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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Miller (01/28/2005) sp-5863

Miller v. Miller (01/28/2005) sp-5863

     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

LORNE C. MILLER,			)
                              )	Supreme Court No. S-11122
               Appellant,		)
                              )	Superior Court No.
     v.					)	3AN-01-7297 CI
                              )
VIOLETA E. MILLER,			)	O P I N I O N
                              )
               Appellee.		)	No. 5863 - January 28, 2005
                              )

                                        
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances: William T. Ford, Anchorage,  for
          Appellant.   Allison  E.  Mendel,  Mendel   &
          Associates, Anchorage, for Appellee.

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

          CARPENETI, Justice.


I.	INTRODUCTION

          Lorne  C.  (Chad) and Violeta Miller were  divorced  in

2003  after  fifteen years of marriage.  Chad Miller appeals  the

superior  courts  property division and its  award  of  attorneys

fees.   He  argues that the court made insufficient  findings  to

support  its decision, that it incorrectly classified as  marital

property  the  family  home and a cash  gift  to  Chad,  that  it

overvalued  the marital estate, and that it required him  to  pay

excessive attorneys fees.  Because the trial courts findings  are

sufficient  and  supported by the record, we  affirm  the  courts

classification  of  the marital home and  cash  gift  as  marital

property  and  its attorneys fees award.  Because  Chad  has  not

demonstrated that the courts valuation of the marital estate  was

clearly erroneous, we affirm the superior court in this regard as

well.

II.	FACTS AND PROCEEDINGS

          Chad  and  Violeta Miller were married in May 1988  and

permanently separated in March 2001.  Chad filed for  divorce  in

May  2001.  Two children were born of the marriage, in  1989  and

1990.1   Violeta was a mother and homemaker during  much  of  the

marriage, and Chad worked as an electrician and occasionally  for

his familys business.

          During  the marriage, the family lived in a home  given

to Chad by his mother, Molly Miller, one week before his marriage

to  Violeta.  The parties lived in this home until they separated

in  March 2001.  In 1998 Molly Miller also gave a large cash gift

to  Chad.   Although  Chad  initially placed  this  money  in  an

investment  account bearing his name alone, he later  transferred

the funds to a joint account bearing both his and Violetas names.

At  a  bench  trial held in March 2003 to resolve disputes  about

property division, Violeta testified that she believed that these

funds  were marital property because her name was on the account.

Chad  testified  that  he considered the  funds  to  be  separate

property  and that he added Violetas name to the account strictly

for probate purposes.

          The  investment account grew from an initial investment

of  $230,000  in  1998 to $290,000 in 2000, but the  balance  had

dropped  to $173,729 by the time the parties separated  in  March

2001.  Chad testified that this decline was due to market losses.

After  the  parties separated, however, Chad began to spend  vast

sums  of  money  on personal items, living expenses,  gifts,  and

internet gambling, depleting the account by more than $94,000  by

the  end of May 2001, the month he filed for divorce.  By October

31,  2001  this  account had a zero balance, despite  a  pretrial

order  issued  on May 16, 2001 enjoining the parties  from  using

marital  property  for  any  purpose  other  than  personal   and

          necessary expenses.  Chad Miller testified that he spent the

money  because his investments  were declining in  value  and  he

wanted to use the money himself rather than lose it in the  stock

market.  He claimed that he saw nothing wrong with spending  this

money  after  separation because he thought  the  money  was  his

separate  property  and  no  one had informed  him  that  it  was

inappropriate to do so if he was contemplating a divorce.

          The  superior court issued a decision on June  6,  2003

holding  that the marital home, though originally Chads  separate

property, was transmuted into marital property over the  thirteen

years  the  parties lived there together.  The court  also  found

that  the cash gift from Chads mother was transmuted into marital

property  when Chad intentionally placed the funds into  a  joint

account  and  used the account for marital purposes.   The  court

divided  the  marital  property equally pursuant  to  a  property

valuation  proposed by Violeta and ordered Chad to  make  a  cash

payment  to  Violeta in the amount of $123,269.   The  court  had

earlier  ordered Chad to pay $10,000 for Violetas attorneys  fees

and,  following  entry of judgment, it ordered  Chad  to  pay  an

additional $10,000 toward Violetas fees.

          Chad appeals.

III.	STANDARDS OF REVIEW

          The  division  of  property in a divorce  action  is  a

matter committed to the discretion of the trial court.2  Property

division entails a three-step process: (1) determination of  what

property is marital and available for distribution, (2) valuation

of the property, and (3) equitable distribution of the property.3

The  courts  application  of  this  three-step  process  will  be

reviewed  under the abuse of discretion standard and its  rulings

will  not be overturned unless clearly unjust.4  The law presumes

that an equal division of property is equitable.5  A trial courts

determination  that  the parties intended to  treat  property  as

marital  is reviewed for clear error, as is the courts  valuation

of   marital   property.6   Whether  the  courts   findings   are

          sufficiently clear is a matter of law which we review de novo.7

IV.	DISCUSSION

     A.	The  Superior  Court  Did  Not Err in  Adopting  Violetas
          Findings of Fact and Conclusions of Law.
          
          Chad  argues that the superior court erred by  adopting

Violetas proposed findings of fact and conclusions of law without

making  any  independent findings to justify  its  decision.   He

claims  that  the  courts  failure to make  independent  findings

violates Alaska Civil Rule 52(a)8 as we construed it in Fairbanks

Builders, Inc. v. Morton DeLima, Inc.,9 because there is no basis

upon  which  to  identify  the courts  independent  view  of  the

evidence.  This argument is without merit.

          A  superior court has an obligation to make  clear  and

explicit  findings  to  support its  decisions.10   In  Fairbanks

Builders,  we  noted that the trial courts adoption  of  counsels

findings,  which did not provide any justification for its  award

of damages, was tantamount to an improper delegation of the trial

judges  primary  duty under Civil Rule 52 of  finding  the  facts

specially.11  But a trial court can adopt findings and conclusions

prepared   by  counsel  so  long  as  they  reflect  the   courts

independent  view of the evidence.12  We are convinced  that  the

trial  court  in  this  case adopted Violetas  proposed  findings

because it agreed with them in toto.

          The  findings  clearly and explicitly  articulated  the

grounds  upon  which the court identified the property  available

for  distribution, the value it placed on that property, and  the

division   it  found  most  equitable.  The  findings  are   thus

sufficiently  detailed to permit appellate  review.   It  appears

that  Chad  attacks  not the adequacy of the  findings,  but  the

courts  characterization of the marital home and  the  cash  gift

from  Molly Miller as marital property and its valuation of  that

property.   But whether the trial courts findings were  erroneous

is   a   different  matter  altogether  from  whether  they  were

sufficiently clear and explicit to permit appellate review, which

is what is required by Alaska Civil Rule 52(a).13

     B.	The  Superior  Court  Correctly  Classified  the  Marital
          Home  and  a  Cash  Gift  to  Chad  Miller  as  Marital
          Property.
          
          1.	Marital Home

          Chad  Miller  argues that the superior court  erred  in

classifying  the  family  home  as marital  property  subject  to

equitable  distribution.  While he acknowledges that a premarital

home  owned by one spouse can transmute into marital property  if

it is used as the primary marital residence,14 he claims that the

home  remains  his separate property because the  parties  always

viewed  it as such.  Alternatively, he argued below that  if  any

portion of the homes value was marital property, it would be only

that  amount  by which the home appreciated in value  during  the

marriage.    On  appeal,  he  advances  a  different  alternative

argument:  that  the  superior court  abused  its  discretion  by

failing to apply the Merrill factors.15  Chads principal argument

is  not  supported by the record.  His first alternative argument

is  incorrect as a matter of law, while the second was waived  by

failure to present it to the superior court.

          Property  owned  by  one  party  as  separate  property

becomes marital property if the parties demonstrate an intent  to

treat  the property as marital.16  In determining whether a  home

should  be  treated  as marital property, a court  will  consider

factors such as:  (1) use of the property as the parties personal

residence,  (2) both parties participation in ongoing maintenance

and  management,  (3) placing title in joint ownership,  and  (4)

using the credit of the non-titled party to improve the property.17

            The  superior court found that although the home  was

originally a gift to Chad from Molly Miller prior to his marriage

to Violeta, the residence was transmuted from separate to marital

property  by  the actions of the parties over the thirteen  years

that  they  lived  there together.  The court found  that  taxes,

insurance,  and  maintenance  expenses  were  paid  from  marital

property;  that Violeta cleaned and maintained the  house  during

the  marriage;  and that Chad made no attempts  to  maintain  the

          separate character of this property.  These factual findings are

supported by the record.  The parties lived together in the  home

for  a  substantial period of time and both of  them  contributed

toward maintenance and upkeep.  The superior courts determination

that  the  parties intended to treat the home as marital property

was not clearly erroneous.

          Chad also argued before the superior court that, if any

portion  of the home is marital property, it would be  only  that

portion  representing its appreciation in value during  the  time

the parties lived together.  He claimed that the court should  at

most  award  Violeta only one-half of the increased value  rather

than  one-half  of  the total value of the home.   This  argument

ignores the differences between the theories of transmutation and

active  appreciation.  While separate property can become marital

property  under  either theory, transmutation converts  an  asset

entirely  from  separate  to marital, while  active  appreciation

converts to marital property only the increase in an assets value

due  to  a  contribution of marital funds  or  efforts.18   These

theories are mutually exclusive, and we have previously held that

if  separate  property is transmuted into marital  property,  the

trial  court  must  allocate the entire equity  in  the  property

rather  than  just  the  appreciation in  value.19   The  parties

stipulated  that  the  home was worth $144,000.   The  house  was

unencumbered  through March 2001 when the parties separated,  and

thus the superior court correctly determined that the full equity

value was marital property.20

          Perhaps   recognizing  that  the  active   appreciation

argument he made below was inconsistent with transmutation,  Chad

argues  on  appeal that his contention before the superior  court

that  Violeta should be awarded one-half the amount by which  the

house  appreciated  during the marriage  was  only  a  short-hand

method of backing out the premarital value of the home, believing

that an equitable division of this asset should weigh heavily  in

his  favor  because it was [a] gift from his family.   Chad  then

          argues that the superior court erred in not applying the Merrill

factors  to  the  home  to  determine  an  appropriate  division.

Because  Chad  did not make this argument to the superior  court,

arguing only an active appreciation theory to that court  (as  an

alternative  to  his principal argument that the  house  was  his

separate property), we decline to address it here.21

          2.	Investment Account

          Chad also argues that the court erred in classifying as

marital property an investment account opened with funds given to

him  by  his mother.  He claims that this gift was an advancement

on his inheritance that remained his separate property throughout

the  marriage.   The superior court found that these  funds  were

transmuted into marital property when Chad transferred them  from

an account in his name alone into an account in the parties joint

names.  This finding is not clearly erroneous.

          Molly  Miller gifted Chad $230,000 in 1998.  With these

funds  he opened an investment account in his own name at  Morgan

Stanley  Dean  Witter,  listing  Violeta  and  his  children   as

beneficiaries  of  equal  shares  in  the  event  of  his  death.

Approximately one year later, these funds were transferred  to  a

joint account in the names of both Chad and Violeta.  Under  this

account   the   parties  were  joint  tenants  with   rights   of

survivorship,  so  if  one  party  died  before  the  other,  the

surviving  spouse would receive the entire account  balance.   At

trial  Chad  testified that he transferred the funds to  a  joint

account  so  that  if  he  died before Violeta  the  funds  would

transfer  to her without going through probate, but that  he  was

fully in control of the account because it was his inheritance.

          Inherited property is separate, even if received during

marriage, though it can be transmuted into marital property where

that is the intent of the owner.22  There is a strong presumption

that  placing separate property into a joint account demonstrates

an  intent  to  treat  the property as marital.23   Thus,  absent

evidence to the contrary, Chads decision to move the funds into a

          joint account will be viewed as a demonstration of his intent to

treat   the  property  as  marital.24   Chad  argues  that   this

presumption  is  rebutted by Violetas testimony  that  she  never

tried  to access the funds and by Chads testimony that the  joint

account was created strictly for probate purposes.

          While  Violeta  testified that she never  attempted  to

access  funds  from the joint account, she also stated  that  she

considered  the account to be marital property because  her  name

was  on  it,  and that the parties used these funds  for  ongoing

household expenses such as taxes.  The trial court found that the

fact  that  Violeta never made withdrawals from the  account  was

insignificant given Chads general unwillingness to allow  Violeta

to participate in major decisions or to exercise control over the

familys finances.

          Furthermore, the evidence does not support Chads  claim

that  account ownership was changed solely for probate  purposes.

At  trial  Chad  testified  that he  put  the  account  in  joint

ownership in 1999 on the recommendation of his mother because  of

the  delays  and  costs the family experienced dealing  with  the

probate  process after the death of Chads father.   Chad  claimed

that  joint  ownership would ensure that Violeta  got  the  funds

automatically upon his death.  But earlier he also testified that

the  house  was put into his name alone based upon the advice  of

his  mother because she knows about probate and it would be  best

if  [the  house]  was  in my name free and clear,  before  I  get

married,  so  that  if  something did go  wrong  later  with  the

marriage, that [Violeta] couldnt try to take the whole thing.  It

appears  that Chads father died in the early 1980s,  well  before

Mollys gift of the Anchorage home in 1988 and her subsequent cash

gift  in  1998.   If the ownership decisions were made  to  avoid

problems  with  probate, it would make little sense  to  maintain

sole  title  to the home while placing the investment account  in

joint ownership.

          The  trial  courts finding that the investment  account

          transmuted to marital property was not clearly erroneous.

     C.	The  Superior Courts Valuation of the Marital Estate  Was
          Not Clearly Erroneous.
          
          Chad  also  argues  that the superior  court  erred  in

valuing the investment account and numerous items purchased  with

funds  from  that  account.  He claims that although  an  annuity

listed  as  marital property was cashed in and  the  funds  spent

shortly  after the parties separated, the trial court nonetheless

counted  as  part of the marital estate the value of the  annuity

and  the  items  purchased after it was cashed in,  thus  double-

counting the annuity.  He also claims that the trial court  erred

by failing to conduct an independent valuation of the property he

purchased shortly after the parties separated.  Because Chad  has

failed  to  demonstrate that the courts valuation of the  marital

estate was clearly erroneous, we affirm that part of its decision

as well.

          At  trial  Violetas  counsel argued  that  the  marital

estate included the $173,729.45 value of the Morgan Stanley  Dean

Witter  account as of the date of separation.  Chad  acknowledged

that  this  account had a balance of $173,000  when  the  parties

separated,  though, as discussed above, he argued that  this  was

his  separate property.  Although these funds had been  spent  by

the  time  of  trial, Violetas counsel argued that  any  property

purchased  from  this account should be valued  at  its  purchase

price  since  Chad was not authorized to convert  the  cash  into

assets  that  depreciate  rapidly.   Violetas  proposed  property

distribution, which was adopted by the superior court, was  based

in  large part upon information provided by Chad prior to  trial,

including  his initial disclosures and a summary of the  property

he purchased after the parties separated.  The parties stipulated

to  the  value  of  the marital home and Chads pension,  and  the

vehicles  were  appraised.  The values for almost all  additional

marital  property were based upon information provided  by  Chad.

The court valued the marital estate at $432,22625 and ordered Chad

to make a cash payment to Violeta in the amount of $123,269.

          This  court  has consistently held that  the  date  for

classification  of  property  is that  of  separation,  but  that

property  should be valued as close as possible to  the  date  of

trial.26  The findings adopted by the superior court indicate that

the parties separated on May 16, 2002 when Chad Miller filed this

action.   This  is  apparently a typographical error  since  Chad

filed  for divorce on May 16, 2001 and the parties agreed  before

trial that the date of separation was March 25, 2001.  As of that

date,  the Morgan Stanley Dean Witter account had a cash  balance

of  at  least  $173,729.45,27 an amount corroborated  by  account

records and Chads trial testimony.  Included in this sum  was  an

annuity valued at approximately $101,000, which was later  cashed

in.

          In  the  weeks after separation, Chad spent an enormous

amount of money, depleting the account by $68,503.49 in the month

of  April  2001  alone.  He used the funds on items  such  as  an

$18,000   all-terrain  vehicle,  a  $32,000  custom-made   travel

trailer,  an  $11,750 emerald ring for Violeta, and thousands  of

dollars  of internet gambling.  Chad also testified that he  took

the  children out to dinner nightly, spending at least $100  each

night.

          There  is  no  merit to Chads claim that  the  property

distribution  overstated the available  property  by  the  entire

value of the annuity.  While the property distribution adopted by

the  court  includes  an  annuity valued  at  $101,000,  Violetas

counsel explained that this item was incorrectly labeled and that

this sum represented the account balance after Chad cashed in the

annuity in March 2001.  Financial records from this account  show

that there was a balance of $105,225.9628 on April 30, 2001 after

Chad  spent  nearly $70,000 on the travel trailer, emerald  ring,

and  other property that month.  The courts distribution included

cash  and  personal property in Chads possession at the  time  of

separation valued at $188,487.29  While the property distribution

incorrectly  classified cash as an annuity, there is no  evidence

          that the annuity was double-counted.

          Chad  also  argues that the court erred in valuing  the

property  he  purchased from this account at its  purchase  price

rather  than  its  fair market value at the  time  of  trial.  As

Violetas counsel noted at trial, much of this property  is  of  a

type   that   depreciates  rapidly,  such  as  tools,  electronic

equipment,   recreational  vehicles,   camping   gear,   exercise

equipment,  and automobile upgrades.  While a trial court  should

normally  value property at the time of trial it can, in  special

circumstances,  value the property at the time of separation,  so

long  as  the  court  makes specific findings regarding  why  the

earlier date is proper.30  Dissipation of marital assets justifies

a  valuation  at  the time of separation.31  The courts  findings

specifically  note  that Chad rapidly dissipated  the  investment

account  after  separation.  Furthermore,  Chad  has  alleged  no

specific  error in the courts valuation of any property.   Nearly

all  property  was  valued  by stipulation,  appraisal,  or  from

information  provided  by Chad himself.  Chads  appeal  does  not

identify any property that was overvalued, nor could his  counsel

identify  any such property at oral argument.  Accordingly,  Chad

has failed to demonstrate clear error in the courts valuation  of

the marital estate.

     D.	The  Superior  Court  Did Not Err in  Awarding  Attorneys

          Fees.

          Finally,   Chad  argues  that  the  court  abused   its

discretion  by ordering him to pay $20,000 of Violetas  attorneys

fees,  and that it erred by failing to credit him for an  interim

award  he had already paid.  There is no evidence that the  trial

court abused its discretion in making this award.

          An  award of attorneys fees in a divorce action  should

be based upon the relative economic situations and earning powers

of  the  parties.32  A trial court has broad discretion to  award

attorneys fees in a divorce action, and we will not overturn such

an  award  unless  it  is  arbitrary, capricious,  or  manifestly

          unreasonable.33  The trial court entered an interim award in April

2002  ordering  Chad to pay Violeta $10,000 toward her  attorneys

fees.   The  court  indicated that this  amount  was  an  advance

against  the  ultimate  fee  award entered  in  the  action.   In

September  2003,  three months after entry of decision  regarding

the   property  distribution,  the  court  awarded   Violeta   an

additional $10,000, noting that this sum was in addition  to  the

interim  fees already awarded.34  The court justified  the  total

award  of $20,000, which represented approximately two-thirds  of

Violetas  total  fees,35 solely on the basis  of  Chads  superior

economic position, though it noted that the record would  support

a  finding  that Chad had engaged in vexatious conduct throughout

the litigation.

          Chad claims that the total award was too high since the

court  ordered  an equal division of marital property.   But  the

courts  order specifically noted that Violetas fees  were  higher

than  normal because her counsel had to reconstruct the value  of

assets that Chad dissipated after separation, a process made even

more  difficult because Chad was not fully cooperative.   Violeta

incurred  these fees while establishing the value of the  marital

estate and her right to an equal share.  The court did not  abuse

its discretion in its fee award.

V.	CONCLUSION

          For the foregoing reasons we AFFIRM the decision of the
superior court in all respects.
_______________________________
     1	No custody or support issues are before us on appeal.

     2	See  AS  25.24.160(a); Sampson v. Sampson,  14  P.3d  272,
275 (Alaska 2000).

     3	Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

     4	Sampson, 14 P.3d at 275.

     5	Lundquist v. Lundquist, 923 P.2d 42, 53 (Alaska 1996).

     6	Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994).

     7	Rausch   v.  Devine,  80  P.3d  733,  737  (Alaska   2003)
(questions  of  law  are reviewed de novo).  The  adequacy  of  a
courts   findings  is  a  matter  of  procedural  law.  Fairbanks
Builders,  Inc.  v.  Morton DeLima, Inc., 483  P.2d  194,  196-97
(Alaska 1971).

     8	This  rule  states,  in relevant  part:   In  all  actions
tried upon the facts without a jury or with an advisory jury, the
court  shall  find the facts specially and state  separately  its
conclusions of law thereon . . . .

     9	483 P.2d 194 (Alaska 1971).

     10	See,  e.g., Mapco Express, Inc. v. Faulk,  24  P.3d  531,
543 (Alaska 2001).

     11	Fairbanks  Builders, 483 P.2d at 196-97.  We  nonetheless
declined to vacate the award because Fairbanks Builders failed to
argue that the award itself was erroneous.  Id. at 197-98.

     12	Indust.  Indem. Co. v. Wick Const. Co.,  680  P.2d  1100,
1108 (Alaska 1984).

     13	See  Sullivan  v.  Subramanian, 2  P.3d  66,  69  (Alaska
2000)  (findings and conclusions should be so clear and  explicit
as  to  give  supreme  court  clear understanding  of  basis  for
decision).

     14	See,  e.g.,  Chotiner  v. Chotiner,  829  P.2d  829,  832
(Alaska 1992).

     15	Merrill  v.  Merrill,  368  P.2d  546,  547  n.4  (Alaska
1962).

     16	Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994).

     17	Id.

     18	See,  e.g.,  Harrower v. Harrower, 71  P.3d  854,  857-58
(Alaska  2003) (discussing differences between transmutation  and
active appreciation).

     19	Compton v. Compton, 902 P.2d 805, 812 (Alaska 1995).

     20	While  Chad  took  out  a loan against  the  property  in
2002,  ostensibly to pay expenses related to this litigation,  it
would be improper to reduce the equity value of the marital  home
based  upon  debt  incurred after separation and  the  filing  of
divorce,  particularly  where, as here,  a  party  has  spent  an
immense  sum  of  money on discretionary expenses  shortly  after
separation.   See  Dodson v. Dodson, 955 P.2d  902,  910  (Alaska
1998)  (debt  acquired  after physical  separation  was  separate
property);   Foster  v. Foster, 883 P.2d 397, 399  (Alaska  1994)
(date  marriage  ceases  to  function as  single  economic  unit,
typically  date of separation, is time after which newly-acquired
property  is non-marital).  The revolving line of credit  secured
against the Anchorage home is Chads separate property.

     21	See  Hoffman Constr. Co. v. U.S. Fabrication &  Erection,
Inc., 32 P.3d 346, 355 (Alaska 2001) (As a general rule, we  will
not consider arguments for the first time on appeal.).

     22	Sampson  v.  Sampson,  14 P.3d 272,  276  (Alaska  2000);
Chotiner v. Chotiner, 829 P.2d 829, 832 (Alaska 1992).

     23	Brown   v.  Brown,  947  P.2d  307,  311  (Alaska   1997)
(quoting Chotiner, 829 P.2d at 833).

     24	Lewis v. Lewis, 785 P.2d 550, 555 (Alaska 1990).

     25	The   home,   pension,  and  vehicles  were   valued   at
$243,739.   The  balance  of $188,487 was comprised  of  personal
property  and  cash in Chads investment account at  the  time  of
separation.

     26	See,  e.g.,  Leis  v. Hustad, 22 P.3d  885,  888  (Alaska
2001).

     27	The  account  balance on March 31, 2001 was  $173,729.45.
Because there is no evidence that funds were deposited into  this
account  after separation, we  assume that the balance  on  March
25, 2001 was at least $173,729.45.

     28	Violetas  counsel explains that the account  balance  was
incorrectly  listed  as $101,000 rather than $105,000,  but  that
this discrepancy works to Chads benefit.

     29	See  supra note 25.  The difference between this sum  and
the  $173,729 cash balance at separation represents the value  of
marital property already in Chads sole possession at separation.

     30	Cox v. Cox, 882 P.2d 909, 917 (Alaska 1994).

     31	Id.  at  918  n.5.   To recapture dissipated  funds,  the
court  gives  the property an earlier valuation date and  credits
all  or  part of that valuation to the party that controlled  the
asset.  Foster v. Foster, 883 P.2d 397, 399 (Alaska 1994).

     32	Kowalski  v.  Kowalski,  806  P.2d  1368,  1372   (Alaska
1991).

     33	Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001).

     34	Because  this  award was entered after Chad  appealed  to
this  court  and  Chad never amended his appeal to  include  this
order,  Violeta argues that Chad has waived the right to  contest
the  award of fees.  But Chads points on appeal claimed error  in
the courts award of attorneys fees, so Violeta was on notice that
this  issue  would  be  contested, and the issue  was  adequately
briefed.   Accordingly,  Chad preserved the right to  appeal  the
fee  award.   See Winn v. Mannhalter, 708 P.2d 444,  449  (Alaska
1985) (issue preserved if raised at trial, adequately briefed  on
appeal,  and  opposing  counsel sufficiently  apprised  of  issue
presented).

     35	Violetas  total  attorneys fees  were  $34,860.19,  while
Chads total fees were approximately $10,000.