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Inman v. Inman (4/11/2003) sp-5679
Inman v. Inman (4/11/2003) sp-5679
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
HOMER C. INMAN, )
) Supreme Court No. S-10238
Appellant, )
) Superior Court No.
v. ) 4FA-82-2123 CI
)
PEGGY S. INMAN, ) O P I N I O N
)
Appellee. ) [No. 5679 - April
11, 2003]
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Richard W. Wright, Fairbanks,
for Appellant. Carl J.D. Bauman, Hughes
Thorsness Powell Huddleston & Bauman,
Anchorage, for Appellee.
Before: Matthews, Eastaugh, and Carpeneti,
Justices. [FABE, Chief Justice, and BRYNER,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. Homer Inman appeals the superior courts grant of Civil
Rule 60(b) relief from judgment and its subsequent award of
thirty percent of his civil service pension to his former wife,
Peggy. Because the superior court lacked personal jurisdiction
over Peggy at the time of the divorce, the original property
division was void under Civil Rule 60(b)(4) and the courts
subsequent award to Peggy of thirty percent of the pension as of
the date she filed the motion was appropriate. In addition, the
superior courts setting of the date of separation as the date the
divorce complaint was filed was not clearly erroneous, and the
court did not abuse its discretion in finding that Homer had
thirty years of qualifying service for his pension. We therefore
affirm the judgment of the superior court in all respects.
II. FACTS AND PROCEEDINGS
Peggy and Homer were married in Castle Rock, Colorado
on April 19, 1965. During the course of the marriage, Peggy and
Homer had three sons. At some point during the marriage the
couple moved to Fairbanks where Homer was working as a civil
servant at Eielson Air Force Base.
In August 1976 Peggy and the children moved to
Colorado. Peggy understood that Homer would join the family in
Colorado as soon as he was eligible for retirement. Homer
visited Peggy and the children for approximately two to three
weeks each year. Peggy visited Homer in Alaska in 1981. Peggy
and the children moved from Colorado to Texas in approximately
1978, and from Texas to New Mexico in 1982.
In November 1982 Homer filed for divorce in Fairbanks.
Peggy was served with the complaint in New Mexico in February
1983. Peggy neither appeared nor filed an answer to the
complaint. In April a default divorce decree was entered. The
decree provided that each party should be permitted to maintain
the property in his or her possession at that time.
In 1983 Homer remarried. He retired from his civil
service job in July 1984 at approximately age fifty-seven. He
began receiving pension benefits in August 1984.
In September 1999 Peggy filed a motion for a Domestic
Relations Order to Partition Plaintiffs Retirement Benefits
50/50. Homer opposed Peggys motion, arguing that it had not been
filed within a reasonable time, that the issue should have been
raised on appeal from the original decree, and that Peggy failed
to demonstrate that the pension would have been divided in the
first place had its existence been disclosed from the start.
After supplemental briefs were submitted by the parties, Standing
Master Katherine Bachelder held oral argument and then issued a
report containing factual findings and legal recommendations
regarding Peggys motion.
In her report, Master Bachelder found that Peggy was
entitled to relief only within the parameters of Civil Rule
60(b), which provides the circumstances under which a court may
set aside a final judgment. Finding that the property decree was
void for lack of personal jurisdiction, Master Bachelder set it
aside pursuant to Civil Rule 60(b)(4). Master Bachelder then
found that Peggys motion was timely despite the passage of
seventeen years, and that Homers defense of laches would not
provide him relief from a void judgment. Master Bachelder
recommended that a trial be held to divide the parties marital
property, including Homers pension. In an order dated July 28,
2000, Superior Court Judge Niesje J. Steinkruger adopted Master
Bachelders report and ordered a trial. The trial was held on
January 25, 2001.
Following the trial, Master Bachelder issued a second
report in which she made recommendations regarding the division
of property and retirement benefits. Although Homer alleged that
the date of separation was August 1976, Master Bachelder found
that the marriage did not terminate as a joint enterprise until
November 1982. Further, Master Bachelder suggested that Peggy be
awarded fifty percent of the marital portion of Homers pension
which constituted thirty percent of the entire pension. Master
Bachelder found that Peggy was entitled to pension benefits
effective October 1999, the month after the date on which she
first filed the complaint, and Master Bachelder recommended that
Peggy not be awarded a share of the benefits paid to Homer from
August 1984 through September 1999 due to her delay in acting to
obtain rights to Homers pension and Homers subsequent reliance on
that delay. Judge Steinkruger adopted the masters report in full
on May 21, 2001.
Homer appeals.
III. STANDARD OF REVIEW
A challenge to the validity of a judgment under Civil
Rule 60(b)(4) is strictly a question of law.1 We review
questions of law de novo.2 We will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy for
questions of law.3
We review[] a trial courts findings of fact under a
clearly erroneous standard.4 A finding of fact is clearly
erroneous when we are left with a definite and firm conviction
that the trial court has made a mistake.5 We review the
equitable allocation of property for abuse of discretion and will
not reverse the trial courts decision unless it is clearly
unjust.6
IV. DISCUSSION
A. The Trial Court Did Not Err When It Ordered a Trial To
Determine the Division of Marital Property.
A. The trial court adopted the Masters finding that the 1982
property division was void for lack of personal jurisdiction and
that Peggy was accordingly relieved from it. Under Civil Rule
60(b)(4), a party may be relieved from a final judgment that is
void.7 Homer argues that the superior court erred in ordering a
trial to determine the division of marital property. He claims
that once a court rules that a judgment is void, the court may
not act affirmatively to impose relief. He further maintains
that laches prevents Peggy from altering the property division at
this time.
1. The trial court did not err in acting further after setting
aside the judgment as void under Rule 60(b)(4).
1. Homer argues that Rule 60(b)(4) can be used only to set
aside a judgment and cannot be the basis for the imposition of
affirmative relief. But in setting aside the judgment and
ordering a trial for the division of the marital property, the
superior court did not grant affirmative relief. Rather, the
court ordered a new trial in order to equitably divide the estate
in the absence of a legally binding property division.8 The
courts actions here are similar to what was suggested in U.S. v.
One 1961 Red Chevrolet Impala Sedan9 when the judgment in that
case was set aside as void.10 Because the court in this case held
a new trial on the property division, it did not affirmatively
impose relief under Rule 60(b)(4) and, therefore, its actions
were proper and Homers challenge to them fails.
2. The trial court did not err in denying Homers laches
defense.
1. Homer next argues that Peggys motion for relief should be
denied because of her delay in filing the motion and the
resulting prejudice to him. It is well-accepted that [p]roperty
division in a divorce action consists of three steps: (1)
determining what property is available for distribution, (2)
valuing the property, and (3) allocating the property equitably.11
In this case, the superior court determined that, aside from
Homers retirement benefits, the marital property was divided
equitably and that Homer had acquired thirty years of retirement
benefits. The court then looked at the equitable factors to
determine to what portion of Homers benefits Peggy was entitled.
In looking at these equitable factors, the court took notice of
both Peggys delay in filing her motion and Homers failure to
explicitly apprise the court of the existence of his retirement
benefits before accepting a default divorce. The court concluded
that both parties had committed economic misconduct. Consistent
with the maxim that a party must do equity to receive equity,12
the court found that it would be equitable to award Peggy her
marital share of Homers retirement benefits as of the date she
filed her motion to set aside the property division. In doing
so, the court reasonably accounted for Peggys delay in bringing
her motion. We therefore find that the court did not err in
denying Homers defense of laches to Peggys motion for relief.
B. The Trial Court Did Not Err in Finding that the Functional
Termination of the Marriage Was the November 1982 Divorce Filing.
A. Homer argues that the court should have dated the functional
termination of the marriage at August 1976, when Peggy and their
children moved to Colorado. However, after listening to
conflicting testimony concerning the state of the marriage after
the 1976 move, the court found that the evidence offered more
support for the position that the marriage did not terminate
until Homer filed for divorce in November 1982. In support of
its conclusion, the court pointed to Homers visits with Peggy and
the children every year, the continued sexual relations between
Homer and Peggy until 1981, Homers efforts to lead Peggy to
believe that they would reunite once he retired, and Homers
economic support of the family. Also before the court was
evidence that they each had the power of attorney signed over to
the other when Peggy moved to Colorado, that they commingled
assets, maintained joint checking accounts, filed joint tax
returns, and were jointly responsible for various liabilities.
In addition, Homer assisted Peggy and the children in their move
from Alaska to Colorado and then from Colorado to Texas, and he
continued to tell Peggy that he did not want a divorce even after
she and the children moved from Alaska and that he planned to
join the family after he retired. In light of Alaska law marking
the date of separation as the date when the marriage ceased to
function as a joint enterprise, and leaving that determination to
the discretion of the trial court on a case-by-case basis,13 we
affirm the superior courts finding that the marriage ended with
the 1982 divorce. There is substantial evidence in the record to
support the superior courts conclusion that Peggy and Homer
maintained a marital relationship until Homer filed for divorce
in 1982 and, as such, the superior courts determination that this
was the date of separation is not clearly erroneous.
C. The Trial Court Did Not Err When It Calculated Homers
Qualifying Years for his Pension at Thirty Instead of Thirty-
Seven.
Homer argues that he had thirty-seven qualifying years
of service for his civil service pension and that Peggy should
bear the burden of proving that he did not acquire the thirty-
seven years of qualifying service years that he claims he did.
The record reflected conflicting evidence on this subject. While
Homer testified that he began his civil service employment in
1950 and that he had three years of active military time that
counted towards his civil service retirement, he also testified
that he did not obtain career status for retirement purposes
until sometime between 1953 and 1955. The court resolved this
question against Homer, deciding that he did not start
accumulating qualifying years until 1955 and crediting him with
thirty years of service at the time of his July 1984 retirement.14
The only evidence offered by Homer in support of his
argument that he had thirty-seven qualifying years is his
testimony that he began working in the civil service job in 1950
and that he had three years of active military service. Homer
did not explain his testimony indicating that his service did not
begin to count towards retirement until between 1953 and 1955,
nor did he offer documentary evidence at trial15 of his military
service and how that military service applied to his retirement
benefits. Homer claims that because Peggy brought this motion,
she should bear the burden of proof on the issue of how many
years of qualifying service he had. He argues that Peggy had
full access to all of his benefit records and that any ambiguity
in the number of qualifying years should be resolved against her.
The superior court properly rejected these arguments. Peggy
brought a motion to set aside the property division, not to
challenge the number of years of qualifying service Homer had
accrued. We have in the past held that [t]he party asserting a
fact generally bears the burden of proving that fact . . . .
This is particularly true when the party asserting a fact
controls the evidence which bears upon that fact.16 Thus, for
Homer to be credited with thirty-seven qualifying service years,
he must provide sufficient evidence to support this conclusion.
Homer failed to provide such evidence. Therefore, it was not an
abuse of discretion for the superior court to find that Homer had
thirty years of qualifying service.
V. CONCLUSION
I. Because the superior court followed the appropriate
procedures after determining that the original 1983 property
division was void, and because the findings that the parties
separated on November 12, 1982 and that Homer attained thirty
qualifying years of service were supported by the record, the
superior courts decision is AFFIRMED in its entirety.
_______________________________
1 DeVaney v. State, Dept of Revenue, Child Support
Enforcement Div., 928 P.2d 1198, 1199 (Alaska 1995).
2 Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 415
(Alaska 2001).
3 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
4 Am. Computer Inst., Inc. v. State, 995 P.2d 647, 651
(Alaska 2000).
5 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
6 Green v. Green, 29 P.3d 854, 857 (Alaska 2001).
7 Alaska Rule of Civil Procedure 60(b) provides, in
pertinent part:
On motion and upon such terms as are just,
the court may relieve a party or a partys
legal representative from a final judgment,
order, or proceeding for the following
reasons:
. . . .
(4) the judgment is void[.]
8 The court clearly has the authority to so order the
equitable division of the marital property under AS
25.24.160(a)(4), which provides that in an action for divorce,
the court may provide for the division of the parties property,
including retirement benefits acquired during the marriage.
9 457 F.2d 1353 (5th Cir. 1972).
10 Id. at 1356 (stating that, once judgment was set aside
under Rule 60(b)(4), new proceedings were required for moving
party to obtain affirmative relief).
11 Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
12 See Lundgren v. Natl Bank of Alaska, 756 P.2d 270, 276
(Alaska 1987) (stating that a party seeking equity from another
party must do equity only if the benefits received from that
party were somehow derived from the equity the party is seeking);
see also Natl Bank of Alaska v. J. B. L. & K. of Alaska, Inc.,
546 P.2d 579, 589 (Alaska 1976) (stating the equitable maxim that
he who seeks equity must do equity).
13 Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994).
14 While the court did not make explicit findings on this
issue, it did state that the eighteen years of marriage [should
be] divided by thirty years of retirement accrual. From this, we
infer that the superior court determined that Homer had thirty
years of qualifying service.
15 On appeal, Homer has asked this court to consider a
March 15, 1984 computer printout showing that his creditable
service in 1984 was estimated at 37.19 years. Because this
evidence was not made available to the trial court, we decline to
consider it at this time. See B.B. v. D.D., 18 P.3d 1210, 1214
(Alaska 2001) (stating that evidence not presented to the trial
court will not be considered by this court on appeal).
16 Sloan v. Jefferson, 758 P.2d 81, 83 (Alaska 1988).
