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A. Ulsher v. L. Ulsher (2/11/94), 867 P 2d 819
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NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
ANDREW P. ULSHER, )
) Supreme Court No. S-5343
Appellant, )
) Superior Court No.
v. ) 3AN-91-7512 Civil
)
LYNDA S. ULSHER, ) O P I N I O N
)
Appellee. ) [No. 4053 - February 11, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley,
Judge.
Appearances: Vincent P. Vitale, Law
Office of Vincent Vitale, P.C., Anchorage,
for Appellant. Max F. Gruenberg, Jr.,
Gruenberg and Clover, Anchorage, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating].
COMPTON, Justice.
MATTHEWS, Justice, dissenting in part.
Andrew Ulsher appeals the superior court's property
division, rehabilitative alimony, and child visitation decisions
in this divorce case. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Andrew Ulsher and Lynda Ulsher were separated after
eight years of marriage. They have two children: Andrew, age
seven and Alexandra, age three.
Andy is a career military officer and Lynda is a
draftsperson. Andy earns $4,817 per month net while Lynda earns
$1,445 per month net.1 As a seasonal employee, however, Lynda
rarely works during January and February.
Lynda and the family followed Andy wherever his
military career took him. Throughout the marriage, Lynda took
primary responsibility for the children. During the first four
years of marriage, the family lived in Berlin where Lynda was
unable to continue pursuing her engineering degree.
At the time of the divorce, Lynda had completed forty-
five credits toward a degree in civil engineering. She submitted
a plan which would allow her to obtain her degree in six years.
She testified that a degree would improve her current position
and allow her to become a registered engineer.2
The superior court found that Lynda was "the
significantly economically disadvantaged party at the time of
divorce"and awarded her two-thirds of the marital property. The
court also found that "[b]oth parties are fit to serve as the
legal and physical custodians of their children." However, since
they could not "communicate or cooperate as co-parents," the
court concluded that joint legal custody would not be in the best
interests of the children. Lynda was granted sole legal custody
and primary physical custody of the children. Andy received
extensive visitation rights. Lynda was awarded $646 per month
child support. Finally, the court awarded Lynda rehabilitative
alimony for five years, noting in its oral findings that "[a]s
she progresses through her education and gets more time in her
job it is to be believed, I think, that her situation will
improve some. She goes up through the steps and gets the
foagies(ph) as she goes."3
II. DISCUSSION
A. STANDARDS OF REVIEW
An equitable division of marital assets involves a
three-step process. Wanberg v. Wanberg, 664 P.2d 568, 570
(Alaska 1983). First, the trial court must determine what
property is available for distribution. Id. This step is
reviewed for an abuse of discretion, although it may pose legal
questions to which this court applies its independent judgment.
Jones v. Jones, 835 P.2d 1173, 1175 (Alaska 1992). Second, the
trial court must determine the value of that property. Id. The
valuation of marital property is a factual determination which
will be reversed only if clearly erroneous. Id. Third, the
trial court must determine the most equitable division of the
property. Id. A trial court has broad discretion in fashioning
a property division. Laing v. Laing, 741 P.2d 649, 651 (Alaska
1987). This court will not disturb a property division unless it
is clearly unjust. Id. A rehabilitative alimony award is
reviewed for an abuse of discretion. Bays v. Bays, 807 P.2d 482,
485 (Alaska 1991). This court will reverse a custody decision
only where the record shows an abuse of discretion, or the
controlling factual findings are clearly erroneous. Long v.
Long, 816 P.2d 145, 150 (Alaska 1991).
B. DIVISION OF MARITAL ASSETS
Andy disputes only the third aspect of the property
division: the distribution of the marital assets. The superior
court allocated one-third of the marital estate to Andy and two-
thirds to Lynda. Andy argues that Lynda will receive 84% of the
marital estate if the alimony is factored into the division.
This argument mischaracterizes the nature of the superior court's
decision. An alimony award is separate from a property division.
Payments that do not divide property cannot be considered part of
a property division. Rhodes v. Rhodes, 754 P.2d 1333, 1335
(Alaska 1988).
Although an equal division of property is presumed to
be the most equitable, the trial court has broad discretion to
deviate from absolute equality. Wanberg, 664 P.2d at 574-75. In
fashioning a property division, the relevant factors to consider
are
(A) the length of the marriage and
station in life of the parties during the
marriage;
(B) the age and health of the parties;
(C) the earning capacity of the
parties, including their educational
backgrounds, training, employment skills,
work experience, length of absence from the
job market, and custodial responsibilities
for children during the marriage;
(D) the financial condition of the
parties . . . ;
(E) the conduct of the parties . . . ;
(F) the desirability of awarding the
family home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities
of each party . . . .
AS 25.24.160(a)(4).
The marriage was of moderate length. Lynda worked off
and on throughout. The needs of the family often defined the
extent of her career. Her income is less than half of Andy's.
Andy argues that Lynda "suffered no diminution in her earning
capacity during the marriage." "Diminution in earning capacity"
is not a statutory factor, however. Based on the statutory
factors, the trial court's allocation of marital property was not
clearly unjust and should not be disturbed.
C. REHABILITATIVE ALIMONY
The superior court found that "it is in both the
children's and Andy's best interests that Lynda become fully self-
supporting." Therefore, it awarded Lynda rehabilitative alimony
while she obtains her degree. This alimony gradually decreases
over a five year period.4
Andy argues that Lynda's educational plans are not
financially sound and would not prevent her from working full
time. Also, since her degree will take six years and her support
will last only five, Andy argues that there is insufficient
correlation between the award and Lynda's plans. Finally, Andy
contends that the property award alone will allow Lynda to live
comfortably. Lynda responds that although a property
division is preferable to a support award, this court leniently
reviews awards of limited duration, such as the one here.
Schanck v. Schanck, 717 P.2d 1, 4-5 (Alaska 1986); Bussell v.
Bussell, 623 P.2d 1221, 1224 (Alaska 1981). Lynda further argues
that the award was also intended to let her keep the house, and
is therefore a combination of rehabilitative and reorientation
alimony.
Rehabilitative alimony is limited to "job training or
other means directly related to the end of securing for one party
a source of earned income."5 Schanck, 717 P.2d at 5. When Lynda
completes her education, she will have a degree in civil
engineering. The period during which Lynda will receive
rehabilitative alimony is of short duration. We conclude that
the superior court did not abuse its discretion.
D. CHILD CUSTODY AND VISITATION
The evidence supported the finding that Lynda and Andy
could not cooperate enough to allow a joint legal custody
arrangement. The superior court granted Lynda sole legal custody6
and primary physical custody. In six pages of findings, the
court specified in detail the shared custody arrangement. During
the summer, Andy and Lynda will have the children for alternating
weeks. During the school year, Andy will have the children for
three out of four weekends. Andy's weekend with Andrew begins on
Thursday evening, while his weekend with Alexandra begins on
Friday until her fifth birthday.
Andy argues that he should have custody for alternating
weeks throughout the entire year. In the alternative, he argues
that both children's weekends should start on Thursday evening.
The court essentially followed the recommendations of Kathleen
Harrington, the custody investigator. Harrington recommended
that Andy have the children on alternating weekends from Thursday
to Monday morning during the school year and alternating weeks in
the summer.
The court considered the advantages of keeping Andrew
near his school during the school year, and also allowing him to
have extensive contact with his father. See AS 25.20.090(4)-(6).
The court was also concerned about separating Alexandra from her
mother for extended periods. Lynda had testified that Alexandra
was more irritable and clingy after visits with her father. The
record indicates no abuse of discretion with respect to the
custody arrangement. The court went to great lengths to specify
every detail in order to avoid future friction between the
parties.
III. CONCLUSION
Based on the statutory factors, the superior court's
allocation of marital property was not clearly unjust and should
not be disturbed. Likewise, the record indicates no abuse of
discretion with regard to either the superior court's custody and
visitation decisions or the rehabilitative alimony award.
Therefore, we AFFIRM the judgment of the superior court.
MATTHEWS, Justice, dissenting in part.
I dissent from the portion of the majority opinion
which affirms the superior court's award of rehabilitative
alimony. In my opinion, the superior court should not have
awarded rehabilitative alimony without making specific findings
to support its decision.
Alaska Statute 25.24.160 provides for the award of
alimony when "just and necessary." See AS 25.24.160(a)(2);
Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986). The just and
necessary statutory requirement applies to all forms of alimony,
permanent or temporary. In general, spouses who cannot support
themselves should have their basic needs met with a weighted
division of property, rather than alimony, where the marital
assets are adequate. Schanck, 717 P.2d at 5; see also Ramsey v.
Ramsey, 834 P.2d 807, 809-10 (Alaska 1992); Dixon v. Dixon, 747
P.2d 1169 (Alaska 1987); Bussell v. Bussell, 623 P.2d 1221, 1224
(Alaska 1981). However, rehabilitative alimony is appropriate
when it is just and necessary and "when the recipient spouse
intends to apply the alimony toward job training designed to lead
to employment." Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska
1992); see also Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987)
(stating that rehabilitative alimony "is appropriate only when it
is directly related to developing a source of income" and
therefore "should not be awarded to a spouse who refuses to use
it for its intended purpose").
To support an award of rehabilitative alimony, we have
required the superior court to make specific findings regarding
the spouse's need for the alimony and how he or she intends to
use the award to develop a source of income. See e.g., Dixon,
747 P.2d at 1174 (remanding case for specific findings because
spouse's "vague education plans"did not support trial court's
award of rehabilitative alimony); Miller, 739 P.2d at 165
(rejecting alimony award absent specific findings as to whether
wife intended to use alimony for job training); Carlson v.
Carlson, 722 P.2d 222, 225 (Alaska 1986) (requiring trial court
to reconsider alimony award and to state reasons for its
decision); see also Jones, 835 P.2d at 1178-79 (requiring
superior court to make specific findings regarding spouses'
financial needs when awarding spousal support).
In this case, the superior court did not make specific
findings to justify the support award. The court stated:
On the issue of spousal support, it
is in both the children's and Andy's best
interests that Lynda become fully self-
supporting. It was part of Lynda's
reasonable expectation with the marriage that
she be assisted in achieving her educational
goal of a degree and certification as a
professional engineer. She has worked toward
realizing her career goals during the
marriage. There is a correlative benefit to
the children of their mother's attaining this
professional degree. Therefore, the court
awards spousal support for the five years
that Lynda reasonably expects to take
courses, part-time at UAA.
The court's statement does not discuss Lynda's specific
need for the support nor her educational plans. It also does not
address the legitimate question of whether Lynda's full-time
earnings plus child support will be sufficient to maintain the
household while she pursues her engineering degree. Thus, I
would remand with instructions that the trial court make specific
findings regarding the need for rehabilitative alimony. If,
after further review, the superior court remains convinced that
rehabilitative alimony is necessary, it should fashion an award
that is directly related to Lynda's educational goals and needs.
_______________________________
1. The $1,445 figure is taken from Lynda's Financial
Declaration, which was submitted prior to trial. At trial, Lynda
testified she was earning $1,600 per month net. According to the
Financial Declaration, Lynda's monthly expenses totaled $3,757.
However, at trial she testified that her monthly expenses could
be as low as $3,550. We do not need to comment further on these
minor discrepancies, because Andy did not contest the amount of
child support in his points on appeal. Under either set of
figures, Lynda is the significantly economically disadvantaged
party, as found by the superior court. Her expenses exceed her
income by approximately $2,000 per month.
2. Lynda's plan identified two specific engineering
courses she would take each semester at U.A.A., commencing summer
semester 1992 and continuing each fall and spring semester into
1999. In addition, she identified six specific elective courses
she hoped to take, one each summer. She testified that the
sooner she finished her coursework, the more quickly she would be
able to get her Engineer in Training (EIT) certificate, "which
would move me up in my position at my office." Also it would put
her closer to obtaining her Professional Engineering (PE)
certificate. She did not offer evidence of the cost of tuition
and fees she would incur in completing the plan, nor the increase
in income she could anticipate in advancing from a draftsperson
to a PE.
Andy offerred no evidence regarding Lynda's plan.
Specifically, he did not object to the lack of evidence of the
cost of the plan. He did not question whether the plan was cost
effective (cost of obtaining the degree versus assumed increased
earnings), whether the plan was feasible, or whether Lynda's
earning capacity would be enhanced as a result of completing the
plan. In closing argument his only comment touching upon the
plan and the issue of rehabilitative alimony was that he
"propose[d] to pay Lynda $250 per month alimony for a period of
two years."
3. Lynda is paid by the hour. The rehabilitative alimony
she requested was intended to offset the "time that [she] would
take out of [her] work time"to attend classes. The term
"foagies,"as it appears in the transcript, probably derives from
Judge Ripley's incarnation as a reserve military officer. A
fogy, fogie, or fogey, is the increase over base pay given after
specified periods of military service.
4. Lynda was awarded $500 per month the first year, $400
per month the second year, $300 per month the third year, and
$200 per month for each of the last two years. The trial judge
commented: "This money won't do it, but it's more, I recognize,
than defendant is going to feel is appropriate."
5. When a party claims rehabilitative alimony, we strongly
encourage submission of a cost estimate of the rehabilitative
plan, as well as an approximation of the economic benefit that is
expected. It is necessary that the person receiving
rehabilitative alimony will improve employability as a result of
the plan.
6. We recognize that joint or shared legal custody is
generally preferred to sole legal custody. An act amending
AS 25.20.060 provides:
The legislature finds that it is
generally desirable to assure a minor child
frequent and continuing contact with both
parents after the parents have . . .
dissolved their marriage and that it is in
the public interest to encourage parents to
share the rights and responsibilities of
child rearing. While actual physical custody
may not be practical or appropriate in all
cases, it is the intent of the legislature
that both parents have the opportunity to
guide and nurture their child and to meet the
needs of the child on an equal footing beyond
the consideration of support or actual
custody.
An Act Relating to Child Custody, ch. 88, 1(a), SLA 1982; see
also Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990)(recognizing the
legislature's intent to favor joint legal custody, regardless of
the physical custody arrangement). However, in view of the lack
of cooperation between the parties on child rearing decisions, we
conclude that the superior court did not abuse its discretion in
awarding sole legal custody to Lynda.
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