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Horchover v. Field (10/16/98), 964 P 2d 1278


     Notice:  This opinion is subject to 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, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

ROBERT L. HORCHOVER,          )
                              )    Supreme Court No. S-7989
               Appellant,     )
                              )    Superior Court No.
          v.                  )    1JU-91-1037 CI
                              )
SYLVIA F. FIELD, f/k/a        )    
SYLVIA F. HORCHOVER,          )    O P I N I O N
                              )
               Appellee.      )    [No. 5040 - October 16, 1998]
                              )


          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                   Walter L. Carpeneti, Judge.

          Appearances:  Loren Domke, Loren Domke, P.C.,
Juneau, for Appellant.  R. Scott Taylor, Rice, Volland & Taylor,
P.C., Anchorage, for Appellee.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          COMPTON, Justice.


I.   INTRODUCTION
          Robert Horchover refused to abide by certain provisions
of a Property Settlement Agreement that the superior court had
incorporated into the decree that divorced him and Sylvia
Horchover, now known as Sylvia Field.  Sylvia moved the superior
court:  (1) to order Robert to show cause why he should not be held
in contempt of court; (2) to order him to provide an accounting and
to transfer certain funds to her; and (3) to reduce his arrearages
to judgment.  The superior court reduced Robert's arrearages to
judgment, required him to provide a full accounting of two
investments and of his dentistry practice's pension plan, and
required him to turn over to Sylvia some artwork.  After having
paid the judgment, Robert requested and received clarification from
the superior court regarding the accounting and artwork
requirements.  Robert only appeals the order requiring him to
provide Sylvia with an accounting.
          We conclude that the superior court's order requiring
Robert to provide an accounting was a valid order enforcing the
divorce decree, not an invalid order adding terms to the parties'
Property Settlement Agreement incorporated into that decree. 
Furthermore, we conclude that the order was not an abuse of the
court's discretion. 
II.  FACTS AND PROCEEDINGS
          In November 1992 Robert L. Horchover and Sylvia F.
Horchover-Field were divorced after thirty-three years of marriage. 
The Decree of Divorce provided that 
          the assets and liabilities of the parties
shall be divided in accordance with the Property Settlement
Agreement and Qualified Domestic Relations Order ["Property
Settlement Agreement"] executed by the parties and previously filed
with this court and that the terms and conditions of the Property
Settlement Agreement shall be fully incorporated into this decree
of divorce.

The superior court concluded that the "Property Settlement
Agreement [was] a fair and equitable distribution of the parties'
property, assets and debts."  
          The Property Settlement Agreement provides that Sylvia
shall receive (among other things):
          5.   Sixty-five percent (65%) of the net value
of the combined profit sharing plans of the two parties.  This
value shall be calculated by deducting the outstanding loan
obligations from the gross amount of the two combined plans.

               . . . . 

          10.  Fifty percent (50%) of all income
attributable to the parties from [their investment in] the
Waterfront Hotel project.

          11.  The sum of Two Thousand Dollars
($2,000.00) per month payable by husband to wife from January 1,
1995, with the last payment due November 1, 1996.  This payment is
a distribution of marital property. 

          12.  Fifty percent (50%) of all income
attributable to husband's share of [a] licensing agreement with
Schwarb Foundry, presently held by 3S Pacific Corporation.
          Robert did not begin making the $2,000 payments to Sylvia
on January 1, 1995, as required by paragraph 11 of the Property
Settlement Agreement.  In June Robert's attorney sent a letter to
Sylvia's attorney alleging that Sylvia had diverted money from
Robert's dentistry business in 1988 and 1989. [Fn. 1]  The letter
stated, in part:
               Dr. Horchover recognizes his
responsibilities under the Settlement Agreement, but feels strongly
that it was implicit in the settlement process that both parties
deal honestly with each other and make full disclosure of relevant
asset information.  If Sylvia has withheld material information on
the source of funds in [her personal] account, or has gone further
and affirmatively misrepresented the source of these funds, I think
she will be in a very poor position to enforce any rights under the
Settlement Agreement.  Please ask your client to cooperate.  Dr.
Horchover would like to resolve this issue in the next couple of
months.  Thank you. 

          In August 1996 Sylvia moved for "an order to show cause
why [Robert] should not be held in contempt of court; for an order
requiring an accounting; and for transfer, of certain funds; and
for reduction of arrearages to judgment."  She requested an
accounting of the dentistry practice's pension profit sharing plan,
the Juneau Waterfront Hotel project (Waterfront Project), the
Schwarb Foundry Project, and two other investments no longer at
issue.  In her memorandum in support of her motion, Sylvia stated
that "it appears that there are additional stocks and accounts
receivable which have not been identified or transferred.  [I]
seek[] an accounting of all assets and transactions within the
pension plan and profit sharing plans from the date of divorce to
the present and an immediate transfer of all sums and assets due
[me]."  Additionally, Sylvia requested an accounting of the other
investments because, "[g]iven the history of this divorce, [she]
[was] concerned that these assets may be modified or liquidated in
a way that prevents her from discovering money which is due her." 
          Robert opposed Sylvia's motion.  Regarding the request
for accounting, Robert stated:
               Sylvia raises a number of issues which go
beyond the terms of the property settlement.  She has asked [me]
for an accounting of various notes receivables due the retirement
plan, for an accounting of two worthless equities held by the plan,
and for an accounting of the Juneau Waterfront Hotel Project and an
accounting of the Schwarb Foundry project.

Robert argued that he had fully complied with the property
settlement "and [was] not required to furnish any of the
accountings requested, with the exception of the Schwarb Foundry
where he is the general project manager."[Fn. 2]
          In January 1997 the superior court granted Sylvia's
motion to reduce Robert's arrearages to a judgment and ordered him
to provide to her  
          an accounting of the Robert L. Horchover,
D.D.S., Pension and Profit Sharing Plans and transfer to [Sylvia]
all sums in those plans which were awarded to her in the property
settlement agreement, . . . [and to provide] a full accounting of
the activities of the Juneau Waterfront Hotel Project and the
Schwarb Foundry Project.

Robert moved the court to clarify the order requiring him to
provide Sylvia with an accounting. [Fn. 3]  
          In May 1997 the superior court issued its Order re
Clarification.  It ordered Robert to provide Sylvia, within twenty
days of the date of the order, with:
          1.   A complete accounting of all assets and
transactions in the pension and profit sharing plan from the date
of divorce to the date of this order. [Robert] shall bear the full
cost of such accounting.

          2.   A copy of the books of the Juneau
Waterfront Hotel project or its successor entities.

          3.   A complete copy of the books of the
Schwarb Foundry project or its successor entities.

This appeal followed. [Fn. 4]
III. DISCUSSION
     A.   Standard of Review
          The parties disagree on the proper standard of review. 
Robert argues that because the Property Settlement Agreement is a
bilateral contract, and the superior court interpreted it in
requiring him to provide an accounting, this court should review
the superior court's order de novo.  De novo review is appropriate,
Robert argues, because "[t]he issue is whether the trial court had
jurisdiction to interpret the property settlement and to imply
conditions and obligations not anticipated at the time of the
settlement or agreed to by the parties."  Robert cites to our
decision in Kendler v. Kendler, 816 P.2d 193 (Alaska 1991). 
Sylvia, however, argues that we should review the superior court's
order for an abuse of discretion.  She states that the court was
merely enforcing its divorce decree, which incorporated the
Property Settlement Agreement, and therefore the abuse of
discretion standard applies. 
          Whether the superior court added terms to the Property
Settlement Agreement or was merely enforcing the agreement, as
incorporated into its divorce decree, is a question of law that we
review de novo.  See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).  On questions of law, our duty "is to adopt the rule of law
which is most persuasive in light of precedent, reason, and
policy."  Id.  If the superior court's order was merely enforcing
the Property Settlement Agreement, as incorporated into its divorce
decree, we review the order for an abuse of discretion.  See
Meyeres v. Meyeres, 705 P.2d 921, 922-23 (Alaska 1985) (reviewing
for an abuse of discretion the trial court's ruling in favor of the
ex-husband's motion to enforce the terms of the divorce decree). 
See also Rohweder v. Fleetwood Homes of Or., Inc., 767 P.2d 187,
190 (Alaska 1989) (reviewing for an abuse of discretion discovery
sanctions imposed by a superior court in an effort "to enforce its
discovery orders"); Sanguinetti v. Sanguinetti, 628 P.2d 913, 916
(Alaska 1981) (reviewing for an abuse of discretion a trial court's
decision to deny "the mother's motion to enforce the home study
order and to re-open the case").  If the order instead implicitly
modified or added terms to the agreement, then it is void.
          While we have held that property settlement agreements
are bilateral contracts, [Fn. 5] that does not require us to adopt
Robert's argument that we should review the superior court's order
de novo.  We have repeatedly held that a property settlement
agreement incorporated into a divorce decree merges with that
decree.  See, e.g., Cedergreen v. Cedergreen, 811 P.2d 784, 786
(Alaska 1991) (stating that a party could enforce terms of a
property settlement agreement by moving the court to enforce its
divorce decree because "the parties' settlement was explicitly
merged into its decree"); Stone v. Stone, 647 P.2d 582, 584 (Alaska
1982) ("A property settlement incorporated into a divorce decree is
merged into the decree, so that the rights of the parties derive
from the decree, not the agreement."); O'Link v. O'Link, 632 P.2d
225, 228 (Alaska 1981) ("A property division incorporated within a
divorce decree is a final judgment and is modifiable to the same
extent as any equitable decree of the court.").  Furthermore, we
have explicitly stated that "[p]rinciples of contract law are not
applicable in an attempt to obtain relief from a final judgment
[when the final judgment comprises] the terms of a property
settlement incorporated into a divorce decree."  Stone, 647 P.2d at
585.  Thus, if the superior court was merely enforcing the
Horchovers' divorce decree, we review the superior court's actions
as we would any order issued by the superior court in an attempt to
enforce one of its final decrees -- that is, for an abuse of
discretion.
          We must first determine, de novo, whether the superior
court added terms to the Property Settlement Agreement when it
required Robert to provide Sylvia with an accounting, or whether
the superior court was merely enforcing the agreement, which had
merged with the divorce decree. [Fn. 6]  If we conclude that the
superior court was merely enforcing the divorce decree, we must
then determine whether the superior court abused its discretion in
so doing.  If, however, we conclude that the superior court added
terms to the Property Settlement Agreement when it ordered Robert
to supply an accounting, then the superior court exceeded its
jurisdiction by modifying a bilateral contract, and we must vacate

the order.
          For the following reasons, we conclude that the superior
court's order was merely enforcing the divorce decree; it did not
abuse its discretion in requiring Robert to provide Sylvia with an
accounting.
     B.   The Superior Court's Order Requiring Robert to Provide an
Accounting Merely Serves to Enforce the Property Settlement
Agreement.
          1.   The parties' arguments
          Robert's argument that he should not be required to
provide Sylvia with an accounting can be summed up as follows: 
"The property settlement does not impose any obligation on Robert
to provide Sylvia with accountings or records or documents for
either project or for the corporate pension plan."  Because the
Property Settlement Agreement is devoid of any accounting
requirements, Robert argues, the superior court exceeded its
jurisdiction by adding such a requirement to the agreement.  Robert
cites Kendler to support his argument. 
          In Kendler, the superior court incorporated Joe and Marie
Kendler's property settlement agreement in a divorce decree.  See
Kendler, 816 P.2d at 193.  Joe failed to abide by paragraph 10 of
the agreement; thus, Marie moved for "an order to show cause,
seeking to hold Joe in contempt for 'failure to comply with terms
of the property settlement incorporated into the judgment and
decree.'"  Id. at 194.  The superior court ordered Joe to conform
with paragraph 10 and, because of "'possible bad faith on Joe's
part,'"also required him to, among other things, provide an
accounting to Marie "'on an annual basis for all assets set out in
. . . the property settlement agreement.'"  Id. at 194-95.  "The
superior court's final order,"we noted, "which incorporates the
terms and conditions of its original order, in effect, imposes
seven conditions upon Joe."  Id. at 195.  Joe appealed, arguing
that "the superior court has, without authority, amended the
property settlement agreement as incorporated in the divorce
[decree] by adding terms which were not contemplated by the
parties."  Id.  We agreed.  See id.  We reviewed the superior
court's order as one which "interpreted paragraph 10 of the
property settlement agreement."  Id. at 196.  We concluded that,
because the agreement did not require Joe to provide an accounting
(or any of the other things ordered by the superior court), the
superior court's final order "[could] be viewed as adding
additional terms to the divorce decree."  Id. at 196. 
Specifically, we characterized the court's actions as not merely
enforcing the divorce decree, or interpreting a vague contract
provision, but instead added terms as Joe had complied with
paragraph 10 at the time the court issued the additional
requirements.  See id. 
          Robert argues that "Kendler is directly on point."
"Viewed objectively,"Robert states, "no provision in the Horchover
settlement can be interpreted as burdening Robert with any
accounting expenses or responsibilities or with any records
disclosure duties."  Therefore, by "requiring Robert to furnish any
information or accountings to Sylvia regarding either the pension
plan or the two projects, the Superior Court added additional terms
to the contract."
          Sylvia, however, argues that the superior court's order
merely enforced the "property division incorporated into the
parties' divorce decree, [and therefore] the post-judgment order
was well within the trial court's jurisdiction."  The superior
court, Sylvia argues, was merely enforcing the decree by providing
her "with a means of determining the value of the assets awarded to
her."  Sylvia contends that requiring an accounting is justified in
light of Robert's "history of vexatious noncompliance with the
settlement agreement."[Fn. 7]
          Sylvia distinguishes Kendler.  She asserts that, in
contrast to the order in this case, which only seeks "compliance
with the express terms of the parties' settlement agreement,"the
superior court in Kendler added terms that went beyond mere
enforcement.  In this case, Sylvia argues, the superior court was
merely enforcing the agreement because 
          [a]t the time of the order, [Robert] had not
fully complied with the decreed property division.  Assets in the
profit sharing plan had not been transferred and [Sylvia] had
received nothing from the Juneau Waterfront Hotel and Schwarb
Foundry projects.  The only way for [her] to ascertain and receive
her awarded share of these assets was for her to receive an
accounting of the profit sharing plan and copies of the books for
the projects.

          In his reply brief, Robert denies noncompliance with the
Property Settlement Agreement, aside from his initial, now-
resolved, refusal to pay the required $2,000 monthly payments. [Fn.
8] Robert states that he did not 
          fail to "turn over 65 percent of the profit
sharing plan."  He refused initially to turn over part of a private
loan repayment as a setoff for the missing $41,418 [that he alleged
Sylvia had embezzled from his dentistry business].  Sylvia did
receive a $96,540 payment before her enforcement motion was filed
and received an accounting of all funds due. [Fn. 9] 

          2.   The superior court's order
          The superior court's language discloses that it requested
an accounting from Robert solely for the purpose of enforcing the
divorce decree.  First, in its original order requiring Robert to
provide an accounting, the superior court stated that Robert shall
provide an accounting of the pension plan and "shall transfer to
[Sylvia] all sums in those plans which were awarded to her in the
property settlement agreement."  This language suggests that the
court was not altering the agreement, but rather requiring Robert
to pay Sylvia the sums that the Property Settlement Agreement in
fact had awarded her.  Second, pursuant to Robert's motion
requesting a clarification of the original order requiring him to
provide an accounting of the  pension plan, the Waterfront Project,
and the Schwarb Foundry Project, the superior court specified that
Robert must provide Sylvia with "[a] complete accounting of all
assets and transactions in the pension and profit sharing plan from
the date of divorce to the date of this order."(Emphasis added.) 
          Sylvia alleged that Robert was not abiding by the
agreement, i.e., that she was not receiving sixty-five percent of
the pension plan funds, as the agreement required.  In order for
the superior court to enforce its divorce decree, it first had to
ascertain whether Sylvia had received the funds due her.  To
determine whether Sylvia had received the designated funds, the
court had to be current on the pension plan's fiscal activity. 
While requiring an accounting of the pension plan may appear as an
additional requirement, in reality it was the only way for the
court to determine whether Robert was honoring the divorce decree.
          While Robert relies heavily on Kendler to support his
argument that the superior court was not merely enforcing its
divorce decree when it required him to provide an accounting,
Kendler is distinguishable.  In Kendler we noted that Joe had fully
complied with the express terms of the property settlement
agreement, and therefore the superior court's requirements were in
error because they constituted new terms to the agreement.  See
Kendler, 816 P.2d at 196.  We specifically stated that we were
"[f]ocusing, as we must, on the time when the superior court issued
its final order [enforcing the decree]."  Id.  Here, Sylvia
contends, as of the time the court issued its enforcement order,
that Robert had not fully complied with the Property Settlement
Agreement, and there were pension plan funds due her. Unlike in
Kendler, where we readily determined that Joe was in full
compliance with the property settlement agreement, in the instant
case an accounting of the pension plan is required to determine
whether Robert is in full compliance with the divorce decree.  
          We conclude that the superior court was simply enforcing
its decree of divorce when it ordered Robert to provide an
accounting of the pension plan.
          Similarly, we conclude that the superior court's order
requiring Robert to turn over a copy of the Waterfront Project
books [Fn. 10] also served to enforce its divorce decree.  The
Property Settlement Agreement provided that Sylvia should receive
"[f]ifty percent (50%) of all income attributable to the parties
from the Waterfront Hotel Project."  Based on Robert's assertions
that the project was not producing any income, Sylvia has received
no payments from the project.  For the court to enforce the terms
of the Property Settlement Agreement, it first had to determine
whether the Waterfront Project was defunct.  Therefore, the court's
order did not disturb the parties' agreement to share the projects'
proceeds evenly; it just provided a way to determine if any
divisible proceeds existed.
     C.   It Was Not an Abuse of Discretion to Require Robert to
Provide Sylvia with an Accounting of the Pension Plan and a Copy of
the Waterfront Project Books.
          Based on our conclusion that the superior court's order
requiring Robert to provide an accounting of the dentistry's
pension plan and a copy of the Waterfront Project books was merely
an order enforcing its divorce decree, we must now determine
whether the court abused its discretion in making that order.  We
conclude that it did not. 
          We will find that the superior court abused its
discretion if we "ha[ve] a definite and firm conviction that a
mistake has been made."  Department of Health & Soc. Servs. v.
Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755, 765 (Alaska
1993).  "This standard of review bids us give considerable
deference to the decision of the trial judge."  Ryan v. State, 899
P.2d 1371, 1379 (Alaska App. 1995).
          We have stated that, when a party brings a motion to
enforce a divorce decree, "[t]he superior court has inherent power,
and also the duty to enforce its divorce decrees."  Cedergreen, 811
P.2d at 786.  Furthermore, we have stated that this duty applies in
cases when it is "enforcing its final decree [which consists of]
the parties' settlement [that it had] explicitly merged into its
decree."  Id.
          Based on our precedent which favors a superior court's
efforts to enforce its divorce decrees, the court did not abuse its
discretion by ordering Robert to provide an accounting as a means
to ensure that Sylvia is receiving the funds that the Property
Settlement Agreement allocates to her.  Robert had repeatedly
chosen to only selectively abide by the terms of the Property
Settlement Agreement.  For instance, Robert refused to pay Sylvia
$2,000 per month as required by paragraph 11 of the agreement
because he suspected that she had embezzled money from his
dentistry business.  Robert "offered to comply with [paragraph 11]
if [Sylvia] furnishe[d] a satisfactory explanation [of] and
evidence for"the alleged "highly irregular diversions of marital
funds."  Robert's actions show his willingness to honor the
Property Settlement Agreement on his own terms, and only when he is
"satisfied"with Sylvia's actions. [Fn. 11]  Furthermore, in
opposing Sylvia's motion for an order to show cause, Robert stated
that "Sylvia received $96,540 in late August and is due an
additional $51,873.48 less set offs for Robert's share of the Clark
note proceeds and any diversions of marital funds."(Emphasis
added.) This statement reveals that Robert, once again, was willing
to selectively self-enforce the terms of the Property Settlement
Agreement as he saw fit.  In sum, Robert has shown an indifference
to the legal force of the Property Settlement Agreement that was
incorporated into the court's divorce decree.  Robert is not
excused, as he appears to believe, from honoring the court's decree
except when he is unilaterally satisfied with Sylvia's actions.  
          An accounting of the pension plan and provision of a copy
of the Waterfront Project books appears to be a reasonable, and
least costly, way of ensuring that Robert is honoring the court's
decree.  While requiring Robert to provide an accounting of the
pension plan may be expensive, the court's order is not an abuse of
discretion, in light of Robert's demonstrated willingness to ignore
his obligations under the agreement.
IV.  CONCLUSION
          We conclude that the superior court's order requiring
Robert to provide Sylvia with an accounting of the pension plan and
a copy of the Waterfront Project and Schwarb Foundry Project books
is a valid attempt to enforce the divorce decree.  Further, we
conclude that the order was not an abuse of discretion.  We AFFIRM
the superior court's order.  


                            FOOTNOTES


Footnote 1:

     Sylvia served as the bookkeeper for Robert's dentist office.


Footnote 2:

     As a result of Robert's concession in superior court that he
is obligated to provide Sylvia with an accounting of the Schwarb
Foundry Project, we will not consider the argument to the contrary
that he makes on appeal.  See Toney v. City of Anchorage Police
Dep't, 950 P.2d 123, 126 (Alaska 1997) (finding persuasive that "a
number of other courts have held that when a party concedes a fact
before the trial court, the party may not later contest it").  


Footnote 3:

     Robert also filed two motions for reconsideration, a discovery
motion, and a motion to enforce the Property Settlement Agreement. 
The court denied them.


Footnote 4:

     In his points on appeal, Robert contests the superior court's
award of attorney's fees, its denial of his motion to enforce the
Property Settlement Agreement, and its order requiring him to
provide Sylvia with accountings.  In his brief, Robert explicitly
abandons the first two issues and only argues the third, i.e., the
requirement that he provide Sylvia with accountings.


Footnote 5:

     In Kendler we quoted with approval Justice Matthews's dissent
in Stone v. Stone, 647 P.2d 582 (Alaska 1982), which stated that
"[a] consent judgment is a bilateral contract wherein the parties
adjust their differences by mutual consent."  Kendler v. Kendler,
816 P.2d 193, 196 (Alaska 1991) (quoting Stone, 647 P.2d at 588)
(Matthews, J., dissenting).


Footnote 6:

     This initial step accommodates the concerns that Justice
Matthews raised in his dissent in Stone; this court later adopted
his reasoning in Kendler.  See supra note 5.


Footnote 7:

     In her memorandum in support of her motion to show cause,
Sylvia requested an accounting of the pension plan because 

          in June 1993 Robert received repayment of an
installment note which was an asset of the profit sharing and
pension plan. [Her] portion of that plan was not transferred to
her.  According to a letter to Robert from the plan administrator,
as of October 25, 1995, [her] share of that payment . . . was
$96,078.  In addition, it appears that there are additional stocks
and accounts receivable which have not been identified or
transferred.

Sylvia, therefore, sought "an accounting of all assets and
transactions within the pension and profit sharing plans from the
date of divorce to the present and an immediate transfer of all
sums and assets due her."  Sylvia's only basis for seeking an
accounting of the Schwarb Foundry and Waterfront projects was that
she was "concerned that these assets may be modified or liquidated
in a way that prevents her from discovering money which is due
her."


Footnote 8:

     In his opposition to Sylvia's motion to show cause, Robert
stated that he had fully complied with the "property settlement and
is not required to furnish any of the accountings requested, with
the exception of the Schwarb Foundry where he is the general
project manager."  In support of his argument that he was in full
compliance with the property settlement agreement, Robert stated
that "Sylvia received $96,540 in late August and is due an
additional $51,873.48 less set offs for Robert's share of the Clark
note proceeds and any diversion of marital funds."


Footnote 9:

     Also in his reply brief, Robert argues for the first time that
the Qualified Domestic Relations Order (QDRO) provided that "Sylvia
as the alternate payee 'was responsible for payment of 65% of the
Plan administrative costs.'  These costs include 'accounting' and
'other normal plan administration expenses.'"(Emphasis added). 
Therefore, Robert argues, the superior court's orders requiring
Robert to bear the full expenses of an accounting "substantially
changed"the QDRO. 

          We do not consider this argument for two reasons.  First,
Robert raises it for the first time in his reply brief.  See, e.g.,
Danco Exploration, Inc. v. State, 924 P.2d 432, 434-35 n.1 (Alaska
1996)("[N]ew arguments presented for the first time in reply briefs
are considered waived."); Sumner v. Eagle Nest Hotel, 894 P.2d 628,
632 (Alaska 1995) (same).  Second, Robert did not present this
argument to the superior court.  See, e.g., Lewis v. State, 565
P.2d 846, 853 (Alaska 1977) ("[W]e will not address on appeal
issues not presented to the trial court."); Leigh v. Lundquist, 540
P.2d 492, 497 (Alaska 1975) (same).


Footnote 10:

     As stated at supra note 2, because Robert conceded below that
he is obligated to provide Sylvia with an accounting of the Schwarb
Foundry Project, we need not address his contrary argument on
appeal. 


Footnote 11:

     While Robert's appeal professes that any order from the court
that would in some way alter his obligations under the Property
Settlement Agreement is void, he was willing to ignore a
requirement of that same Agreement when it benefitted him to do so.