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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beal v. Beal (02/27/2004) sp-5782

Beal v. Beal (02/27/2004) sp-5782

     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


DAVID D. BEAL,                                      )     Supreme
                                   Court No. S-10151/10191
                              )        Consolidated    with    S-
10491/10511
            Appellant/Cross-Appellee,   )
                              )    Superior Court No.
     v.                       )    3AN-99-8146 CI
                              )
ANNETTE J. BEAL,                        )    O P I N I O N
                              )
            Appellee/Cross-Appellant.   )    [No. 5782 - February
27, 2004]
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Rene J. Gonzalez, Judge.

          Appearances:    Carl  J.D.   Bauman,   Hughes
          Thorsness  Powell Huddleston &  Bauman,  LLC,
          Anchorage,    for   Appellant/Cross-Appellee.
          Justin  Eschbacher and G. R. Eschbacher,  Law
          Offices  of G. R. Eschbacher, Anchorage,  for
          Appellee/Cross-Appellant

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION

          Annette  and  David  Beal appeal in  excess  of  twenty

issues  surrounding the superior courts award of interim  support

during  the  pendency of their divorce, its order dividing  their

marital estate, the enforcement of that order, and its refusal to

grant  their motions for various credits.  We affirm the superior

courts  decisions  imposing and maintaining its  interim  support

award,  ordering David to pay the property tax arrearages on  the

parties  home, ordering David to pay the late fees stemming  from

the parties failure to pay their mortgage on time, ordering David

to  reimburse Annette for insurance payments, and ordering  David

to pay health insurance for Annette and the parties children.  We

affirm  the  superior courts award of the selling  costs  of  the

parties  home  to  Annette, its valuation of a table  awarded  to

Annette,  and  its  denial of Davids claims  concerning  Annettes

execution  upon  the parties property in order to satisfy  Davids

unpaid  interim support obligations.  We also affirm the superior

courts award of a painting of the parties daughter to David,  its

decision  that  a  medical malpractice reimbursement  was  Davids

separate  property, its decision declining to credit Annette  for

the  childrens  educational expenses during the pendency  of  the

divorce,  its  conditional  award  of  educational  expenses   to

Annette,  its decision that the family home was marital  property

(even  though it was placed in Annettes name), and its denial  of

Annettes  motion  for  attorneys fees.  We remand  the  following

issues  for  findings:  Davids claim for interim  support  offset

credits  for  reduction of the principal balance on  the  parties

home, Davids motion for offset credits for gold allegedly missing

from  the family safe, Annettes motion for credit for her  having

paid  some of the parties marital debts, and Davids requests  for

credits  for claims that he allegedly became aware of  after  the

property division.  We remand the superior courts summary refusal

of Davids claim that the property division was not carried out in

accordance with the superior courts order so that the  court  may

issue   an   explanatory  ruling,  and  we  remand  the  question

concerning  the  artwork in Davids office so  that  the  superior

court  may issue a ruling with regard to that artwork.   Finally,

we  reverse  the  superior  courts failure  to  account  for  the

appreciation in value of Davids premarital art collection in  its

property  division and its inclusion of the separate property  of

the  parties  and their children in the portion  of  the  marital

estate awarded to Annette.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Annette  J. and David D. Beal were married on  June  5,

1985.   They  have  two children, Matthew, born on  September  4,

1984,  and Nicole, born on March 3, 1986.  The parties enjoyed  a

very  high  standard  of  living throughout  their  marriage  and

acquired a substantial amount of property, including a $1,100,000

family  home on 11th Avenue in Anchorage.  They separated  on  or

about July 7, 1999 and Annette filed for divorce on July 9, 1999.

Since  the  separation the parties have demonstrated  a  complete

unwillingness to cooperate with each other and have  aggressively

contested every possible issue in this divorce.

          David    is   a   medical   doctor   specializing    in

otorhinolaryngology.1  He suffers from a persistent ankle problem

which  required multiple surgeries between 1998 and 2000.  Davids

medical  practice, and therefore his earning capacity, is limited

to  some  degree  by  his  ankle  problems.   Despite  his  ankle

problems,  David  leaves  the marriage  in  a  superior  economic

position due to his earning capabilities and separate estate  not

subject to division.

          Annette  earned a Bachelors Degree in Justice from  the

University  of  Alaska.  She worked in Davids office  during  the

marriage and has the ability to find meaningful employment  in  a

similar capacity.

          The  parties signed a valid and enforceable  prenuptial

agreement  before  their marriage.  The agreement  provided  that

Annette  would  receive no alimony, but that David would  provide

support  for  Annettes education in the event  that  the  parties

divorced.

     B.   Procedural History

          The  superior  court issued an interim spousal  support

order  on October 1, 1999 providing that Annette would reside  in

the  11th  Avenue home.  It also required David to bring  current

          the mortgage arrearages on that residence; pay the monthly

mortgage,  property  taxes and insurance on that  residence;  pay

Annette  $5,000  per month in interim support;  and  pay  Annette

$1,312 per month in child support.  David failed to meet many  of

these financial obligations.

          On  November  1,  1999 the superior court  ordered  the

parties  to  identify  artwork to be sold in  order  to  pay  the

mortgage  payments on the 11th Avenue home.  On January  4,  2000

the  superior  court awarded Annette a judgment of $64,722.99  in

unpaid spousal support.  The court then approved Annettes sale of

some of the parties artwork and gold to satisfy the arrearage  in

interim  spousal support payments needed to pay the mortgage  and

avoid foreclosure on the 11th Avenue home.

          David  moved to terminate the interim support order  on

May  24,  2000.  The superior court did not rule on  this  motion

before  the August 2000 trial.  It finally terminated the interim

spousal  support order when it granted the divorce  on  March  6,

2001.  The next day the superior court announced its findings  of

fact  and  conclusions  of law.  It valued  the  parties  marital

estate,  comprising  substantial amounts of real  property,  art,

jewelry,  and  precious stones, at $2,185,361.  It awarded  David

forty-five percent and Annette fifty-five percent of the  marital

estate.   Annettes share included the familys 11th Avenue  house.

The  superior court also awarded Annette $131,000 in  educational

support, but it denied her request for attorneys fees.

          On  March  19, 2001 David moved for reconsideration  of

several  issues  decided by the superior  courts  March  7,  2001

order.  On March 28, 2001 Annette moved for a judgment for unpaid

interim spousal support.  In his opposition to this motion, David

claimed that the superior court should reduce its interim support

award and credit him for a number of payments made to Annette and

a  number  of  items  allegedly improperly  sold  by  Annette  to

partially  satisfy the judgment.  On April 10, 2001 the  superior

court  ruled  on both motions.  On the parties cross motions  for

reconsideration  of  its  division of  the  marital  estate,  the

superior court changed its award of three pieces of artwork.   It

also  awarded  Annette  $221,215.51  in  unpaid  interim  spousal

support,  but did not make any findings of fact regarding  Davids

requests  for credits.  Numerous questions involving the  October

1,  1999  interim  support  award, the  March  7,  2001  property

division,  and  the credits or reimbursements requested  by  both

parties  and resolved by the April 10, 2001 order are the subject

of the parties first set of cross-appeals.

          Annette  then  filed  a motion for  David  to  pay  the

parties  1998 income tax obligation because the Internal  Revenue

Service had a lien for $85,013.64 on the 11th Avenue house, which

was  awarded  to her in the superior courts March 7, 2001  order.

David  responded  to  this motion by claiming  that  Annette  had

received more than her court-ordered share of the parties marital

property.   The  superior  court conditionally  granted  Annettes

motion  for  judgment  against David for  the  parties  1998  tax

obligation, provided that Annette could prove that the  1998  tax

obligation  was  satisfied with assets  awarded  to  her  in  the

property  division.   The  court  concurrently  ruled  on  Davids

multiple  motions  for  offset credits  by  denying  the  motions

without making any findings of fact.

          On  July  23,  2001  Annette moved  to  reduce  support

arrearages  to  judgment from the portion of the  March  7,  2001

superior  court  order  mandating that  David  pay  for  Annettes

education  expenses.  David opposed this motion by arguing  again

that he was entitled to offset credits.  On December 14, 2001 the

superior  court  denied Annettes motion for  educational  support

arrearages because she had not yet enrolled in school and  denied

Annettes  motion for judgment for the unpaid taxes  for  lack  of

proof  that Annette had paid them.  The court also denied  Davids

motion  for  offset  credits.  The second  set  of  cross-appeals

involves  Annettes  appeal  of  the  superior  courts  denial  of

educational support arrearages and Davids appeal of the  superior

courts denial of offset credits.

III. STANDARD OF REVIEW

          Trial   courts  have  broad  discretion  in  fashioning

property   divisions.2    We   will   not   set   aside   factual

determinations made by the trial court, such as the valuation  of

property,   unless  they  are  clearly  erroneous.3   We   review

allocations  of property under the abuse of discretion  standard,

and  will  reverse the trial courts allocations only if they  are

clearly unjust.4  Similarly, we review a superior courts award of

interim spousal support under the abuse of discretion standard.5

          We  review mixed questions of law and fact, such as the

alleged  inter-spousal transfer of real property  in  this  case,

under  two  different  standards.6   Factual  determinations  are

reviewed  under the clearly erroneous standard.7  Legal questions

are  reviewed de novo, and we adopt the rule of law that is  most

persuasive in light of precedent, reason and policy.8



          The  question of whether the superior court added terms

to  its property division or divorce decree is a question of  law

subject to de novo review.9  We review superior court orders that

merely enforce a property division or divorce decree for abuse of

discretion.10

          Finally,  we will only reverse a trial courts  decision

not to award attorneys fees if it was an abuse of discretion.11

IV.  DISCUSSION

     A.   The Superior Courts Award of Interim Support to Annette
          and  Maintenance of that Award Throughout the  Pendency
          of the Divorce Did Not Constitute Error.
          
          David argues that the superior courts decision ordering

him to pay Annette roughly $15,49212 per month in interim spousal

support  during  the  pendency of the divorce  was  an  abuse  of

discretion.   The  superior court entered its  interim  award  on

October  1, 1999 and this award was maintained until the  parties

divorce  on  March  7, 2001.  Interim support orders  during  the

pendency of a divorce are governed by AS 25.24.140, which  allows

          the superior court to provide reasonable attorneys fees, spousal

support, and child support.13  David advances three arguments  as

to  why  this  interim award was unreasonable, and  therefore  an

abuse   of   the   superior   courts   discretion,    under    AS

25.24.140(a)(2):  (1) the amount of the order was too high  given

Annettes  needs and his inability to pay, (2) the order  provided

maintenance  for more than seventeen months, and (3) the  parties

prenuptial  agreement only allowed support for  the  purposes  of

Annettes education.

          1.   The  amount  of  support awarded by  the  superior
               court   was   not             unreasonable   given
               Annettes need for such support and Davids  ability
               to pay the interim support order.
               
          David  contends that the superior court  found  in  its

Findings of Fact and Conclusions of Law dated March 7, 2001  that

reasonable  support for Annette was $3,638 per month (the  courts

award of educational support) rather than the interim payment  of

$15,492  per  month ordered by the court in its  Interim  Support

Order  of  October 1, 1999.  Annette responds that  the  superior

court  did  not abuse its discretion because the interim  support

order  provided for her reasonable needs and maintained  a  level

playing  field  between both parties during the pendency  of  the

divorce.

          David  further contends that the interim support  order

was  excessive because he was unable to pay the award.  He  bases

this  contention on his disability limiting his income  from  his

medical  practice, the divorce proceeding restricting the parties

assets,  and  his inability to obtain credit due to  the  parties

outstanding tax obligations and the potential foreclosure on  the

11th  Avenue  home.  David also contends that he cannot  pay  the

interim  support  judgment  because it  orders  him  to  pay  the

arrearage  on  the mortgage and property tax payments  that  were

outstanding  prior  to  the  courts award  of  monthly  household

payments  to Annette.  Annette responds that David had sufficient

earning  capability and actual income to pay the interim  support

          order, and that he made a decision to allow the 11th Avenue home

to go into foreclosure.

          The  superior court must base its interim support order

on  sufficient factual findings concerning the parties needs  and

ability  to  pay.14  In reviewing challenges to  interim  support

orders,  we  have placed the burden on the supporting  spouse  to

demonstrate  that  it was impossible for him to  pay  the  amount

ordered.15  Prior to his ankle injury, David earned a substantial

six-figure  income.  In its interim support order,  the  superior

court  noted  testimony  that David had a  disposable  income  of

$251,564 for the first eight months of 1999.  It found that David

stated  that  he would voluntarily stop performing  surgeries  in

order  to  allow the house to go into foreclosure and that  David

made significant charitable contributions during the pendency  of

the   divorce.    This  finding  supports  the  superior   courts

determination  that Davids partial disability stemming  from  his

ankle  problems  did  not diminish his earning  capacity  to  the

degree  he claimed.  Therefore, the superior courts finding  that

David had sufficient income to support the interim order was  not

clearly erroneous.

          The   superior  court  also  made  sufficient   factual

findings  regarding Annettes needs.  The court first  found  that

the  parties  pre-divorce lifestyle was extravagant and  rejected

Annettes request for $22,789 per month in interim support  as  an

unnecessary  attempt to maintain that lifestyle.  This  rejection

of  Annettes  attempt  to  maintain her pre-separation  lifestyle

shows  that  the court considered Annettes actual needs.   Davids

argument that the disparity between the superior courts award  of

$15,492  per  month during the pendency of the  divorce  and  its

later  award of $3,638 per month for tuition and living  expenses

for   Annettes   education  shows  an  abuse  of  discretion   is

unpersuasive.   Johnson  v.  Johnson16 established  that  interim

support  should be enough to provide for reasonable and necessary

living   expenses   and  to  ensure  that   neither   spouse   is

          disadvantaged during the pendency of a divorce.17  The superior

courts  award met this standard.  It was appropriate to  order  a

higher  level  of interim support to ensure a level plane  during

divorce litigation, and it was appropriate to reduce this  amount

once the parties property was divided and Annette was established

in her living arrangements.  The superior courts different awards

of   support   for   Annette  were  therefore  well-founded   and

reasonable.   The superior court did not abuse its discretion  in

awarding Annette $15,492 per month in interim support.

          2.   The  duration of the interim support award was not
               unreasonable.
               
          David  argues that the superior court erred by  failing

to  terminate the October 1, 1999 interim support order, or  even

rule on his May 24, 2000 motion to terminate support, until March

6,  2001,  a  period of more than nine additional  months.   Each

party  claims  that the other sought to prolong and benefit  from

the  delay.   David  argues that Annette  prolonged  the  interim

support  period  to  receive  more interim  support  because  the

prenuptial  agreement  precluded alimony.   Annette  claims  that

David  failed  to file a request for decision on  his  motion  to

terminate  interim  support, while refusing to  pay  the  interim

support,  because  he  wanted  to buy  the  house  after  it  was

foreclosed  upon.   The superior court did  not  rule  on  Davids

contention  that, because Annette was purposefully  delaying  the

trial, interim support should be terminated.

          The  absence of a decision or explanation for the  lack

of  a decision on Davids motion is troubling, but we perceive  no

error.   Because it was well within the superior courts power  to

move  the trial date ahead to remedy any delay, we interpret  the

lack  of  a  ruling on Davids motion to terminate  support  as  a

denial of that motion.18

          3.   The prenuptial agreement precluding alimony does not
               preclude the award of interim spousal support.
               
          David  claims  that  the  superior  court  abused   its

discretion by awarding Annette an excessive amount of  money  for

          re-education expenses and by providing Annette with alimony in

the  form of the interim spousal support.  The parties prenuptial

agreement  provides that Annette shall receive  no  alimony  upon

divorce, but that David shall pay for [Annettes] tuition,  books,

and  all  other  expenses at a law school  of  her  choice.   The

superior  court, in its March 7, 2001 decision,  found  that  the

parties  prenuptial  agreement is . . . a valid  and  enforceable

agreement.  Neither party has advanced any argument as to why the

provisions agreed to should not be enforced.

          David   first  challenges  the  $131,000  for  Annettes

education as including an unnecessary year of preparatory classes

and  argues  that Annette should have been taking the preparatory

classes during the pendency of the divorce.  We hold that it  was

well  within  the  superior courts discretion to  determine  that

preparatory classes were necessary for Annettes MBA  due  to  the

amount  of  time that Annette had been out of school.  We  affirm

the superior courts award of $131,000 in educational support.

          David  also  argues that the superior court abused  its

discretion by refusing to apply the prenuptial agreements alimony

provision  to preclude, terminate, or reduce the Interim  Support

Order.   Interim  support is a type of alimony 19  which  can  be

subject to a prenuptial agreement provision precluding the  award

of alimony.  In their prenuptial agreement, the Beals agreed that

Annette shall receive no alimony upon divorce.  By its definition

this  agreement only precludes alimony after the parties divorce.

Because the prenuptial agreement did not preclude alimony  during

the  pendency of the divorce, the superior court did not  err  by

awarding interim support to Annette.

     B.   The  Superior Courts April 10, 2001 Judgment for Unpaid
          Interim Support
          
          The  superior  courts judgment found  that  David  owed

Annette  $24,822.10 in unpaid interim child and spousal  support,

$44,631.53  in municipal property taxes, $151,761.88 in  mortgage

and  insurance on the family residence, and $8,818.81 in interest

for  a  total  of $230,034.32.20  David claims that the  superior

          courts judgment for unpaid interim support is overstated because

the  superior court did not credit him for a number  of  payments

made  either to or for Annette and because it ordered him to make

payments  that were Annettes responsibility.  With one exception,

we reject these claims.

          1.   The superior court did not err in ordering David to pay for
               the property tax arrearages the parties accrued prior to their
               separation.
               
          1.   David claims that Annette overstated the property tax

arrearage,  and  that the superior court erred by  including  the

property taxes on the 11th Avenue house between January  1,  1999

and  September 30, 1999 in its judgment against him.  This  claim

rests primarily on the fact that the interim support order, which

became  effective on October 1, 1999 required David  to  pay  and

bring  current  the arrearage on the home mortgage  and  pay  the

monthly  mortgage,  property  tax and  insurance  on  the  family

residence,  but did not mention the arrearage in property  taxes.

The  failure  to specifically mention property tax arrearages  in

the  interim  support order does not forbid  the  award  of  such

arrearages if it would further the clear purpose of the  order.21

Annette is correct that the superior court intended the order  to

require  David to pay both the outstanding debt and  the  monthly

mortgage  payments  on the 11th Avenue home because  the  interim

support  order  provides that David must pay  for  all  household

expenses  in  addition to $5,000 in support per month.   Allowing

the  property to be encumbered by a property tax debt which might

have  led to foreclosure by the municipality is inconsistent with

the intent of the interim support order.  That the superior court

did not grant David relief on this issue provides further support

for  the  conclusion that the omission of property tax arrearages

from the original order was mere oversight.  Additionally, Davids

claim  that he is not responsible for the property tax arrearages

because  he provided Annette with money in early 1999 that  could

have  been used to pay them must fail because the superior  court

intended  that  he  pay  the outstanding taxes.   Therefore,  the

          superior court did not err by declining to credit David for any

portion of the property tax arrearages he was required to pay.

          2.   The superior court did not err in ordering David to pay the
               late charges stemming from the parties failure to pay the 11th
               Avenue mortgage on time.
               
          The  superior court adopted Annettes requested judgment

for unpaid interim support, which assessed to David the fees owed

to  Bank of America because of the parties failure to make  their

mortgage  payments on time.  David claims that Annette should  be

responsible  for  the $413.97 per month in late  charges  because

Annette  had  the  funds to make these payments  on  time.   This

argument is frivolous.  The superior court explicitly gave  David

the  responsibility for making the mortgage payments, determining

that  he was fully capable of meeting the interim support  order.

Whether Annette could have made the payments is irrelevant  given

that  the  court  directly ordered David  to  pay  the  household

expenses.   Therefore, David is responsible for all late  charges

resulting   from   his  failure  to  meet  his  interim   support

obligations in a timely manner.

          3.   David failed to properly raise his contention that the
               superior court erred in assessing him $11,213.15 in premium
               payments to State Farm, the parties original insurance carrier.
               
          David  argues  that  the amount of  property  insurance

premiums claimed by Annette and awarded by the superior court was

overstated.   The  superior  court  adopted  Annettes   requested

judgment   and  awarded  her  $11,213.15  in  reimbursement   for

insurance  payments to State Farm, the insurer.  David failed  to

raise  any  challenge to this reimbursement in his objections  to

the  proposed  judgment  for unpaid  interim  support.   We  have

previously  held that [m]atters not made issues or  tried  before

the lower court will not be considered on appeal.22  Because David

failed to raise this issue before the superior court, we will not

consider it on appeal.

          4.   The superior court did not err in forcing David to pay for
               the cost of the Bank of America insurance policy procured because
               he failed to make timely interim support payments.
               
          David  challenges the superior courts award to  Annette

          of the costs of a Bank of America insurance policy on the 11th

Avenue  house  which was obtained when Annette defaulted  on  the

State Farm policy discussed above, arguing that Annette should be

held  responsible  for  the difference in cost  between  the  two

policies because she failed to pay the State Farm policy with the

money she had available.  David also claims that he should not be

responsible  for the cost of the Bank of America  policy  because

the policy was grossly overpriced.  The above analysis concerning

Davids  inability to claim a credit for mortgage late fees caused

by  his failure to make mortgage payments in accordance with  the

superior  court  order applies with equal weight to  this  claim.

The  superior court did not err by holding David responsible  for

any  increase  in  insurance premiums caused by  his  failure  to

fulfill the requirements of the interim support order in a timely

manner.

          5.   The superior court did not err in relying on a Child Support
               Enforcement Division statement or in failing to credit David for
               support payments.
               
          1.   David next claims that the superior court erred in relying

on   a   Child  Support  Enforcement  Division  (CSED)  arrearage

statement that failed to credit him for any payments he  made  to

Annette  prior  to  September 13, 2000.  David claims  that  this

statement fails to include various payments he made in April  and

May  2000  which should have been applied to the spousal  support

payments  for  January  through May 2000 and  the  child  support

payments  for March through May 2000.  David is wrong:  CSED  did

credit  David for spousal and child support payments every  month

from  October  1999  through January  2001  in  the  document  in

question,  an Adjustment Worksheet.  Therefore, David has  failed

to demonstrate that the superior court did not credit him for the

payments made in April and May 2000.

          6.   The superior court did not err in failing to credit David
               for costs of appraisals of real property.
               
          David  also  claims  that  the judgment  is  overstated

because he was not credited for the money he spent for appraisals

of  certain  property under the superior courts  order  that  the

parties  share the cost of appraising property, unless  otherwise

ordered,  in  the  event  that the  value  of  the  property  was

contested.   Annette  responds that  the  superior  courts  final

judgment  for  unpaid interim support constituted an  order  that

appraisal  costs would not be shared.  We find Annettes  argument

unpersuasive because the judgment for interim spousal support did

not  specifically mention any of Davids alleged  credits  or  the

allocation  of  appraisal costs.  Annette also  argues  that  the

parties hired appraisers as expert witnesses rather than neutral,

joint  appraisers, and that each party should bear the full  cost

for  his  or  her independent expert witnesses.   We  agree  with

Annette on this point:  One party should not be forced to pay for

one   who   is  essentially  the  other  partys  expert  witness.

Therefore, the superior court did not err by declining to  credit

David for the majority of his appraisal costs.

          7.   The superior court erred in failing to credit David for one-
               half of the appraisal cost of his medical practice.
               
          1.   We note an exception to the rule stated in the previous

section   for  the  appraisal  costs  regarding  Davids   medical

practice.  The prenuptial agreement provided that Davids practice

could  only  be valued by the accounting firm that  prepared  the

business  most recent federal income tax return.  This provision,

which  explicitly provides for a particular appraiser, was agreed

to  by  both  parties.  Therefore, David should be credited  with

half  of  the  cost  of this appraisal.  Davids  brief  does  not

clearly  state  the costs of this appraisal, as  it  lists  three

different  parties  that appraised Davids  medical  practice  and

holdings.  Because the record is unclear on this point we  remand

this  issue  to  the  superior court  to  make  factual  findings

regarding  the  cost of valuing Davids medical  practice  by  the

appraiser  specified in the prenuptial agreement, and  to  credit

David for one-half of that amount.

     C.   The Superior Courts Resolution of Credits David Sought To
          Offset the Amount of Money He Owed Annette for Interim Support
          Arrearages
          
          1.   The superior court should determine whether to credit David
               for reducing the principal balance on the 11th Avenue home.
               
          The superior court valued the Beals 11th Avenue home at

$1,100,000  and subtracted the principal balance of $765,219  and

selling costs of $66,000 to arrive at an award to Annette  of  an

equity  value of $268,781 in its March 7, 2001 property division.

David claims that the superior court undervalued the home because

the equity value had been substantially increased by his mortgage

payments during the pendency of the divorce.  He also argues that

the superior court erred by denying his request, made in response

to  Annettes  March  28,  2001 filing of a  Judgment  for  Unpaid

Interim   Support,    for  a  credit  to   offset   the   alleged

undervaluation  of  the home in the property  division.   Annette

responds  that David is precluded from challenging this issue  on

appeal  because  he  failed to present  evidence  supporting  his

current valuation of the property at trial.

          We  have  previously held that the  date  of  valuation

should  ordinarily  be as close as practicable  to  the  date  of

trial.23  But while the property should be valued as of the  date

of trial, and while David did not present evidence supporting his

current valuation at the trial, David argues that another  avenue

to relief is available to him in this case.  In opposing Annettes

post-trial  motion  for  Judgment  for  Unpaid  Interim   Spousal

Support, David demonstrated that [t]he huge mortgage payments  on

the  property  on 11th do reduce the principal, pointing  to  the

banks  records, submitted by Annette, showing that  the  mortgage

was about $709,000 whereas the court found that the principal was

about  $765,000.   Thus,  evidence was before  the  trial  court,

shortly after the court issued its valuation, that suggested that

the courts findings were incorrect.  Because the trial court must

consider  payments  to  maintain  marital  property  from   post-

separation  income when dividing marital property,24 and  because

David   presented  his  argument  and  pointed  to  the  evidence

supporting  it  shortly after the court issued its  findings,  we

remand  for  the superior court to consider whether David  should

          receive credit for post-separation mortgage payments that were

part of his interim support payments.

          David  also  claims  that  he  should  be  entitled  to

additional  credit because Annette sold the home  for  $1,330,000

rather than the $1,100,000 that the court applied to her share of

the marital assets in its valuation.  This claim is without merit

because  property is valued for the purposes of division  at  the

time  of  trial,  rather than at the time it is sold.25   Neither

party challenged the $1,100,000 appraisal of the home at trial.

          2.   The superior court did not err in declining to credit David
               for his payment of health insurance for Annette and the children.
               
          1.   David claims that he should be credited with an offset for

half  of  the health insurance premiums he paid for the childrens

insurance.   David also claims that he should be  reimbursed  for

the  health insurance he provided Annette during the pendency  of

their  divorce.  In response to a question from Annettes attorney

at  the superior court hearing on interim support, David affirmed

that  he  would continue paying for the family health  insurance.

He  paid  for  this health coverage throughout that  time  period

while  under  court  order to make the interim support  payments.

Given  Davids  offer to pay health insurance before  the  interim

support  order  was entered, it appears that the  superior  court

intended  the interim support payments to be made in addition  to

the health insurance payments.  Therefore, the superior court did

not  abuse its discretion in declining to credit David for  these

payments.

          3.   The superior court did not err in awarding Annette
               selling costs for the 11th Avenue home.
               
          David  claims  that  the  superior  court  abused   its

discretion by awarding Annette $66,000 in selling costs  for  the

11th Avenue home.  David claims that the superior courts award of

selling  costs to Annette and concurrent refusal to award selling

costs  on  the  property  awarded to him was  error  because  the

superior  court  did not force Annette to sell  the  11th  Avenue

house,  while  the  large judgments against him effectively  will

          force him to sell his properties.  We have held that the superior

court  must  consider sales costs when its property  division  is

premised  on an economically disadvantaged party being forced  to

sell  a  house.26   The  superior court  expressly  premised  its

property division on Annette being the economically disadvantaged

party,  and  it  is  obvious from the findings that  her  earning

capacity  was clearly not enough to cover the household payments.

Davids argument is without merit, as the superior courts findings

regarding  the  parties  relative earning  capacities   which  is

unassailable  amount to a finding that Annette would have to sell

the   house  while  David  could  earn  enough  to  maintain  his

properties.  Because the disparate treatment of the parties  with

regard  to  selling  costs was justified by the  superior  courts

findings,  the  award  of  selling  costs  to  Annette  did   not

constitute error.

          4.   The superior court did not err in adopting an appraisers
               valuation of a table.
               
          David  claims  that  Annettes appraiser  undervalued  a

rosewood  table awarded to Annette under the assumption that  the

table was made of mahogany, and that the superior court erred  by

adopting  the  appraisers valuation of the  table.   He  seeks  a

credit for the alleged difference in value.  Annette admits  that

the  appraiser erred in thinking that the table was mahogany  but

argues that this did not lead to an error in valuation.  David is

correct  that his lay testimony that the table was worth $30,000,

as  opposed to the $6,640 appraised value, is admissible to prove

the tables value.27  Nonetheless, we cannot say that it was clear

error for the trial court to adopt a trained appraisers valuation

of a table over the evaluation of an owner of the table.  We hold

that  the superior court did not err by declining to allow  David

any additional credit for the table.

          5.   David did not properly raise his contention that the
               superior court erred by allowing Annette to execute on Davids
               artwork.
               
          1.   David claims that Annette sold some of Davids separate, pre-

          marital art to her friends at a discount in violation of AS

09.35.140.28  The superior court approved Annettes  sale  of  the

selected art on February 4, 2000 in order to satisfy the  January

4,  2000 judgment against David for unpaid interim support and to

save  the family home from foreclosure.  Even though the  details

of  the  sale  were clear at the time, David did  not  raise  any

objection  to  the  sale based on the notice  requirement  of  AS

09.35.140.  Because this issue was not presented to the  superior

court, David cannot raise it on appeal.29

          6.   The  superior court erred in failing to  make  any
               factual findings              in conjunction  with
               Davids  request  for  credit  for  gold  allegedly
               missing  from the family safe while it  was  under
               Annettes sole control.
               
          David  claims that he should be credited for gold  that

was his separate property and that was allegedly removed from the

safe  in  the 11th Avenue house while Annette was in sole control

of the safe.  David contends that there were forty-nine ounces of

raw gold, gold bullion, and gold coins in the safe as of July  7,

1999,  the  last  time  he was allowed in  the  house.   Annettes

attorney  acknowledged that Davids gold at the 11th Avenue  house

was worth between $15,000 and $18,000.  Almost all of Davids gold

in  the  safe30 was sold to satisfy a judgment for unpaid interim

support  against  him and to avoid the foreclosure  of  the  11th

Avenue home, and David was credited for the sale of $9,685.13  in

gold.   Annette apparently admitted receiving a payment of $6,354

for  more  gold, but this payment was not accounted  for  in  the

property  division  or  the April 10, 2001  judgment  for  unpaid

interim  support.  Annettes only response to this  claim  is  her

assertion that she knows of no gold missing.  If there  had  been

any  additional gold, [she] would have sold it too.  That appears

to  be  Davids  point:  that Annette probably used  the  gold  to

support  herself.  Because it was reasonable for David to  assume

that  the $6,354 of gold remaining after the judgment for  unpaid

interim  support  had  been satisfied would be  credited  towards

other  unpaid interim support obligations, it was proper for  him

          to seek compensation for the allegedly missing gold as a credit

for unpaid interim support in April 2001.  But the superior court

failed to make any findings in this regard.  We remand this issue

for  findings  in  regard to Davids motion for  credits  for  the

alleged missing gold.

     D.   Annettes  Motions for Credits for Claims Involving  the
          Parties Property and Marital Debts
          
          1.   The superior court erred in dividing the artwork in Davids
               office.
               
          Annette claims that the superior court erred in finding

that David had pieces of art by Miro and Zirul in his office that

were  part of the marital estate while failing to value or  award

the  artwork.   Annette should have been credited for  fifty-five

percent  of the value of any marital art in accordance  with  the

overall  property  division.  David does  not  object  to  giving

Annette  her requested $1,925 credit for the Zirul, but  contends

that  he does not possess the Miro.  The superior court erred  in

failing  to  value or award the Miro after finding  that  it  was

marital  property.   On  remand the superior  court  must  credit

Annette for the Zirul.  It also must determine the value  of  the

Miro  and  award it to one of the parties, though it is  free  to

reexamine  whether  there  was  a sufficient  factual  basis  for

finding that the Miro was still part of the marital estate at the

time of divorce.

          2.   The superior court did not err in awarding a painting of
               Nicole to David.
               
          Annette  claims  that  the  superior  court  erred   in

awarding  David a painting of their daughter Nicole  commissioned

by  the parties at a cost of roughly $20,000.  The superior court

awarded the painting to David for sentimental reasons because his

relationship with Nicole was strained.  Annette first argues that

the  painting  was  a  gift to Nicole and  is  therefore  Nicoles

separate  property.   She  argues in  the  alternative  that  the

painting  is  marital property and that she should  therefore  be

credited with her share of its value.  There is no indication  in

the  record that the painting is Nicoles separate property.   Nor

is  there any record evidence of the paintings fair market value.

It  was  well within the superior courts discretion  to  award  a

painting  of almost entirely sentimental value to the spouse  who

does not receive primary physical custody of the child.

          3.   The superior court erred in finding that Davids pre-marital
               artwork appreciated $63,788 while failing to account for this
               appreciation in the property division.
               
          1.   Annette contends that she should be credited for any

appreciation in value of Davids pre-marital artwork.  The parties

prenuptial  agreement provided that the appreciation of  separate

property would be considered a marital asset.  The superior court

found  that  Davids pre-marital artwork appreciated $63,788  over

the  course  of  their  marriage but did  not  account  for  this

appreciation  in  its  property  division.   David  suggests  the

superior court failed to include the appreciation in its division

of  the  marital  estate because it implicitly  agreed  with  his

earlier  claim  that the appraisal was incorrect,  and  the  true

amount  of  appreciation  was  de  minimis.   This  assertion  is

unsupported  in  the  record.  Because the  prenuptial  agreement

specifically mandates that appreciation of separate  property  be

treated  as a marital asset, the superior court erred in  failing

to account for significant appreciation of pre-marital artwork in

the  property  division.  We remand this issue  to  the  superior

court  so  that  it  may credit Annette for the  appreciation  of

Davids separate artwork.

          4.   The superior court erred in including the separate property
               of the parties and their children in the marital estate.
               
          Annette  claims  that  the superior  court  incorrectly

included  the separate property of the parties and their children

in  the  marital  estate.  The superior  court  found  that  such

separate  property  existed and that it  was  identified  by  the

initials  of  the  property owners in the exhibits  presented  at

trial.  All of this separate property was awarded to Annette  and

credited against her in the property division, mistakenly raising

the value of the property awarded to her in that division.

          David  concedes  that the superior court  included  the

separate  property  in the marital estate, but  argues  that  the

childrens  property should be characterized as  Annettes  because

she  has custody of the children.  This argument is without merit

because David has not alleged that Annette violated her duties as

trustee  of  the  childrens  separate  property  by  misusing  or

misappropriating the property.31  The custodial parent should not

have the childrens separate property credited against his or  her

share  of the marital estate because that parent is under a  duty

to  use  that  property for the childrens benefit  or  allow  the

children  to use it for their own benefit.  Therefore, we  remand

this  issue to the superior court to reduce its valuation of  the

portion of the marital estate awarded to Annette by the value  of

the parties and their childrens separate property.

          David  also claims that the superior court did not  err

in  failing  to  credit  Annette for the value  of  his  separate

property because she has not returned many of the items from  the

11th  Avenue house and that the few items returned were  damaged.

The  superior court did not make any findings on whether  Annette

had returned Davids separate property.  We remand the question of

whether  Annette complied with the property division by returning

Davids separate property.

          5.   The superior court did not err in determining that the
               $46,701 medical malpractice reimbursement was Davids separate
               property.
               
           Annette  claims  that  the  superior  court  erred  in

characterizing as Davids separate property a reimbursement from a

payment  made during the marriage to settle a medical malpractice

claim  against David.  She argues that the payment was made  from

joint  household  funds and should therefore be characterized  as

marital  property.   David  responds  that  the  money  for   the

settlement  came from his medical practice and was therefore  his

separate  property under the prenuptial agreement.   Property  is

considered part of the marital estate if it is treated as a joint

holding by the parties.32  But the parties here did not treat the

reimbursement  as a joint holding.  The money for the  settlement

apparently came from Davids Pacific Northern Academy bonds, which

were  purchased with Davids separate funds, although the proceeds

from  the bonds were channeled through the parties joint account.

Other  than  movement of the funds through a joint  account,  the

settlement  money  clearly appears to have been  Davids  separate

property.   The  superior court did not abuse its  discretion  by

classifying  the  malpractice reimbursement  as  Davids  separate

property.

          6.   The superior court failed to make findings on whether
               Annette paid some of the parties marital debt.
               
          1.   Annette claims that the superior court erred by failing to

assign  the  debts  accumulated  by  the  parties  during   their

marriage.   Annette  claims that she paid $11,087.62  in  marital

debt and that three bills remain outstanding.  David asserts that

the  debts  in  question should be considered  Annettes  personal

debts,  and  could  have  been covered  by  the  interim  support

payments  she  received from David.  The facts are  unclear.   We

have  previously  held  that  the superior  court  must  consider

whether  one spouse is entitled to credits for his or her payment

of  marital debt with post-separation income in order to preserve

the  marital estate.33  We now hold that the superior court  must

consider any payment of debts accrued during marriage out of post-

separation  income, regardless of whether the  payments  preserve

the  marital estate, because such liabilities are as much a  part

of  the  marital estate as marital assets.  Therefore, we  remand

this  issue to the superior court to determine whether the  debts

alleged  by  Annette  existed  and whether  any  such  debts  are

separate   or  marital  property.   The  superior  court   should

apportion  any such debts between the parties in accordance  with

their status as separate or marital property.

          7.   The superior court did not err by declining to provide
               Annette with credit for the childrens educational expenses.
               
          Annette  claims that she should be reimbursed  for  the

          childrens educational expenses during the pendency of the divorce

because  they  are marital debts.  In the August 2000  trial  the

superior  court  determined that any future educational  expenses

would  be  taken  from  the  childrens  substantial  funds.   The

superior  court did not err by declining to award Annette  credit

for  similar  post-separation educational  expenses  because  the

expenses could have been paid with the childrens funds.

     E.   The Superior Court Did Not Err in Awarding Annette $131,000
          To Pursue Her Education and Refusing To Force David To Pay the
          Support Without Proof that Annette Was Enrolled Full-time.
          
          Annette  claims  that  the award of  $131,000  for  her

education  did not include $50,000 for tuition costs.  Under  the

parties  prenuptial agreement David is responsible  for  Annettes

tuition,   books,  other  educational  expenses,  and  reasonable

support at a law school34 of her choice.  The superior court found

that this provision entitled Annette to the above support for one

year  of  preparatory classes at UAA and the two-year Masters  of

Business  Administration program at the University of Washington.

Annette  argues that the award of the total sum of $131,000  does

not  include  her tuition costs.  But the superior court  clearly

considered  both  tuition  and living expenses  in  finding  that

tuition,  books, and fees for the three years of schooling  would

cost  roughly  $50,000  and  that  reasonable  support  for   the

rehabilitative period was somewhere between the $15,168 per month

requested  by Annette and the $1,500 per month offered by  David.

It  concluded by finding that a reasonable amount of support  for

David to pay Annette to complete her MBA degree is the total  sum

of  $131,000.  This award clearly included Annettes tuition costs

and  cannot reasonably be interpreted to provide Annette with  an

additional $50,000 of tuition.  We reject Annettes argument  that

tuition was not included in the superior courts award.

          Annette  also  claims  that the trial  court  erred  in

estimating  her  reasonable living expenses in  arriving  at  its

$131,000  award.   She argues that the court both  underestimated

the  cost  of  her education and awarded her far  less  than  the

          amount necessary for her reasonable support.  The superior court

thoroughly analyzed the cost of Annettes education, and  did  not

abuse   its   discretion  in  awarding  $50,000  for  educational

expenses.  As for living expenses, we find no abuse of discretion

in   the   award   of  $81,000  for  three  years,  post-divorce.

Therefore,  we  hold that the superior court did  not  abuse  its

discretion   by  awarding  Annette  the  total  of  $131,000   in

rehabilitative support.

          Annette further claims that the superior court erred in

denying  her  motion  for educational support  for  her  year  of

preparatory  classes on the grounds that she was not enrolled  at

UAA.   Annette  apparently took two summer classes  but  did  not

register  for fall classes, allegedly because David had not  made

the  educational alimony payments from March through  July  2001.

The  superior  court refused to compel David to pay  the  ordered

educational  support because Annette did not  provide  any  proof

that  she  has  been or is enrolled as a full-time student  in  a

university  pursuing her educational goals.  Annette argues  that

the  superior courts order that she be enrolled full-time adds  a

new  term to the March 7, 2001 award and removes a needed  degree

of  flexibility in determining her course load.   Though  we  are

sympathetic  to  providing custodial parents with flexibility  in

pursuing  rehabilitative  education, there  was  no  error  here:

Annette   requested  and  received  support  for  one   year   of

preparatory classes at UAA.  The superior court did not abuse its

discretion by forcing her to abide by the award.

     F.   The Superior Court Did Not Err in Finding that the Real
          Property Placed in Annettes Name Was Marital Property.
          
          A.   Annette claims that the superior court erred in classifying

property  given  to  her  by David as  marital  property.   David

transferred  a number of pieces of real property to Annette  over

the  course of their marriage.  One of these properties was  sold

in  order  to  acquire the 11th Avenue home, which  was  held  in

Annettes  name.  The parties prenuptial agreement  provided  that

gifts  become  the  separate property of the recipient.   Annette

argues  that the property transfers were gifts from David to  her

and are therefore her separate property.  David responds that the

properties were only placed in Annettes name to ensure that  they

would  not  be  lost  in  possible medical malpractice  judgments

against  David.   We  have  held that  the  relevant  factors  in

determining whether property should be characterized  as  marital

are  .  .  .  (1)  the  use of property as the  parties  personal

residence . . . , (2) the ongoing maintenance and managing of the

property  by  both  parties, 35  (3) placing  the  title  of  the

property in joint ownership and (4) using the credit of the  non-

titled  owner  to  improve the property.36   The  superior  court

specifically found that the first, second, and third factors were

present in this case.  Additionally, the superior court based its

finding  that  the  properties  were  marital  property  on   the

testimony  of  a  number  of the parties friends,  who  supported

Davids claim that the properties were placed in Annettes name  to

guard  against medical malpractice claims rather than  as  gifts.

The  superior  courts extensive factual findings on  the  parties

intent in transferring the property to Annette are sufficient  to

support its finding that the property placed in Annettes name was

marital   property.   The  superior  court  did  not  abuse   its

discretion in finding that the property was marital property.

     G.   The Superior Court Did Not Err in Denying Annettes Motion
          for Attorneys Fees.
          
          A.   A.   Annette argues that the superior court abused its

discretion by declining to award her attorneys fees.  She  claims

that  her litigation costs were driven up by Davids noncompliance

with court orders and refusal to produce discovery materials in a

timely  fashion.   David  responds that  Annette  has  failed  to

demonstrate  that  the superior court abused  its  discretion  in

denying fees for Annettes aggressive litigation of this case.  We

have   mandated  a  two-step  process  for  determining   whether

attorneys  fees  should  be awarded under AS  25.24.140(a)37  for

vexatious  conduct  by  a party in a divorce  proceeding.38   The

superior  court must first determine whether fees are appropriate

          under  the general rule looking to the parties economic

situations; it may then increase any award based on misconduct by

one of the parties.39  The superior court denied Annettes request

for  attorneys  fees based on our decision in Beard  v.  Beard,40

which   recognized  that  awards  of  attorneys  fees  under   AS

25.24.140(a)  are based on the relative economic  situations  and

earning  powers  of  the parties41 and should  ensure  that  both

spouses have the proper means to litigate the divorce action on a

fairly equal plane.42  The superior court found that the property

division  compensated for the disparity in  the  parties  earning

capacity  and  left them with comparable ability to litigate  the

action.   It  further  found  that both  parties  had  needlessly

increased  litigation  costs  and been  completely  uncooperative

throughout  the  divorce, and held that neither party  had  clean

hands  to  request  fees  for vexatious conduct.   Because  these

factual  findings are sufficient to support a denial of attorneys

fees  under AS 25.24.140(a), we uphold the superior courts denial

of Annettes motion for attorneys fees.

     H.   The Superior Court Erred in Summarily Refusing Davids Claims
          for Credits Arising After the March 7, 2001 Order.
          
          1.   The superior court erred in failing to make factual findings
               on whether the parties property was divided in accordance with
               its order.
               
          1.   David claims that Annette controlled the court-ordered

division  of the parties art, jewelry, and precious stones  in  a

manner  that left him with $175,000 less than the $430,453.50  of

such   property  he  was  awarded.   Annette  argues  that  David

personally and willingly divided the property.  Her only  support

for  this  contention  is the affidavit of  a  paralegal  at  her

attorneys  firm who was present at the time.  The superior  court

denied  Davids motions for credit for Annettes alleged  violation

of  the property division without a hearing and did not otherwise

address  the  claim.   We have previously held  that  a  superior

courts denial of a credit should be reversed and remanded if  the

record shows a genuine dispute regarding the requested credit and

          the superior court failed to make factual findings on the issue.43

In this case the record provides some support for Davids claim of

an  unequal  property division, presenting  a  genuine  issue  of

material  fact.   Therefore, we remand for factual  findings  the

issue  whether  David  should be credited  for  Annettes  alleged

violation of the court-ordered property division.

          2.   The superior court erred in failing to make any findings on
               Davids request for credits that he allegedly became aware of
               after the court divided the marital estate.
               
          David  claims  that he should receive credits  for  (1)

property  tax  payments  that were allegedly  misappropriated  by

Annette,  (2)  a  $12,413 account awarded to  him  but  allegedly

emptied by Annette, and (3) a gun that the court found was Davids

separate  property but that Annette did not return  to  him.   He

contends that he only became aware of his right to these  alleged

credits after the divorce trial.

          David claims that he gave Annette money to pay property

taxes and seeks credit for this money.  Annette responds that the

appeal  should be denied because the issue was not raised at  the

trial  and  the  appeal was not filed in a timely manner.   David

responds  that  Annettes alleged misuse of this payment  was  not

raised  at  the trial because he did not discover it until  after

the conclusion of the trial.  Alaska Civil Rule 60(b)(2) allows a

court  to  relieve a party from a final judgment  if  he  or  she

presents  newly discovered evidence which by due diligence  could

not  have  been discovered in time to move for a new trial  under

Rule  59(b).44   Because the timing of Davids  discovery  of  the

alleged  conversion  is a factual issue, we remand  the  question

whether  David exercised due diligence in presenting his  request

for  a  credit.  If David brought this claim in a timely  manner,

the  superior  court should determine whether he is  entitled  to

credit for the allegedly misused property tax payments.

          David  argues  that  he  should receive  credit  for  a

$12,413  account  awarded to him in the superior courts  property

division,  because it was emptied by Annette, and  for  his  gun,

          which was retained by Annette.  Annette responds that Davids

appeal  must be rejected because he failed to raise the issue  at

the  trial level.  She also argues that this court does not  have

jurisdiction  under AS 22.05.010(a)45 because the superior  court

has  not  ruled  on the issues.  That statute is inapplicable  to

this  appeal  because the superior courts general  denial  of  an

offset credit in this case appears to apply to Davids request for

credits  for,  or  the return of, his alleged separate  property.

David claims that he only became aware of the missing money after

trial and promptly presented the issue to the trial court in  his

November  5,  2001  motion for credits in  response  to  Annettes

motion  for judgment for support arrearages.  The above  analysis

of  Davids  request for a property tax credit applies with  equal

weight  to these issues.  We therefore remand for a determination

whether  David  acted with due diligence.  If the superior  court

finds  that David brought these requests for credits in a  timely

manner, it should make factual findings as to whether he deserves

an offset credit or the return of the property.

V.   CONCLUSION

          A.   We REMAND for further findings the issues of offset credits
for  reduction of the principal balance on the house and for  the
allegedly  missing gold, Annettes credit for having paid  marital
debts,  and  Davids requests for credit for the  allegedly  late-
discovered  issues.   We REMAND for rulings the  claim  that  the
property  division did not conform to the superior  courts  order
and the issue of the office artwork.  We REVERSE the inclusion of
the  parties  separate  property and the  childrens  property  in
evaluation  of  the estate awarded to Annette,  as  well  as  the
failure  to  account  for appreciation of Davids  premarital  art
collection.   In all other respects, we AFFIRM the  decisions  of
the superior court.
_______________________________
     1     The branch of medical science concerned with the study
of  the  ear, nose, and larynx, the treatment of their  diseases,
etc.  Websters New Intl Dictionary 1730 (2d ed. 1960).

     2    Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000).

     3     Bellanich  v.  Bellanich, 936 P.2d  141,  143  (Alaska
1997).

     4    Edelman, 3 P.3d at 351.

     5     Johnson  v.  Johnson, 836 P.2d 930, 933 (Alaska  1992)
(examining  award  of  interim  spousal  maintenance   under   AS
25.24.140(a)(2) for abuse of discretion).

     6    Brooks v. Brooks, 733 P.2d 1044, 1055-56 (Alaska 1987).

     7    Id.

     8     Bellanich, 936 P.2d at 143 (quoting Guin  v.  Ha,  591
P.2d 1281, 1284 n.6 (Alaska 1979)).

     9    Horchover v. Field, 964 P.2d 1278, 1282 (Alaska 1998).

     10    Id.

     11    Edelman v. Edelman, 61 P.3d 1, 4 (Alaska 2002).

     12    The superior court ordered David to pay Annette $5,000
per  month  in  spousal  support and to pay  roughly  $10,492  in
mortgage,  property tax, and insurance payments  related  to  the
family house occupied by Annette.

     13    AS 25.24.140 provides in pertinent part:

          (a)  During  the pendency of  the  action,  a
          spouse   may,   upon   application   and   in
          appropriate   circumstances,    be    awarded
          expenses,  including      (1)  attorney  fees
          and  costs  that  reasonably approximate  the
          actual  fees and costs required to  prosecute
          or   defend  the  action;  in  applying  this
          paragraph,  the court shall take  appropriate
          steps  to  ensure that the award of  attorney
          fees  does  not contribute to an  unnecessary
          escalation   in   the  litigation;        (2)
          reasonable  spousal  maintenance,   including
          medical   expenses;  and     (3)   reasonable
          support for minor children in the care of the
          spouse  and reasonable support for  unmarried
          18-year-old children of the marriage who  are
          actively pursuing a high school diploma or an
          equivalent  level of technical or  vocational
          training  and living as dependents  with  the
          spouse or designee of the spouse, if there is
          a  legal  obligation of the other  spouse  to
          provide support.
          
     14     Johnson  v. Johnson, 836 P.2d 930, 934 (Alaska  1992)
(remanding  for  factual  findings on parties  relative  economic
circumstances  and  needs  .  . . and  the  ability  to  pay  the
maintenance).

     15    Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).

     16    836 P.2d 930 (Alaska 1992).

     17      Id.  at  934  (stating  that  an  award  of  interim
maintenance provides for reasonable and necessary living expenses
while  divorce  litigation is pending and  insures  that  neither
spouse is disadvantaged in presenting their claims).

     18     While  it would have been preferable for the superior
court  to rule explicitly on the motion, Annette cannot be blamed
for  the  superior courts failure to rule.  And the  plethora  of
motions  and  counter-motions by both parties suggests  that  the
superior  court determined that it would be best to  resolve  all
pending disputes after hearing the evidence at trial.

     19    Edelman v. Edelman 3 P.3d 348, 357 (Alaska 2000); Lewis
v.  Lewis,  785  P.2d  550,  553 n.4 (Alaska  1990);  Blacks  Law
Dictionary 73-74 (7th ed. 1999).

     20    To this amount, payable as of the date of the judgment,
the superior court added 8.5% interest until paid in full.

     21    Cf. Ellingstad v. State, Dept of Natural Res., 979 P.2d
1000,  1006  (Alaska  1999)  (holding  that  maxim  of  statutory
interpretation expressio unius est exclusio alterius, meaning the
expression  of one thing implies the exclusion of others  .  .  .
will not apply if contrary to the purpose of the statute).

     22    B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).

     23    Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991).

     24    Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992).  See
also Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997).

     25    Ogard, 808 P.2d at 819.

     26     Tollefsen v. Tollefsen, 981 P.2d 568, 571-72  (Alaska
1999)  (property division premised on economically  disadvantaged
wife  selling real property awarded to her but failing to provide
for cost of repairs and sale for property constituted error).

     27    See Osborne v. Hurst, 947 P.2d 1356, 1361 (Alaska 1997)
(quoting  Schylmanski  v. Conventz, 674  P.2d  281,  286  (Alaska
1983)).

     28    AS 09.35.140 states:

          Before  the  sale of property  on  execution,
          notice of the sale shall be given as follows:
               (1)  notice  of  the  sale  of  personal
          property  is  given by posting a  written  or
          printed notice of the time and place of  sale
          in  three public places within five miles  of
          the  place where the sale is to be held,  not
          less than 10 days before the day of sale; one
          of  the  notices shall be posted at the  post
          office nearest to the place where the sale is
          to take place[.]
          
     29    B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).

     30     The  appraisal  of the parties property  listed  only
seventy dollars worth of Davids gold coins in the safe.

     31    See, e.g., In re Hambright, 762 N.E.2d 98, 101-03 (Ind.
2002)  (recognizing and applying traditional  legal  notion  that
childs custodian is also childs trustee).

     32     Wanberg  v. Wanberg, 664 P.2d 568, 571 (Alaska  1983)
(holding  that  parties may indicate by their actions  intent  to
treat  property  that would otherwise be considered  separate  as
joint holdings).

     33     Brotherton v. Brotherton, 941 P.2d 1241, 1246 (Alaska
1997).

     34     The superior court noted that at the time the parties
entered  into  the  prenuptial  agreement  the  parties  expected
Annette  to attend law school, but that she subsequently  changed
her plans.  The court found her decision to pursue an MBA program
instead  of law school is reasonable and substantially meets  the
conditions  of  the parties agreement.  David does not  challenge
this finding.

     35     Cox  v. Cox, 882 P.2d 909, 916 (Alaska 1994) (quoting
McDaniel v. McDaniel, 829, P.2d 303, 306 (Alaska 1992)).

     36    Id. (citing Chotiner v. Chotiner, 829 P.2d 829, 832-33
(Alaska 1992)).

     37    AS 25.24.140 provides:
          (a)  During  the pendency of  the  action,  a
          spouse   may,   upon   application   and   in
          appropriate   circumstances,    be    awarded
          expenses,  including      (1)  attorney  fees
          and  costs  that  reasonably approximate  the
          actual  fees and costs required to  prosecute
          or   defend  the  action;  in  applying  this
          paragraph,  the court shall take  appropriate
          steps  to  ensure that the award of  attorney
          fees  does  not contribute to an  unnecessary
          escalation in the litigation[.]
          
     38     Wright v. Wright, 904 P.2d 403, 410-11 (Alaska  1995)
(awarding attorneys fees for vexatious conduct despite refusal to
award fees based on parties general economic situation).

     39    Id.

     40    947 P.2d 831 (Alaska 1997) (holding that superior court
did  not  abuse  its  discretion by awarding  attorneys  fees  to
spouse,  who received $65,000 of marital assets and 60% of  other
spouses pension fund, because of her drastically inferior earning
capacity).

     41     Id.  at 833 (quoting Kowalski v. Kowalski,  806  P.2d
1368, 1372 (Alaska 1991)).

     42     Id.  (quoting Lone Wolf v. Lone Wolf, 741 P.2d  1187,
1192 (Alaska 1987)).

     43    Berry v. Berry, 978 P.2d 93, 96-97 (Alaska 1999).

     44    Alaska R. Civ. P. 60(b)(2).

     45    AS 22.05.010(a) states:  [t]he supreme court has final
appellate jurisdiction in all actions and proceedings.   However,
a  party has only one appeal as a matter of right from an  action
or  proceeding  commenced in either the  district  court  or  the
superior court.