Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bishop v. Clark (9/13/2002) sp-5626

Bishop v. Clark (9/13/2002) sp-5626

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


GEORGE W. BISHOP,             )
                              )    Supreme Court No. S-9232
             Appellant,            )
                              )     Superior Court No. 3KN-97-859
CI
     v.                       )
                              )    O P I N I O N
STACEY A. CLARK,              )
                              )     [No.  5626  -  September  13,
2002]
             Appellee.             )
________________________________)


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

          Appearances:  Claire Steffens, Law Offices of
          Claire  Steffens, Anchorage,  for  Appellant.
          Allan   Beiswenger,  Robinson  &  Beiswenger,
          Soldotna, for Appellee.

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

          EASTAUGH, Justice.
          FABE,  Chief  Justice,  with  whom  MATTHEWS,
          Justice,   joins,  concurring  in  part   and
          dissenting in part.

I.   INTRODUCTION

          I.    Was  it error to award Stacey A. Clark a one-half

interest in certain property accumulated while she cohabited with

George  W. (Will) Bishop?  Because we hold that it was  error  to

conclude that a settlement agreement the parties executed in 1998

superseded  their  1996  agreement which allocated  some  of  the

disputed   property   to  Will,  we  reverse   and   remand   for

consideration of Staceys claim that she signed the 1996 agreement

under  duress.   Because we affirm the finding that  the  parties

impliedly  agreed to share in the fruits of [their]  relationship

as  though they were married, we affirm Staceys award of  a  one-

half interest in property not allocated by the 1996 agreement.

II.  FACTS AND PROCEEDINGS

          Stacey  and  Will  began dating in 1979  and  cohabited

between 1983 and 1996, when they separated.1  They never married.

They  had two children.  One was born in 1989; the other was born

in 1993.

           In 1980 Will purchased a Bristol Bay setnet permit  to

fish  for salmon at Coffee Point.  Stacey worked that summer  for

Will as a deckhand and received a crew share of the proceeds.  In

1981 Will transferred the setnet permit to Stacey and purchased a

second permit; Will explained that this arrangement was necessary

because AS 16.43.140(c) prohibits a person from holding more than

one  entry permit for the same fishery.2  Between 1981  and  1995

the  parties  fished  the  permits as a joint  enterprise.   They

testified  at trial that they considered the Bristol Bay  fishing

enterprise  to  be  a  partnership.  They sold  fish  under  both

permits,  and  they listed sales in either of their  names  based

purely  on  convenience.  Although Stacey declared  for  personal

income   tax  purposes  all  the  income  generated  from   sales

attributable  to her permit, she gave Will all of  the  proceeds,

except for an allowance she kept for personal expenses.  Will was

responsible  for managing the finances of the fishing enterprise,

and  according  to Stacey, she worked right beside  him,  [doing]

just  as  much as he did.  [She] picked the fish, . . . took  the

fish  to  the  market, . . . did the paperwork, .  .  .  did  the

cooking, the cleaning, [and] took care of the crew.

          Will began lobster fishing in California in 1986.   The

extent  of Staceys participation in lobster fishing was  disputed

at trial.  Stacey generally did not accompany Will on the lobster

boat; rather, she baited traps, managed gear, obtained parts, and

          prepared lunches.  In 1994 Will purchased a hull and put together

a twenty-five-foot lobster boat for use in this fishery.

          Will  purchased  a  lot in 1990 in  the  Mountain  View

subdivision in Homer for $32,000.  Although the lot was titled in

Wills name, [t]he proceeds used to pay for the lot came from  the

parties  commingled  funds.  The lot  was  sold  for  $42,000  in

February 1996.

          Will built a cabin on his sisters property on East Hill

Road  in  Homer in 1994.  Will and Stacey resided  in  the  cabin

whenever they were in Homer between 1994 and January 1996.   Will

and  Stacey  separated  in January 1996.  After  they  separated,

Stacey  continued to live in the cabin with her boyfriend/fiancee

and her mother.

          On  June  7,  1996, the parties reached  the  following

agreement:

          To Whom it may concern:
          
          This  is  a fair distribution of the business
          assets  based on the capital investments  and
          contributions to this partnership.
          
          Stacey A. Clark is to keep all of her banking
          accounts,  IRA  accounts, 1990  Honda  Accord
          automobile,  Bristol  Bay  Setnet  site   and
          Bristol   Bay  Setnet  Permit  and  Equipment
          necessary to operate said permit and site and
          any debts [incurred] as of this date.
          
          George  W.  Bishop  is to  keep  all  of  his
          banking  accounts, IRA accounts, Bristol  Bay
          Setnet site and Bristol Bay Setnet Permit and
          any   equipment  necessary  to  operate  said
          permit and site, 1989 Chevy Blazer, 1989  GMC
          Pickup,  25  foot Force Boat,  Lobster  gear,
          House located mile .2 East Hill Road and  any
          debts [incurred] as of this date.
          
(Emphasis added.)

          Stacey  filed a complaint for property division,  child

custody,  child  support, and attorneys fees  in  November  1997.

Will  counterclaimed,  seeking  joint  physical  custody  of  the

children.

          A  May 5, 1998 order required Will to pay interim child

support  of $1,362 per month and awarded Stacey interim attorneys

fees of $2,500.

          In   June  1998  the  parties  entered  into  a  second

agreement.   It  was  titled PROPERTY SETTLEMENT  AGREEMENT.   We

discuss  its  terms  in  more detail in  Part  III.A.   The  1998

agreement  stated  that  the  parties had  identified  additional

property which each has claimed an interest in.  Paragraphs 2, 3,

and 4 of the agreement listed and distributed additional items to

the  parties.  In paragraph 5 the parties agreed to give  up  all

potential  claims against each other for all property other  than

as  provided  herein.   Paragraph 6 stated that  this  settlement

resolves all property issues except those concerning (1) the East

Hill  Road  cabin; (2) the personalty, furnishings and appliances

in the East Hill Road cabin; (3) the 1997 fishing season; (4) the

sale  of  a  piece of real property after June 7, 1996;  (5)  the

lobster  boat; and (6) arrearages for interim child  and  spousal

support.   The superior court adopted this agreement on September

3, 1998.

          In  October  1998  the  parties entered  into  a  child

custody  agreement which the superior court adopted, as  amended,

on February 10, 1999.

          The  case  proceeded  to trial in February  1999.   The

trial  was  limited to the issues of distributing: the East  Hill

Road  cabin,  the furniture and appliances in the  cabin,  income

from  the  1997 fishing season, the Mountain View  lot,  and  the

lobster   boat;   and  determining:  child  support   arrearages,

prospective  child support, and the management of  the  childrens

permanent fund dividends.

          Finding  an implicit agreement of the parties  to  live

together  indefinitely  and  to  share  in  the  fruits  of  that

relationship  as  though they were married,  the  superior  court

awarded Stacey a one-half interest in the disputed property.  The

court  also  ordered  Will to pay child  support  arrearages  and

calculated prospective child support based on an average of Wills

1995 and 1996 adjusted gross income.

          Will  unsuccessfully  moved for  reconsideration.   The

superior court entered final judgment for Stacey on July 19, 1999

for $81,942.17, including Alaska Civil Rule 82 attorneys fees  of

$9,001.44.  Will appeals.

III. DISCUSSION

     A.   It  Was  Error  To  Conclude that the  1998  Settlement
          Agreement  Superseded  the 1996  Agreement  as  to  the
          Disputed Property.
          
          Finding  an implicit agreement of the parties  to  live

together  indefinitely  and  to  share  in  the  fruits  of  that

relationship  as  though they were married,  the  superior  court

awarded   Stacey   a   one-half  interest  in  certain   property

accumulated  during  the  time parties cohabited.   Thus,  Stacey

received  a  one-half interest in (1) the East Hill Road  cabin,3

(2)  the  furniture and appliances in the cabin, (3) the proceeds

from  the sale of the Mountain View lot, and (4) the lobster boat

and  lobster-fishing  gear.   Even  though  the  1996  settlement

agreement  allocated the East Hill Road cabin, the lobster  boat,

and  the lobster-fishing gear to Will, the superior court awarded

Stacey  a  one-half interest in these items. The  superior  court

concluded that the 1998 agreement, which stated that it  did  not

resolve  issues  concerning  these  items,  superseded  the  1996

agreement.  Thus, the superior court stated: [I]t seems clear  to

the  court that the parties agreed that the issues identified  in

the  1998  agreement as unresolved were to be  addressed  by  the

court  without reference to the 1996 agreement.  Will  challenges

this conclusion.

          Whether   the  1998  agreement  superseded   the   1996

agreement  is  a matter of contract interpretation  to  which  we

apply our independent judgment.4

          A  leading treatise explains the conditions under which

a subsequent contract will supersede an earlier agreement:

          A subsequent contract completely covering the
          same  subject-matter, and made  by  the  same
          parties,   as   an  earlier  agreement,   but
          containing terms inconsistent with the former
          contract,  so  that  the  two  cannot   stand
          together,  rescinds,  substitutes,   and   is
          substituted  for  the  earlier  contract  and
          becomes the only agreement of the parties  on
          the subject.[5]
          
Thus,  a  second  contract  will  not  supersede  the  first   by

implication  unless the agreements are so inconsistent  that  the

two cannot subsist together.6

          We  conclude that the 1998 settlement agreement did not

supersede the 1996 agreement in whole or in part, because the two

agreements  are  not so inconsistent that the two cannot  subsist

together.7   We  note that the 1998 agreement  characterizes  the

1996  agreement  as  allocating certain properties  between  [the

parties].   (Emphasis added.)  Paragraph 1 of the 1998  agreement

similarly  states  that the earlier agreement allocates  to  each

party   the  equipment  necessary  to  operate  their  respective

permits; use of the present tense implies that the 1996 agreement

was  still  in  effect.  Paragraph 1 also states  that  the  1996

agreement is deemed to have allocated to Stacey certain equipment

necessary  to  operate her setnet site.  This also suggests  that

the  parties intended the earlier agreement to remain in  effect,

so  that  they  could each continue to operate  their  respective

permits  and sites.  Furthermore, the 1998 agreement states  that

the  parties have identified additional property which  each  has

claimed  an  interest in.  (Emphasis added.) The words additional

items  also appear in the three paragraphs (paragraphs 2, 3,  and

4)  of  the  1998 settlement agreement which purport to  allocate

specific  items.   This usage implies that the  parties  did  not

intend  to  supersede the 1996 agreement, but rather intended  to

supplement  that agreement by addressing issues not  resolved  by

that  agreement.  Finally, we note that the 1998 agreement  fails

to  address  many  of  the  items which the  1996  agreement  had

previously allocated; this also suggests that the parties did not

intend to supersede the earlier agreement.

          True,  paragraph 6 of the 1998 agreement provides  that

          [t]he parties agree this settlement resolves all property issues

except issues concerning, among others, the East Hill Road  cabin

and  the  lobster  boat.  But this does not mean  that  the  1998

agreement   is  inconsistent  with  the  1996  agreement,   which

allocated the East Hill Road cabin and the lobster boat to  Will.

Simply  acknowledging that the parties agree  that  issues  exist

does  not  mean  that  the  parties are  agreeing  to  set  aside

provisions  in  a  prior  contract that arguably  resolved  those

issues.  We therefore hold that it was error to conclude that the

1998 settlement agreement superseded the 1996 agreement.

          Stacey  argued in her trial brief that she  signed  the

1996  agreement under duress, in large part due to physical abuse

by  Will.8   Stacey presented evidence at trial that the  parties

had  argued  and shoved each other a day before they  signed  the

agreement,  and  that she had not seen the agreement  until  just

before  she  signed  it.  The superior court,  however,  made  no

findings  regarding  Staceys  duress  claim,  having  noted  that

whether  the  document  was  signed under  duress  is  irrelevant

because  the court finds that it was superseded by the  agreement

of June 1998 . . . .  Because we conclude that the 1998 agreement

did  not supersede the 1996 contract, we must remand for findings

regarding duress.  If the superior court concludes on remand that

Stacey  did  not  sign the 1996 agreement under duress,  it  must

award the East Hill Road cabin, the lobster boat, and the lobster-

fishing  gear to Will, per the terms of the 1996 agreement.9   If

the   superior  court  concludes  that  Stacey  signed  the  1996

agreement  under  duress, the 1996 agreement would  be  void  and

should not control the ultimate property disposition.10

     B.   It Was Not Error To Award Stacey a One-Half Interest in
          the   Disputed  Property  Not  Allocated  by  the  1996
          Agreement.
          1.   It  was  not  error to find an implicit  agreement
               between Will and Stacey to share in the fruits  of
               [their] relationship as though they were married.
               
          In  granting Stacey a one-half interest in the disputed

property, the superior court found an implicit agreement  of  the

          parties to live together indefinitely and to share in the fruits

of  that  relationship  as though they were  married.   (Emphasis

added.)  The court explained:

          Here  the  parties  co-habitated  and  worked
          together from 1979.  They lived together,  at
          least  during  the summers starting  in  1980
          when  the  first set net permit and site  was
          purchased,   until   1982   when    plaintiff
          graduated   from   high  school.    Following
          graduation  and  until January  of  1996  the
          parties  resided  together, worked  together,
          vacationed  together and gave  birth  to  two
          children.  Defendant kept the books, and  was
          in  charge  of  finances.   Plaintiff  worked
          alongside him until the children arrived  and
          thereafter   had  no  significant  employment
          outside of the home.
          
          We  treat  the  courts decision as finding  that  these

cohabiting  parties  impliedly  agreed  to  the  distribution  of

property  accumulated during cohabitation.  Will challenges  this

finding.  We review it de novo.11

          In  Wood  v. Collins, we held that property accumulated

during  cohabitation should be divided by determining the express

or  implied  intent of the parties.12  Quoting Beal v.  Beal,  we

stated:

          We believe a division of property accumulated
          during a period of cohabitation must be begun
          by  inquiring into the intent of the parties,
          and  if  an  intent can be found,  it  should
          control  that  property distribution.   While
          this  is obviously true when the parties have
          executed a written agreement, it is  just  as
          true  if there is no written agreement.   The
          difference  is  often only the sophistication
          of  the  parties.   Thus, absent  an  express
          agreement, courts should closely examine  the
          facts  in  evidence  to  determine  what  the
          parties  implicitly agreed upon.  In summary,
          we  hold  that courts, when dealing with  the
          property  disputes of a man and a  woman  who
          have  been  living together in  a  nonmarital
          domestic relationship, should distribute  the
          property  based upon the express  or  implied
          intent of those parties.[13]
          
          In determining the intent of cohabiting parties, courts

          consider, among other factors, whether the parties have (1) made

joint  financial arrangements such as joint savings  or  checking

accounts,  or  jointly titled property;14  (2)  filed  joint  tax

returns;15  (3)  held themselves out as husband and  wife;16  (4)

contributed   to   the  payment  of  household  expenses;17   (5)

contributed  to the improvement and maintenance of  the  disputed

property;18  and (6) participated in a joint business  venture.19

Whether  they  have  raised children together or  incurred  joint

debts is also important.

          Although  it  is  a  close question in  this  case,  we

conclude that the totality of circumstances supports the superior

courts finding of an implied agreement between Will and Stacey to

share  in the fruits of [their] relationship as though they  were

married. Both parties testified that they considered the  Bristol

Bay  fishing  enterprise  to be a partnership.   Will  commingled

income  from the fishing partnership with his separate income  by

depositing the funds in his separate accounts; payments  for  the

disputed  property and other household expenses  were  made  from

those  accounts.  The parties also had joint checking and savings

accounts, from which household expenses were paid.  Finally,  the

parties had two children together.  We therefore conclude that it

was not error to award Stacey a one-half interest in the disputed

property  not  allocated by the 1996 settlement agreement   i.e.,

the  furniture and appliances in the East Hill Road cabin and the

proceeds from the sale of the Mountain View lot.

          2.   It was not error to conclude that issues regarding
               the  division of the proceeds from the sale of the
               Mountain View lot were open to adjudication.
               
          Paragraph  5 of the 1998 settlement agreement  provides

that  [t]he parties agree that they give up all potential  claims

each  against the other for all debts and all property other than

as  provided  herein.   Paragraph  6(d)  of  the  1998  agreement

provides that the agreement does not resolve issues pertaining to

sale  of  a piece of real property after June 7, 1996.  (Emphasis

added.)

          Stacey argues that paragraph 6(d) refers to the sale of

the  Mountain View lot.  Stacey asked the superior court to award

her  an interest in that lots sale proceeds.  Will responded, and

maintains on appeal, that because the Mountain View lot was  sold

in  February  1996, it is not the real property  referred  to  in

paragraph 6(d).  Will therefore concludes that under paragraph  5

of  the  1998  agreement, issues regarding the  division  of  the

proceeds from the sale of the lot are not open to adjudication.

          The superior court, while noting that the Mountain View

lot was sold in February 1996, stated that the 1998 agreement was

prepared  by [Will] and he affords no explanation as to  what  is

the  real  property referred to at that point in  the  agreement.

The  court  therefore awarded Stacey a one-half interest  in  the

Mountain View lot sale proceeds.

          Because  the superior court interpreted paragraph  6(d)

of  the  1998  settlement agreement to apply to the sale  of  the

Mountain View lot  an interpretation contrary to the language  of

the agreement  the court essentially reformed the 1998 agreement.

Reformation  of an instrument is the proper remedy  where  it  is

alleged  that  the  instrument does not  conform  to  the  actual

intentions of the parties.20  It is a means of correcting  mutual

mistakes  and of conforming a contract to the clear intention  of

the parties.21  Reformation may be granted, however, only when it

is shown by clear and convincing evidence that it is appropriate.22

          It  does not appear that the superior court applied the

clear  and convincing evidence standard in reforming the  parties

agreement.  But even if it had applied that proof standard, it is

difficult  to  imagine  how  it could have  reached  a  different

result.  There is no evidence in the record of any other property

which  paragraph  6(d)  of  the 1998 agreement  could  have  been

describing.  Wills argument would render the provision completely

meaningless.   Although he insists that paragraph 6(d)  does  not

contemplate the sale of the Mountain View lot, he has provided no

alternative  explanation for the provision and has identified  no

          other property to which paragraph 6(d) might have referred.

Therefore,  we  hold,  as a matter of law,  that  paragraph  6(d)

refers to the sale of the Mountain View lot.  Accordingly, issues

regarding the division of proceeds from the sale of that lot were

open  to  adjudication.  The superior court therefore permissibly

chose to divide those proceeds.

          3.   It  was  harmless error to apply  divorce  law  to

               divide the parties property.

          In  dividing  the parties property, the superior  court

applied the same body of law that would be applied in resolving a

property  dispute between parties seeking a divorce.   The  court

stated that it [saw] no reason not to look to factors A through I

enumerated   in  AS  25.24.160(a)(4)  [the  statutory   provision

governing division of property in a divorce action].

          It was error to apply divorce law to divide the parties

property.   In  Sugg  v.  Morris,  we  held  that  the  equitable

principles  which  apply  to  the judicial  division  of  marital

property  of  a  man  and woman who had been living  together  in

lawful  wedlock  or  in  a bona fide putative  marriage  are  not

applicable where the man and woman have been knowingly living  in

a [non-marital] relationship . . . .23  Moreover, AS 25.24.160(a)

applies  by its terms only to action[s] for divorce or  action[s]

declaring  a  marriage void . . . .  As we noted  above  in  Part

III.B.1,  the property the couple accumulated must be divided  in

accordance with their intentions.

          But  because the superior court would have reached  the

same  result  without  relying on  divorce  law,  the  error  was

harmless.   Its  July  20,  1999 order  noted  that  whether  the

interests  of the parties are determined through applications  of

the factors enumerated in AS 25.24.160(a)(4) or the principles of

partnership  law where the relative contributions of the  parties

cannot  be determined and the partners co-habit, the results  are

the  same.  The property should be divided equally.  Because  the

superior  court found elsewhere that the parties agreed to  share

          in the fruits of their long-term relationship, it would have

divided equally the property accumulated during the period of the

parties cohabitation even had it not relied on divorce law.

     C.   Other Issues

          1.   Separate property

          Will  argued below that he purchased the Mountain  View

lot  and the furniture and appliances in the East Hill Road cabin

with  funds  from  a $200,000 inheritance he received  after  his

fathers  death  in  1984.  The superior court declined  to  award

these  items to Will as his separate property.  It reasoned  that

it  is  almost  impossible for this court to  track  the  use  of

defendants inheritance and he made little effort to do so  during

trial.   It  also noted that [a]ll monies earned or inherited  by

the  couple were comingled . . . .  Finally, it stated that given

the nature of the [parties] relationship, the court finds that it

was  [Wills]  intention  to gift a share of  the  inheritance  to

[Stacey] as it was expended.

          Will argues on appeal that it was error to award Stacey

an   interest   in  property  purchased  with  funds   from   his

inheritance.   Assuming  without deciding  that  the  concept  of

separate property applies to the division of property accumulated

during  cohabitation, a party arguing that assets were  purchased

with  separate funds has the burden of proving the source of  the

funds.24   Because Will admitted at trial that he commingled  the

proceeds  from  the  Bristol  Bay  fishing  enterprise  with  his

inheritance, and because he offered no evidence at trial  tracing

the  source  of  the  funds  he used  to  purchase  the  disputed

property,  we  affirm  the  award to Stacey  of  an  interest  in

property allegedly purchased with the inheritance.

          2.   Jurisdiction

          Will argues that the superior court lacked jurisdiction

to  determine  Staceys  interest in the  East  Hill  Road  cabin,

because Wills sister, Phyliss Bishop, on whose property the cabin

was  built, was not joined as an indispensable party.  Will cites

          Silvers v. Silvers, where we stated that  [a]s a general rule, an

owner of property must be joined as an indispensable party in any

action that may adversely affect her interest in the property. 25

The  superior  courts  award did not purport  to  affect  Phyliss

Bishops  interest  in  the East Hill Road  property.   It  merely

awarded Stacey one-half of the value of the cabin independent  of

the  underlying  real estate.  In effect, the  court  was  simply

dividing the interest which Will elsewhere asserted was his.   We

perceive no jurisdictional error.

          3.   Interim attorneys fees

          The  superior  court awarded Stacey  interim  attorneys

fees  of  $2,500, without citing legal authority for  the  award.

Will  argues that there was no permissible basis for this  award.

This  argument lacks merit.  We have held that in actions between

unmarried  couples  that resemble divorce proceedings  the  rules

governing  the award of attorneys fees in divorce cases  will  be

applied.26   When the court awarded interim attorneys  fees,  the

present case closely resembled a divorce action, given the  short

period  of  time between the breakup of the parties  relationship

and the filing of the action and the fact that property division,

child custody, and child support issues were in dispute.  Because

courts  have  the authority to enter interim awards of  attorneys

fees in divorce litigation, such authority also applies to cases,

like  this one, that closely resemble divorce litigation.  As  we

stated  in Sanders v. Barth, [the rule concerning attorneys  fees

in  divorces] should be reserved for cases that closely  resemble

divorce  actions  and for cases that involve  disputes   such  as

disputes  about custody or the initial division of property   for

which  it is of paramount importance that the parties be able  to

litigate  on  a  fairly equal plain. 27  Based on  Bergstrom  and

Sanders,  we  conclude  that  the  superior  court  had  inherent

authority  to award interim fees.  We also hold that it  did  not

abuse its discretion in doing so.

          4.   Rule 82 attorneys fees

          The superior courts July 19, 1999 judgment included  an

Alaska Civil Rule 82 attorneys fees award of $9,001.44 to Stacey.

The  award was calculated under Rule 82 based on the value of the

property awarded to Stacey.  Will argues on appeal that it was an

abuse of discretion to award attorneys fees under Rule 82, rather

than  under  the divorce case standard, which takes into  account

the parties relative economic circumstances.

          Wills argument is not well taken.  We have held that in

a  dispute between unmarried individuals limited to the issues of

child  custody  and support, attorneys fees and costs  should  be

governed  by the standard used in divorce actions; that  standard

considers the parties relative economic circumstances.28  But  in

property  disputes between unmarried cohabitants, we have  upheld

attorneys  fees awards under Rule 82.29  It was not an  abuse  of

discretion to award Stacey attorneys fees under Rule 82 based  on

the value of the property awarded to her.

          4.   Interim child support

          On  May 5, 1998 the superior court ordered Will to  pay

interim  child  support  of $1,362.00 per month,  retroactive  to

December  1,  1997.  Will appeals this award,  arguing  that  the

superior  court  erred  (1)  by awarding  interim  child  support

without properly determining child custody; and (2) by not basing

the award on the actual percentage of time the children were with

each parent.

          Will  first  contends that the superior court  violated

his  due process rights by failing to hold a hearing to determine

the  childrens  bests  interests before awarding  Stacey  primary

interim  physical  custody.  But Will did not request  a  hearing

until after the superior court entered its May 5, 1998 order;  by

then  the  court had already reviewed Staceys motion for  interim

relief,  Wills opposition, and Staceys reply.  Furthermore,  Will

does not claim any adverse effect causally related to the lack of

hearing.   In  contrast,  Wills  authority  for  this  contention

consists  of  cases presenting much more significant due  process

          concerns than any alleged deprivation here.30  We therefore

decline  to  reverse  the interim child  support  order  on  this

ground.

          Will  next  argues  that although the  superior  courts

interim  custody order awarded primary physical  custody  of  the

children  to  Stacey, Will had physical custody of  the  children

forty-three percent of the time in the period before the  parties

reached  a  custody agreement.  Will argues that it was therefore

error not to calculate the interim child support under the shared-

physical-custody formula set out in Alaska Civil Rule 90.3(b).

          We  have  consistently held that child  support  awards

should  be based on the courts custody or visitation order rather

than  on  the parties actual custody arrangement.31  We therefore

affirm  the  interim  child support award  of  $1,361  per  month

because  it was based on the superior courts May 5, 1998  interim

award  of the childrens primary physical custody to Stacey.   But

because   the  May  5,  1998  interim  custody  award  was   made

retroactive to December 1, 1997, and there was no previous  child

custody  order before the May order was entered, we  reverse  and

remand  for recalculation of the child support due based  on  the

parties  actual  custody arrangement for periods  before  May  5,

1998.

          5.   Prospective child support

          The  superior  courts  June 1999 decision  stated  that

[f]or   purposes  of  calculating  [prospective]  child   support

payments,  the court will average [Wills] 1995 and 1996  reported

adjusted  gross  income.  Will argues that it  was  an  abuse  of

discretion  to base the prospective child support  award  on  his

1995  income,  because his income in 1995 was [aberrently]  high,

due  to a record salmon return.  Moreover, Will contends that the

superior  court failed to consider that the Bristol  Bay  fishery

had collapsed in 1997.

          The  superior  courts  June 1999 decision  specifically

acknowledged  the recent low salmon runs experienced  in  Bristol

          Bay.  But given strong evidence that losses or expenses from the

operation  of  [Wills] business during 1997  were  attributed  to

[Will]  resulting  in  a negative adjusted  gross  income,  while

income  from the same operation was attributed to his  wife,  the

superior   court  decided  to  calculate  Wills   child   support

obligation by averaging his 1995 and 1996 reported adjusted gross

income. Because the record contains adequate evidence of what the

court  called  Wills  creative  bookkeeping,  we  hold  that  the

superior court did not abuse its discretion in choosing  to  base

the  prospective child support award on an average of Wills  1995

and 1996 adjusted gross income.32

IV.  CONCLUSION

          Because  it  was  error  to  conclude  that  the   1998

settlement  agreement superseded the 1996 agreement,  we  REVERSE

and  REMAND  for a determination whether the 1996  agreement  was

signed under duress.  We AFFIRM the superior courts finding of an

implied  agreement between the parties to share in the fruits  of

[their]  relationship as though they were married, and  therefore

AFFIRM the award to Stacey of a one-half interest in the property

not   distributed  by  the  1996  agreement.    We   REMAND   for

recalculation of the interim child support to be awarded for  the

period December 1, 1997 to May 5, 1998.  We otherwise AFFIRM  the

child support award.  We  AFFIRM the attorneys fees awards.

FABE,   Chief  Justice,  with  whom  MATTHEWS,  Justice,   joins,

concurring in part and dissenting in part.

          Although  I  agree  with  most aspects  of  the  courts

opinion,  I disagree with Part III.A and its conclusion that  the

trial  court  erred  in  finding that the  June  1998  settlement

agreement  superseded certain terms of the 1996  agreement.   The

courts  opinion  relies  on a 1945 Texas  case  concerning  total

substitution of one contract for another and concludes  that  the

1996  and  1998  agreements in this case are not so  inconsistent

that  the two cannot subsist together. 1  What the courts opinion

fails  to recognize, however, is that the 1998 agreement was  not

intended  to  rescind  the entire 1996 agreement  and  thus  only

partially superseded the earlier agreement.

          Where  parties  to  a  contract make  an  agreement  of

partial recission, under which they agree to discharge some,  but

not  all,  of  their  duties of performance  under  the  original

contract,  that  agreement is treated as a  modification  of  the

original contract, rather than a complete recission.  An  attempt

to  make  an agreement of partial recission that would  discharge

less  than  all  of  [the  parties] remaining  duties  under  the

existing contract is considered a modification . . . and  not  an

agreement  of recission.2  And when the parties agree  to  a  new

contract that modifies some terms of their original contract, the

terms  of  the  new  contract are found partly  in  the  original

contract  and  partly  in the modifying contract.3  Thus,  a  new

contract,  which  contains a term that is inconsistent  with  the

term  of  an  earlier contract, is interpreted  as  including  an

agreement  to  rescind  the  inconsistent  term  in  the  earlier

contract.4   This modification of discrete terms of the  original

contract  does  not  require an agreement to rescind  the  entire

original  contract:  The parties may or may not at the same  time

agree  to  rescind  all of the other provisions  of  the  earlier

contract.   The extent of the substitution is a matter  of  their

intent.5

          Although the courts opinion appears to recognize  these

black letter principles, it ignores the fact that Stacey and Will

did not intend to rescind the entire 1996 contract  they intended

only  to modify certain provisions of the 1996 agreement. Indeed,

in  the 1998 agreement the parties recognized and reaffirmed most

aspects  of  the  property distribution of  the  1996  agreement,

modifying  it  only  as  to the East Hill  Road  cabin  with  its

furnishings and appliances, and the lobster boat with  its  gear.

While   the  1996  agreement  purported  to  accomplish  a  final

distribution of all of the parties property, including the  cabin

and its furnishings and the boat and its gear, the 1998 agreement

modified  the  earlier agreement by leaving  the  resolution  and

distribution of these specific items of property up to the court.

Thus, the 1998 agreement modified the contract and rescinded  the

original contracts terms as to those items of property.

          Whether  Stacey  and Will intended  to  modify  certain

aspects of their original agreement presents a question of  fact.

The  trial court found that Stacey and Will intended to have  the

court  decide the distribution of certain items of property  that

were  originally covered by the 1996 agreement.  [I]t seems clear

.  .  . that the parties agreed that the issues identified in the

1998  agreement as unresolved were to be addressed by  the  court

without  reference to the 1996 agreement.  This finding regarding

Stacey  and  Wills intent is amply supported by  the  context  in

which the 1998 agreement was entered.

          The  parties  were  in the process  of  litigating  the

effect and validity of the 1996 agreement when they entered  into

the  1998  settlement agreement.  This fact  alone  lends  strong

support  to the trial courts conclusion that the parties  decided

to  reaffirm the resolution of some property issues, leaving  the

remainder to the court to decide.  When Will filed his answer  to

Staceys  complaint, he alleged in a counterclaim that the parties

had  resolved all interests in their informal partnership by  the

1996  contract.  Staceys answer to the counterclaim disputed this

assertion.   It  was only after Stacey and Will  understood  that

there was a contest as to the validity of the 1996 agreement  and

were proceeding with their pending lawsuit that they entered  the

new settlement agreement in June of 1998.  Wills acquiescence  in

the  1998 settlement agreement to leaving certain property  items

open  for  resolution by the court was contrary  to  his  earlier

pleadings  and  position that Staceys claims were barred  by  the

1996  agreement.  Moreover, Will drafted the 1998 agreement.   If

it was his view that disposition of the lobster boat and gear and

the  East  Hill  Road  cabin  and furnishings  were  conclusively

resolved by the 1996 agreement, he could easily have stated  that

those  items  remained  covered by  the  terms  of  the  original

agreement.

          For  these reasons, I would affirm the superior  courts

finding  that  the 1998 agreement modified the 1996 agreement  on

the  issues  of  distribution of the East Hill  Road  cabin,  its

furnishings,  the  lobster boat, and  gear.   Moreover,  I  would

affirm  the  superior  courts  distribution  of  those  items  of

property.  Therefore, I respectfully dissent.

_______________________________
     1     During  this  period, however, Will and  Stacey  spent
considerable time apart.  For example, Stacey spent  the  winters
in  1985  and  1986 in Everett, Washington.  Will  spent  several
months in 1994 and 1995 in California fishing for lobster without
Stacey.

     2     By  transferring Bristol Bay setnet permits to trusted
friends  or  family members, Stacey and Will eventually  acquired
two additional permits, for a total of four.

     3     Will built the East Hill Road cabin on property  owned
by  his  sister,  Phyliss  Bishop.  The cabin  was  appraised  at
$35,000,  independent of the underlying real estate. The superior
court awarded the cabin to Will because of the relationship  with
his  sister,  but ordered Will to pay Stacey $17,500 representing
her interest in the cabin.

     4     See  Key Pacific Mortgage, Inc. v. Indus. Indem.  Co.,
845 P.2d 1087, 1089 (Alaska 1993).

     5     15  Walter H. E. Jaeger, Williston on Contracts  1826,
at  485-86 n.9 (3d ed. 1972) (citation omitted); see also id.  at
485 (A contract containing a term inconsistent with a term of  an
earlier  contract  between  the same parties  is  interpreted  as
including  an agreement to rescind the inconsistent term  in  the
earlier  contract.) (citation omitted); Restatement of  Contracts
408  (1932);  see also Juneau Educ. Assoc. v. City &  Borough  of
Juneau,  539 P.2d 704, 706 (Alaska 1975) ( [I]t is a well settled
principle  of law that [a] later contract supersedes  [a]  former
contract  as to inconsistent provisions.  (quoting NLRB  v.  Intl
Union  of  Operating Engrs, Local No. 12, 323 F.2d 545, 548  (9th
Cir.  1963)).  Because no court order adopted the 1996 agreement,
the  superior  court  correctly treated this  as  a  supersession
dispute.   It is not clear whether the superior court found  that
the  1998  agreement completely or only partially superseded  the
1996  agreement.  The courts order stated that [t]he court  finds
that  the  June 1996 agreement although incorporated in  part  by
reference  was  superseded by the 1998 agreement.   This  finding
suggests that the court considered the 1996 agreement to have  no
independent  effect  after  the parties  entered  into  the  1998
agreement.  And the court decided that Staceys argument that  she
signed  the 1996 agreement under duress was irrelevant given  its
finding  that  the 1998 agreement superseded the 1996  agreement.
In  any  event,  the  court resolved the four  property  disputes
without referring to the 1996 agreement or relying on its terms.

     6    Willeke v. Bailey, 189 S.W.2d 477, 479 (Tex. 1945).

     7    Id.

     8     In  D.M.  v. D.A., 885 P.2d 94, 96 (Alaska 1994),  the
superior  court voided a settlement agreement between  cohabiting
parties  because  it  was signed under duress.   The  finding  of
duress  was based on a history of domestic violence between  D.M.
and D.A., including an incident two days prior to the signing  of
the  contract.   Id.  at  96 n.2.  D.M. did  not  challenge  that
finding on appeal.  See id.

     9     On remand, the superior court may not redistribute the
disputed  property  allocated by the 1996  settlement  agreement.
When  the superior court distributes property accumulated  during
non-marital  cohabitation,  it  must  determine  the  express  or
implied  intent  of  the parties with respect  to  each  item  of
property.  Lacher v. Lacher, 993 P.2d 413, 421 n.28 (Alaska 1999)
(citing Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)).

     10     See  Helstrom v. North Slope Borough, 797 P.2d  1192,
1197 (Alaska 1990).

     11    See Wood, 812 P.2d at 955-56, 955 n.4 (Applying the law
to  a  given set of facts is a question of law subject to de novo
review.).

     12     812 P.2d 951, 956 (Alaska 1991) (citing Beal v. Beal,
577 P.2d 507, 510 (Or. 1978) (en banc)).

     13     Wood, 812 P.2d at 956 (quoting Beal, 577 P.2d at  510
(internal ellipses omitted)).

     14    See D.M., 885 P.2d at 98.

     15     See,  e.g., Carroll v. Lee, 712 P.2d 923, 925  (Ariz.
1986).

     16    See, e.g., id.

     17    See, e.g., Rissberger v. Gorton, 597 P.2d 366, 370 (Or.
1979).

     18    See, e.g., Beal, 577 P.2d at 510.

     19    See, e.g., Western States Constr., Inc. v. Michoff, 840
P.2d 1220, 1221-22 (Nev. 1992).

     20    D.M., 885 P.2d at 96.

     21    Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989).

     22     See D.M., 885 P.2d at 97; see also Ahwinona v. State,
922  P.2d 884, 887 (Alaska 1996) (holding party wishing to reform
contract   bears  burden  of  establishing  through   clear   and
convincing  evidence that omission was mutual mistake)  (citation
omitted).

     23    392 P.2d 313, 316 (Alaska 1964).

     24    See Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) (It
is  the  duty  of the parties . . . to ensure that all  necessary
evidence  is  before  the  court in  divorce  proceedings.);  cf.
Coffland v. Coffland, 4 P.3d 317, 321-22 (Alaska 2000) (affirming
trial courts determination that husband failed to show sufficient
evidence of marital debt).

     25     999 P.2d 786, 792 (Alaska 2000) (quoting B.B.P. Corp.
v. Carroll, 760 P.2d 519, 525 (Alaska 1988)).

     26     Bergstrom  v. Lindback, 779 P.2d 1235,  1238  (Alaska
1989);  see  also Sanders v. Barth, 12 P.3d 766,  768-69  (Alaska
2000) (explaining rule).

     27    12 P.3d 766, 769 (Alaska 2000).

     28    See Bergstrom, 779 P.2d at 1238.

     29     See Wood, 812 P.2d at 957; Levar v. Elkins, 604  P.2d
602, 604 (Alaska 1980).

     30    For example, in Cushing v. Painter, 666 P.2d 1044, 1046
(Alaska  1983),  we  held that the mother  was  deprived  of  due
process  where the superior court scheduled an expedited  hearing
solely  to determine the childs school placement for the upcoming
year,  but  spontaneously  and  without  notice  transformed  the
proceeding into one that decided the issue of permanent  custody.
We  further  noted  that  the mothers lack  of  notice  adversely
affected her ability to adequately present her case.  Id.

     31    See Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000);
Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996).

     32     Will  asserts that in calculating child  support  the
superior  court  failed  to  include  in  Staceys  income  rental
payments  of $550 Stacey received monthly.  We do not reach  this
issue  because Will does not adequately brief it.   He  does  not
discuss  the issue in the argument portion of his opening  brief;
he  mentions the failure to include the rent only in  passing  in
his statement of the case; and he addresses the issue in only one
sentence  in  the  argument  portion  of  his  reply  brief.   We
therefore consider the issue waived.  Shearer v. Mundt,  36  P.3d
1196,  1199  (Alaska  2001) (stating that  generally  issues  not
briefed or only cursorily briefed are considered waived).

     1    Slip Opinion at 7 (citing Willeke v. Bailey, 189 S.W.2d
477, 479 (Tex. 1945)).

     2     Restatement (Second) of Contracts  283 cmt. b, at  391
(1981).

     3     Restatement (Second) of Contracts  149 cmt. a, at  374
(1981).

     4    15 Walter H.E. Jaeger, Williston on Contracts  1826, at
485 (1972).

     5    Id. at 485-86 (emphasis added).