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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ogden v. Ogden (12/14/2001) sp-5516

Ogden v. Ogden (12/14/2001) sp-5516

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


DOUGLAS L. OGDEN,			) 
					)	Supreme Court No. S-9815
			Appellant,	)	
					)	Superior Court No.	
v.					)	3AN-99-3940 CI	
					)	
JULIE L. OGDEN,			)	O P I N I O N
					)	
		Appellee.		)	[No. 5516 - December 14, 2001]
______________________________)	


Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Sen K. Tan, Judge.


Appearances:	Douglas L. Ogden, pro se, 
Anchorage.  Robin A. Taylor, Law Office of 
Robin A. Taylor, Anchorage, for Appellee.


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


BRYNER, Justice.


I.	INTRODUCTION


Douglas Ogden appeals the custody and property division 
provisions of a divorce decision and challenges the trial court's 
refusal to disqualify the child custody investigator for apparent 
gender bias because her yellow-page listing advertised her as an 
attorney who was a "voice for women and children."  Although we 
find that the yellow-page listing gives rise to a reasonable 
appearance of bias that warranted disqualification, we conclude 
that failure to disqualify the custody investigator amounted to 
harmless error.  But we further conclude that unjustified delay in 
entry of the written judgment and resulting discrepancies between 
that judgment and the superior court's earlier oral decision 
necessitate a remand for reconsideration of the judgment's 
visitation provisions; we similarly hold that discrepancies and 
oversights in the judgment's provisions addressing the division of 
marital property must be clarified on remand.
II.	FACTS AND PROCEEDINGS 
Julie Ogden and Douglas Ogden were married in 1985 and 
lived in Anchorage with their two children: Wendy, born in April 
1987, and Patrick, born in July 1992.  On January 17, 1999, Douglas 
-- secretly intending to end the marriage and keep permanent 
custody of his daughter -- abruptly abandoned his job, his family 
home, and his wife and son, and absconded to Juneau with Wendy.  
After spending a week with a friend in Juneau who ultimately asked 
him to leave, Douglas traveled to Tok with Wendy, moved in with his 
sister and brother-in-law, and enrolled Wendy in school.  During 
this time Douglas maintained sporadic contact with Julie but 
refused to disclose his and Wendy's location. 

On January 21, 1999, four days after Douglas absconded, 
Julie filed for divorce in Anchorage.  Less than two weeks later, 
Julie managed to locate Douglas and Wendy in Tok and, after a 
hastily scheduled hearing held in Anchorage on February 5, 1999, 
she secured an order that gave her interim custody of both Wendy 
and Patrick.  The interim order appointed Anchorage attorney 
Jacqueline Bressers to conduct a child custody investigation and 
prepare a recommendation for permanent custody.  Although the 
interim order also established a visitation schedule that allowed 
Douglas to maintain supervised contact with his children, Douglas 
balked at the order's supervision requirement and elected not to 
exercise his visitation rights. 
Ten months later, in December 1999, Douglas and Julie 
signed agreements formally retaining Bressers to conduct the 
custody investigation.  By March 2000 more than a year had passed 
without visitation between Douglas and his children; Bressers, who 
was actively conducting her custody investigation, met with Douglas 
-- evidently at his request -- to arrange a visitation schedule 
that would enable her to observe him interacting with the children. 
 The conference resulted in a stipulation allowing Douglas to have 
supervised visitation for approximately six hours on alternating 
Saturdays.
The Ogdens' divorce trial was scheduled to begin in 
June 2000.  In May Douglas moved to delay the trial and asked for 
an expedited hearing to determine Bressers's ability to serve as 
custody investigator.  His motion alleged that Bressers was biased 
against men and claimed that she had displayed that bias in a child 
custody recommendation that she had prepared on April 6, 2000.  To 
bolster his allegation of gender bias, Douglas submitted, among 
other things, a copy of Bressers's listing in the attorney's 
section of the Anchorage yellow pages, where Bressers advertised 
herself as a "Voice for Women and Children." 

At the time that Douglas filed his motion, Bressers had 
completed her custody investigation and was preparing her final 
report.  The superior court, noting that Bressers had been 
appointed since February 5, 1999, and that Douglas had failed to 
specify when his dissatisfaction with Bressers initially arose, 
concluded that Douglas had not established grounds for an expedited 
hearing.  The court declined to delay the trial or to hear 
Douglas's motion immediately, indicating that it would be addressed 
as a preliminary issue at the outset of trial.  Douglas 
subsequently renewed his motion, submitting supplemental 
descriptions of actions on Bressers's part that, in his view, 
established her bias.  The court evidently took no action on the 
renewed motion before the time of trial.  

On June 14, the day set for trial, the superior court 
conducted an extensive hearing into Douglas's claim that Bressers 
was biased. Upon concluding the hearing, the court found that 
Douglas had failed to establish grounds for Bressers's 
disqualification; the court observed that Douglas's disagreement 
with Bressers's report was not an indication of bias but was 
instead "something that occurs in every case."  After noting that 
Bressers's yellow-page advertisement dealt with her field of 
practice as an attorney and that it is common for attorneys to 
advertise their specialties, the court explained that attorneys who 
are appointed as child custody investigators "wear different hats" 
by serving as neutral advisors to the court.  In short, while 
recognizing that, as a lay person, Douglas might easily jump to the 
conclusion that "there is an agenda here," the court found no 
evidence of actual bias warranting Bressers's disqualification.  
Because the hearing into bias had been so time consuming, 
the court postponed the trial until July.  The rescheduled trial 
began on July 11, 2000.  While the trial nominally dealt with 
issues of both property and custody, the parties primarily disputed 
custody.  In oral findings made on the record at the close of 
trial, the court divided the marital property equally and granted 
Julie sole legal and physical custody of both children.  The court 
also established a "stair-step" visitation schedule designed to 
work progressively toward allowing Douglas to assume shared custody 
of both children. 
As described by the court, the stair-step approach 
initially required Douglas to follow the supervised visitation 
schedule in existence at the time of trial, which the parties 
agreed gave Douglas about seven hours of supervised visitation 
every two weeks.  After three months, supervised visitation would 
increase by one hour.  And the court proclaimed that it would 
consider further increases -- possibly including unsupervised and 
overnight visits -- after Douglas submitted the results of a 
psychological evaluation.

Upon entering these oral findings on the record on 
July 12, 2000, the court directed Julie's attorney to submit 
proposed written findings and conclusions. [Fn. 1]   Douglas promptly tried 
to appeal the decision, but his notice of appeal was held in 
abeyance by the Appellate Court Clerk's Office because the superior 
court had not yet entered a written judgment.  On August 30, seven 
weeks after the court ordered Julie's attorney to submit written 
findings and conclusions, Douglas filed a motion asking the court 
to compel Julie's attorney to comply with the order.  In his 
motion, Douglas complained that the court's delay in issuing its 
written decision was prejudicing his right to visitation and 
preventing him from pursuing his right to an appeal. 
A month later, on September 29, the court granted 
Douglas's motion and ordered Julie's attorney to produce the 
proposed findings within ten days or show cause for her delay. 
Julie's counsel filed the proposed findings and conclusions on 
October 2, and the court signed them the following day without 
making any revisions.
Douglas's appeal then proceeded.	
III.	DISCUSSION		
1. The Disqualification of the Child Custody Investigator [Fn. 2] 


Douglas initially contends that the superior court abused 
its discretion in failing to disqualify Bressers as the child 
custody investigator.  He accuses Bressers of gender bias, 
supporting his accusation by pointing to Bressers's yellow-page ad 
and various signs of bias that Douglas detected in the course of 
Bressers's custody investigation.
The superior court considered this evidence before 
denying Douglas's motion to disqualify Bressers but concluded that 
it failed to reveal any actual bias.  In the court's view, 
Bressers's yellow-page ad merely described her chosen specialty as 
an attorney; it did not reflect on her function as a court-
appointed custody investigator, a role that required her to act 
neutrally.  The court also found no evidence of bias in Bressers's 
conduct during the custody investigation, noting that her report 
"doesn't miss the mark" with respect to the fundamental issues 
disputed at trial.

In our view, the record fully supports the superior 
court's findings.  But the findings themselves focus too narrowly 
on the issue of actual bias without independently considering the 
issue of appearance of bias.  We have not previously discussed 
appearance of bias or impropriety in connection with a court-
appointed child custody investigator's role.  But because court-
appointed custody investigators are officers of the court and 
perform quasi-judicial functions, the Code of Judicial Conduct 
provides a helpful analytical framework. [Fn. 3]  The Code states: "In all 
activities, a judge shall . . . avoid impropriety and the 
appearance of impropriety." [Fn. 4]  The commentary to the Code defines 
appearance of impropriety by an objective standard -- one that asks 
not whether a judicial officer displayed actual bias but "whether 
the conduct would create in reasonable minds a perception that the 
judge's ability to carry out judicial responsibilities with 
integrity, impartiality and competence is impaired." [Fn. 5]  
Applying this standard here, we conclude that reasonable 
minds could understandably doubt the impartiality of a court-
appointed custody investigator who, as an attorney practicing in 
the field of domestic relations, claimed to be "a voice for" only 
one gender.  The appearance of bias would be greatly compounded in 
cases involving pro se litigants, who, without the benefit of 
advice from an experienced advocate, might find it difficult to 
accept the notion that practicing lawyers are often expected to 
"change hats" when they act in different capacities.  In such 
cases, even if a custody investigator's report might ultimately 
demonstrate the absence of actual bias, the litigant's initial 
suspicions would be likely to jeopardize the reliability of the 
investigation; for the effectiveness of the process itself largely 
depends on the confidence and trust of all interested parties.  For 
these reasons, then, we conclude that a court-appointed child 
custody investigator is ordinarily subject to disqualification upon 
a showing of either actual or apparent bias.

In the case at hand, however, even though we find that 
Bressers's yellow-page advertisement created an appearance of bias 
sufficient to warrant disqualification, we conclude that any error 
in failing to grant Douglas's motion for disqualification was 
clearly harmless.  We note initially that, even apart from 
Bressers's recommendation, the evidence at trial strongly supports 
the superior court's custody decision. [Fn. 6]  Furthermore, by expressly 
observing that the evidence proved Bressers's recommendations to be 
accurate in all significant respects, the court demonstrated that 
its custody decision was based primarily on the evidence, rather 
than on Bressers's report.  The court thus demonstrated its 
awareness that Bressers's custody recommendations were not binding 
and that the court had the duty to independently determine the 
children's best interests.  And our review of the record also 
convinces us that Douglas failed to present any plausible evidence 
of bias apart from the inherent appearance of bias arising from 
Bressers's yellow-page advertisement.  		 

A final factor that we consider is the timing of 
Douglas's motion to disqualify Bressers.  Douglas filed his motion 
in May 2000, just a month before the case was scheduled for trial. 
Fifteen months had passed since the divorce action was filed; more 
than fourteen months had elapsed since the court originally 
appointed Bressers; and five months had elapsed since Douglas first 
met Bressers and signed an agreement retaining her to perform the 
custody investigation.  The month before Douglas filed his motion, 
Bressers had completed her investigation; Douglas had just received 
her initial recommendations, which favored granting primary custody 
to Julie.  
Although Douglas contended below that he moved to 
disqualify Bressers as soon as he could, his own affidavit belies 
that contention, expressly acknowledging that he already knew of 
Bressers's yellow-page advertisement when he met with her in 
December 1999 and signed the agreement retaining her to perform the 
investigation.  The timing of the disqualification motion thus 
strongly suggests that Douglas's motion reflects his displeasure 
with Bressers's recommendation rather than a genuine concern over 
the appearance of bias arising from her yellow-page ad. 
Considering the totality of these circumstances, we find 
no reasonable possibility that a report by a different custody 
investigator would have had any appreciable effect on the superior 
court's custody decision.  Finding nothing to indicate that Douglas 
suffered actual prejudice, then, we decline to hold that the 
failure to disqualify Bressers amounted to reversible error.
2. The Timeliness and Accuracy of the Written Decision
Douglas next challenges the merits of the superior 
court's decision.  His challenge focuses on the delayed issuance of 
the court's written findings of fact and conclusions of law and 
their failure to accurately reflect the court's previously 
announced oral decision.  Douglas's arguments on these points have 
considerable merit.

We turn first to the issue of timeliness.  After 
announcing its decision on record at the conclusion of the trial on 
July 12, the superior court directed Julie's attorney to submit 
proposed findings and conclusions.  Alaska Civil Rule 78 expressly 
required Julie's counsel to file the proposed findings and 
conclusions within ten days: 
Unless otherwise ordered by the court, counsel 
for the successful party to an action or 
proceeding shall prepare in writing and file 
and serve on each of the other parties 
proposed findings of fact, conclusions of law, 
judgments and orders.  In a case in which the 
custody of children is at issue, a party 
required to prepare findings of fact, 
conclusions of law, or a judgment or order 
pertaining to that issue shall serve and file 
them within 10 days after the day on which the 
judge announces on the record that the party 
is to prepare them, pursuant to Rule 
58.1(a)(1).[Fn. 7]

Julie's attorney failed to comply with this requirement, 
did not seek an extension of time, and offered no explanation for 
her noncompliance.  More than seven weeks after the court announced 
its decision, on August 30, Douglas moved for an order compelling 
Julie's attorney to produce the proposed findings and conclusions. 
 He complained that the court's delay in entering written findings 
and conclusions had hampered his efforts to appeal and was 
prejudicing his visitation rights.  

On September 29 the court ordered Julie's attorney to 
produce the proposed findings and conclusions within ten days or 
show cause for failing to do so.  Julie's counsel submitted the 
proposed findings on October 3 -- nearly three months after the 
court's oral ruling.  The court signed the proposed findings and 
conclusions the next day, without change.  As Douglas correctly 
observed in his August 30 motion to the court, this delay 
interfered with his ability to seek timely appellate review. [Fn. 8]  And 
as we explain in detail below, the delay also led to discrepancies 
between the court's oral and written rulings that effectively left 
its stair-step visitation plan in limbo. 
Normally, when inconsistencies arise between a court's 
oral and written findings, the written decision prevails. [Fn. 9]  But the 
normal rule assumes that -- and consequently only applies when -- 
the trial court consciously made or endorsed the changes 
incorporated in its written decision.  We have held that a trial 
court abuses its discretion when it adopts, without explanation or 
change, proposed findings of fact and conclusions of law that 
substantially deviate from the court's earlier oral decision. [Fn. 10]  

We have also emphasized that the role of counsel in 
drafting proposed findings and conclusions is that of "a scribe who 
must accurately memorialize the court's oral findings and 
conclusions." [Fn. 11]  And we have placed a particularly heavy burden of 
accuracy on attorneys whose opponents are unrepresented by counsel: 
"[I]f the opposing party has no lawyer and is less able or less 
likely to mount an effective challenge to the proposed written 
findings, counsel must take extra care to ensure faithful and 
accurate renditions of the court's ruling." [Fn. 12] 
The findings and conclusions proposed by Julie's counsel 
fell short of this mark in several respects.  Most prominently, the 
superior court's oral order establishing a stair-step visitation 
program expressly specified that Douglas's visitation was to 
increase to eight hours each weekend "after three months starting 
now."  Yet almost three months later, Julie's counsel submitted 
proposed findings that failed to include this reference to timing; 
on their face, the written findings seemingly made the stair-step 
plan's initial three-month extension effective as of the date the 
written plan was signed, rather than at the time of trial.  By 
failing to include the oral decision's specific timing provision, 
then, the written findings effectively doubled the visitation 
plan's first step. [Fn. 13]   

The written decision is also inaccurate in other 
respects.  For example, it requires Douglas to undergo a 
psychological evaluation "conducted by Dr. Melinda Glass or the 
alternate therapist selected by the parties."  This language 
implicitly makes Dr. Glass the default examining physician: absent 
Julie's consent to another physician, the provision seemingly 
requires Douglas to submit to an evaluation by Dr. Glass.  But as 
Douglas correctly points out, the superior court's oral findings 
did not specify Dr. Glass as the default therapist.  In its oral 
judgment, the court ordered Douglas to undergo a psychological 
evaluation by a therapist whom the parties mutually agreed upon. 
 The court did say that Dr. Glass seemed like a logical choice for 
Douglas.  But it also suggested other possible candidates and did 
not require or suggest that Douglas be evaluated by Dr. Glass if 
the parties were unable to agree on another therapist. 
The inaccuracies in the written findings and conclusions 
are not confined to custody provisions.  For example, the court's 
oral decision specified that the marital portions of Douglas's 
retirement plans were to be divided equally by a qualified domestic 
relations order (QDRO) and that the court would retain jurisdiction 
over Douglas's unvested National Guard plan until it vested.  But 
while the written decision includes a provision dividing Douglas's 
retirement benefits equally, it neglects to mention the use of a 
QDRO.  The written decision thus fails to specify a method for 
dividing these assets. [Fn. 14]  

Besides these omissions of parts of the oral decision, 
the written findings and conclusions add provisions not found in 
the oral findings.  The court's oral decision did not specify the 
time frame for determining the marital portion of the retirement 
benefits.  Without seeking clarification or guidance on this point, 
Julie's counsel simply included a provision specifying that 
"retirement benefits earned between February 23, 1985 and July 12, 
2000" were to be deemed marital for purposes of the property 
division.  Yet these dates appear to be unduly favorable to Julie. 
 Marital property available for distribution in a divorce is 
ordinarily identified as of the date of separation rather than 
trial. [Fn. 15]  Yet here, the written decision uses the date of the 
parties' trial -- July 12, 2000 -- not the date of their separation 
-- January 17, 1999 -- to establish the period during which 
Douglas's retirement funds should be deemed marital.

In summary, by submitting written findings that did not 
conform to the exact terms of the superior court's oral findings, 
Julie's counsel overstepped her role as the court's scribe.  New or 
additional matter should not have been included in the written 
findings without giving Douglas advance notice of the changes and 
an opportunity to object. [Fn. 16]  And if Julie's counsel encountered 
questions or uncertainties in drafting the findings and 
conclusions, she should have at least specified in her proposed 
order those findings that were extrapolations from the court's oral 
remarks or otherwise were not mentioned by the court.  Here, 
because the superior court had no notice of the discrepancies 
between the written and oral decisions, because the written version 
was submitted so long after the court announced its oral decision, 
and because the court signed the proposed version without revision 
or correction almost immediately after its submission, [Fn. 17]  we 
conclude that the written decision must be vacated and that this 
case must be remanded for entry of an amended judgment. [Fn. 18]
C.	Remaining Property Issues


Douglas also challenges several aspects of the superior 
court's order dividing the marital property.  Alaska Statute 
25.24.160(a)(4) gives trial courts broad discretion to divide the 
marital property of divorcing litigants. [Fn. 19]   Dividing a marital 
estate involves a three-step process: identifying, valuing, and 
dividing the marital assets. [Fn. 20]  Legal determinations made within 
the first step are reviewed under the independent judgment 
standard. [Fn. 21]  The second step usually involves factual determinat-
ions, reversed only if made in clear error. [Fn. 22]   Allocations under 
the third step are reviewed under the abuse of discretion standard 
and will not be disturbed unless clearly unjust. [Fn. 23]

In its oral findings at the close of trial, the superior 
court divided the marital property equally, evidently adopting the 
property schedule presented in Julie's trial brief.  While 
Douglas's arguments challenging the property division are cursory 
and difficult to follow, they focus partly on the superior court's 
decision to divide his retirement plans by QDRO.  As already noted 
above, the superior court's oral decision required the retirement 
plans to be divided by QDRO but did not specify the dates to be 
used in distinguishing marital from non-marital earnings; in 
contrast, the written decision omitted any reference to QDROs and 
incorporated potentially incorrect marital dates that Julie's 
counsel supplied without notice to the court or to Douglas.  On 
remand, the court should address these deficiencies. [Fn. 24] 

Douglas additionally complains that the superior court 
failed to account for the financial effects that his post-
separation bankruptcy had on the parties' marital debts.  Julie 
acknowledged in her trial brief that Douglas's bankruptcy action 
discharged his obligation on various marital debts; but the brief 
also indicated that Julie remained liable for many of the 
discharged debts, including a USAA Savings Bank obligation of 
$7,300 and People's Bank VISA debt of $7,200.  Yet at the same 
time, Julie acknowledged that she was awaiting a refund for post-
discharge payments that she had made on a different marital credit 
card debt that had been discharged in the bankruptcy -- a $4,300 
debt to Providian Bank VISA.  Without commenting on Douglas's 
bankruptcy discharge, the superior court simply accepted Julie's 
characterization of all of these credit card debts as still current 
marital obligations.  The court thus divided the total debt 
equally, stipulating that Douglas should receive a proportionate 
credit if Julie ever received a refund for her Providian Bank VISA 
payments. 
Douglas questions this decision.  Relying on Julie's 
apparent acknowledgment that she may be entitled to assert his 
bankruptcy discharge to recover her post-discharge payments on the 
Providian Bank VISA obligation, Douglas questions her claim that 
she remains personally liable for the full amount of the now-
discharged USAA Savings Bank and People's Bank obligations.  Julie 
does not specifically respond to this argument.  Because the 
findings below neither addressed the effects of Douglas's 
bankruptcy discharge nor explained the court's reasons for counting 
the discharged obligations as marital debt, we are unable to review 
the court's ruling and conclude that this issue must be remanded 
for further findings.  

Douglas also complains that neither Julie's trial brief 
nor the superior court's findings properly accounted for several 
articles of marital property that the court authorized Julie to 
sell while the parties' divorce action was pending.  This argument 
lacks merit.  The property in question was sold in accordance with 
a May 1999 order granting Julie's motion to sell several marital 
articles in her possession to allow her to pay current living 
expenses and accrued marital debts.  The record does not disclose 
how much money Julie realized in the sale or how she spent the sale 
proceeds.  As Douglas correctly observes, the court did not credit 
Julie with the proceeds of the sale in its order dividing the 
marital property. [Fn. 25]   
But we have consistently held that a divorce court 
engaged in dividing property should usually identify marital assets 
as of the time of separation but establish their value at the time 
of trial. [Fn. 26]  Ordinarily, then, neither party is charged for loss in 
the value of marital property occurring in the interim between 
separation and trial. [Fn. 27]   Although we have occasionally recognized 
an exception that allows recapture of property that has been 
dissipated or wasted in the interim between separation and trial, [Fn. 28] 
Douglas alleges no exceptional circumstances that would warrant 
recapturing the value of the articles sold in this case.  We find 
no error in the trial court's failure to account for the sold 
articles. 

IV.	CONCLUSION
For the reasons discussed above, we AFFIRM in part, 
REVERSE in part, and REMAND for further proceedings and entry of a 
new order consistent with this opinion.

					FOOTNOTES

Footnote 1:

 	Specifically, the trial court stated, "Ms. Taylor, I'm 
going to ask you to draft these findings up.  Okay? I made very 
general findings.  You can listen to the tape.  See what's in 
there, okay?"

Footnote 2:
 
 	We apply the abuse of discretion standard to review a 
trial court's decisions relating to appointment of a child custody 
investigator and admission of the investigator's report into 
evidence.  See R.M. v. S.G., 13 P.3d 747, 749 (Alaska 2000).

Footnote 3:

 	See Lythgoe v. Guinn, 884 P.2d 1085, 1087-88 (Alaska 
1994).

Footnote 4:

 	Alaska Code of Judicial Conduct Canon 2(A).

Footnote 5:

 	Id. at Canon 2(A) commentary (emphasis added).

Footnote 6:

 	We review a trial court's child custody decision for 
abuse of discretion.  See Borchgrevink v. Borchgrevink, 941 P.2d 
132, 134 (Alaska 1997).

Footnote 7:

 	Alaska R. Civ. P. 78 (emphasis added).

Footnote 8:

 	Under Appellate Rule 202(a), Douglas had the right to 
appeal upon entry of a final judgment; under Appellate Rule 218(d) 
this right accrued on "the date shown in the clerk's certificate of 
distribution on the order or judgment."  Accordingly the appeal was 
not ripe until the superior court entered and distributed its 
judgment.  Douglas initially submitted a notice of appeal on 
August 15, 2000, but his opening pleadings were held until the 
superior court entered its written judgment.

Footnote 9:

 	Lowe v. Lowe, 944 P.2d 29, 33-34 (Alaska 1997).

Footnote 10:

 	McDougall v. Lumpkin, 11 P.3d 990, 998 (Alaska 2000).

Footnote 11:

 	Id.

Footnote 12:

 	Id.

Footnote 13:

 	The prejudicial delay in Julie's production of proposed 
findings is discussed more fully infra.

Footnote 14:

 	As of the date that the appellate record was certified to 
this court, the superior court's file contained nothing to indicate 
that a QDRO had been issued.

Footnote 15:

 	E.g., Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994).

Footnote 16:

 	See McDougall, 11 P.3d at 998.

Footnote 17:

 	Douglas's failure to file an objection in the superior 
court to Julie's proposed findings and conclusions does not 
preclude him from disputing these inaccuracies on appeal.  Because 
the court signed Julie's proposed findings and conclusions the day 
after they were filed with the court and served upon Douglas, 
Douglas had no opportunity to object.  

Footnote 18:

 	The current record does not allow us to determine how 
greatly Douglas's visitation was actually impaired by the written 
judgment's delayed issuance and its omission of any reference to 
the effective date of the stair-step visitation provision; 
accordingly, on remand the superior court will need to fashion a 
new custody order based on the current best interests of the 
children.  Because our decision vacates the superior court's 
written order and requires a reevaluation of best interests on 
remand, we need not consider other arguments raised by Douglas 
concerning the custody order.   

Footnote 19:

 	AS 25.24.160 provides in pertinent part:

(a) In a judgment in an action for divorce or 
action declaring a marriage void or at any 
time after judgment, the court may provide

. . . .

(4) for the division between the parties of 
their property, including retirement benefits, 
whether joint or separate, acquired only 
during marriage, in a just manner and without 
regard to which of the parties is in fault; 
however, the court, in making the division, 
may invade the property, including retirement 
benefits, of either spouse acquired before 
marriage when the balancing of the equities 
between the parties requires it; and to 
accomplish this end the judgment may require 
that one or both of the parties assign, 
deliver, or convey any of their real or 
personal property, including retirement 
benefits, to the other party; the 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 20:

 	Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998); 
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

Footnote 21:

 	Id.

Footnote 22:

 	Id.


Footnote 23:

 	Id.

Footnote 24:

 	We note also that the superior court's findings on the 
retirement assets failed to address evidence indicating that, in 
addition to his Loomis Fargo and National Guard retirement plans, 
Douglas evidently maintained a separate Loomis Fargo 401(k) account 
of undetermined value.  In contrast to the retirement plans, the 
401(k) account could conceivably contain currently accessible funds 
with a readily apportionable present value; if so, these funds 
might be easily divided without recourse to a QDRO.  After the 
superior court orally announced its decision to divide Douglas's 
retirement funds by QDRO, Douglas attempted to inquire into the 
court's treatment of this 401(k) account, possibly meaning to 
suggest that the court consider immediately dividing that account's 
present value, so that Douglas could use his share of the cash to 
pay his share of the marital debt.  The court -- perhaps failing to 
recognize a potential distinction between Douglas's personal 401(k) 
account and his employers' retirement plans -- simply informed 
Douglas that the money would be divided by QDRO.  Given the 
possible distinctions between Douglas's 401(k) account and his 
employer retirement plans, the superior court should reconsider 
this issue on remand if Douglas is inclined to assert it.

Footnote 25:

 	It does not appear that Julie used the sale proceeds to 
pay down existing marital debt.  The marital debts listed in 
Julie's trial brief are identical to those reflected in Julie's 
form DR 250 financial statement, which she filed in April 1999, a 
month before the court issued its order authorizing the sale of 
marital assets.

Footnote 26:

 	Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998) 
(court's decision dividing property should identify marital 
property existing at the time of separation, establish value of 
that property at the time of trial, and allocate the property in an 
equitable manner); see also Jones v. Jones, 942 P.2d 1133, 1136 
(Alaska 1997); Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994); 
Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991).

Footnote 27:

 	See, e.g., Jones, 942 P.2d at 1139; Foster v. Foster, 883 
P.2d 397, 399-400 (Alaska 1994); Ogard, 808 P.2d at 819-20.

Footnote 28:

 	Foster, 883 P.2d at 400.

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