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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).