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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edelman v. Edelman (6/16/00) sp-5286

Edelman v. Edelman (6/16/00) sp-5286

     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
                                 


TAMMI L. EDELMAN,             )
                              )    Supreme Court No. S-8562
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3HO-93-242 DR
                              )
DUANE F. EDELMAN,             )    O P I N I O N
                              )
             Appellee.        )    [No. 5286 - June 16, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer,
                     Harold M. Brown, Judge.


          Appearances: C. Michael Hough, Attorney for
Appellant.  Allison E. Mendel, Mendel & Associates, Attorney for
Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          This case presents difficult problems arising from the
superior court's resolution of contested property and alimony
issues, which occurred over three and one-half years after the
grant of divorce.  We address three major issues -- (1) the
division of the marital property, (2) alimony, and (3) attorney's
fees.  The first issue, property division, has several sub-parts;
we affirm the superior court's decision in some respects and
reverse it in others.  We affirm the superior court's decision
regarding alimony.  Finally, we remand the superior court's denial
of attorney's fees in light of our resolution of the other issues.
II.  FACTS AND PROCEEDINGS
          Tammi and Duane Edelman were married in 1976.  The only
child of this union, J.E., was born in 1983.  Tammi and Duane
separated in October 1992. 
          Tammi filed for divorce in June 1993.  The superior court
issued an order granting joint legal custody of J.E., but primary
physical custody to Tammi.  The court also ordered Duane to pay
Tammi $2,000 per month in interim spousal support. 
          On April 14, 1994, the superior court [Fn. 1] granted
Tammi a decree of divorce.  However, the court did not address the
issues of debt and property distribution, alimony, or child custody
or support.  Two days later, the court granted sole physical
custody of J.E. to Tammi, ordering Duane to pay $600 monthly in
child support. 
          The division of the couple's property, however, was not
resolved until more than three-and-a-half years later. [Fn. 2]  On
January 23, 1998, the superior court issued a memorandum decision
and order (1) dividing the couple's property and debts; (2) denying
Tammi future alimony and vacating all of Duane's alimony
arrearages; and (3) denying Tammi's request for attorney's fees. 
Tammi appeals all three of these rulings; we deal with each in
turn.
III. DISCUSSION
     A.   Property Division
          1.   Standards of review
          Trial courts have broad discretion in fashioning property
divisions. [Fn. 3]  We are not to set aside their factual
determinations unless they are clearly erroneous. [Fn. 4]  We
review trial courts' allocations of property under the abuse of
discretion standard, and we will only reverse them if they are
clearly unjust. [Fn. 5]
          However, with regard to legal analysis employed at the
trial court level, our review is based on our independent judgment;
[Fn. 6] we adopt "the rule of law that is most persuasive in light
of precedent, reason, and policy." [Fn. 7]
          2.   The statutory rule
          Under Alaska statutory law, property divisions in
divorces are to be made "in a just manner and without regard to
which of the parties is in fault . . . ; the division of property
must fairly allocate the economic effect of divorce." [Fn. 8]  This
process is commonly referred to as "equitable division."
          3.   The Wanberg formula
          To help courts carry out this responsibility, we set out
the following procedure in the seminal Wanberg decision:
          Equitable distribution of marital assets by
the superior court involves a three-step procedure.  First, the
trial court must determine what specific property is available for
distribution.  Second, the court must find the value of this
property.  Third, it must decide how an allocation can be made most
equitably.[ [Fn. 9]]
          4.   Identification and valuation of marital property
               a.   The set net permit

          The first item of property that the superior court dealt
with was a set net permit, which allows the holder to catch salmon
in Cook Inlet.  The permit was in Duane's name.  The court analyzed
the permit in this way:
          the set net permit was acquired by [Duane]
prior to marriage and[,] despite its use during marriage as a
source of income[,] there is little credible evidence that [Duane]
intended that the permit would become a part of the marital estate. 
The set net permit will be treated as a premarital asset of [Duane]
that is not subject to distribution.

          Tammi argues that this was erroneous.  She states that
          the permit was of negligible value when issued
in 1975 and its function was simply as an item that permitted Mrs.
Edelman and Mr. Edelman to work and develop their fishing business
during the eighteen years of their marriage.  The set net permit
should have been viewed as part of the marital estate. 
Tammi does not point to any evidence in the record to support her
contentions.        
          Tammi and Duane both correctly rely on Wanberg for the
test to determine when invasion of a spouse's property acquired
before marriage is appropriate.  As Duane notes, Tammi apparently
does not dispute that the permit was Duane's separate property,
acquired before marriage.  The Wanberg court held:
          In limited circumstances invasion of one
spouse's property acquired before coverture may be required as a
matter of law.  One such circumstance is where the parties, by
their actions during marriage, demonstrate their intention to treat
specific items of property as joint holdings, even though the
properties were separately held by one or another spouse prior to
coverture.  Such intention is manifest when both spouses can be
shown to have taken an active interest in the ongoing maintenance,
management, and control of specific assets.  Where such
circumstances exist, basic fairness requires that property treated
by the spouses as jointly held be available for equitable division
under [former] AS 09.55.210(6).[ [Fn. 10]]
          
          Duane testified that, despite the fact that he and Tammi
shared the proceeds generated from the permit, he never considered
it something that he would share with Tammi.  Rather, he planned to
assign it to his son J.E. when J.E. began fishing the permit. 
          Further, as Duane cogently points out, "Tammi and Duane
fished the permit together to produce income, but all the required
management and maintenance of the permit itself was performed by
Duane, alone, who completed and filed all the required paperwork
and paid all the necessary fees." [Fn. 11]  This case therefore
differs markedly from Wanberg, where one spouse had performed a
great deal of work in maintaining, improving, and managing two
rental properties. [Fn. 12]  Duane correctly concedes that the
proceeds from the couple's joint fishing enterprise are marital,
having consistently been shared by the parties during their
marriage.  However, the record does not show that Tammi ever took
any action to maintain, manage or control the permit itself. 
Therefore, the superior court's finding that the set net permit was
Duane's separate property and not part of the marital estate was
not clearly erroneous. [Fn. 13]  [Fn. 14]
               b.   The marital residence
          Next, the superior court addressed the parties' marital 
residence.  The court identified this asset as "consisting of
approximately [8.79] acres including outbuildings located thereon." 
The court valued this property at $202,500 and found that it was
subject to a mortgage of approximately $52,000, [Fn. 15] deriving
a net value of $150,000.  Finally, it found that Tammi "has
continued to reside in the marital home since separation, divorce
and remarriage. . . . This residence and the real property upon
which it sits are awarded to [Tammi] who will be solely responsible
for the payment of the mortgage and any other indebtedness incurred
in relation to the property." 
          Tammi contests the court's valuation of this property. 
She asserts that the superior court's use of the $202,500 figure as
the value of the property was incorrect.  Her first argument is
that this valuation arose from the court's incorrect treatment of
the 8.79 acre property as though it were subdivided into five lots
-- a subdivision which never, in fact, occurred.  Tammi asserts
that "[t]he residential property awarded Mrs. Edelman consists of
one lot and has never been treated by either party as more than one
lot."  She would have the court use $165,000 as the starting point
in valuating the property instead. 
          Tammi cites a September 1994 appraisal for this figure. 
The appraiser estimated the market value of the house and the lot
on which it sits at $165,000.  The "lot" for the purposes of this
appraisal was the entire 8.79 acres.  The parties appear to be in
basic agreement that this appraisal was correct.  
          The superior court's valuation seems to stem from a
second appraisal, also conducted in September 1994.  This appraisal
recapped the original appraisal of $165,000, but also summarized
the market value of the property based on a "preliminary plat"
reflecting a subdivision of the lot into five smaller lots. [Fn.
16]  The appraiser stated that the value of the entire property, if
it were subdivided, would be $202,500. [Fn. 17]
          Tammi contends -- and Duane does not dispute -- that the
property was never subdivided.  Tammi further asserts that various
steps would have to be taken before the subdivision plat could
become a reality, including providing for roads, utilities,
surveys, and Borough approval of the plan.  Duane does not refute
these contentions either.
          The record does not show whether all of Tammi's arguments
in this regard are true.  However, at least as to the road, the
appraiser's diagram of the property supports her argument.  The
diagram shows the five proposed lots with a cul-de-sac from the
main road providing access to each.  Tammi's unchallenged testimony
was that this cul-de-sac was never built.  Further, examination of
the "Subdivision -- Final Plat" chapter of the Kenai Peninsula
Borough Code shows that a number of specific requirements -- some
involving considerable potential expense -- must be satisfied
before the Borough grants final approval to any subdivision plan.
[Fn. 18]  Thus, the superior court should not have used the
subdivided $202,500 figure to arrive at the value of the property;
rather, it should have used the unsubdivided $165,000, a figure
with which both parties agreed.  To use the former was clearly
erroneous.
          Tammi's argument goes even further, however.  She argues
that even this $165,000 figure overstates the house's value, citing
statements by Duane in bankruptcy and an alleged valuation by the
Kenai Peninsula Borough as of the date of trial. [Fn. 19] 
          As noted above, however, the trial court record shows
that both Tammi and Duane agreed that the $165,000 appraisal was an
appropriate valuation of the property.  Tammi herself specifically
agreed, when asked at trial, that the $165,000 was a "fair value
for the property indicated in the appraisal."  Duane's counsel also
indicated that he and Duane were "willing to go with" the "$160,000
something" appraisal.  Further, in response to Duane's counsel's
statement that he didn't "think it's necessary to have up-to-date
appraisals on the house, if nobody does, so I don't think there's
a problem there," Tammi's counsel responded "Okay."  Therefore,
both Tammi and Duane are precluded from now arguing that this
appraisal was incorrect.
          Tammi's final argument regarding the value of the
residence goes to the issue of debt.  She agrees that the mortgage
on the property was approximately $52,000 at the time of trial. 
However, Tammi contends that this figure reflects post-separation
payments made by her.  Tammi argues that these post-separation
payments are her separate property, and that they increased the
equity of the residence.  Without explicitly saying so, she in
effect argues that she should be credited, in the eventual
equitable division, for these expenditures on behalf of the marital
property.
          It appears that Tammi made these payments.  At trial, she
testified that she had made all of the mortgage payments since she
filed for divorce.  This has not been disputed by Duane, and the
record reflects that payments on the mortgage were made in 1993.
          Tammi's legal contentions find some support in our
decisions.  We have repeatedly observed:
          This court has required that trial courts
consider payments made to maintain marital property from
post-separation income when dividing marital property.  The fact
that one party has made payments from non-marital income to
preserve marital property should be considered as one of the
circumstances to be weighed by the trial court in dividing the
marital property.[ [Fn. 20]]

We have declined, however, to fashion an absolute rule that the
spouse who makes such payments must be credited for them in the
final property division. [Fn. 21]  We have previously stated that
"no fixed rule requiring credit in all cases should be imposed. 
Instead, the fact that one party has made payments from non-marital
income to preserve marital property should be considered as one of
the circumstances to be weighed by the trial court in dividing the
marital property." [Fn. 22]  Since we cannot tell from the record
whether the trial court considered this issue, we must remand for
findings from that court as to whether Tammy should receive credit
for post-separation payments made on the mortgage of the marital
residence. [Fn. 23]
               c.   The Exxon Valdez claims
          The next items of property at issue are Duane's claims in
the litigation arising from the Exxon Valdez disaster, which
released 11 million gallons of North Slope crude into Prince
William Sound.  The superior court dealt with these claims as
follows:
          the Exxon Valdez claims are a marital asset,
but the value of the claims [is] speculative. [Tammi] state[s that]
the claims are "presently known" but does not, understandably,
elaborate as to their value.  The parties['] interest in the Exxon
Valdez claims, whatever that is, is awarded to [Duane] . . . . 

Tammi argues that this allocation was in error, and that she should
receive fifty percent of the value of these claims. 
          Tammi correctly cites our Lundquist [Fn. 24] decision as
controlling of this issue.  That case presented facts very similar
to this case.  One spouse, George, had claims against Exxon for
damages resulting from the same disaster. [Fn. 25]  George and his
wife Jean divorced; George argued that these claims were his
separate property, while Jean argued that they were marital
property. [Fn. 26]
          The Lundquist court tied compensatory awards to the type
of compensation involved:
          In Alaska, a tort recovery is classified
according to what it is intended to replace. . . . When an award
compensates for losses to the marital estate it is marital
property.  To the extent the recovery compensates for losses to a
spouse's separate estate, it is his or her separate property.[ [Fn.
27]]

Regarding George's expected award of punitive damages, we held that
          punitive damages can be partially marital and
          partially separate, or even entirely one or
the other, depending on the facts.  An award of punitive damages
should be apportioned in the same manner as the underlying
compensatory damages award.[ [Fn. 28]]

          We decided that the compensatory damages in Lundquist 
were marital property because they were to compensate for George's
fishing losses, not for any loss in the value of his permit. [Fn.
29]  Because the award replaced lost fishing income during a period
when the parties were married, we held that the trial court had
correctly characterized it as marital property. [Fn. 30] 
Accordingly, we upheld the superior court's characterization of the
punitive damages award as marital as well.
                    i.   Compensatory damages
          Here Duane had asserted two compensatory claims, a
"tender" [Fn. 31] claim, and a "set net" claim.  In the tender
claim, Duane expressly states that he is seeking damages for lost
income from herring and salmon hauling for 1989.  Because these
damages occurred during the marriage, any recovery for them is
marital property.
          In the "set net claim," Duane alleges two types of
damages:  (1) compensatory damages for loss of revenue in 1989-91
due to the drop in price of sockeye salmon, and (2) damages for
devaluation of his set net permit. 
          Any damages award for lost income, like that in
Lundquist, would be marital property -- Duane is seeking to replace
"lost fishing income during a period when the parties were
married." [Fn. 32]  Any damages award for devaluation of the
permit, however, would be meant to replace the lost value of
Duane's permit.  As discussed above, the permit is Duane's separate
property; therefore, under Lundquist, this latter type of recovery
would be Duane's separate property as well.
                    ii.  Punitive damages
          The Exxon Valdez plaintiffs were awarded more than $4.786
billion in punitive damages.  This award has been appealed to the
Ninth Circuit Court of Appeals.  Accordingly, it is not known how
much will be collected or even if the plaintiffs will ever actually
collect this award. 
          This uncertainty appears to have affected the superior
court's decision, though it need not have.  Under Lundquist,
punitive damages are to be allocated in exactly the same way that
compensatory damages are. [Fn. 33]  Therefore, any punitive damages
that are eventually awarded to Duane should be allocated in
accordance with the above characterizations of the compensatory
awards.
               d.   The pension fund
          Finally, Tammi contests the superior court's allocation
of Duane's entire pension fund to him.  The court dealt with the
valuation and allocation of Duane's pension fund in this way: "The
total contributions during marriage on behalf of [Duane] are
approximately . . . $31,475.68. . . . [Duane]'s pension
contributions earned during marriage are awarded to [Duane]." 
          The court did not state whether it considered the fund to
be separate or marital property.  This court has held that "[t]o
the extent that a party earns retirement benefits during marriage,
the benefits are marital assets and are subject to equitable
division." [Fn. 34]  Therefore, Tammi is entitled to a share of the
marital portion of the fund, or at least to a portion of another
part of the marital estate equal to her share of the fund. [Fn. 35] 
For the court to award the entire fund to Duane without accounting
for Tammi's share of the marital portion was erroneous as a matter
of law. [Fn. 36]
          Further, the superior court's valuation of the fund was
problematic.  The court appears to have correctly calculated the
amount contributed to the fund during the couple's marriage. [Fn.
37] However, this figure does not accurately state the value of
Duane's vested pension benefits. [Fn. 38]  The court understated
the value by not including Duane's employer's contribution nor any
interest or investment return that has been and will be generated
by the fund.  This should be corrected on remand. [Fn. 39]
          Here, the court did not use either of the two approved
methods of distributing pension benefits (i.e., a QDRO or lump-sum
payout). [Fn. 40]  Its valuation probably understates the actual
value of the pension fund; Duane presumably stands to collect more
than was contributed due to interest that has accrued and will
continue to accrue on the funds.  In any event, these are issues
for the trial court to determine on remand, as discussed above.
          5.   Equitable division

          The superior court did not specifically advert to the
final part of the Wanberg three-part process for property division, 
that is, it did not state "how an allocation can be made most
equitably." [Fn. 41]  The superior court did not discuss whether it
was making an equal -- and, hence, presumptively equitable --
division of the property. [Fn. 42]  Nor did it analyze the division
using the statutorily required factors of AS 25.24.160(a)(4), [Fn.
43] commonly referred to as the Merrill [Fn. 44] factors because
they stem from that opinion. [Fn. 45]  As a consequence of this
lack of "sufficiently detailed and explicit findings" required by
Alaska Rule of Civil Procedure 52(a), we are without the "clear
understanding of the basis of the trial court's decision" to
"enable [us] to determine the ground on which the trial court
reached its decision." [Fn. 46]  Therefore, we must remand this
issue to the superior court, and on remand the superior court must
allocate the marital assets equitably in accordance with any
applicable factors enumerated in AS 25.24.160(a)(4).
     B.   Alimony
          Tammi argues that the superior court erred when it
vacated the alimony arreages that Duane owed Tammi and denied her
future alimony.  The superior court's decision in this respect was
correct and we affirm it.
          The original alimony order in this case was issued in
October 1993; it required Duane to pay Tammi $2,000 per month in
"interim spousal support." [Fn. 47]  The court did not label this
support "rehabilitative" or "reorientation" support, and made no
findings regarding this award.
          Duane moved for modification of those payments, but the
court denied that motion in August 1995, ordering that
          the spousal support payments become permanent
until the pending bankruptcy proceedings against Mr. Edelman are
resolved and adequate financial information regarding both parties
is presented to the Court to support a termination of spousal
support. 
     
          Duane was unable to make all of these payments,
eventually falling some $30,000 behind on alimony and $9,000 behind
on child support.  At the same time, he was in personal bankruptcy
proceedings.  Tammi's unliquidated claim for back support presented
a problem for the bankruptcy trustee; apparently the trustee
refused to begin liquidating Duane's assets to pay off the
creditors until Duane's debt to Tammi was reduced to a sum certain. 
          At the parties' request, the court held a hearing for the
purpose of fixing Duane's arrears to Tammi at a definite dollar
amount.  The court issued an order, "based on the agreement of the
parties," entering judgment against Duane for his arrearages and
reaffirming its spousal and child support orders.  However, Duane's
counsel made it clear that he still considered the support orders
unduly burdensome.  Further, Duane's counsel stated that he
believed that spousal support -- unlike child support -- could be
retroactively modified.  The court did not rule on the issue of the
propriety of the support amount, reserving it and other property
division issues for trial. 
          Trial was held on May 30, 1997.  On August 19, the court
issued a preliminary order vacating Duane's spousal support
obligation and increasing his monthly child support obligation to
$1,132.29. 
          Finally, in its decision and order, the court ruled on
the alimony issue:
          Although[] [Tammi] argues that she was and is
in need of "rehabilitative alimony[,]" she has provided no basis
for this Court to conclude that spousal maintenance is just and
necessary.  In fact, she remarried several years ago and has given
birth to two additional children.  If any person is obligated to
support [Tammi], it is [Tammi]'s current husband.  Further, the
Court is of the opinion that the amount of maintenance ordered by
the Court on [October 8, 1993], despite the stipulation of the
parties[,] was unfair and was not just or necessary. 

The court accordingly vacated Duane's spousal support arrearages. 
Tammi appeals the court's vacation of both her past and future
spousal support. 
          1.   Standard of review
          The superior court has wide discretion in making alimony
determinations. [Fn. 48]  We will not interfere with such
determinations unless the superior court abused its discretion.
[Fn. 49]
          2.   Discussion
          In Davila v. Davila, [Fn. 50] we summarized our case law
concerning alimony:
               Our decisions have recognized
reorientation alimony as appropriate to allow the requesting spouse
an opportunity to adjust to the changed financial circumstances
accompanying a divorce.  We have indicated, however, that
reorientation alimony should ordinarily be awarded only when the
property settlement will not adequately meet the parties'
reasonable needs.  Furthermore, given its inherently transitional
nature, reorientation alimony may properly be awarded only for
relatively short periods of time.
               Our decisions have also recognized that a
separate form of temporary support, rehabilitative alimony, may be
appropriate in some cases for a specific purpose and a short
duration even with an adequate property division.  While an award
of rehabilitative alimony need not be predicated on a finding that
the parties' needs cannot be met through the division of marital
property, this form of alimony is narrowly restricted to job
training or other means directly related to entry or advancement
within the work force, and the party seeking rehabilitative alimony
must intend to use it for such purposes.[ [Fn. 51]]

          Given these requirements for alimony, the superior court
acted well within its discretion in ending Duane's $2,000 monthly
alimony obligation.  Tammi had remarried more than three years
earlier; this alone normally suffices to cut off any alimony
obligation on the part of the former spouse. [Fn. 52] 
          Further, even assuming that Tammi was entitled to some
measure of reorientation alimony, an examination of the record
reveals that Duane had already provided Tammi with considerable
support by the time the court entered its order.  The record
demonstrates that Duane had paid over $45,000 in spousal support to
Tammi from 1994-1997.  This amount was surely adequate to get Tammi
"back on her feet," the purpose of reorientation alimony. [Fn. 53] 
Accordingly, we conclude that the court did not abuse its
discretion in ending Duane's prospective alimony obligation. [Fn.
54]
          The propriety of the trial court's decision to vacate all
of Duane's alimony arrearages is a closer question.  The trial
court derived its authority to enter its interim order of spousal
support under AS 25.24.140(a)(2). [Fn. 55]  Given the inherently
provisional nature of interim orders and the fact that AS
25.24.140(a) does not prohibit modification, [Fn. 56] we conclude
that the discretionary regime set up by this statutory system
provides the trial court with the discretion to modify interim
spousal support orders.  Given the facts of this case, we further
hold that the trial court did not abuse its discretion in modifying
the interim order of spousal support. 
     C.   Attorney's Fees

          At the conclusion of proceedings below, the trial court
denied without explanation Tammi's motion for an award of
attorney's fees.  Tammi appeals the court's decision, but fails to
specify in her briefing both the basis for any award and the amount
she seeks.  This would normally be fatal to her argument, but
because this matter must be remanded for findings concerning
valuation and distribution of property, we remand the issue of
attorney's fees for the trial court to decide after it has resolved
the property issues.  That decision "[must] be based primarily on
the relative economic situations and earning powers of the
parties." [Fn. 57] 
IV.  CONCLUSION
          The superior court's decision is AFFIRMED in part,
REVERSED in part, and REMANDED for further proceedings in
accordance with this opinion.


                            FOOTNOTES


Footnote 1:

     The Honorable Charles K. Cranston presiding.


Footnote 2:

     Judge Cranston had in the meantime retired.  The Honorable
Harold M. Brown presided at the trial.  As Judge Brown noted in his
Memorandum Decision and Order, "[t]his has been an especially tough
case to resolve because of the lengthy passage of time between
separation and resolution." 


Footnote 3:

     See Bellanich v. Bellanich, 936 P.2d 141, 143 (Alaska 1997)
(citing Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)); Wanberg v.
Wanberg, 664 P.2d 568, 570 (Alaska 1983).


Footnote 4:

     See Alaska R. Civ. P. 52(a); Bellanich, 936 P.2d at 143.


Footnote 5:

     See Bellanich, 936 P.2d at 143 (citing Compton v. Compton, 902
P.2d 805, 808 n.2 (Alaska 1995)).


Footnote 6:

     See Wanberg, 664 P.2d at 570 (citing Walsh v. Emerick, 611
P.2d 28, 30 (Alaska 1980)).


Footnote 7:

     Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).


Footnote 8:

     AS 25.24.160(a)(4).


Footnote 9:

     Wanberg, 664 P.2d at 570 (footnote omitted).


Footnote 10:

     Wanberg, 664 P.2d at 571 (footnotes omitted).  Alaska Statute
09.55.210(6) was the precursor to current AS 25.24.160(a)(4).


Footnote 11:

     It is not clear from the record whether the fees were paid
with Duane's separate assets or with marital assets.  If the latter
were the case, it might strengthen Tammi's argument to some degree. 
However, because the evidence is inconclusive -- Tammi merely
argues that the fees were "presumably" paid with marital funds --
she has failed to carry her burden of proof on this issue.


Footnote 12:

     See Wanberg, 664 P.2d at 571-73.


Footnote 13:

     See also Nicholson v. Wolfe, 974 P.2d 417, 424 & n.26 (Alaska
1999) (holding that, in absence of "act or acts that demonstrate
the parties' intent to treat the [separate] property as marital,"
separate property could only be invaded if trial court
"specifically found that a balancing of equities between the
parties required invasion of the pre-marital holding") (internal
quotation marks and citation omitted).  As in Nicholson, the
"circumstances here do not appear to require invasion of separate
property."  Id. at 424 n.26.


Footnote 14:

     Since the set net permit is Duane's separate property, Tammi's
depletion of assets argument fails.


Footnote 15:

     The court found that an IRS tax lien on the residence would be
satisfied by payments from Duane's bankruptcy estate; therefore, it
did not subtract this lien from the residence's value. 


Footnote 16:

     This preliminary plat is outlined in the August appraisal as
well, although in that document the appraiser only estimated the
value of the 2.66 acre parcel on which the house would sit were the
property subdivided.  The appraiser estimated the value of the
hypothetical 2.66 acre parcel and the residence at $151,000. 


Footnote 17:

     $151,000 + $19,500 + $10,000 + $10,000 + $12,000 = $202,500. 


Footnote 18:

     See, e.g., Kenai Peninsula Borough Code 20.16.030 (requiring
certification that all taxes on property are paid); -.060
(requiring statement from city official that "improvements required
by city ordinance are or will be installed"); -.155(B) (requiring
surveyor's certificate); -.155(C), -.170, -.180 (requiring Planning
Commission approval); -.155(D) (requiring engineer's certificate of
compliance with wastewater standards).


Footnote 19:

     The page of the record cited by Tammi to support this latter
valuation is a foreclosure notice from the Borough.  It shows that
over $9,000 is owed on the property.  Scrawled on the bottom of the
form are some figures which appear to deal with the value of the
property; however, it is unclear who wrote these figures.  Thus, we
have given them no credence as a statement of the Borough's
assessed value of the property.


Footnote 20:

     Brotherton v. Brotherton, 941 P.2d 1241, 1246 (Alaska 1997)
(quoting Cox v. Cox, 882 P.2d 909, 919 (Alaska 1994)).


Footnote 21:

     See Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992).


Footnote 22:

          Id. 


Footnote 23:

     We note that the Ramsey rule was formulated in the context of
post-separation payments on the marital residence made by the party
who was not occupying the residence.  See id.  See also Dodson v.
Dodson, 955 P.2d 902, 912 (Alaska 1998) (applying Ramsey rule);
Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997) (applying
Ramsey rule).  The present case involves post-separation payments
made by the party who was occupying the residence.


Footnote 24:

     Lundquist v. Lundquist, 923 P.2d 42 (Alaska 1996).


Footnote 25:

     See id. at 49.


Footnote 26:

     See id.


Footnote 27:

     Lundquist, 923 P.2d at 50 (quoting Bandow v. Bandow, 794 P.2d
1346, 1348 (Alaska 1990)) (internal quotations omitted).


Footnote 28:

     Id. at 51 (citing Scott A. Hennis, Punitive Damages: Community
Property, Separate Property, or Both, 14 Community Prop. J. 51, 55
(1987)).


Footnote 29:

     See id. at 50.


Footnote 30:

     See id.


Footnote 31:

     See Forquer v. State, Commercial Fisheries Entry Comm'n, 677
P.2d 1236, 1245 n.3 (Alaska 1984) ("A fish tender delivers fish
from the fishing boats to the processing plant.").


Footnote 32:

     Lundquist, 923 P.2d at 50.


Footnote 33:

     See id. at 51 (citation omitted).


Footnote 34:

     Wahl v. Wahl, 945 P.2d 1229, 1231 (Alaska 1997) (citing Rice
v. Rice, 757 P.2d 60, 61 (Alaska 1988)).


Footnote 35:

     See Morlan v. Morlan, 720 P.2d 497, 498 (Alaska 1986)
("pension rights should generally be awarded to the employee spouse
if there is other marital property of appropriate worth which can
be awarded to the non-employee spouse") (citing In re Marriage of
Gillmore, 629 P.2d 1, 7 (Cal. 1981)).  It was not possible to do so
in Morlan because "the value of the pension exceeded the value of
all the other marital assets."  Id.  Because in this case the
pension fund value does not exceed the value of the other marital
assets, the court probably should have awarded the fund itself to
Duane and made up for Tammi's share via the allocation of other
marital property to her.


Footnote 36:

     As we recently reiterated, "[t]rial courts have discretion to
distribute retirement benefits either through a qualified domestic
relations order (QDRO) or through a lump[-]sum payout."  Nicholson
v. Wolfe, 974 P.2d 417, 425-26 (citing Laing v. Laing,  714 P.2d
649, 655-58 (Alaska 1987)) (footnote omitted).


Footnote 37:

     Apparently, the superior court used the "retirement worksheet"
included in the record to reach this figure.  The court seems to
have added up the contributions made from the 76/77 "plan year" to
the 91/92 "plan year," which total $31,475.68.  Without knowing
when the 91/92 plan year ended and the 92/93 plan year began, it is
impossible to know whether this figure correctly reflects the
payments made during marriage, or whether it reflects post-
separation payments as well.  However, the court's methodology is
not clearly erroneous, and, as discussed below, this figure is not
the correct one for purposes of valuating the fund in any event.


Footnote 38:

     It is undisputed that the pension fund is vested -- i.e., that
if Duane's employment were terminated immediately he would be
entitled to future pension benefits.  Cf. Laing v. Laing,  714 P.2d
649, 655 n.8 (Alaska 1987) ("When a pension or retirement benefits
plan is vested but not matured, an employee is absolutely entitled
to benefits, though he [or she] is not entitled to actual payments
until some future date." (citations omitted)).


Footnote 39:

     See Hartland v. Hartland, 777 P.2d 636, 641 (Alaska 1989)
(remanding pension fund for determination of benefits' present
value).


Footnote 40:

     See Nicholson, 974 P.2d at 425-56 (citation omitted).


Footnote 41:

     Wanberg, 664 P.2d at 570 (footnote omitted).


Footnote 42:

     See id. at 575.


Footnote 43:

     AS 25.24.160(a)(4) provides, in part:

          [T]he division of property must fairly
allocate the economic effect of divorce by being based on
consideration of the following factors:
               (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 experiences, length of absence from the job market,
and custodial responsibilities for children during the marriage;
               (D) the financial condition of the
parties, including the availability and cost of health insurance;
               (E) the conduct of the parties, including
whether there has been unreasonable depletion of marital assets;
               (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;
               (H) the time and manner of acquisition of
the property in question; and
               (I) the income-producing capacity of the
property and the value of the property at the time of division.


Footnote 44:

     Merrill v. Merrill, 368 P.2d 546 (Alaska 1962).


Footnote 45:

     See id. at 547 n.4


Footnote 46:

     Id. at 548 (quoting Irish v. United States, 225 F.2d 3, 8 (9th
Cir. 1955); United States v. Horsfall, 270 F.2d 107 (10th Cir.
1959)) (internal quotation marks and footnote omitted).


Footnote 47:

     In the divorce decree of April 1994, Duane was also assessed
$600 per month in child support. 


Footnote 48:

     See Brotherton, 941 P.2d at 1247 (citing Faro v. Faro, 579
P.2d 1377, 1380 (Alaska 1978)).


Footnote 49:

     See id. (citing Faro, 579 P.2d at 1380).


Footnote 50:

     876 P.2d 1089 (Alaska 1994).


Footnote 51:

     Id. at 1094-95 (internal footnote, citations, brackets,
quotation marks, and ellipsis omitted).


Footnote 52:

     See, e.g., Voyles v. Voyles, 644 P.2d 847, 849 (Alaska 1982)
("by the act of remarriage, the formerly dependent spouse elects to
abandon the alimony provision established at the termination of the
spouse's preceding marriage").


Footnote 53:

     See Davila, 876 P.2d at 1094.


Footnote 54:

     Of course, the trial court on remand should factor in the
amount of the marital estate that Tammi has already received when
it undertakes its equitable division of the marital estate.  See
Part III.A.5., supra.


Footnote 55:

     AS 25.24.140(a)(2) provides: 

          During the pendency of the action, a spouse
may, upon application and in appropriate circumstances, be awarded
expenses, including reasonable spousal maintenance, including
medical expenses.


Footnote 56:

     See id.


Footnote 57:

     Beard v. Beard, 947 P.2d 831, 833 (Alaska 1997) (quoting
Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)) (internal
quotation marks omitted).