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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson-Lizardi v. Lizardi (6/14/2002) sp-5583

Nelson-Lizardi v. Lizardi (6/14/2002) sp-5583

     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.


                              )    Supreme Court No. S-9803
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-89-502 CI
             Appellee.                  )    [No. 5583 - June 14,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:   Julie  L.  Webb   and   Andrew
          Harrington,  Alaska  Legal  Services   Corp.,
          Fairbanks,    and   Robert   H.    Hickerson,
          Anchorage,   for   Appellant.    Edward    R.
          Niewohner and Lawrence F. Reger, Niewohner  &
          Associates, P.C., Fairbanks, for Appellee.

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

          CARPENETI, Justice.


          I.   Jackie Nelson-Lizardi and Ismael Roberto (Bob) Lizardi

divorced  in  1990 but the divorce decree did not deal  with  the

division of Bob's pension because the pension had not yet vested.

In  a  hearing  on December 1, 1999, the superior  court  ordered

Jackie to file a request for a formal accounting by December  15,

1999 or face waiver of any claim to the pension.  Jackie did  not

file  a  request for a formal accounting on December 15, but  she

did   file  a  notice  stating  that  she  did  not  have  enough

information  to  make  the  decision  as  to  whether  a   formal

accounting was appropriate and apprising the court of her efforts

to  obtain  the  needed  information.  The parties  continued  to

exchange  relevant information for several months.  But  on  June

14, 2000, the superior court issued a decision denying Jackie any

right  to the pension.  Because Jackie was entitled to a decision

on  the  merits on the issue of awarding the pension entirely  to

Bob,  we  reverse the decision of the superior court.  We  remand

the issue of division of the pension for further proceedings.


     A.   Facts

          Jackie and Bob were married in 1980.  Jackie filed  for

divorce in 1989 and trial was held in January 1990.  The superior

court  issued  an  amended decree of divorce on April  30,  1990.

During  their marriage, Jackie and Bob accumulated several pieces

of  personal and real property1 that made up the marital estate.2

Jackie  and Bob accumulated several debts related to the  farming

business during the marriage.3

          In the divorce decision, the superior court distributed

the  assets and liabilities of the marriage by giving Jackie,  in

pertinent part, the house and the two loans secured by the house,

as  she  was the party most likely to have an interest in  paying

off  those loans.  Bob was given the eighty-acre parcel with  the

remaining debt on that property and the agricultural loans,  with

the  exception of loan C-941 (due to a dispute with the state  as

to the value of this loan).  Loan C-941 was a loan secured by all

farm  equipment  owned by Bob.  The amount of this  loan  was  in

dispute  because Bob stated that the equipment was  sold  to  the

Whitestone farm and the purchase price was paid to the state  but

the  state  had not yet deducted the amount from the loans.   The

superior  court did not distribute Bob's pension because  it  was

unvested, and instead delayed the distribution until the  pension


          In  October 1994 the state settled the lawsuit that was

          pending against Bob during the divorce proceedings.  The state

released  Bob from all of the outstanding Agricultural  Revolving

Loan Fund loans, including the two loans secured by the house and

awarded  to  Jackie in the divorce.  Jackie claims to  have  made

efforts  to set up arrangements to pay the loans secured  by  the

house  but  was  told that the state was unable  to  discuss  the

matter  with her because the lawsuit was against Bob.  Bob claims

that  he  was forced to convey several items of real and personal

property  to the state in order to discharge the loans.  However,

the  settlement agreement states only that Bob was  to  convey  a

John Deere hay baler, a mulcher/packer, and a wagon.  There is no

evidence that Bob had to convey any real property to the state in

the agreement.

     B.   Proceedings

          Bob  retired  in 1998 and began receiving  his  pension

benefits.   In  February 1999 Bob filed a motion to modify  child

support  because  his income had decreased by more  than  fifteen

percent.  In April 1999 Jackie filed a supplemental opposition to

Bob's  motion that included several counter-motions, including  a

motion  to  divide  Bob's pension.  The superior  court  held  an

evidentiary  hearing on December 1, 1999 to  resolve  the  issues

between  the parties.  Jackie did not attend the hearing but  her

attorney did.

          At  the hearing, Bob argued that he was entitled to  an

offset  against  what was owed to Jackie on the  pension  in  the

amount  of the loans secured by the house plus interest from  the

date  of  settlement.   Bob argued that the loans  plus  interest

currently  totaled  approximately  $24,000.   Jackie's   attorney

stated  that she felt uncomfortable discussing the issue  of  the

offset  because Bob had not filed anything formal on  the  issue,

other  than  the opposition to Jackie's motion, and  no  concrete

numbers  or evidence had been offered.  Jackie's attorney  stated

that  she was not sure of the value of the pension or the  amount

Bob  claimed  as an offset and that she would need some  time  to

review  the evidence.  The court thus ordered Jackie  to  file  a

motion  for  a  formal accounting of the pension by December  15,

1999, or "that issue is just going to drop out of the case," that

is, Jackie's rights to the pension would be presumed to be offset

by settlement of the loans secured by the house.

          On  December  15,  1999, Jackie  filed  an  "Advice  of

Counsel"  stating that she did not have adequate  information  on

the pension to make an informed decision as to whether to request

a  formal accounting.  The "Advice of Counsel" stated that Jackie

was  waiting  for  information promised  by  Bob  and,  once  she

received  this  information, she would file a  request  with  the

court  within thirty days.  Alaska Laborers-Construction Industry

Trusts  sent  Bob  a  letter on December 14, 1999  detailing  the

specifics on Bob's pension.  Bob's attorney forwarded the  letter

to  Jackie's attorney on December 21, 1999.  Bob's attorney  sent

Jackie's  attorney a release of information so that Jackie  could

obtain  information  on  the pension on January  10,  2000.   The

release expired on January 30, 2000 and Jackie's attorney  failed

to  ask  for the information before the release expired.   Jackie

made  further requests for the information and for another signed

release of information, but she was unable to obtain either.

          Sometime in the spring, Jackie retained the services of

a  professor  of  economics, Paul Taylor,  Ph.D.,  to  value  the

pension.   Taylor estimated in an affidavit that the pension  was

worth  substantially more than the figure offered  by  the  trust

company.   Jackie  filed Taylor's affidavit  on  June  26,  2000.

Taylor estimated that Jackie's marital portion of the pension was

$33,919.50,  or  $246.93 per month, while the trust  company  had

estimated that the marital portion of the pension was $24,190.00,

or $151.94 per month.

          Jackie  filed  a discovery request on May  2,  2000  in

which she requested a signed release of information and a copy of

Bob's  most  recent tax return.  On May 10, 2000 Bob requested  a

hearing  on  uncovered  medical bills and pension  rights.   This

request  was stamped "not used" by the superior court.  Then,  on

May  19,  2000,  Bob  filed  a proposed order  regarding  pension

distribution.   This proposed order was signed  by  the  superior

court on June 14, 2000.  The order stated that the superior court

entered its oral findings on the record on December 1, 1999  and,

because  Jackie  had  not filed for a formal  accounting  of  the

pension, she was entitled to no interest in the pension.  On June

30,   1999,  the  superior  court  denied  Jackie's  motion   for


          Jackie  appeals  the  decision of  the  superior  court

denying  her  an interest in the pension, denying her  motion  to

compel  discovery,  and denying her motion  for  reconsideration.

Because we conclude that we need to reach only one aspect of  the

first issue, we do not address the motion to compel discovery  or

the motion for reconsideration.


          We  review  procedural decisions of the superior  court

under  the abuse of discretion standard.4  For example,  we  have

held  that  a  superior court's denial of a motion on  timeliness

grounds  and  denial of a continuance are reviewed for  abuse  of

discretion.5   We will reverse a ruling for abuse  of  discretion

only  when, after reviewing the whole record, we are left with  a

definite and firm conviction that the trial court erred.6


     The  Superior Court Erred in Denying Jackie a Marital  Share
     of  Bob's  Pension  as  a  Penalty  for  Not  Requesting  an
     Accounting and without a Determination on the Merits.
          Jackie  argues  that  the  superior  court  erroneously

failed  to  apply  the  proper standard to the  division  of  the

pension.  But the superior court did not reach the merits of  the

division  of  the  pension.  Its ruling  was  based  on  Jackie's

failure to comply with the court's order to file a request for  a

formal  accounting  by  December 15,  1999.   We  therefore  must

determine whether the superior court erred in summarily  awarding

the  entire  pension to Bob as a penalty for Jackie's failure  to

          request an accounting.

          We  addressed  a similar issue in Gamble v.  Northstore

Partnership.7  In Gamble, Northstore Partnership was sued by  the

Gambles  for  reformation of a recorded grant of easement.8   Six

days  before  the close of discovery and one and one-half  months

before  trial, Northstore moved for summary judgment,  which  was

granted following oral argument.9  The superior court noted  that

the  real  issue was whether the Gambles had had enough  time  to

oppose  the summary judgment motion, but it declined to grant  an

extension  because the Gambles failed to make a specific  request

for  relief  under Alaska Civil Rule 56(f).10  Alaska Civil  Rule

56(f) allowed for a continuance in order to obtain more discovery

to oppose a motion for summary judgment.11  We held that while the

Gambles' submission of an "Affidavit of Attorney in Opposition to

the  Motion  to  Amend and Motion for Summary Judgment"  did  not

expressly  mention  the continuance provision,  it  "clearly  set

forth   the   Gambles'  desire  and  justification  to  undertake

additional discovery."12  Therefore, because the Gambles had "made

an  unambiguous request for a continuance with which to undertake

additional discovery," we held that the superior court abused its

discretion in not permitting this discovery.13

          The situation here is strikingly similar.  The superior

court  denied  Jackie  her share of the marital  portion  of  the

pension  because  she  failed to file  a  request  for  a  formal

accounting by December 15, 1999.  But Jackie filed an "Advice  of

Counsel" on that date stating (1) that she was unable to make  an

informed  decision  about pursuing the formal accounting  without

additional  information from Bob; (2) that she was  expecting  to

obtain more information from Bob once Bob received a letter  from

the  pension  plan administrator; and (3) that she would  file  a

request for a formal accounting within thirty days of receipt  of

the information requested.

          We recognize that a trial court has broad discretion to

set  and  enforce deadlines for filing pleadings  and  completing

          discovery.14  However once a deadline has passed with a party

failing to take a required action,15 and the superior court fails

to enforce the deadline for a substantial period of time, and the

parties  proceed to work to resolve their dispute, basic fairness

requires  that  the  superior court give advance  notice  and  an

opportunity  to cure the delinquency before it rules against  the

party for failing to take the appropriate action.

          The  superior  court never ruled on the merits  of  the

issue of division of the pension.  Nor did it in any way indicate

that  Jackie waived the issue by not filing for a formal  request

by   December  15,  1999.   The  parties  continued  to   conduct

themselves as if division of the pension was still an  issue  for

nearly  six  months.   Bob provided a signed  release  to  obtain

information  that was valid until January 30, 2000.  The  parties

exchanged  substantial correspondence on the matter.   The  first

mention of any concern about timeliness is found in a letter from

Bob's attorney to Jackie's attorney dated March 8, 2000, in which

Bob's  attorney  declined  to  provide  an  updated  release   of

information  for the pension fund.  Even then, it would  be  more

than  three  months  before the superior court  would  rule  that

Jackie's  efforts to obtain her portion of the pension  would  be

foreclosed  by what the court considered to be a missed  deadline

six  months  earlier.  We  are left  with  a  definite  and  firm

conviction  that  the superior court erred in  denying  Jackie  a

ruling on the merits under these circumstances.

          Because Jackie's pension rights claim was dismissed  on

procedural grounds, the superior court had no occasion  to  apply

the  standard articulated in Wanberg v. Wanberg16 to the division

of the pension.  Alaska law requires that property be divided "in

a  just manner and without regard to which of the parties  is  in

fault  .  . . ."17  Moreover, "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 . . . ."18  In Wanberg,

          we explained that division of marital assets involves a three-

step  procedure:   the  trial  court must  first  determine  what

specific  property is available for distribution, then the  court

must  value  this property, and, finally, it must decide  how  an

allocation can be made most equitably.19  In Merrill v. Merrill,20

we held that the trial court must make "sufficiently detailed and

explicit   findings  `to  give  the  appellate  court   a   clear

understanding of the basis of the trial court's decision, and  to

enable  it  to  determine the ground on  which  the  trial  court

reached  its  decision.' "21  Included in these  findings  are  a

number  of  factors that a trial court must take into account  in

making property divisions.22  And in Edelman v. Edelman,23 we held

that  the  trial  court may not award the entire pension  to  one

spouse  without  an  accounting of  the  other  spouse's  marital

portion.24  In the present case, the superior court determined in

the 1990 divorce decree that the pension was marital property  to

the  extent  that  it  was earned during the marriage.   However,

because  Jackie did not request a formal accounting, the superior

court  did  not undertake the last two steps of the procedure  in

the 1999 proceedings.

          At  the hearing on December 1, 1999, the superior court

stated  that it was its "fairly vague impression" that  "[Jackie]

was going to end up owing [Bob]" due to the fact that the pension

would  be  worth  less  than the amount  "paid"  by  Bob  in  the

settlement  with the state that released the loans on the  house.

However, the superior court acknowledged that nobody had done the

exact  calculations,  there had been  no  effort  to  reduce  the

pension benefits to present value to make a valid comparison, and

the  figures  the court was using were very rough.  The  superior

court never made any findings as to the value of the pension, nor

did  it  apply  the factors set out in Merrill25  to  divide  the

pension.  And Jackie adduced considerable evidence that the rough

figures Bob's attorney proposed in unsworn argument on December 1

were  incorrect.   Jackie is entitled to a determination  on  the

          merits and, before that determination can be made, discovery is

necessary  to  determine  the value of the  pension  and  whether

Jackie's portion is offset by the settlement of the loans secured

by  the  house.   Therefore,  we remand  for  a  hearing  on  the

valuation and division of the pension.


          Because  the  "Advice of Counsel" filed  by  Jackie  on

December  15, 1999 was sufficient to alert the court and opposing

counsel  that further information was needed by Jackie to respond

to  the court's order to file a request for an accounting by that

date,  and  because  it was so treated by opposing  counsel,  the

court abused its discretion in awarding the entire pension to Bob

with  no  further notice.  We REMAND this issue to  the  superior

court for division of the marital property under Wanberg.

     1     Although complicated, a detailing of the property  and
debts  accumulated  during  the  marriage  is  important  to   an
understanding  of the quandary facing Jackie in deciding  whether
to request a formal accounting of Bob's pension.

     2     Bob  bought a forty-acre parcel in 1977 on which  they
built  a  house and had a working farm.  The parties acquired  an
eighty-acre parcel of agricultural land and a 280-acre parcel  of
agricultural land.  Bob also had an unvested pension through  the
Laborer's Union that was earned, in part, during the marriage.

     3     In particular, loans totaling $12, 232.48 on the house
and  $19,115.74  of the purchase price on the eighty-acre  parcel
had  yet to be paid off at the time of the divorce.  The division
of  the  marital property was complicated by the  fact  that  the
state started proceedings against Bob in order to recover on  six
agricultural  loans, including those on the house, borrowed  from
the Agricultural Revolving Loan Fund.  The four loans not secured
by  the  house were secured by various pieces of farm  equipment,
the  280-acre parcel, and crops.  These loans were awarded to Bob
in  the  divorce, with the exception of the loans on the 280-acre
parcel.  The 280-acre parcel and the loans on this property  were
not awarded in the divorce proceeding because there was a dispute
at the time of the divorce as to who owned the parcel.

          Bob had sold the 280-acre parcel to Paul Mertz in 1985.
Mertz  agreed  to take over the loan payments to  the  state  but
apparently did not make the payments.  The state evidently agreed
to  the  land transfer but then sued Bob for the arrearage.   The
suit  was  then  stayed  until  it was  determined  what  Mertz's
responsibility was as to the parcel.  In June 1990 Mertz  entered
into  a settlement with the state in which it was determined that
he   was  the  owner  of  the  280-acre  parcel.   Under  Mertz's
settlement,  the 280-acre parcel was conveyed to the  state  and,
therefore, was not part of Bob and Jackie's marital estate.

     4     See  Morgan v. State, Dep't of Revenue, 813 P.2d  295,
297 n.4 (Alaska 1991).

     5     See,  e.g., Red Top Mining, Inc. v. Anthony, 983  P.2d
743,  746 (Alaska 1999) (stating that we review the "denial of  a
motion   to  intervene  on  timeliness  grounds  for   abuse   of
discretion") (citing Mundt v. N.W. Explorations, Inc.,  947  P.2d
827,  830  (Alaska 1997)); Parson v. Marathon Oil Co.,  960  P.2d
615,  618  (Alaska 1998) (stating that denial of continuance  for
opposition to motion for summary judgment reviewed under abuse of
discretion standard).

     6    Morgan, 813 P.2d at 297 n.4.

     7    907 P.2d 477 (Alaska 1995).

     8    Id. at 479.

     9    Id. at 480.

     10    Id.

     11    Id. at 485 n.6.

     12    Id.

     13    Id. at 487.

     14     See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164,
1169  (Alaska 1998) (stating that "[o]rdinarily, the choice of  a
particular  sanction  for  a  discovery  violation  is  a  matter
committed  to  the broad discretion of the trial  court,  subject
only  to  review for abuse of discretion"); Rutledge  v.  Alyeska
Pipeline  Serv.  Co., 727 P.2d 1050, 1054 (Alaska 1986)  (stating
that  "[r]egardless  of the timing of the  alleged  actions,  the
trial  court has broad discretion in allowing or denying proposed
amendments  [to  pleadings] after the initial period  has  passed
under either Rule 15(a) or 15(d)").

     15    We note that, while Jackie failed to file a request for
a  formal  accounting, she did file a paper  that  explained  her
predicament  to the superior court.  Therefore,  this  is  not  a
situation in which a deadline completely passed without  a  party
taking any action at all.

     16    664 P.2d 568 (Alaska 1983).

     17    AS 25.24.160(a)(4).

     18    Id.

     19    Wanberg, 664 P.2d at 570.

     20    368 P.2d 546 (Alaska 1962).

     21    Id. at 548 (quoting Irish v. United States, 225 F.2d 3,
8  (9th  Cir.  1955)); see also Alaska R. Civ. P. 52(a)  (stating
"[i]n all actions tried upon the facts without a jury or with  an
advisory jury, the court shall find the facts specially and state
separately its conclusions of law thereon . . . .").

     22    In Merrill, 368 P.2d at 547-48 n.4, we stated:

          It  has  been held that the principal factors
          to  be  considered  by  the  trial  court  in
          determining  the  question  of   alimony   or
          division  of property as between the  parties
          are the respective ages of the parties; their
          earning ability; the duration and conduct  of
          each  during the marriage; their  station  in
          life;  the  circumstances and necessities  of
          each;  their  health and physical  condition;
          their financial circumstances, including  the
          time   and  manner  of  acquisition  of   the
          property  in question, its value at the  time
          and its income producing capacity if any.
     23    3 P.3d 348 (Alaska 2000).

     24    Id. at 355-56.

     25    Merrill, 368 P.2d at 547-48 n.4.