that he heard evidence on the matter.
To insert a judgment for waste into the amended findings would
deny Ben his right to fully litigate the issue. Therefore, the
award for the cost of repairs to the Homer residence was
F. Credits for Rent and Land Payments that Ben Made
During the Proceedings
Before his first appeal to this court in Murray I, Ben
moved for a stay of Judge Carlson_s award of the Homer property.
Judge Carlson granted the motion, on the condition that Ben both
pay rent to Diane and make land payments on the property. The
stay order granted Ben credit for the rent and land payments
"[i]n the event that he [was] successful in his appeal." Ben now
asserts that his first appeal in Murray I was "successful," and
that on remand Judge Johnstone erred in denying him these
However, because the ownership of the Homer residence
and property has not been finally decided, Ben's entitlement to
these credits has not yet been resolved. If, on remand, the
trial court determines that the residence and property should be
awarded to Ben, then Ben should receive a "credit"for the rent
he has paid to Diane. However, even in this circumstance, Ben
would clearly not be entitled to "credit"for payments made on
To summarize, we direct the trial court on remand to
issue specific findings in accordance with this opinion and to
consider new evidence relevant to the property division as a
whole and to the current circumstances of the parties.
REVERSED and REMANDED for proceedings consistent with
1. Ben argues that Judge Johnstone_s refusal to hear new
evidence denied him due process. However, Ben had his
opportunity to present evidence at the original trial, and he
does not argue that the court prevented him from doing so at that
time. Therefore, Judge Johnstone_s refusal to consider Ben_s new
evidence does not alone amount to a denial of due process.
2. Our holding here does not change the general rule that a
property division constitutes a final judgment, subject to
modification only under the provisions of Alaska Civil Rule
60(b). Clauson v. Clauson, 831 P.2d 1257, 1259 n.3 (Alaska
1992); see also Allen v. Allen, 645 P.2d 774, 776 (Alaska 1982).
We have modified property divisions upon a showing of
extraordinary circumstances justifying relief from judgment under
Civil Rule 60(b)(6). Clauson, 831 P.2d at 1260-61; Foster v.
Foster, 684 P.2d 869, 871-72 (Alaska 1984). However, if the
property division in this case were final, then Ben's post-trial
injuries would be simply an unrelated change in personal
circumstances, and would not constitute extraordinary
circumstances sufficient to justify modification. See, e.g.,
Schwartzman v. Schwartzman, 590 A.2d 246, 248 (N.J. App. 1991)
(declining to modify property division to account for failure of
spouse's business), certification denied, 598 A.2d 897 (N.J.
1991); In re Marriage of Moak, 668 P.2d 1249, 1251 (Or. App.
1983) (same). See generally Lawrence J. Golden, Equitable
Distribution of Property 8.03A (Supp. 1992) (discussing
finality of property divisions).
3. Ben also raises an issue concerning the refusal of his
guardian, Tom Owens, to testify at a deposition on March 1, 1991.
In response to Owens_s refusal to testify, Diane moved for
sanctions under Alaska Civil Rule 37, specifically requesting the
trial court to preclude Ben from opposing her motion to modify
the findings of fact. In his order of July 25, 1991, Judge
Johnstone granted Diane the costs of the deposition, but
expressly declined to grant Diane Rule 37 sanctions. Judge
Johnstone denied Ben_s request for clarification as to whether
the order was in fact a discovery sanction.
On appeal, Ben claims that the denial of his motion for
clarification was reversible error. We conclude that Ben's
argument is without merit.