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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cline v. Cline (04/30/2004) sp-5803

Cline v. Cline (04/30/2004) sp-5803

     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


NEIL K. CLINE,                               )
                              )    Supreme Court No. S-10821
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-91-3905 CI
                              )
DEBRA S. CLINE,                         )    O P I N I O N
                              )
             Appellee.                   )     [No. 5803 -  April
                              30, 2004]
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:    Neil  K.   Cline,   pro   se,
          Anchorage.   Dorothea G.  Aguero,  Anchorage,
          for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          Federal  law provides that a state court has the  power

to  divide  a  military pension in a divorce case, but  caps  the

amount  that  can  be distributed to the non-military  spouse  at

fifty  percent.   Because  the superior court  awarded  sixty-two

percent  of  the  military spouses pension  to  the  non-military

spouse,  and because the court did not adjust the award when  the

military   spouse  received  disability  benefits  in  place   of

retirement benefits, we reverse the superior courts decision

II.  FACTS AND PROCEEDINGS

          Neil  Cline and Debra Lopez (formerly Debra Cline) were

married  in  January  1984  in Peru, Indiana.   They  have  three

children, born in 1984, 1986, and 1987.  The couple separated  in

April 1991 and their divorce trial was held before Superior Court

Judge  Peter A. Michalski in June 1992.  A decree of divorce  was

entered  shortly after trial.  Neil was granted sole  custody  of

the  children,  but  Debra was given liberal visitation  provided

that  she  continued to live in Anchorage.  Debra was ordered  to

pay child support pursuant to Alaska Civil Rule 90.3.

          At the time of the divorce trial, Neil was preparing to

retire from the military.  As part of the property division,  the

court distributed Neils military retirement, the exact amount  of

which  had not yet been determined.  The court made the following

finding:

               The court finds that it is proper to use
          the  date of trial of June 1992 for the  date
          of  distribution for the military  retirement
          earned by Mr. Cline during the marriage.  The
          court finds that approximately eighteen (18%)
          of  the  retirement  was  earned  during  the
          marriage.  The court hereby orders that  Five
          Hundred  Dollars ($500.00) a month is awarded
          to  Ms. Cline as her share of the retirement.
          The court further finds that it would be fair
          and  equitable to leave the issue of military
          retirement  available  to  be  reopened   for
          future calculation if it is so warranted.
          
                On  August 27, 1992, after the findings  of  fact

were  submitted to the court, but before they were  signed,  Neil

filed  a  motion  for  reconsideration.   In  his  motion,   Neil

explained that since the conclusion of the trial, he had begun to

receive  his  military retirement in the amount  of  $799.09  per

month.   Because  $500 greatly exceeded eighteen percent  of  his

retirement, Neil asked the court to adjust the award  to  $143.83

per month.  Without discussion, the court denied Neils motion for

reconsideration of the order dividing his retirement on September

29, 1992.  Neil did not appeal the courts denial.

          On May 29, 2002  nearly ten years later  Debra filed  a

motion  seeking payment for past due retirement benefits  awarded

to  her  in  the  1992  property  division.   In  the  memorandum

accompanying  her  motion, Debra maintained that  she  had  never

received any portion of Neils retirement despite having asked him

to  begin  paying  her.   She requested a  lump  sum  payment  of

$60,000,  the amount she should have received between  June  1992

and  June  2002,  plus $6,300, representing prejudgment  interest

calculated  at a rate of ten and one-half percent,  for  a  total

award  of  $66,300.   Debra also asked  for  attorneys  fees  and

postjudgment  interest  calculated at a rate  of  four  and  one-

quarter percent.

          Neil objected to Debras motion and concurrently filed a

motion to amend the original judgment, asking the court to reopen

the  issue  of military retirement as provided for  in  its  1992

order,  since  the $500 award actually amounted to  approximately

sixty-two percent of his $800 monthly military retirement.   Neil

maintained  that he had thought it was incumbent  upon  Debra  to

contact the military to arrange for them to pay her directly.  He

claimed that he did not believe it had been his responsibility to

pay  her  and  therefore he had never done so.   Invoking  Alaska

Civil  Rule 60(b)(6), which gives courts discretionary  authority

to relieve a party from a final judgment, Neil asked the court to

retroactively modify the divorce decree to align his payments  to

Debra more closely to the eighteen percent figure.

          Debra  contested Neils characterization of  the  facts,

claiming that she had asked him to begin paying her approximately

five years earlier and had explained to him that her attempts  to

arrange  to  be  paid directly by the military were unsuccessful.

She  maintained that Neil had refused to pay her even part of the

award,  based  on his belief that the amount had been  calculated

incorrectly.   Debra  claimed that until she consulted  with  her

present  attorney,  she  was unaware  that  she  could  obtain  a

judgment  from the court to collect the past due payments.   Each

party  argued that the others motions should be barred by  laches

or estoppel.

          Judge  Michalski ruled on both parties motions on  July

30,  2002.   He  first  noted that Mr. Cline has  not  previously

sought a timely correction of what facially sounds like an  error

when  he  claims  his monthly retirement never exceeds  $800  per

month.   Accordingly,  the court denied any  retroactive  relief.

Based  on  Neils  2001  tax  return,  which  had  been  filed  in

connection  with the parties arguments regarding  child  support,

Judge   Michalski   then  determined  Neils  retirement   to   be

$18,815.40, and calculated eighteen percent of that amount to  be

$245.78  per  month.  Because the court had retained jurisdiction

over  the  case  to address modification of the  distribution  of

military retirement, the court prospectively amended the award to

$245.78 per month from the date the motion was filed.

          Neil  filed  a motion for reconsideration,  citing  his

August  27, 1992 motion for reconsideration in response to  Judge

Michalskis statement that he had not previously sought  a  timely

correction of the divorce decree.  Neil asked the court to  amend

the  original decree to reflect an award of eighteen  percent  of

Neils  military  retirement, without attaching a specific  dollar

amount.   Neil  then stated that he was about to begin  receiving

disability  payments from the military, which  would  reduce  his

retirement  by $199 per month.  Given this reduction, Neil  asked

the  court  to  adjust the prospective amount owed  to  Debra  to

$209.96  per month.  The superior court denied Neils  motion  for

reconsideration without explanation.

          The  court  entered final judgment in  September  2002.

The  court  required Neil to pay Debra the amount  past  due  and

amended   the   divorce   decree   from   that   point   forward.

Specifically, the courts order stated:

               Defendant  having moved  this  court  to
          amend  the  Decree of Divorce  regarding  the
          amount  of  retirement to be  paid  to  Debra
          Lopez,  formerly Cline, as her marital share,
          and   this   court   having  considered   the
          opposition,  and being fully advised  in  the
          premises, finds that there is cause to reduce
          the  previously ordered amount  of  $500  per
          month   to  $245.78,  which  represents   the
          marital  share due to Debra Lopez.   However,
          this  reduction shall have prospective effect
          only from the date Mr. Cline filed his Motion
          to  Amend Decree.  Therefore, Mr. Cline shall
          pay  $245.78,  effective June 18,  2002,  and
          payable on July 1, 2002 and the first day  of
          each month thereafter.
          
According to the courts calculations, Neil owed Debra $93,221.39,

consisting  of $60,491.56 in principal, $32,254.82 in prejudgment

interest, and $475.01 in attorneys fees.

          Neil appeals.  While he has been represented by counsel

in  all prior proceedings, he is representing himself pro  se  on

this appeal.

III. STANDARD OF REVIEW

          I.   We will not overturn a trial courts decision to modify a

decree  adjudicating property rights except upon a  showing  that

the  court has abused its discretion.1  We will find an abuse  of

discretion  only  when  we  are left with  a  definite  and  firm

conviction,  after  reviewing the whole record,  that  the  trial

court erred in its ruling.2

          Similarly, we will not reverse a trial courts  decision

on a motion for reconsideration absent an abuse of discretion.3

          Because  prejudgment interest is awarded  under  Alaska

law  largely  as a matter of course rather than as  a  matter  of

discretion  left to the trial court,4 we review the trial  courts

application of the prejudgment interest statute de novo.5

IV.  DISCUSSION

          Neil  argues that, because the superior court  admitted

that the amount awarded to Debra in the courts initial order  was

erroneous,  his Civil Rule 60(b) motion to retroactively  correct

the  error  in the courts original calculation should  have  been

granted.   In  addition  to challenging  the  courts  failure  to

correct  its  calculation error, Neil argues  that  the  superior

courts  order  violated  the Uniformed  Services  Former  Spouses

Protection  Act  (USFSPA), a federal law  that  authorizes  state

courts to include federal military retirement pay in dividing  of

marital  property.6  Debra responds that the court  acted  within

          its discretion in refusing to retroactively amend the original

order pursuant to Civil Rule 60(b).  Debra does not address Neils

claim that he is entitled to relief based on the conflict between

the  courts  decision  and federal law.   For  the  reasons  that

follow,  we conclude that Civil Rule 60(b)(4) applies to attempts

to  retroactively  modify past arrearages  where  the  underlying

judgment is void or partially void as a matter of law, and that a

property division order that directs more than fifty percent of a

spouses  military retirement to the other spouse  conflicts  with

federal law and is, to that extent, void.

          A.   Civil Rule 60(b)(4) Provides a Basis for Relief if a
               Judgment is Void as a Matter of Law.
               
          The   parties  focus  their  arguments  concerning  the
availability  of relief from judgment on differing provisions  of
Civil  Rule  60(b).  While the first five sections of  that  rule
provide   relief  in  specific  circumstances,  Neil  relies   on
subsection (6), the final, catch-all provision of the  rule  that
allows  for  relief for any other reason justifying  relief  from
operation  of  the  judgment.  He points to the  superior  courts
recognition that the original order was erroneous and argues that
its  failure  to  correct  the mistake  is  a  sufficient  reason
justifying  relief  from  the  judgment.   Debra  responds   that
subsection (6) may only be used when subsections (1) through  (5)
do  not apply, and argues that Neils claim for relief should have
been   brought   under   subsection  (1)   because   he   earlier
characterized  the  courts  action  as  a  mathematical   error.7
Because  relief  under subsection (1) must be sought  within  one
year  of  the original order, Debra argues that Neils  motion  is
untimely.
          There  is  no  question that Civil Rule  60(b)  governs

motions  to  modify an order or judgment for property  division.8

This rule provides:

          On  motion  and upon such terms as are  just,
          the  court  may relieve a party or  a  partys
          legal  representative from a final  judgment,
          order,   or   proceeding  for  the  following
          reasons:
               (1)  mistake, inadvertence, surprise  or
          excusable neglect;
               (2)  newly discovered evidence which  by
          due  diligence could not have been discovered
          in  time  to move for a new trial under  Rule
          59(b);
               (3)     fraud     (whether    heretofore
          denominated    intrinsic    or    extrinsic),
          misrepresentation, or other misconduct of  an
          adverse party;
               (4) the judgment is void;
               (5)  the  judgment has  been  satisfied,
          released, or discharged, or a prior  judgment
          upon  which it is based has been reversed  or
          otherwise   vacated,  or  it  is  no   longer
          equitable  that  the  judgment  should   have
          prospective application; or
               (6)  any other reason justifying  relief
          from the operation of the judgment.
               The  motion  shall  be  made  within   a
          reasonable time, and for reasons (1), (2) and
          (3) not more than one year after the date  of
          notice  of the judgment or orders as  defined
          in  Civil Rule 58.1(c).  A motion under  this
          subdivision (b) does not affect the  finality
          of  a judgment or suspend its operation. This
          rule  does not limit the power of a court  to
          entertain an independent action to relieve  a
          party  from  a judgment, order or proceeding,
          or   to  grant  relief  to  a  defendant  not
          personally served, or to set aside a judgment
          for fraud upon the court.
          
          Neil  argues that the courts initial property  division

violated  the  USFSPA, which provides that  no  more  than  fifty

percent  of  a  recipients  military retirement  may  legally  be

awarded  to  a former spouse under state law.9  As we have  noted

previously,  the USFSPA was enacted to provide state courts  with

the  option to  consider military retirement pay in effecting  an

equitable  and just property division. 10  Relevant to this  case

are  sections  (c) and (e) of the USFSPA.  Section  (c)  provides

state  courts with the authority to treat retired pay as  marital

property:

          (1)   Subject  to  the  limitations  of  this
          section, a court may treat disposable retired
          pay  payable  to  a member  for  pay  periods
          beginning  after  June 25,  1981,  either  as
          property  solely of the member or as property
          of  the  member and his spouse in  accordance
          with  the  law  of the jurisdiction  of  such
          court.
          
Subsection  (e)(1)  states  that  [t]he  total  amount   of   the

disposable retired pay of a member payable under all court orders

pursuant  to  subsection (c) may not exceed 50  percent  of  such

disposable  retired  pay.   The plain language  of  this  statute

authorizes state courts to award no more than fifty percent of  a

recipients military retirement in a property division.11  We next

consider  whether  a state trial court exceeds  its  jurisdiction

when  it  awards  more than fifty percent of a  spouses  military

retirement in a property division.  For the reasons that  follow,

we hold that it does.

          We  considered a related issue in Clauson v. Clauson,12

in  which  an ex-wife sought modification of a property  division

agreement based on her ex-husbands election to receive disability

benefits in lieu of military retirement pay.13  (Indeed, the issue

of  how to treat disability benefits received in lieu of military

retirement  pay  is  also present in this case.   See  discussion

infra Part IV.B.)  In considering the effect of the USFSPA on the

ability  of state courts to divide military retirement  benefits,

we explained:

               There  are  actually  two  related   but
          separate  questions that must be answered  in
          order  to resolve this appeal.  The first  is
          whether  state courts have any  power,  after
          Mansell,[  14]  to equitably divide  veterans
          disability  benefits  received  in  place  of
          waived retirement pay.  The answer to that is
          an  unequivocal  no. . . .   Accordingly,  we
          hold  that  the USFSPA prohibits  our  courts
          from   distributing  this  type  of  military
          benefit  to  a former spouse when  allocating
          property upon divorce.[15]
          
While  we did not explicitly consider the issue of a state courts

jurisdiction  to  divide disability benefits in Clauson,  we  did

express  the  opinion  that state courts had  been  preempted  by

federal  law  from  dividing such payments in the  context  of  a

property  division.16  Our decision in Clauson was based  on  our

reading  of the federal law as stripping state courts of  subject

matter  jurisdiction  over  those benefits   disability  benefits

received in lieu of retirement benefits  specified in the USFSPA.

By  the same logic, we now hold that the USFSPA bars state courts

from  exercising subject matter jurisdiction over more than fifty

percent of a recipients military retirement benefits.

          In the past, we have looked to the Restatement (Second)

of  Judgments for guidance in situations such as this.17  Section

11  of the Restatement provides that [a] judgment may properly be

rendered  against  a  party only if the court  has  authority  to

adjudicate the type of controversy involved in the action.18  But

we  observed that this definition is not especially helpful,  for

much depends on how the term type of controversy is defined.19  We

reasoned  that whether a controversy is of the type a  court  may

resolve  cannot  be identified by terminology alone,  but  rather

should be determined by reference to whether the matter can  more

plausibly  be characterized as one of subject matter jurisdiction

or  of  merits  or  procedure.20  Section 12 of  the  Restatement

discusses the application of res judicata if a judgment is  later

challenged  for  lack of subject matter jurisdiction,  explaining

that:

          When  a  court has rendered a judgment  in  a
          contested action, the judgment precludes  the
          parties from litigating the question  of  the
          courts   subject   matter   jurisdiction   in
          subsequent litigation except if:
               (1) The subject matter of the action was
          so  plainly  beyond  the courts  jurisdiction
          that  its  entertaining  the  action  was   a
          manifest abuse of authority; or
               (2) Allowing the judgment to stand would
          substantially  infringe  the   authority   of
          another tribunal or agency of government; or
               (3) The judgment was rendered by a court
          lacking  capability  to  make  an  adequately
          informed    determination   of   a   question
          concerning  its  own jurisdiction  and  as  a
          matter  of  procedural  fairness  the   party
          seeking  to  avoid the judgment  should  have
          opportunity  belatedly to attack  the  courts
          subject matter jurisdiction.[21]
          
          When  the issue of subject matter jurisdiction has only

          been implicitly resolved by virtue of a judgment on the merits

and is later raised in the context of an attack on that judgment,

the  Restatement explains that the interests primarily  at  stake

are  not  those of the parties, which earlier had the opportunity

to  litigate the issue of jurisdiction (whether they chose to  or

not),  but  of  the government and society.22  This  prompts  the

question of

          whether the public interest in observance  of
          the   particular   jurisdictional   rule   is
          sufficiently  strong  to  permit  a  possibly
          superfluous  vindication of  the  rule  by  a
          litigant   who   is   undeserving   of    the
          accompanying  benefit that  will  redound  to
          him.  The public interest is of that strength
          only if the tribunals excess of authority was
          plain   or   has   seriously  disturbed   the
          distribution  of governmental powers  or  has
          infringed    a   fundamental   constitutional
          protection.[23]
          
          In the present case, the subject matter of state courts

is  clearly confined to the distribution of fifty percent or less

of  a  recipients  military retirement.24  In the  words  of  the

Restatement, the superior courts action in distributing more than

fifty  percent  of the military retirement was so plainly  beyond

the  courts jurisdiction that its entertaining the action  was  a

manifest  abuse of authority.25  Furthermore, while the interests

of  the  parties themselves may be minimal given the  failure  to

appeal  the  courts initial decision (by Neil) or to seek  relief

for nearly ten years (by Debra), the public interest in remedying

this  wrong is great.  Prior to the passage of the USFSPA,  state

courts had no authority to divide military retirement benefits at

all.26   The USFSPA established a limited grant of subject matter

jurisdiction  to  state courts.27  The supremacy  clause  of  the

federal  constitution requires that state courts defer to federal

law.28   Because allowing the superior courts decision  to  stand

would  violate  the supremacy clause of the federal constitution,

we  must  require  the  property  division  to  be  retroactively

modified  to  the  extent  that the division  exceeds  the  fifty

          percent federal limit on state jurisdiction.

          However,  to  the  extent  that  the  superior   courts

original property division did not exceed the federal limit, that

part  of  its  order  did  not amount to a jurisdictional  error.

While  the  courts expressed intent to award Debra only  eighteen

percent of Neils military retirement makes it clear that  it  was

error to allow Debra to receive more than eighteen percent, Neils

remedy  for  challenging  the  non-jurisdictional  part  of   the

erroneous  order was to file a timely appeal.  Because he  failed

to  do so, we remand with instructions for the superior court  to

modify  the award of retirement benefits to fifty percent of  the

amount  Neil received.  Retroactive modification of the award  to

eighteen  percent of his retirement benefit would allow  Neil  to

subvert  the  rule that Civil Rule 60(b) may not  be  used  as  a

substitute for a timely appeal.29

     B.   Disability Benefits Received in Place of Waived Retirement
          Pay Are Not Subject to Equitable Division.
          
          Neil  next asserts that the court abused its discretion

in  denying  his motion for reconsideration requesting  that  the

court  adjust the amount due to Debra by deducting his disability

pay from his income.  Following the courts July 30, 2002 decision

in which the court prospectively amended the payment due to Debra

based  on  Neils  2001  tax  return,  Neil  filed  a  motion  for

reconsideration under Alaska Civil Rule 77(k)(ii)  and  (iii)  in

which he stated:

               A  further problem has just developed in
          that  the Defendant has just received  notice
          that  he  is  being  awarded  disability   of
          $199.00  per  month which will be  subtracted
          from  his  monthly retirement checks  thereby
          reducing  the  Plaintiffs  claim  of  18%  of
          $16385.00 to 18% of $13997.00 or $209.96  per
          month.  A copy of the official notice of this
          change is attached to Neil Clines affidavit.
          
Attached to the motion was a copy of a letter from the Department

of  Veterans  Affairs, which appears to have been dated  July  5,

2002,  explaining  that the department had determined  that  Neil

would  be entitled to military disability payments in the  amount

of  $199.00 per month.  While the benefit was effective April  1,

2002,  Neil  did not receive the first disability  payment  until

July  1,  2002  in  order  to  avoid the  possibility  of  double

recovery.   In his reply brief, Neil maintains that, because  the

court did not consider all of the facts and information available

to  it  at  the  time it entered its September  2002  order,  and

because  it  did  not take into account the relevant  information

provided  in  Neils  August 2002 motion for reconsideration,  its

decision should be reversed.

          Debra  counters that the superior court did  not  abuse

its discretion in failing to consider that Neils retirement would

be  reduced by $199 in disability payments, since the  issue  was

not  raised until Neil filed his motion for reconsideration,  and

therefore was not properly before the court when the calculations

were made.  Because the issue was not properly raised before  the

trial  court,  Debra  argues that it cannot  be  reached  in  the

context of either a motion for reconsideration or an appeal.

          Civil Rule 77(k) provides:

               (1)  A  party  may  move  the  court  to
          reconsider a ruling previously decided if, in
          reaching its decision:
                    (i)   The   court  has  overlooked,
          misapplied  or failed to consider a  statute,
          decision  or  principle directly controlling;
          or
                    (ii)  The  court has overlooked  or
          misconceived    some   material    fact    or
          proposition of law; or
                    (iii)  The court has overlooked  or
          misconceived a material question in the case;
          or
                    (iv)  The law applied in the ruling
          has   been  subsequently  changed  by   court
          decision or statute.
          
          Neil filed his motion pursuant to subsections (ii)  and

(iii),  arguing that the court had not considered the  fact  that

Neil  had  begun to receive disability pay from the military  and

that  such pay could not be divided in the context of a  property

distribution under federal law.  In Mansell v. Mansell,30 the U.S.

Supreme   Court  unequivocally  held  that  the  Former   Spouses

          Protection Act does not grant state courts the power to treat as

property divisible upon divorce military retirement pay that  has

been  waived  to  receive  veterans  disability  benefits.31   We

recognized  that holding in Clauson, stating that the  answer  to

the  question whether state courts have any power, after Mansell,

to  equitably  divide  veterans disability benefits  received  in

place of waived retirement pay . . . is an unequivocal no.32

          Without  responding to the substance of Neils argument,

Debra  maintains that, because the issue of Neils disability  pay

was  not raised in his motion to amend the original judgment,  it

could   not   be   raised  in  the  context  of  a   motion   for

reconsideration.   She  relies on Miller  v.  Miller33  for  this

proposition.  In Miller, a father seeking an offset to his  child

support  obligation  based  on his daughters  receipt  of  social

security  benefits derived from his eligibility for them,  argued

in  a  motion  for reconsideration that he should not  have  been

required to pay child support in the first place since he was not

the  childs  biological  father.34  We   rejected  that  argument

because  he  had  not  disputed  his  paternity  in  the  divorce

proceedings and sought to raise the issue for the first time in a

motion for reconsideration.35  Furthermore, since the motion  for

reconsideration had not been timely filed, and no good cause  for

lateness  was shown, we held that the issue had not been properly

raised at trial and therefore would not be considered on appeal.36

          While  we  have  held that a motion for reconsideration

[may not] be used as a means to seek an extension of time for the

presentation of additional evidence on the merits of a claim,37 we

were  referring  to information which had been available  to  the

parties  prior to the filing of the motions underlying the  order

for  which  reconsideration  was sought.38   The  information  in

question here did not become available to Neil until after  those

motions  had  been filed.  As we have explained, the  purpose  of

Rule  77(k)  is  to  remedy mistakes in judicial  decision-making

where  grounds exist while recognizing the need for  a  fair  and

          efficient administration of justice.39  In this case, resolution

of  the  issue  whether  veterans disability  payments  could  be

divided  would both further the fair and efficient administration

of  justice and would permit the court to remedy an error in  its

original  decision.  Because these criteria  have  been  met  and

because some adjustment to the parties property distribution must

be made in order to avoid conflict with the USFSPA, and thus with

the  supremacy clause, we conclude that the superior court abused

its discretion in failing to consider the information provided by

Neil in his motion for reconsideration.

     C.   Calculation of Award for Payments Past Due
          
          Neil  also  contests the award of prejudgment interest,

arguing  that  [i]nterest should only accrue  from  the  date  of

judgment,  not prior years.  The superior court ordered  Neil  to

pay  prejudgment interest based on its judgment of payments  past

due  from  June 12, 1992 to August 19, 2002.  While the award  of

interest  was justified, the superior court mischaracterized  the

collection  action as a judgment rather than a writ of  execution

of an existing judgment.

          The  superior court entered an order on June  12,  1992

ordering  Neil to pay Debra $500 per month as her  share  of  the

military retirement benefits earned by Neil during marriage.   In

State,  Department of Revenue, Child Support Enforcement Division

ex rel. Inman v. Dean,40 we held that efforts to collect past due

alimony payments ordered by decree, like actions to collect  past

due  child support, involve periodic support obligations that are

judgments  that vest when an installment becomes due but  remains

unpaid.41   This  reasoning  is equally  applicable  to  past-due

installment  payments  of  marital property.   Accordingly,  each

monthly  payment owed to Debra pursuant to the 1992  court  order

was  a  judgment  that  vested when it became  due  and  payable.

Postjudgment interest accrues on these sums at the statutory rate

as  prescribed by AS 09.30.070(a),42 and different interest rates

will  apply to judgments vesting in different years.  On  remand,

          the trial court should determine the interest rate in effect

during each year encompassed in the courts modified judgment, and

then  recalculate the amount of postjudgment interest owed  based

on  the  date of accrual of each enforceable obligation  and  the

interest rate in effect at that time during the year it accrued.

IV.  CONCLUSION

          Because the superior courts decision conflicts with the

USFSPA,  we hold that the court abused its discretion in  denying

Neils  motions  for  relief under Civil  Rule  60(b)(6)  and  for

reconsideration of its amended order.  Because different interest

rates  will  apply to judgements vesting at different times,  the

court  must  recalculate prejudgment interest.   Accordingly,  we

REVERSE and REMAND for proceedings consistent with this opinion.


_______________________________
     1     Clauson  v. Clauson, 831 P.2d 1257, 1260  n.4  (Alaska
1992)  (citing Schofield v. Schofield, 777 P.2d 197, 202  (Alaska
1989)).

     2     Peter  Pan Seafoods, Inc. v. Stepanoff, 650 P.2d  375,
378-79 (Alaska 1982).

     3     Neal  &  Co., Inc. v. Assn of Vill. Council Presidents
Regl Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).

     4    Hofmann v. von Wirth, 907 P.2d 454, 455 (Alaska 1995).

     5     City  of Seward v. Afognak Logging, 31 P.3d  780,  783
(Alaska  2001).  See also Johns Heating Service v. Lamb, 46  P.3d
1024,  1041  (Alaska 2002) (reviewing  application of prejudgment
interest rules de novo).

     6    10 U.S.C.  1408 (West 2003).  This law provides that no
more  than fifty percent of a military spouses retirement may  be
awarded to the other spouse.  At the time the original award  was
made  in  1992,  if Neils retirement benefit was $799.09,  Debras
share  would have amounted to sixty-two and one-half  percent  of
his retirement.

     7     Civil Rule 60(b)(1) provides for relief from judgments
based on mistake, inadvertence, surprise or excusable neglect, if
brought within one year of the original judgment or order.

     8     Morris  v.  Morris, 908 P.2d 425,  427  (Alaska  1995)
(quoting Allen v. Allen, 645 P.2d 774, 776 (Alaska 1982)).

     9    10 U.S.C.  1408(e)(1) (West 2003).

     10     Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(quoting Chase v. Chase, 662 P.2d 944, 946 (Alaska 1983)).

     11     As  explained  by  the House  of  Representatives  in
amending subsection (e)(1):
               The  USFSPA authorizes state  courts  to
          treat  disposable retired or retainer pay  as
          property  and  defines such  pay  to  exclude
          military retired pay waived in order for  the
          retiree  to  receive veterans disability  and
          civil service benefits. . . .
               The  law  would be clarified  to  ensure
          that  regardless  of  the  number  of  former
          spouses, the aggregate amount of retired  pay
          that  would  be  payable to  them  would  not
          exceed  50  percent  of the  service  members
          disposable retired pay.
          
H.  Rep.  No.  101-665,  at  279-81  (1990),  reprinted  in  1990
U.S.C.C.A.N. 2931, 3005-06.

     12    831 P.2d 1257 (Alaska 1992).

     13    Id. at 1259.

     14    Mansell v. Mansell, 490 U.S. 581 (1988).

     15    Clauson, 831 P.2d at 1262.

     16    Id.

     17     See,  e.g., Perry v. Newkirk, 871 P.2d  1150  (Alaska
1994).

     18    Restatement (Second) of Judgments  11 (1982) (emphasis
added).

     19    Perry, 871 P.2d at 1154.

     20    Id.

     21    Restatement (Second) of Judgments  12 (1982).

     22    Id. at cmt d.

     23    Id.

     24    See 10 U.S.C.  1408(c), (e) (West 2003).

     25     Restatement (Second) of Judgments  12  (1982).    See
also  Clauson v. Clauson, 831 P.2d 1257, 1262 (Alaska 1992)  (the
USFSPA   prohibits  our  courts  from  distributing   [disability
benefits]  to  a  former  spouse when  allocating  property  upon
divorce); Ryan v. Ryan, 600 N.W.2d 739, 745 (Neb. 1999)  ([b]ased
on  the preemptive effect of the USFSPA, we conclude that federal
law  precludes  a state court, in a dissolution proceeding,  from
exercising   subject  matter  jurisdiction  over  VA   disability
benefits).

     26    McCarty v. McCarty, 453 U.S. 210, 236 (1981).

     27    Clauson, 831 P.2d at 1261 n.6.

     28    Article VI,  1, cl. 2 of the U.S. Constitution states:

          This Constitution, and the Laws of the United
          States  which  shall  be  made  in  Pursuance
          thereof;  and  all Treaties  made,  or  which
          shall  be  made, under the Authority  of  the
          United  States, shall be the supreme  Law  of
          the Land; and the Judges in every State shall
          be   bound   thereby,  any   Thing   in   the
          Constitution  or  Laws of any  State  to  the
          Contrary notwithstanding.
          
     29    Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984).

     30    490 U.S. 581 (1989).

     31    Id. at 594-95.

     32    831 P.2d at 1262.

     33    890 P.2d 574 (Alaska 1995).

     34    Id. at 576 n.2.

     35    Id.

     36    Id.

     37     Magden v. Alaska USA Fed. Credit Union, 36 P.3d  659,
663  (Alaska  2001); Neal & Co., Inc. v. Assn  of  Vill.  Council
Presidents Regl Housing Auth., 895 P.2d 497, 506 (Alaska 1995).

     38    See id.

     39    Id.

     40    902 P.2d 1321 (Alaska 1995).

     41    Id. at 1323.

     42    The statutory interest rate used to calculate pre- and
postjudgment interest was changed in 1997.  See ch. 26,  18,  19,
SLA 1997.  Because this case involves judgments due from 1992  to
2002, both the current and former statutes will apply.