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. Keturi v. Keturi (01/30/2004) sp-5774

Keturi v. Keturi (01/30/2004) sp-5774

     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


TROY R. KETURI,                         )
                              )    Supreme Court No. S-10536
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-00-2595 CI
                              )
LUCIEL J. KETURI,                       )    O P I N I O N
                              )
             Appellee.                   )    [No. 5774 - January
                              30, 2004]
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks,  Richard  D.  Savell,  Judge   and
          Katherine R. Bachelder, Standing Master.

          Appearances:  Troy R. Keturi, pro  se,  North
          Pole.  Fleur L. Roberts, Law Offices of Fleur
          L. Roberts, Fairbanks, for Appellee.

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

          CARPENETI, Justice.


I.   INTRODUCTION

          I.   Troy Keturi appeals several legal and factual findings

made by the standing master and adopted by the superior court  in

connection with his divorce trial.  We conclude that the superior

court  did  not  err  in aggregating his past  income  for  child

support purposes, in finding that his earning potential would not

be  adversely affected by his physical condition in the immediate

future, in characterizing a triplex held in Troys name as marital

property, or in determining there to be no debt on a duplex owned

as  marital  property.  We therefore affirm the decision  of  the

trial  court in these respects.  However, we find the calculation

of  Troys  income for the year 1997 to be clearly  erroneous  and

accordingly  remand  for  recalculation  of  his  child   support

obligation.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Troy and Luciel (Lucy) Keturi were married in Anchorage

in  July  1991  and  had a son in August  1993.   Troy  and  Lucy

separated  on  August  1,  2000.   They  filed  a  child  custody

agreement  in  March  2001 under which  it  was  determined  that

custody would be shared.

          Troy  is an electrician and part owner of Ray Electric,

an  electrical contracting  corporation started by Troys  father,

Ray,  in  1967.  Ray Electric is currently owned equally by  Troy

and  his  partner, Clyde Waller.  Lucy is employed at Gottschalks

as   a   security  officer  and  is  responsible  for   detecting

shoplifters  and  dealing with internal  fraud.   She  previously

worked in a similar capacity at J.C. Penney.

          In  1995  Troy was diagnosed with psoriatic  arthritis.

Troys  treating  physician, Dr. Gayle Carpenter,  explained  that

this  is a degenerative disease which manifests itself as a  skin

rash  accompanied by a destructive arthritis in which the  joints

become[]  inflamed and are broken down, eventually  infusing  and

becoming  immobile.   As a result, Troy has  trouble  moving  his

arms, his neck, and his jaw and is sometimes unable to get out of

bed at all.

          Since   his  diagnosis,  Troy  has  experimented   with

different  types  of  treatment, none  of  which  have  yet  been

approved by his insurance company for psoriatic arthritis.  These

treatments include Enbrel, which Troy used for a year and a  half

at  a  cost  of between $14,000 and $16,000 a year, and Remicade,

which  he  was taking at the time of this appeal, at  a  cost  of

$2,500  per shot.  He has borne these costs out of pocket due  to

his  insurance companys refusal to cover them.  At  the  time  of

trial, he was also taking steroids, which have great effects, but

his doctor had begun to taper the dosage because of the potential

for   damage   to   his  body,  including  ulcers,  osteoporosis,

fractures,  and  autoimmune disease.   Troy  has  also  undergone

surgery  to drain excess fluid from his knee joints, and  he  has

considered   the   possibility  of  joint  replacement   surgery.

However,  Dr.  Carpenter  has  cautioned  that,  following   such

surgeries,  some patients continue to experience decreased  range

of motion and some may experience rejection of the prosthesis.

          Dr.  Carpenter has also expressed concerns about  Troys

level of physical activity, explaining that his work capacity  is

severely  limited  by  his arthritis and hes  continued  to  work

despite his ongoing pain and physical limitations.  She cautioned

that  Troy could someday experience almost total disability as  a

result  of  the  disease.   Asked  within  how  many  years  such

disability would occur, Dr. Carpenter responded: As little as two

or  three.   As  long  as  10 or 15.   It  just  depends  on  the

medications.

     B.   Proceedings

          A.   Superior Court Judge Richard D. Savell issued a temporary

child support order on April 19, 2001, ordering Troy to pay  Lucy

$263.83  per  month in child support pending a trial  to  resolve

disputed issues, including Troys earning potential.  Judge Savell

referred  the case to Standing Master Katherine R. Bachelder  for

trial of the property and debt issues.  Judge Savell specifically

requested  the  master  to report on the identity  and  value  of

marital property and debts and that she recommend a distribution.

Trial  took  place  on June 27 and 28 and July  17,  2001.   Both

parties  were represented by counsel.  Lucy testified on her  own

behalf.   Troy,  Dr.  Carpenter,  Clyde  Waller  (Troys  business

partner),  and Raymond Keturi (Troys father) testified  on  Troys

behalf.

          Master  Bachelder made findings on several  issues,  as

requested  by  Judge Savell.  With respect to the calculation  of

child support, the master decided to average Troys income over  a

four-year  period, based on his testimony that his annual  income

has fluctuated substantially.  Because her decision was issued in

September 2001 and she believed any projection of income  through

the  end  of that year would be speculative, the master  averaged

Troys income for the years 1997, 1998, 1999, and 2000 to reach  a

base  amount  from  which to determine what Troys  child  support

obligation  should  be  from  that  point  forward.   The  master

determined  Troys average adjusted annual income to  be  $84,482.

Based  upon Civil Rule 90.3(b), the master calculated Troys child

support to be $892 per month.

          The  master  also made findings regarding Troys  health

and  the  impact  of  his  psoriatic  arthritis  on  his  earning

potential.   Based on testimony from Troy and Dr. Carpenter,  she

concluded  that, while Troys condition would certainly limit  his

ability  to  perform manual labor within the next three  to  four

years,  it  would  not necessarily affect his income  because  he

could   shift  his  responsibilities  from  physical   labor   to

management.

          The  master made findings regarding the four pieces  of

property  owned  by the Keturis, either jointly  or  as  separate

property.  These four pieces of property were the marital home, a

duplex purchased during the marriage, a triplex purchased by Troy

before the marriage, and a shop used by the business.  There  was

no  dispute with respect to the marital home because the  parties

had agreed that Troy would remain in the residence and assume the

remaining  debt.   Similarly, the master recommended  that  Troys

shop,  which  had  never  been used for  a  marital  purpose,  be

considered  the separate property of Troy and his  business,  Ray

Electric.

          With  respect  to the duplex, while the parties  agreed

that  it  constituted marital property and should be  awarded  to

Troy,  they disagreed as to whether it was purchased with a bonus

or  a  loan  from Ray Electric.  The master concluded that  given

Troys  and his partners ability to determine what, when, and  how

to  pay  themselves,  their prior history  of  paying  themselves

bonuses  and classifying them as loans for tax purposes, and  the

lack  of documentation of the purported loan at the time  it  was

made, it was more likely than not that the property was purchased

with a bonus received by the husband and not a loan.

          Next  the  master addressed the issue  of  the  triplex

purchased by Troy prior to the Keturis marriage.  Troy  and  Lucy

agreed  on  the  value of the triplex and debt owed  on  it,  but

disagreed  as  to its classification.  Based on the testimony  of

the  parties at trial, the master urged the superior court either

to  classify  the property as marital or, in the alternative,  to

invade   the  property  in  order  to  accomplish  an   equitable

distribution.

          Finally,  the  master addressed the  equitable  factors

involved in this case.  She first observed that an equal property

division would be appropriate in this case, despite Troys greater

earning capacity, because Troys progressive illness would  result

in  high medical costs and potential physical disability  in  the

coming  years.  In order to reach an equitable distribution,  the

master concluded that Troy would have to pay Lucy $85,399, either

by  selling  the duplex or triplex or by cashing in one  or  more

retirement accounts.  Whether the court designated the triplex as

marital  or  separate property, the master recommended  that  the

payment remain the same, given Lucys limited earning potential as

compared  to Troys.  Concerning taxes, the master concluded  that

refunds  should be divided equally but that Troy should  pay  any

future tax debt.

          Troy   objected  to  several  aspects  of  the  masters

decision.   He challenged her decision to average four  years  of

income  to  determine  his  child  support  obligation,  and  her

findings that (1) Troys illness would not necessarily affect  his

earning  potential,  (2) the money used to purchase  the  marital

duplex was a bonus and not a loan, and (3) the triplex should  be

considered a marital asset.  Troy also objected to the conclusion

that  he  should assume any future tax debt but that any  refunds

should be divided equally.

          Judge  Savell considered Troys objections and  rejected

all  but  one1  in his Order Upon Masters Report.   Judge  Savell

adopted   the   masters  method  of  calculating  Troys   income,

explaining  that  it is within the discretion  of  the  court  to

determine  the  best way to ascertain income for the  purpose  of

making  an initial child support determination.  With respect  to

the remainder of Troys objections, the court observed that viewed

in    a    light    that    favors    upholding    the    Masters

findings[] . . . they are not clearly erroneous.  This order  was

entered  on  December 12, 2001 and on January 29,  2002  a  final

decree of divorce was signed by the court.

          Troy appeals.2

III. STANDARD OF REVIEW

          Factual  findings  based on the evidence  presented  at

trial  will be set aside only if we determine them to be  clearly

erroneous.3   The same standard applies to factual findings  made

by a standing master.4  A finding may not be set aside as clearly

erroneous  unless  the reviewing court has a  definite  and  firm

conviction that a mistake has been made. 5  While it may often be

the case that each party will have presented evidence at trial to

support  his  or her position, it is not our role  to  weigh  the

evidence  anew, but rather to determine whether the trial  courts

findings are supported by the record.6

          We  will not overturn a child support award unless  the

trial  court  abused  its discretion in calculating  the  award.7

This  includes  the  courts decision to average  a  parents  past

income  to  determine his or her child support  obligation.8   We

will find an abuse of discretion when we have a definite and firm

conviction,  based on the record as a whole, that a  mistake  has

been made.9

          We review a trial courts property division to determine

whether  it was within the broad discretion granted to the  trial

court by AS 25.24.160(a)(4).10  [T]he trial courts findings  that

parties intended to treat property as marital are disturbed  only

if  clearly erroneous. . . . The equitable allocation of property

is  reviewable under an abuse of discretion standard and will not

be reversed unless it is clearly unjust. 11

IV.  DISCUSSION

     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Averaging  Troys  Income Over  a  Four-Year  Period  To
          Determine His Child Support Obligation.
          
          Because  of the variation in Troys income from year  to

year,  the  master  recommended that the court use an average  of

Troys  income  over a four-year period to achieve a  base  figure

from which to calculate his child support obligation:

          Due  to the fluctuating nature of Mr. Keturis
          income,  the  court finds it  appropriate  to
          average his income in years 2000, 1999, 1998,
          and  1997.  The court has declined to project
          Mr.  Keturis  income for 2001  where  such  a
          projection  would  be  speculative.   He  has
          received bonuses from the company in addition
          to his wages in past years and may receive  a
          bonus in 2001 depending on the success of the
          business.
          
In  adopting  the  masters recommendation, Judge Savell  observed

that  [w]hen a parents future earnings are uncertain,  the  court

may base its calculations on an average of past years.

          Troy  contests this decision, arguing that  those  four

years represent the highest-grossing period Ray Electric has ever

experienced and are not representative of his current  or  likely

future situation.  According to Troy, the decision overstates his

income because Ray Electrics current main job is projected to run

over bid and will likely result in a loss to the company, he  and

his  partner  overpaid  themselves during those  years  based  on

inaccurate  predictions  of future jobs,  and  both  he  and  the

business  are currently in a great deal of debt both to creditors

and  to  the  federal government.  Based on these  factors,  Troy

          maintains that his wages in those years do not accurately reflect

his  future earning capacity, and therefore should not have  been

used  as the basis for making a prospective determination of  how

much his child support payments should be.

          In   response,   Lucy   contends   that   the   masters

recommendation is well-grounded in our case law and is  supported

by  the evidence at trial.  She maintains that Troy presented  no

evidence to corroborate his claims that Ray Electric has not  had

a  profitable  job  of  significant size  since  1998,  that  Ray

Electric  has  no  cash reserves, or that Ray  Electrics  current

project  is expected to run over bid.  Instead, Lucy argues  that

the   evidence  reflects  that  Ray  Electric  had  four   large,

profitable jobs in the works at the time of trial.  In  addition,

she  maintains  that,  during the course  of  the  marriage,  the

business  had  accumulated valuable property and  equipment,  the

value  of  which  was awarded to Troy in the divorce.   She  also

claims  that  Troy has always had the discretion whether  to  pay

himself  a  salary or to reinvest profits in the business.   Lucy

contests  Troys  claims  about tax liability,  arguing  that  any

estimate  of debt is speculative.  Finally, Lucy notes  that  she

and  Troy  had  traditionally received in-kind  income  from  Ray

Electric in the form of vehicles, gas, personal credit cards, and

improvements  to  their property which were not included  in  the

income calculation.

          We  agree with Lucy that this decision was not an abuse

of   discretion.   The  Commentary  to  Alaska  Civil  Rule  90.3

specifically contemplates situations such as this, providing that

[t]he  determination of future income may be especially difficult

when  the  obligor has had very erratic income in the  past.   In

such  a  situation, the court may choose to average the  obligors

past  income  over several years.12  We have explained  that  the

commentary  reflects an understanding that a single years  income

may not be a reliable indicator of future earning potential where

an obligors income is highly variable.13

          And  we  have  held in a number of cases  that  income-

averaging may be used to calculate a non-custodial parents income

where  it  has  been  erratic in the past.14   Because  Troy  has

admitted that his income does fluctuate depending on the state of

the   business,  and  because  the  evidence  admitted  at  trial

established as much, we do not believe the trial court abused its

discretion  in averaging Troys income for the years 1997  through

2000   in  order  to  determine  his  prospective  child  support

obligation.15

     B.   The  Superior  Courts Treatment of the Masters  Factual
          Findings
          
          The superior court specifically requested the master to

report  on  the identity and value of marital property and  debts

and to recommend a distribution.  Troy objected to several of the

masters  findings prior to their adoption by the superior  court.

Alaska  Civil  Rule  53(d)(2) requires the court  to  accept  the

masters  findings unless clearly erroneous.  Judge Savell adopted

all  of  the  masters findings but one, deeming them  not  to  be

clearly erroneous.  We address the contested factual findings  in

turn.

               1.   The finding that Troys earning potential will not be
               adversely affected by his illness in the immediate future was not
               clearly erroneous.
               
               The  master described Troy as 37 years old and  in

poor  health.  He has psoriatic arthritis, a progressive disease.

The  medications  that work effectively are not  yet  covered  by

insurance and are very expensive.  His doctor testified  that  he

could be totally disabled within four years.  With respect to his

earning capacity, the master found:

          [Troy]  has  a greater earning capacity  than
          [Lucy].   However, [Troy] has  a  progressive
          illness  that  will cause him  to  have  high
          medical  costs and he will become  physically
          disabled  as  early as four  years  from  now
          unless  new experimental drugs are  approved.
          His   earning  capacity  will  not   decrease
          immediately  where  he  is  a  co-owner   and
          shareholder and will not become involuntarily
          underemployed  when he is no longer  able  to
          perform physical labor.
          
          Troy argues that the court erred in concluding that his

physical  condition  would  not immediately  affect  his  earning

potential.  Troy relies on the testimony of Dr. Carpenter,  Clyde

Waller, and Ray Keturi at trial to support his position that  his

condition is rapidly deteriorating and that it has already  begun

to  affect his ability to work.  He explains that he will only be

able  to continue taking steroids for a short period of time  due

to  their potential side effects, that there are days when he  is

unable  to  get  out of bed at all, and that he  has  experienced

signs of depression as a result of his condition.  Troy maintains

that  the  court  erred in two respects in determining  that  his

illness  would not affect his earning capacity: first, by failing

to account for the fact that he will need to hire someone else to

perform  the  physical work he is now unable to perform  himself,

and   second,  by  neglecting  to  consider  the  impact  of  his

diminished energy level and depression on his ability to work.

          Lucy  responds  that while she has never disputed  that

Troys  physical ability to work has been limited, the trial court

did  not  err in finding that his condition would not necessarily

affect  his income, given his part ownership of Ray Electric  and

his ability to focus on the managerial side of the business.  She

argues  that  because  Troy and his partner determine  their  own

jobs,  there is no reason Troy cannot continue to receive a share

of  the  profits as a manager.  Given his position, Troy  retains

the  ability to simply assign himself duties that do not  require

physical labor.

          Troy  admitted that he has been able to do some of  the

companys bidding and to supervise other employees, and that he is

sometimes  able to walk around and supervise.  However,  he  also

argues  that the amount of non-physical labor he is  able  to  do

does  not  justify his receiving a salary equivalent  to  Clydes.

Clydes  testimony  corroborates  Troys  statements  that  he   is

physically  unable  to do what he was previously  able  to,  that

other employees have had to pick up the slack for Troy, and  that

Troy  has  not  been able to work as many hours as Clyde  in  the

three years prior to trial.

          However,  the master did not find that Troys  condition

was not serious, but only that should the business continue to do

well, Mr. Keturi will still receive his share of the profits  and

can earn wages as a manager.  Based on Troys ability to collect a

share  of  the profits, his history of receiving in  kind  income

from the business regardless of how many hours he works, and  his

testimony  that  he remains able to perform certain  work-related

tasks,  we do not believe the trial courts conclusion was clearly

erroneous.

               2.   The masters calculation of Troys income for the year 1997
               was clearly erroneous.
               
               With  respect to Troys income, one of the  masters

factual  findings  was  clearly erroneous.   The  masters  report

states that Troys 1997 income was $192,826.  However, no evidence

supports  that  figure.  Troy testified at trial that  he  earned

approximately  $52,000  in 1997.  At one  point  Troy  was  asked

whether  1997 was the year in which he received a $60,000  bonus,

and  he responded affirmatively, but later changed that testimony

to  indicate  that 1998 was the year he had received  the  bonus.

Even  had  he received such a bonus in 1997  which he  ultimately

clarified  that he had not  his income would have been  $112,000,

not $192,826.

          Because   Troys testimony was the only evidence offered

to the court with respect to his income in 1997, and because that

evidence  did  not support the finding that his 1997  income  was

$192,826,  we  remand  this  issue  to  the  superior  court  for

correction of the error16 and modification of Troys child support

obligation.

               3.   The masters finding that Troy purchased the duplex with a
               bonus from Ray Electric was not clearly erroneous.
               
               Troy  also contests Master Bachelders finding that

the  $88,832.67  check written from Ray Electrics account,  which

               was used to purchase the duplex, was a bonus rather than a loan.

Troy argues that all of the evidence supports a finding  that the

money  was a loan and not a bonus, and that therefore the masters

contrary finding must have been clearly erroneous.

          During  the  trial  there was  a  wealth  of  testimony

regarding  an  incident  in 1998 in which  Troy  and  Clyde  gave

themselves  bonuses of $60,000 each, but failed to pay  taxes  on

the  bonuses within three days as required by the IRS.  In  order

to  avoid  paying penalties on top of the taxes, Troy  and  Clyde

called  the bonuses loans for accounting purposes.  The following

year,  they  added  $60,000  to their  calculated  salaries,  and

promptly each paid $60,000 back to the company to repay the  loan

of the prior year.

          From  that incident, the master reasoned that the money

used  to purchase the duplex could have similarly been designated

a  loan  after  the  fact  to  avoid  liability  in  the  divorce

settlement.  According to the master,

          [g]iven   this   one   proven   incident   of
          classifying  a  bonus as a  loan,  the  court
          finds it more likely than not that the duplex
          was  purchased  by the husband  with  marital
          wages,  or  a  bonus, and that  there  is  no
          outstanding debt on the property.   The  only
          proof that the husband produced to show  that
          he  has  a  debt to pay on the duplex  was  a
          company check showing a payment of $88,832.67
          to  First  National Bank of  Anchorage.   The
          court  does  not find this to  be  sufficient
          evidence of a debt.
          
          Troy  contests  this  classification,  explaining  that

there is no evidence the money used to purchase the duplex was  a

bonus  and not a loan.  In the past, he argues, when he has taken

a  bonus, Clyde has received an identical bonus, and the two have

declared  the  amount on their W-2s and paid the required  taxes.

Because  he and Clyde were partners, he did not feel he needed  a

loan  agreement  at  the  time the money  was  removed  from  the

business.   Clyde  testified that Troy asked if he  could  borrow

money  from  the  company to purchase the duplex.   According  to

Clyde,  [Troy]  said he would pay it back with  interest  and  we

agreed  upon  something like 6 percent or  something  like  that.

When  asked  whether he had any documentation of the loan,  Clyde

referred to the check written out by Troy to First National  Bank

of  Anchorage in the amount of $88,832.67 and explained that  the

check  plus  a handshake is  with my partner  is a binding  deal.

When  asked  whether Troy had paid any of the money  back,  Clyde

said  he  had  not checked and could not remember  since  it  had

occurred over two years ago.

          While  Troy  has  conceded that  he  has  in  the  past

purchased  supplies  and machinery for his personal  use  on  the

business  account  which  were neither classified  as  loans  nor

mirrored  by  Clyde, he argued that Clyde would  usually  do  the

same,  such that their acquisitions would be about equal.   Since

Clyde  did  not  spend a comparable amount of Ray Electric  funds

that year, Troy argues that the money used to purchase the duplex

should not be considered a bonus.

          There  was  ample  testimony at trial  regarding  Troys

ability  to classify distributions to himself and his partner  as

he  wanted  and  to  use company equipment for  personal  benefit

without payment to Ray Electric.  There was also testimony on the

lack  of  documentation, payment book, or proof of repayments  or

attempts  to  repay the money.  The record supports  the  masters

finding  that  the  duplex was purchased with a  bonus  from  Ray

Electric  and  not  a  loan, and that  it  therefore  carries  no

outstanding debt.  This finding is not clearly erroneous.

     C.   The Superior Court Did Not Err in Dividing the Value of the
          Triplex Between the Parties.
          
          Concluding that the evidence showed the parties  intent

to  treat the triplex as marital property, the master recommended

that the superior court find that the triplex had been transmuted

from  Troys  separate  property  to  marital  property.   In  the

alternative,  the  master  recommended that  the  superior  court

invade   the  property  in  order  to  accomplish  an   equitable

distribution.

          Because  we agree that the triplex was transmuted  from

separate  to marital property during the course of the  marriage,

it  is not necessary to reach the question whether balancing  the

equities requires invasion of the triplex.

          The  division of property in divorce is governed by  AS

25.24.160(a)(4), which vests in the superior court the  authority

to provide:

          for the division between the parties of their
          property,  .  . . whether joint or  separate,
          acquired  only  during marriage,  in  a  just
          manner  and  without regard to which  of  the
          parties  is in fault; however, the court,  in
          making  the division, may invade the property
          .  .  .  of  either  spouse  acquired  before
          marriage  when the balancing of the  equities
          between  the parties requires it; . .  .  the
          division of property must fairly allocate the
          economic effect of divorce by being based  on
          consideration of the following factors:
               (A)  the  length  of  the  marriage  and
          station  in  life of the parties  during  the
          marriage;
               (B)  the  age  and  health  of  the
               parties;
               (C) the earning capacity of the parties,
          including   their  educational   backgrounds,
          training,     employment     skills,     work
          experiences, length of absence from  the  job
          market,  and  custodial responsibilities  for
          children during the marriage;
               (D)   the  financial  condition  of  the
          parties, including the availability and  cost
          of health insurance;
               (E)   the   conduct  of   the   parties,
          including whether there has been unreasonable
          depletion of marital assets;
               (F)  the  desirability of  awarding  the
          family home, or the right to live in it for a
          reasonable period of time, to the  party  who
          has primary physical custody of children;
               (G) the circumstances and necessities of
          each party;
               (H)  the  time and manner of acquisition
          of the property in question; and
               (I) the income-producing capacity of the
          property and the value of the property at the
          time of division.
          
            In  Wanberg  v.  Wanberg,17 we explained  that  under

          certain circumstances basic fairness will require that property

held  separately by one of the parties be included in a  property

division.18  One such circumstance is where the parties, by their

actions  during  marriage, demonstrate their intention  to  treat

specific  items  of property as joint holdings, even  though  the

properties were separately held by one or another spouse prior to

coverture.19   We  have identified four factors  to  be  used  in

determining when such intent exists:

          (1)  the  use  of  property  as  the  parties
          personal  residence,  and  (2)  the   ongoing
          maintenance  and managing of the property  by
          both  parties,  as well as  (3)  placing  the
          title of property in joint ownership and  (4)
          using  the credit of the non-titled owner  to
          improve the property.[20]
          
Application of this test varies by situation.  While we have held

that  not  all of these factors need to be present  in  order  to

support  a  finding that a couple intended to treat  property  as

marital,21  we have been careful to note that [p]articipation  by

both  spouses  in the management and maintenance of the  property

will   not  automatically  transform  pre-marital  into   marital

property.   Rather,  the participation must  be  significant  and

evidence an intent to operate jointly.22

          In  Wanberg,  the  couple  had  built  a  five-plex  on

property which had been separately owned by the husband prior  to

marriage.23  Both spouses were involved in the negotiation of the

loan secured to finance the construction.24  Both collaborated on

design  decisions  and construction of the  rental  units.25   In

addition,  the  wife  cleaned the apartments  and  common  areas,

advertised  vacancies, showed apartments, and  collected  overdue

rents.26   As we recounted, [t]he Wanbergs consistently  combined

their  efforts in improving and managing the property,  and  used

the  building  as their joint personal residence for  nearly  two

years.27   The wife also co-signed a loan against the property.28

Under these circumstances, we concluded that the trial court  had

abused  its  discretion  by  failing to  consider  this  property

          marital.29

          In  this case, the master characterized the triplex  as

marital  property based on the intent of the parties to treat  it

as such.  She found that Troy and Lucy had used the triplex as  a

marital residence for the first two years of their union and that

their  testimony  supported the conclusion  that  Lucy  had  been

actively  involved  in  the management  and  maintenance  of  the

property:

          The  wife  collected  rent,  cleaned  between
          renters,   assisted   in   finding   renters,
          maintained  the coin operated  laundry  room,
          and  partially landscaped the property during
          the  marriage.  The wife had to borrow  money
          from  her parents to make one of the mortgage
          payments.  The mortgage was paid out  of  the
          parties  joint checking account.  The  rental
          money from the triplex was deposited into the
          parties   joint  checking  account  for   the
          benefit  of the marriage.  After the  parties
          moved  out of the triplex, the wife continued
          to  place  ads in the newspaper to  rent  the
          units,  handled  the  telephone  calls,   and
          cleaned between renters.
          
          These  factual findings are sufficient to  support  the
conclusion  that Lucys actions amounted to an active interest  in
the ongoing maintenance, management, and control of the property.30
In  sum,  the evidence showed that the parties lived together  in
the  triplex  for  two  years  after their  marriage,  that  Lucy
participated  in  the ongoing maintenance and management  of  the
property,  and  that  marital funds were  routinely  expended  in
making the mortgage payments.31  The parties evinced an intent to
treat the triplex as marital property.  Accordingly, the superior
court  did  not err in concluding that the triplex was transmuted
from  separate  to  marital property during  the  course  of  the
marriage.  It therefore properly divided the value of the triplex
between the parties.
V.   CONCLUSION
          We AFFIRM the superior courts decision to average Troys
income  over a four-year period in order to determine  his  child
support  obligation.  We also AFFIRM the superior courts adoption
of the masters factual findings that Troys earning capacity would
not  immediately be affected by his illness and that  the  duplex
          was purchased with a bonus from Ray Electric.  And we AFFIRM the
superior courts adoption of the masters factual finding that  the
parties  intended the triplex to be transmuted from  separate  to
marital property.  We REVERSE the finding that Troys 1997  income
was $192,826 and we therefore REMAND for a recalculation of Troys
child support obligation.
_______________________________
     1    The court rejected the masters recommendation that Troy
assume  any  potential marital tax debt but that  any  refund  be
split between Troy and Lucy.  Instead, the court determined  that
Troy should be held to any debt that would be incurred and should
be  permitted  to receive for his sole benefit any refund.   This
issue is not before us on appeal.

     2     While  he  was represented by counsel at  trial,  Troy
represents himself pro se on appeal.

     3    Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987).

     4     Alaska  R. Civ. P. 53(d)(2) (In an action to be  tried
without a jury the court shall accept the masters findings unless
clearly erroneous.).

     5     Brooks,  733 P.2d at 1051 (citing Williams v.  Alyeska
Pipeline Serv. Co., 650 P.2d 343, 347 (Alaska 1982)).

     6    Id.

     7    Pugil v. Cogar, 811 P.2d 1062, 1065 n.5 (Alaska 1991).

     8    Id. at 1066.

     9    Id. at 1065 n.5.

     10     McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992)
(citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)).

     11    Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997)
(quoting Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).

     12    Alaska R. Civil P. 90.3, Commentary III.E., 252 (2003).

     13    Yerrington v. Yerrington, 933 P.2d 555, 557-58 (Alaska
1997).

     14     See, e.g., Yerrington, 933 P.2d at 557 (stating  that
[w]e  have  approved an income-averaging approach in  calculating
child support where an obligor parent demonstrates an erratic  or
fluctuating income); Renfro v. Renfro, 848 P.2d 830, 833  (Alaska
1993)  (noting  that [t]his court has approved  of  an  averaging
approach when a parents future earnings are uncertain); Zimin  v.
Zimin,  837 P.2d 118, 123 n.9 (Alaska 1992) (explaining  that  we
believe  that  a  three-year average would  provide  an  accurate
estimate  of  a parents current earning capacity when  a  parents
income  is  subject to yearly fluctuations); Pugil v. Cogar,  811
P.2d  1062, 1066 (Alaska 1991) (holding that superior  court  did
not  abuse  its discretion by averaging fathers prior  income  to
determine his prospective child support obligation).

     15    We note that Troy remains free to move for modification
of  the child support award should his future income fall  by  an
amount which would result in a fifteen percent decrease in  child
support payments.  Alaska R. Civ. P. 90.3(h)(1).

          We  also  note  that Troy has raised no argument  under
Civil  Rule  90.3(c)(1),  which  allows  the  court  to  make  an
exception  in calculating a parents income and support obligation
where unusual circumstances are present.  The Commentary cites as
an  example  such circumstances as health or other  extraordinary
expenses.  Alaska R. Civ. P. 90.3(c), Commentary VI.B., 254.

     16     While  Troy  did not raise this issue either  in  his
objections to the masters report or in his appeal, and  while  we
usually  will not review issues not previously raised, we  raised
the  issue  sua  sponte at oral argument in this case  and  later
allowed Lucys counsel to provide written references to the record
to  support  the finding that Troy earned $192,826 in  1997.   We
have  carefully examined the proffered record references  in  her
response.  They do not support the finding.

          Given the similarity of the income figures found by the
master  for  1997  ($192,826, based on wages of $132,826  plus  a
bonus of $60,000), 1998 ($132,826, based on wages of $78,826  and
a  bonus of $60,000), and 1999 ($132,880, based on $192,800 minus
$60,000 to pay on loan from 1998), we conclude that the error  is
a [c]lerical mistake[] in [a] judgment[] [or] order[] that we may
correct  at any time of [our] own initiative.  Alaska R. App.  P.
519(a).

     17    664 P.2d 568 (Alaska 1983).

     18    Id. at 571.

     19    Id.

     20    Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994) (citations
omitted);  see  also Harrelson v. Harrelson, 932  P.2d  247,  251
(Alaska 1997).

     21     See,  e.g., Harrelson, 932 P.2d at 251-52  (upholding
finding  that  property  acquired  by  husband  alone  could   be
considered marital where only first two factors were present).

     22    McDaniel v. McDaniel, 829 P.2d 303, 306 (Alaska 1992).

     23    664 P.2d at 571.

     24    Id.

     25    Id.

     26    Id. at 571-72.

     27    Id. at 572.

     28    Id.

     29    Id.

     30    Brooks v. Brooks, 733 P.2d 1044, 1054 (Alaska 1987).

     31     The  mortgage payments made from a joint account  are
presumptively marital.  See Chotiner v. Chotiner,  829  P.2d  829
(Alaska  1992) (Placing separate property in joint  ownership  is
rebuttable  evidence that the owner intended the property  to  be
marital.)  Moreover, the triplex rents that were deposited in the
joint  account  were  insufficient to  pay  all  of  the  triplex
expenses  and the mortgage.  The use of joint funds over  a  ten-
year period to pay at least a portion of the mortgage expenses is
strong  evidence that the third Wanberg transmutation  factor  is
satisfied here.