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Glasen v. Glasen (12/1/00) sp-5337

     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
                                 

DANNY R. GLASEN,              )
                              )    Supreme Court No. S-8943
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-90-5756 CI
                              )
GAIL A. GLASEN, a/k/a         )    O P I N I O N
GABRIELLE A. GLASEN,          )
                              )    [No. 5337 - December 1, 2000]
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Elaine M. Andrews, Judge.


          Appearances: Vincent Vitale, Anchorage, for
Appellant.  Loren Domke, Loren Domke, P.C., Juneau, for Appellee.


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


          FABE, Justice.


I.   INTRODUCTION
          In this appeal, Danny Glasen disputes the superior
court's decision to deny his request to incorporate the Glasens'
1991 separation agreement into their 1997 divorce decree.  Because
we agree with the superior court that the separation agreement was
not a final order and that it terminated upon the Glasens'
reconciliation, we affirm its decision to set aside the separation
decree.  
II.  FACTS AND PROCEEDINGS
     A.   Factual Background
          1.   The pre-separation relationship
          Danny and Gail Glasen met in Hawaii in 1984, while Danny
was opening a restaurant with business partners there.  At that
time, Danny was married but estranged from his first wife, and
Danny and Gail began living together shortly after they met. 
During their time in Hawaii, Gail worked with Danny on his
restaurant for about six or seven months.  After that, Danny sold
his interest in the restaurant and the two moved to Cordova.  Danny
obtained a divorce from his former wife shortly thereafter.
          From the beginning, Danny and Gail have had an erratic
and tumultuous relationship, marked by periods of separation and
reconciliation.  After moving to Cordova in the summer of 1985,
Gail left Danny for a short period before moving back in with him.
          Gail and Danny had their first child, Drake William
Glasen, in September 1986.  After nine months, Gail again left
Danny because his "party" lifestyle bothered her.  She moved to
Morro Bay, California for about a month and a half with the baby.
          The couple reconciled, however, and got married in August 
1987 in Reno.  Gail returned to Cordova with Danny and stayed there
until their daughter Meriah Victoria was born in June 1988.  The
Glasens bought a luxury home in Malibu, California, for $550,000 in
1988.  Gail lived there with the children until August 1993, while
Danny remained in Cordova and intermittently visited the Malibu
home.
          2.   The separation agreement
          In July 1991 Danny filed a complaint for legal separation
and, through his attorney, prepared a separation agreement for Gail
to sign.  The separation agreement characterized nearly all
property, except for the Malibu home and the Glasens' yacht, as
Danny's separate property to which he was entitled.  This property
included, for example, the Cordova home, the Cordova cabin, Orca
Oil stock, an escrow account, land in Cordova, Danny's pension, and
other property and resources.  Notably, the separation agreement
did not contain any values for any marital or separate property,
any marital or separate debts, or either of the parties' salaries
or income.
          As for the Malibu house, the agreement stated that after
satisfying all debts and reimbursing Danny for his mortgage and
maintenance payments, Gail should receive the sale proceeds.  In
addition, the agreement stated that Danny and Gail would jointly
own the yacht and be equally responsible for all related expenses.
          The parties agreed to joint custody of their children,
and Danny agreed to pay $2,000 a month in temporary child and
spousal support.  Gail signed the agreement without the assistance
of counsel because she "trusted Danny, and she just wanted to make
Danny happy and sign it."
          Shortly after Gail signed the agreement, the superior
court granted a decree of legal separation incorporating the
agreement.  During the hearing -- at which Gail was not present --
Danny assured the standing master that Gail would receive between
$450,000 and $600,000 from the sale of the Malibu home after
expenses.  They also assured the master that the settlement
agreement would obviate the need for spousal support.  When Danny
and Gail ultimately sold the Malibu home, however, they barely made
enough money to cover their costs and netted only $419.89. 
Finally, Danny testified that the agreement would allow for future
reconciliation.
          3.   The post-separation relationship
          After the superior court entered the decree of legal
separation in 1991, the Glasens remained married and reconciled a
few months later.  Their sexual relationship resumed, and their
marital relations continued as they had before the separation.  For
the next two years Gail lived in the Malibu home while Danny
commuted from Cordova to visit.  Then Gail moved back to Cordova
with the children to be with Danny and enroll Drake in school.  The
Glasens remained in Cordova together for two more years.
          During this entire period -- from 1991 through 1996 --
Danny and Gail remained a financial and marital unit.  They filed
joint tax returns, maintained joint credit cards, and also kept a
joint bank account.  Moreover, Danny voluntarily supported Gail and
the children by wiring them money, paying bills, and depositing
money in the joint banking account.  The Malibu home remained in
joint title.
          In January 1996 Gail and the children moved to Juneau so
that Gail could pursue her education.  But even then, she returned
to Cordova during the summer with the children to be with Danny.
          In the spring of 1997 Danny and Gail decided to move to
Cambria, California, and buy a home there.  They flew to California
together to look for real estate and business opportunities. 
Before they could make the move, however, Danny and Gail had an
argument that precipitated the present divorce action.  Danny filed
for divorce in July 1997 and sought to enforce the 1991 separation
agreement.
     B.   Procedural History
          After Danny filed for divorce in July 1997, he requested
that the 1991 separation agreement be merged into the divorce
decree.  Superior Court Judge Elaine M. Andrews granted the
divorce, but declined to incorporate the 1991 agreement into the
divorce decree.  Instead, Judge Andrews scheduled an evidentiary
hearing to determine whether the agreement was valid and
enforceable.  The superior court did award visitation and custody
under the terms of the 1991 agreement, but required that child
support conform to Alaska Civil Rule 90.3 guidelines.  The court
also ordered interim spousal support and attorney's fees for Gail.
          Ultimately, the superior court determined that although
it had authority to enter the decree of legal separation in 1991,
the separation decree was interlocutory rather than final.  On
alternative grounds, the superior court concluded that Gail had met
the Civil Rule 60(b)(6) requirements to set aside the decree. 
Finally, the superior court determined that under a post-nuptial
contract analysis, the 1991 agreement did not "meet the fair and
reasonable test or survive an equitable estoppel analysis."  The
court entered a Rule 54(b) certification of final order, and Danny
timely appealed.
III. STANDARD OF REVIEW
          To the extent that this case presents a question of law,
we exercise our independent review. [Fn. 1]  We will disturb the
superior court's factual findings only if those findings are
clearly erroneous. [Fn. 2]  "It is the function of the trial court,
not of this court, to judge witnesses' credibility and to weigh
conflicting evidence." [Fn. 3]
          Moreover, we "will not disturb a trial court's grant of
a Rule 60(b) motion except upon a showing of an abuse of
discretion." [Fn. 4]  And we will find an abuse of discretion only
when "left with a definite and firm conviction, after reviewing the
whole record, that the trial court erred in its ruling." [Fn. 5]
IV.  DISCUSSION
     A.   The Superior Court's Authority to Enter the Separation
Decree    

          Gail argues as a preliminary matter that the superior
court lacked authority to enter the separation decree in 1991
because actions for legal separation do not exist in Alaska.  After
finding "inferential authority recognizing the validity of
separation agreements," the superior court concluded that it
possessed jurisdiction when it granted the decree in 1991.
          Although there is no statute that directly authorizes
courts to enter separation decrees, the superior court reasoned
that the legislature's references to "legal separation" in statutes
pertaining to child custody and support indicate that individuals
may bring such actions.  The superior court noted that although
some statutes refer to "legal separation," these provisions do not
specifically authorize courts to grant legal separations. [Fn. 6] 
 Danny, on the other hand, maintains that because actions for
separate maintenance exist at common law, the superior court
possessed authority to enter the separation decree here.
          We need not decide in this case whether courts in Alaska
may enter decrees of legal separation.  Instead, we affirm the
superior court's decision because we conclude that the decree, even
if authorized, was not a final order and that the Glasens'
reconciliation dissolved the decree.
     B.   The Separation Decree's Status as an Interim Order
          Danny disputes the superior court's conclusion that the
Glasens' 1991 separation agreement was not a final property
division.  We agree with the superior court that the legal
separation decree was an interim order that was "provisional and
conditional, affording an opportunity for reconciliation." [Fn. 7] 
First, Danny's testimony from 1991 indicates that he did not intend
the separation to be final.  He and Gail specifically chose to
separate rather than divorce because they believed they might still
reconcile. [Fn. 8]  Danny testified that "we don't want to totally,
even though we can't get along, we're incompatible right now, we
don't want to totally close the door on it for the future if
something does happen we can get together."  Thus, Danny himself
believed that he and Gail might reconcile, indicating that the
separation was not a permanent arrangement.
          Moreover, the test of a final judgment "is essentially a
practical one." [Fn. 9]  We have stated:
               The basic thrust of the finality
requirement is that the judgment must be one which disposes of the
entire case, ". . . one which ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment." 
Further, the reviewing court should look to the substance and
effect, rather than form, of the rendering court's judgment, and
focus primarily on the operational or "decretal" language therein.[
[Fn. 10]]

The Glasens' decree of legal separation fails this test of
finality, for it provides that the child custody and property
settlement agreement "shall be incorporated in any final judgment
issued in this action or in any decree of divorce where ever issued
. . . ."  This clearly implies that the separation decree itself is
not the "final judgment issued in this action."  Further, the
decree demonstrates that it is only a stepping stone on the path to
divorce as it provides that "at any time hereafter either party may
. . . calendar an uncontested divorce hearing for the purpose of
terminating the parties' marriage."  Thus, the separation decree
was an interim rather than a final order.  
          Finally, a contract that purports to embody a final
property distribution, but which does not list or describe all of
the spouses' property or assets, is invalid as a final property
division. [Fn. 11]  The Glasens' separation agreement did not fully
list or describe all of the marital property that existed in 1991. 
Indeed, the Glasens may have continued to acquire marital property
or debt from 1991, when the separation decree was entered, to 1997,
when Danny filed for divorce.  Because the Glasens continued their
marital relationship for approximately six years after the initial
settlement agreement, that agreement could not have embodied a
final property division.
          We conclude that the Glasens' decree of legal separation
could not be a final judgment.  Thus, even assuming that Alaska law
authorizes entry of a separation decree, the Glasens' separation
decree was valid only insofar as it settled certain support and
property issues between the spouses while they were separated. 
     C.   The Glasens' Reconciliation
          It is well recognized that a legal separation decree
ordinarily terminates "if the parties become reconciled and resume
cohabitation." [Fn. 12]  The superior court found that Danny and
Gail reconciled about three months after the separation decree was
entered.  Danny asserts that because Gail committed adultery during
their separation and sporadically lived in California, the superior
court erred in concluding that they reconciled.  Gail counters that
they reconciled within a few months of their separation, and that
"nothing changed in the pattern of their marriage."
          Although we have never defined "reconciliation"
expressly, one authority has stated that 
          reconciliation means a voluntary resumption of
marital cohabitation in the fullest sense.  This ordinarily
requires living together as husband and wife, engaging in sexual
relations, and where possible, establishing a joint domicile.

          . . . .

          But a reconciliation may be found to exist
without the resumption of a matrimonial domicile if the parties
live together as constantly as the circumstances permit.[ [Fn. 13]]

In addition, when spouses reconcile and indicate through their
conduct "the intention of rescinding the separation agreement in
whole or in part, effect should be given to their action." [Fn. 14]
          In this case the superior court found sufficient facts to
support its conclusion that Danny and Gail had reconciled:
          After the separation agreement was ordered,
the couple cohabitated [sic] and had sexual relations.  They filed
joint tax returns for the years between the legal separation and
the divorce.  In all ways Danny and Gail operated as a marital
unit.  Danny did not pay child support as the parties contemplated
in the Separation Agreement, because the Glasens functioned as a
family unit.

The record supports the superior court's findings:  Danny and Gail
maintained both a commuter relationship and a cohabitation
relationship, and they continued to function as an economic unit. 
They filed joint tax returns, maintained joint credit cards, and
also kept a joint bank account.  As the trial court found, the
Glasens' reconciliation, cohabitation, and economic commingling
indicated an intent to behave as a marital unit and rescind their
separation agreement.  Based on these facts, we conclude that the
superior court did not err in finding that the Glasens reconciled.
          Thus, the Glasens' reconciliation after their separation
provides a separate basis for affirming the superior court's
decision not to incorporate the separation decree into the divorce
decree.
     D.   Interim Alimony and Interim Attorney's Fees
          Danny also argues that the superior court erred in
awarding interim alimony and attorney's fees to Gail.  The superior
court did not, however, certify those awards as final orders under
Civil Rule 54(b); it only certified its decision to set aside the
separation decree. [Fn. 15]  Thus, the interim alimony and
attorney's fees awards are not proper matters for appeal, and we
therefore do not decide whether the superior court erred in
granting those awards.
V.   CONCLUSION
          Because the Glasens' 1991 separation decree was not a
final judgment, we AFFIRM the superior court's decision to deny
Danny's request to incorporate the separation agreement into the
1997 divorce decree.


                            FOOTNOTES


Footnote 1:

     See Knutson v. Knutson, 973 P.2d 596, 599 (Alaska 1999).


Footnote 2:

     See id.


Footnote 3:

     Id. at 599-600.


Footnote 4:

     McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999) (quotation
omitted).


Footnote 5:

     Id. (quotation omitted).


Footnote 6:

     See AS 25.24.150(a) (governing child custody judgments); AS
25.27.900(5) (governing the Child Support Enforcement Agency).


Footnote 7:

     24 Am. Jur. 2d Divorce & Separation sec. 409, at 571 (1998). 
The
treatises also refer to legal separation as "limited divorce" and
"judicial separation," noting that there are no meaningful
distinctions between these terms.  See Judge Joyce Hens Green et
al., Dissolution of Marriage sec. 3.02, at 125 (1986) ("The limited
divorce is also called . . . legal separation, or judicial
separation."); 24 Am. Jur. 2d Divorce & Separation sec. 1, at 229
(1998) ("Absolute divorce . . . is a judicial dissolution of the
marriage . . . whereas limited divorce, sometimes referred to as
. . . legal separation is a change in status by which the parties
are separated and are precluded from cohabitation, but the actual
marriage is not affected.").  Thus, we refer to the action in this
case as simply "legal separation."


Footnote 8:

     States that recognize legal separation as an action distinct
from dissolution or separate maintenance provide for termination or
revocation of the separation decree upon reconciliation.  See Or.
Rev. Stat. sec. 107.475 (1999) (requiring courts to fix duration of
legal separation decree and providing that when the judicially
determined time expires, "the decree shall have no further
effect"); Wis. Stat. Ann. sec. 767.09 (West 1993) ("A decree of
separation shall provide that in case of a reconciliation at any
time thereafter, the parties may apply for a revocation of the
judgment.").


Footnote 9:

     City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 628
(Alaska 1979).


Footnote 10:

     Matanuska Maid, Inc. v. State, 620 P.2d 182, 184-85 (Alaska
1980).


Footnote 11:

     See Lacher v. Lacher, 993 P.2d 413, 419-20 (Alaska 1999);
Musser v. Johnson, 914 P.2d 1241, 1242 (Alaska 1996); 24A Am. Jur.
2d sec. 1111, at 533 (citations omitted).


Footnote 12:

     24 Am. Jur. 2d Divorce & Separation sec. 409, at 572 (1998). 
Some jurisdictions that statutorily authorize judgments for legal
separation require the parties to make a joint application to the
court for an order of termination.  See id. and n.61.  In many
jurisdictions, however, the separation decree automatically
terminates, or its effect is destroyed, once the parties reconcile. 
See id. and n.60.


Footnote 13:

     Homer H. Clark, Jr., The Law of Domestic Relations in the
United States sec. 19.7, at 437-38 (1998) (footnotes omitted); see
also 24 Am. Jur. 2d Divorce & Separation sec. 34, at 253-54 ("If
the
parties resume the marital relationship by unequivocal acts, it is
said that the parties have reconciled, even if the reconciliation
fails after a short time.") (citation omitted).


Footnote 14:

     Clark, supra note 13, sec. 19.7, at 439.


Footnote 15:

     Alaska R. Civ. P. 54(b) states:

          When more than one claim for relief is
presented in an action, . . . the court may direct the entry of a
final judgment as to one or more but fewer than all of the claims
or parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of
judgment.  In the absence of such determination and direction, any
order or other form of decision, however designated, which
adjudicates fewer than all of the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.