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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dunlap v. Dunlap (03/17/2006) sp-5996

Dunlap v. Dunlap (03/17/2006) sp-5996, 131 P3d 471

     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

JAMES T. DUNLAP, )
) Supreme Court No. S- 11750
Appellant, )
) Superior Court No.
v. ) 3AN-91-9141 CI
)
ANN C. DUNLAP, ) O P I N I O N
)
Appellee. ) No. 5996 - March 17, 2006
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:  John C. Pharr, Law  Offices  of
          John C. Pharr, Anchorage, for Appellant.  Ann
          C. Dunlap, pro se, South Park, Pennsylvania.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          This  case  is a child support dispute.  It  regards  a
divorced  fathers obligation to use a portion of  his  retirement
buyout  to fund educational accounts for his children in lieu  of
using  that portion to pay child support.  According to the  1992
divorce settlement agreement between James and Ann Dunlap,  James
would  deposit  a  portion of any retirement or severance  buyout
equal  to  the  portion that was payable as child  support   into
educational  accounts for the couples children.   James  received
such  a retirement buyout in 1994 and opened educational accounts
that  October.  In 1995 James closed out the educational accounts
after Superior Court Judge Larry D. Card refused to reduce Jamess
child  support  obligations even though his income had  declined.
Judge Card reasoned, in part, that Jamess retirement buyout would
allow  him to continue making child support payments for a number
of  months,  notwithstanding his reduced income.  James  did  not
appeal  this ruling.  In 2003 Ann Dunlap contacted her ex-husband
regarding the educational account for their son Matthew, who  was
preparing to attend college in fall 2004.  After James  told  her
he  had  closed out the account, Ann sued and obtained a judgment
against James.  James appeals this judgment.
          James  has  offered  no  excuse  for  his  failure   to
contribute the required funds to the educational accounts.  He is
therefore  precluded from challenging Judge Cards  interpretation
of  his obligation to fund such accounts.  James argues that  the
settlement agreement was too indefinite to be enforced, that  the
judgment  constituted erroneous gap-filling,  and  that  Ann  had
waived  or  was  equitably estopped from arguing that  James  was
obliged  to  provide funds to the educational accounts.   Because
these  arguments  lack  merit, we  affirm  the  judgment  of  the
superior court.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          A.   James and Ann Dunlap were married in December 1982.  Their
marriage produced two children: James Matthew (Matthew) (b. 1985)
and  Katelyn E. (b. 1990).  The couple separated in 1991 and were
divorced  in  1992.   Ann  received primary  legal  and  physical
custody of both children.  James, who was an Army Warrant Officer
stationed in Alaska at the time, was ordered to pay child support
in  the amount of $739.93 per month pursuant to Alaska Civil Rule
90.3(a).   Shortly thereafter, James moved for a modification  of
the  support  order  because  his military  compensation  package
decreased  when  he  was reassigned outside  Alaska.   The  court
agreed to modify the award, reducing Jamess obligation to $626.16
per month.
          The  couples  divorce settlement agreement contained  a
special  provision regarding Jamess military retirement benefits.
Although  the  agreement specified that James would retain  [a]ny
and all interests in his military retirement, it also contained a
provision  addressing the disposition of any retirement  benefits
James  might receive if he left the army prior to his  retirement
eligibility:
          13.   If plaintiff separates from the service
          prior  to  retirement, any severance received
          by  plaintiff  will be considered  as  income
          pursuant  to Alaska Civil Rule 90.3  and  the
          portion payable as child support (27% of  the
          net)  will be placed in an education fund  in
          the children[s] names.
          
          James  left  military service in 1994 and the  military
bought  out  his retirement benefits for a lump sum  of  $57,598.
After  taxes, James received $40,271.  Pursuant to the settlement
agreement,  James  deposited $10,0001 into two educational  funds
for his children on October 17, 1994.
          After  leaving the military, James moved for  a  second
reduction  in his child support obligations, citing  his  reduced
          income.  In her opposition to Jamess motion, Ann contended that
his  reduced income was the temporary result of his status  as  a
probationary employee of the post office.  She argued that it was
inappropriate to reduce his obligation based on his income  as  a
probationary postal worker and that, in the meantime, James could
afford to pay his full obligation because of his retirement  buy-
out.   In response, James argued that his retirement buy-out  had
been  largely spent.  He stated that, pursuant to the  settlement
agreement, he had deposited $10,000 into the educational accounts
for  the  children.  He also noted that he had deposited  $10,000
into  a  retirement  account for himself,  spent  $4,000  on  the
childrens vacations, and drew on the remaining funds to cover his
own living expenses, especially for medical care.
          Judge  Card  rejected  Jamess motion,  largely  because
James  had not disclosed the retirement buyout in his motion  for
modification.   Judge  Card also concluded  that,  based  on  the
retirement  buyout,  James would be able to  afford  his  support
obligations on his current income for another thirty-one  months.
Thus, he held that James had sufficient income for another thirty-
one  months  and  could not move again for a  modification  until
January 1997.
          On  February 10, 1995, James cashed out the educational
funds because he needed the money to live on and continue to  pay
child  support in the higher amount.  He promised to replace  the
$10,000  at a later date and stated that he was currently  paying
$341.16  per month into the educational funds.  James appears  to
have  believed he could meet the requirement of paragraph  13  of
the  settlement  agreement  by  eventually  paying  $10,000  into
educational funds.
          James  moved for reconsideration of Judge Cards ruling.
He  argued that he did not have the entire $40,271 because he had
deposited  $10,000  into  an educational  fund  pursuant  to  the
settlement  agreement  and  that he could  not  meet  the  $1,300
shortfall for thirty-one months.  In response to this motion, the
superior court amended the order on March 17, 1995.  Although the
superior  court concluded that the $10,000 deposit did not  alter
Anns right to child support payments under Civil Rule 90.3  since
Jamess  retirement buyout clearly constituted  income  under  the
rule   the  court  held  that Ann agreed to  forgo  her  property
interest  in  that $10,000 in exchange for the  creation  of  the
educational  funds.  Therefore, the superior  court  reduced  the
amount  of the retirement buyout that was available from  $40,271
to  $30,271, envisioning that the retirement buyout would make up
for  Jamess $1,300 shortfall for twenty-four, rather than thirty-
one, months.
          At  the  time the parties were litigating Jamess motion
for modification, James began paying only $285 per month in child
support.   According  to James, this amount equaled  twenty-seven
percent  of  his current net income.2  James stated that  he  was
paying  the  balance of his obligation under  the  child  support
order   $341.16   into  the  childrens  educational  funds.    In
response,  Ann filed a motion to show cause why James should  not
be held in contempt for violating the child support order.  James
opposed  the motion, arguing that he was only liable for  twenty-
          seven percent of his income and that twenty-seven percent of his
retirement  buyout had already been allocated  to  the  childrens
educational funds.
          Before  the court could rule on Anns motion, James  and
Ann  settled  their dispute and stipulated that James  would  pay
$450  per month, retroactive to January 1, 1995.  As part of  the
stipulation,  James  agreed to forgo his right  to  appeal  Judge
Cards orders regarding his motion for modification.
          Matthew  turned  eighteen in March  2003  when  he  was
enrolled  as  a  sophomore in college at  Indiana  University  of
Pennsylvania.   Ann requested that James release the  educational
funds.   But James had cashed out the account and there  were  no
educational funds.
     B.   Proceedings
          A.   Ann, appearing pro se, filed a motion to reduce to judgment
in  September 2004.  She claimed that paragraph 13 of the divorce
settlement   agreement  required  James  to  create   educational
accounts in the childrens names worth twenty-seven percent of his
retirement  buyout.   Ann stated that James had  closed  out  the
educational accounts and had not provided any funds for  Matthews
college.   She  asked the court for a judgment in the  amount  of
$10,000 plus interest.
          James  opposed  Anns  motion  to  reduce  to  judgment,
maintaining  that the 1995 litigation demolished the notion  that
the   parties  had  intended  for  twenty-seven  percent  of  his
retirement  buyout to be placed in educational accounts;  rather,
he  maintained that the retirement funds were intended to be used
for  an  educational fund or to pay child support, but not  both.
James also argued that Ann had waived her contentions or that she
was  equitably  estopped from making them, or both.   Lastly,  he
argued  that  paragraph 13 of the settlement  agreement  was  too
indefinite  to  be enforced because it did not  specify  how  the
funds were to be administered or disbursed.
          Ann  filed a reply to Jamess opposition.  She  disputed
Jamess interpretation of the settlement agreement and Judge Cards
1995  rulings.   She  also maintained that waiver  and  equitable
estoppel did not apply and that the settlement agreement was  not
indefinite.
          Superior  Court  Judge Stephanie E.  Joannides  entered
judgment  in  favor of Ann on October 29, 2004  and  awarded  her
$10,000 plus interest.  James appeals from this decision.
III. STANDARD OF REVIEW
          We  review a superior courts interpretation of a  child
support  agreement as we would review the interpretation  of  any
contract, de novo.3  We  review a superior courts enforcement  of
a divorce decree for abuse of discretion.4
IV.  DISCUSSION
     A.   James  Was Not Excused from Contributing Money  to  the
          Educational Funds.
          
          Paragraph   13  of  the  Dunlaps  separation  agreement
states:

          If plaintiff separates from the service prior
          to  retirement,  any  severance  received  by
          plaintiff will be considered income  pursuant
          to  Alaska  Civil Rule 90.3 and  the  portion
          payable  as  child support (27% of  the  net)
          will  be placed in an education fund  in  the
          children[s] names.
          
          James maintains that [p]aragraph 13s intent was to  set
aside  an  educational  fund with the child  support  portion  of
plaintiffs  military retirement, or severance pay if he  did  not
stay  20 years to qualify for a retirement.  However, he contends
that  this  intent  was thwarted when Judge Card  considered  the
retirement  buyout  (minus a $10,000 deposit into  the  childrens
educational  accounts) to be included in his income  under  Civil
Rule  90.3.   Thus, Judge Card required him to set aside  twenty-
seven percent of the buyout for an educational fund and pay child
support  from  the  remainder  of his  buyout.   We  reject  this
argument because it is untimely.
          James failed to appeal Judge Cards 1995 ruling, letting
the   determination  stand  for  ten  years,  and  he   has   not
demonstrated  that  we  should reopen it.   When  James  and  Ann
litigated  Jamess motion for modification in 1994 and  1995,  the
parties addressed how the buyout should be used to support  their
children.    James   contended  that  the  settlement   agreement
specified  that  he need only place twenty-seven percent  of  his
buyout in educational accounts for the children.  Ann argued that
the  buyout should also be used to pay support when Jamess income
was temporarily reduced.
          After   Judge   Card   rejected   Jamess   motion   for
modification   largely  because  James  had  not  disclosed   the
retirement  buyout  in  his  motion  papers   James   moved   for
reconsideration,  ask[ing] the court to take  into  account  that
under [the settlement agreement,] [James] was required to put 27%
of  his  net income into an education fund for the children.   He
argued that, because of his lack of income, the courts refusal to
reduce his obligation would force him to dip into the educational
accounts.   In her opposition to Jamess motion, Ann  argued  that
the retirement buyout constituted income under Civil Rule 90.3.
          Judge  Card agreed with Ann that the retirement  buyout
was  income  under Rule 90.3.  He also interpreted the settlement
agreement  as  waiving  Anns rights to  a  percentage  of  Jamess
retirement   i.e., Ann waived her right to receive child  support
as  the  childrens custodian  in exchange for Jamess  promise  to
provide  a  college fund for the children.  The  court  concluded
that  this  bargain did not justify a reduction in the amount  of
child  support that should be paid.  Presumably this was  because
Judge Card believed that Jamess support obligation accorded  with
his  long term income, and that the buyout allowed James to  meet
this obligation without undue hardship even though his income was
temporarily  reduced.  The court did recognize that  the  $10,000
that  James  had claimed was deposited into educational  accounts
reduced  the funds available to James.  Consequently,  the  court
amended  its previous order to the extent that James could  apply
for a modification after twenty-four months.  James commenced  an
appeal of this order but later abandoned it.
          James  may  have  had a claim that the  superior  court
erred in concluding that James was both required to place $10,000
in  the educational accounts and that the retirement money  would
be  considered  income  for  the purposes  of  calculating  child
support.   But  the time to appeal was in 1995.   James  did  not
appeal,  instead  explicitly waiving  his  right  to  appeal  the
superior  courts  recent rulings on his motion  to  modify  child
support as part of the April 20, 1995 stipulation.  In return for
this  waiver,  James  received the relief he  wanted:  his  child
support obligations were reduced from $626 to $450 monthly.
          James abandoned his appeal, letting the superior courts
order stand.  The relief James seeks is now barred by the law  of
the   case.    This  is  the  principle  that  issues  previously
adjudicated   can   only  be  reconsidered  where   there   exist
exceptional circumstances presenting a clear error constituting a
manifest injustice. 5  James has not presented evidence of either
condition.   Although our doctrine of law of the  case  generally
refers  to  issues  that have previously  been  reviewed  at  the
appellate  level,  the doctrine is equally applicable  to  issues
that  have been fully litigated in the superior court and  as  to
which no timely appeal has been made.6
     B.   Paragraph 13 Is Sufficiently Definite To Be Enforced.
          James  contends  that paragraph 13  of  the  settlement
agreement is too indefinite to be enforced.  He argues:
          The parties never agreed on how to administer
          the   educational   fund.    There   was   no
          definition  of what educational purposes  the
          fund  is  to  be  used  for.   There  was  no
          mechanism for agreement on the use of  funds.
          .  .  .  There  is no way for  the  court  to
          determine   how  the  educational   fund   of
          paragraph  13 is to be administered,  and  it
          therefore cannot be enforced.
          
James is certainly correct that paragraph 13 does not specify how
the  educational  fund is to be administered or what  educational
purpose  it is designed to serve.  But this fact does not  render
the agreement too indefinite for enforcement.  We have previously
held  that  while  [v]agueness of expression, indefiniteness  and
uncertainty as to any of the essential terms of an agreement  may
prevent  the creation of an enforceable contract[,] . . .  courts
should  give legal effect to the intentions of the parties  where
necessary  to  reach  a  fair  and just  result.7   Moreover,  as
Professor Corbin has explained, [t]he fact that the parties  have
left  some  matters  to be determined in the  future  should  not
prevent  enforcement, if some method of determination independent
of a partys mere wish, will, and desire exists.8
          The  essential terms of the bargain  Ann forswears  her
right to the portion of Jamess retirement buyout (either as child
support  or as part of her share of the marital estate, or  both)
in  exchange for the creation of educational accounts with  those
funds  seem clear.  And the absence of agreed-upon procedures for
administering and distributing the educational funds  should  not
          be fatal to this bargain.  It seems reasonable to conclude that
the  parties would have deferred decisions regarding distribution
until  the  childrens educational needs were  more  apparent  (in
1992,  the  Dunlaps children celebrated their seventh and  second
birthdays).    Moreover,   Jamess   conduct   evinces   such   an
understanding: Upon opening the educational accounts in 1994,  he
stated  that  he would act as custodian and that the disbursement
would be left to the discretion of the children.
     C.   The Superior Court Did Not Err in Granting Judgment  to
          Ann.
          James  argues  that Judge Joannides erred  in  granting
judgment  to Ann because nowhere does [the settlement  agreement]
state  that  upon  default in the maintenance of the  educational
fund,  judgment is to be entered for the same amount in favor  of
Ann.   James contends that the courts decision to grant  judgment
to  Ann  erroneously filled a gap in the contract because [t]here
is  no  indication in the record that James would have agreed  to
the  entry  of  judgment  in Anns favor for  the  amount  of  the
educational fund.
          This  argument misconstrues the basis of the  judgment.
Although  a  contract may specify that, in case of  a  breach,  a
party  is  entitled  to a specific remedy, a  contract  need  not
expressly provide for a particular remedy in order for it  to  be
available.9   Thus  we reject Jamess argument that  the  judgment
constituted improper gap-filling.10
     D.   Ann  Was Not Equitably Estopped from Arguing that James
          Was  Obliged  To  Deposit $10,000 into the  Educational
          Fund.
          
          James  contends that Ann argued in 1995 and  1996  that
twenty-seven percent of his retirement buyout should be  used  to
pay  ongoing child support.  Consequently, he maintains that  Ann
has  waived the argument that twenty-seven percent of his  buyout
should have gone into educational accounts for the children.   He
also  claims that he relied on her arguments and cashed  out  the
educational  fund in order to meet his child support obligations.
Because  of this reliance, he argues that Ann should be equitably
estopped  from  arguing that he was obliged to  put  twenty-seven
percent  of his buyout into educational accounts.  Neither  claim
is persuasive.
            Contrary to Jamess assertion, the record contains  no
instance  where  Ann  argued that 27% of James[s]  severance  pay
should  be  used  to pay ongoing child support.  Though  she  did
state  that  the  retirement buyout should be used  to  calculate
Jamess  income, and that it would cushion any hardship  faced  by
James  in meeting his obligation, Ann never argued for a  twenty-
seven  percent  carve-out from Jamess retirement buyout  for  the
purpose of making child support payments.
          In  1995  and  1996, litigation between James  and  Ann
centered around three motions: Jamess November 25, 1994 motion to
modify the child support order, Anns March 2, 1995 motion to hold
James  in contempt, and Anns March 22, 1996 motion to modify  the
support  order.   In  regard to the first motion,  Ann  filed  an
opposition,   and   an   opposition   to   Jamess   motion    for
          reconsideration.  Ann did not argue in either opposition that
twenty-seven  percent of the buyout should be used to  pay  child
support.   Although she argued that Jamess present income  should
be  used to determine his adjusted income under Civil Rule  90.3,
she also maintained that she had no entitlement to [the buyout].
          Anns  affidavit in support of her motion to hold  James
in  contempt  under Civil Rule 90 did not mention the  retirement
buyout or the settlement agreement.  Anns affidavit in support of
her  motion  for  a modification of the child support  order  was
largely  focused on the fact that James was hired as a  full-time
postal  employee  in August 1995 and had become more  emotionally
stable.   And while she mentioned the retirement buyout, she  did
not  contend  that twenty-seven percent  $10,873  should  be  set
aside for child support.  Rather, she stated:
          With the severance payment of $57,000 [James]
          received  upon leaving the military  and  any
          interest earned as income resulting from  the
          severance payment, it should cause  no  undue
          hardship   on   [James]   to   support   this
          modification of payments.
          
          Because  the record contains no evidence of the alleged
arguments  upon  which Jamess motion is based, we  reject  Jamess
waiver and equitable estoppel arguments.
V.   CONCLUSION
          James  is  precluded  from challenging  his  obligation
under  the  settlement agreement by his failure to  appeal  Judge
Cards March 12, 1995 order.  Additionally, Jamess other arguments
that  paragraph 13 is too indefinite to be enforced;  that  Judge
Joannides  erroneously filled a gap in the contract  by  awarding
judgment  to  Ann;  and  that Ann had  waived  or  was  equitably
estopped from claiming that James was obliged to deposit  twenty-
seven  percent of his retirement buyout into educational accounts
lack  merit.   For  these reasons, we AFFIRM  the  order  of  the
superior court.

_______________________________
     1     Although the agreement called for James to deposit 27%
of   the  net  into  the  education  fund,  the  $10,000  payment
represented  only  24.8%.   James  stated  that  he   spent   the
difference ($670) on the childrens summer vacation.

     2    Twenty-seven percent is the applicable support rate for
two children.  Alaska R. Civ. P. 90.3(a)(2)(B).

     3    Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998).

     4    Beal v. Beal, 88 P.3d 104, 111 (Alaska 2004).

     5    State, Commercial Fisheries Entry Commn, v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (quoting Patrick v. Sedwick, 413 P.2d
169,  173-74  (Alaska  1966) and Alaska Diversified  Contractors,
Inc.  v.  Lower Kuskokwim Sch. Dist., 778 P.2d 581,  583  (Alaska
1989)).

     6     See  Hermosillo  v. Hermosillo, 797  P.2d  1206,  1208
(Alaska  1990) (presentation, in 1989, of motion nearly identical
to motion denied in 1988 constituted untimely appeal).

     7     George  v.  Custer, 862 P.2d 176,  179  (Alaska  1993)
(quoting  Stenehjem  v. Kyn Jin Cho, 631 P.2d  482,  485  (Alaska
1981)).

     8     1  Joseph M. Perillo, Corbin on Contracts  4.1, at 536
(1993).

     9    See generally Restatement (Second) of Contracts  344-45
(1981).

     10    James does not discuss the slight incongruity that his
failure to provide a benefit for his children was remedied by  an
award to his ex-wife.  Since James has not raised this issue,  we
do  not  resolve it.  We note, however, that Ann  appears  to  be
bearing  some  of the costs of her sons education and  the  award
might  be  viewed as  restitutionary.  Moreover, superior  courts
are  given  discretion  to  enforce an  order  dividing  property
following divorce.  Beal v. Beal, 88 P.3d 104, 110 (Alaska 2004).
The  superior  court  may have concluded that  the  best  way  of
enforcing the settlement agreement was to award a judgment to Ann
as opposed to her son.

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