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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brotherton v. Brotherton (09/01/2006) sp-6039

Brotherton v. Brotherton (09/01/2006) sp-6039, 142 P3d 1187

     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


DOUGLAS WAYNE )
BROTHERTON, ) Supreme Court No. S- 11852
)
Appellant, ) Superior Court No.
) 3AN-94-01210 CI
v. )
) O P I N I O N
TAHNI WARNER BROTHERTON, )
) No. 6039 - September 1, 2006
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Herbert M. Pearce,  Law  Office
          of   Herbert   M.   Pearce,  Anchorage,   for
          Appellant.  Tahni Warner Brotherton, pro  se,
          Anchorage, Appellee.

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

          FABE, Justice.

I.   INTRODUCTION
          Parties  to  a  divorce proceeding appear  before  this
court  for  the third time to resolve a debt arising out  of  the
marital property division first made in 1995.  The superior court
ordered Douglas Brotherton to pay to Tahni Brotherton a sum equal
to  one-half  interest in the Wasilla property  coupled  with  an
interest  rate  of  10.5%.  Douglas appeals on the  grounds  that
Tahni  did  not obtain a writ of execution within five years  and
did  not  have just and sufficient reasons to justify her failure
to  do  so. Douglas also appeals the 10.5% post-judgment interest
rate  and  the  date  from which it is to be  calculated.   Tahni
additionally  seeks to appeal the superior courts denial  of  her
request  that  Douglas be required to pay a debt  still  owed  to
Tahnis  mother.   We affirm the superior courts  rulings  on  all
issues.
II.  FACTS AND PROCEEDINGS
          Douglas Brotherton and Tahni Brotherton were married in
1981,  separated  in  1991,1 and divorced pursuant  to  a  decree
entered  in April 1995.  Tahni asked for alimony but the superior
court  determined that the most appropriate way to  deal  with  a
request  for  alimony is to consider all of the property  of  the
parties,  including the $33,800 equity in Douglas[s]  pre-marital
property in Wasilla.  The Wasilla property is a five-acre  parcel
of  land  with  a  mobile home trailer that  generates  a  rental
income.   It  was bought by Douglas approximately sixteen  months
before Douglas and Tahni were married.
          In  the  original divorce decree issued in April  1995,
Tahni  was  awarded  [o]ne-half of  the  equity  of  the  Wasilla
property  having  a  fair  market value  of  $16,  900.   Douglas
appealed the divorce decree on a number of issues, including  the
invasion of his premarital property,2 to this court.  We issued a
decision (Brotherton I) in which we held that the superior  court
must clarify whether the Wasilla property was marital or separate
property.3   The  status  of  the Wasilla  property  was  unclear
because  while the superior court called it premarital  property,
evidence  also  showed  that the mortgage  had  been  paid  using
marital funds.4
          In  its order on remand of April 14, 1998, the superior
court  concluded  that the Wasilla property was marital  property
because during the time the couple was together, marital funds in
the  approximate amount of $22,318 were used to pay the  mortgage
payments,  the parties jointly managed the property, and  Douglas
treated the property as a joint holding.  Tahni was again awarded
$16,900,  representing  her half of the  equity  in  the  Wasilla
property.
          Douglas filed a motion for reconsideration on April 23,
1998,  which  was denied in full on May 15, 1998.   Douglas  then
appealed again to this court on June 12, 1998; during this appeal
the  parties stipulated to have the trial court review the matter
one  more time to correct errors contained in the first order  on
remand.   The  trial  court entered a  new  order  on  remand  on
February  10,  1999, in which an arithmetic error  was  corrected
such  that Tahni was awarded $15,600 as her portion of the equity
in the Wasilla property.
          Douglas again appealed this result to this court and we
issued a memorandum opinion and judgment (Brotherton II) on March
1, 2000.5  We affirmed the superior court because Douglas did not
provide  any evidence to demonstrate that the superior court  had
erred  in its determination that the Wasilla property was marital
property.  We denied Douglass petition for rehearing on March 22,
2000.   The  order upon conclusion of appeal was  issued  by  the
superior court on April 4, 2000.
          Tahni  did  not  file a motion for  entry  of  judgment
concerning  the  Wasilla property until October  21,  2004.   Her
motion  asked for the amount of $15,600 plus accrued interest  at
10.5%  effective from April 18, 1995.  In the same motion,  Tahni
asked  for the amount of $10,600 plus accrued interest  at  10.5%
that Douglas owed to her mother, Wanda M. Warner, pursuant to the
trial  courts findings of fact and conclusions of law dated April
18, 1995.  Douglas opposed Tahnis motion for entry of judgment on
the  basis  that: (1) Tahni was seeking to execute on a  judgment
more than five years old; and (2) Tahni was seeking to collect on
a promissory note on her mothers behalf.
          No hearing was held in this matter.  The superior court
issued its order on February 1, 2005.  The superior court granted
Tahnis  motion for entry of judgment on her own behalf, reasoning
that   [Tahnis] failure to obtain a writ of execution within five
years  after the judgment entered in the divorce case in 1995  is
understandable given the high level of animosity in the case  and
the  fact  that the case was appealed and was not affirmed  until
2000.   The  superior court also found that there  are  just  and
sufficient reasons for Ms. Brotherton to have failed to obtain  a
writ  of  execution  earlier.   The superior  court  additionally
determined  that  Ms. Brotherton is entitled to interest  at  the
rate  of 10.5%. Tahnis motion to collect a debt on behalf of  her
mother was denied.
          Douglas  now  appeals  the trial courts  grant  of  the
motion  for  entry  of  judgment, award of  10.5%  interest,  and
determination  of  the  date from which the  interest  should  be
calculated.  In her brief, Tahni appears to contest the denial of
her  motion  on behalf of her mother.  But because  she  did  not
timely  file  an  appeal  or cross-appeal,  that  matter  is  not
properly before the court.6
III. STANDARD OF REVIEW
          This  court  exercises  its independent  judgment  when
interpreting  and  applying  statutes  of  limitation.7    Alaska
statutes  do  not  impose  a definitive time  limitation  on  the
commencement  of  executions of judgment.8   But  if  a  judgment
creditor seeks execution upon a valid judgment after five  years,
just and sufficient reasons must be demonstrated for the delay.9
          The  superior courts decision to allow execution  on  a
judgment more than five years old is a mixed question of law  and
fact.  Questions of law are reviewed de novo.10  Questions of fact
are  reviewed under the clearly erroneous standard.11  But if the
facts  are  undisputed, then this court may employ an independent
standard  of  review and apply a legal doctrine  to  those  facts
without deferring to the trial court.12
IV.  DISCUSSION
     A.   Tahnis  Motion  for  Entry  of  Judgment  Was  Properly
          Granted.
          The  main  question in this case is whether  Tahni  had
presented  to the superior court just and sufficient reasons  for
her failure to obtain a writ of execution within five years after
the   entry   of  judgment.13   The  question  is   governed   by
AS 09.35.020, which provides:
          When a period of five years has elapsed after
          the   entry   of  judgment  and  without   an
          execution  being issued on the  judgment,  no
          execution  may issue except by order  of  the
          court  in  which  judgment is  entered.   The
          court  shall  grant the motion if  the  court
          determines that there are just and sufficient
          reasons for the failure to obtain the writ of
          execution  within five years after the  entry
          of judgment.
          
In  Dean, we construed this statute to require a showing of  good
cause  for  delay  in execution.14  Alaska Statute  09.35.020  is
implemented by Civil Rule 69(d).15


          In its order granting Tahnis motion, the superior court
found  two reasons for Tahnis delay that it considered  just  and
sufficient: (1) the high level of animosity in this case; and (2)
the  fact  that the case was appealed and was not affirmed  until
2000.  Douglas disputes that either reason constitutes a just and
sufficient  reason for Tahnis delay.  We disagree and  hold  that
the  first  reason  is a factual determination  well  within  the
superior  courts discretion and that the second  is  a  just  and
sufficient reason as a matter of law.
          Douglas    first   disputes    the   superior    courts
determination that Tahnis delay was justified by the  high  level
of  animosity  in  the  case  by noting  that  [h]igh  levels  of
animosity are present in many of the [divorce] cases that end  up
going  to trial.  But there is sufficient evidence in the  record
to  support the superior courts finding that Tahnis delay was due
to  the  acrimonious  relationship  between  the  parties.   Both
parties  have  had ongoing conversations about and  attempted  to
come  to  agreement about the debt in the past.   It  remains  in
dispute  whether Tahni in fact forgave the debt.  There has  been
at least one settlement negotiation meeting in Douglass attorneys
office  concerning  the  divorce  decree  and  the  parties  have
attended  therapeutic counseling.  In addition, as  Tahni  points
out,  she deferred enforcement action since 2000, as [she] feared
for  the  consequences it would have on [their] already fractured
relationships,  especially the effects it might have  on  [their]
children.   The  parties have engaged in an  ongoing  and  bitter
custody  dispute  with  hearings before  the  superior  court  as
recently   as  January  2005.   The  record  contains   materials
pertaining  to the custody case indicating that the parties  have
found little common ground.  Thus, the superior court did not err
in determining that Tahnis delay was excused given the high level
of animosity in the case.
          Douglas  also  disputes  the  superior  courts   second
finding,  that  Tahnis  delay was excused because  the  case  was
appealed  and  was  not  affirmed until  2000.   Implicitly,  the
superior court found that waiting until all appeals are exhausted
is  in  itself  a just and sufficient reason for  delay  for  the
purposes of AS 09.35.020.  We agree with the superior court.
          In  this case, it is undisputed that Douglas vigorously
          appealed the award of one-half of the equity in the Wasilla
property until all avenues of appeal were exhausted.16  It  is  a
general  rule that a judgment creditor executes on a judgment  at
his  or  her  peril while appeals are pending because any  monies
received  in  excess of the final amount of  the  award  must  be
returned.17  In this case, as Tahni points out, she was uncertain
of  the  status of the award as well as the amount of  the  award
until  all avenues of appeal were exhausted.  Indeed, the  dollar
amount  of  the  award  had  already been  reduced  once.   Tahni
therefore had reason to wait until the appeals were exhausted and
she  was certain of the amounts due her before executing  on  the
judgment.  And Tahnis delay did not prejudice Douglas,  since  it
is  difficult  for the person who is appealing  to  claim  unfair
surprise  when  the  opposing party executes  upon  the  judgment
within  five  years  of  the appeal.18   In  short,  waiting  for
exhaustion  of  the  appeals  process  before  executing  on  the
judgment constitutes a just and sufficient reason to excuse delay
and strikes a proper balance of rights and duties of both parties
implicit in the language of AS 09.35.020.19
          We  therefore hold that the superior courts decision to
          allow execution was well within its discretion and that
          waiting  until the appeals process is exhausted  before
          moving  for execution of judgment provides a  just  and
          sufficient  reason to excuse delay. B.   The  Award  of
          Interest Was Proper.
          The  superior court also stated that Tahni was entitled
to  interest at the rate of 10.5%.  Douglas disputes this rate of
interest, arguing that when we reversed and remanded the original
1995 award to Tahni and the superior court entered a new judgment
on  remand in 1999, the 1999 date became the effective  date  for
the  purposes  of calculating interest.  And while the  statutory
interest  rate for money judgments before 1997 was fixed  at  the
rate of 10.5%, after 1997, interest is to be calculated in accord
with AS 09.30.070.20  If Douglass argument were correct, he would
only owe 7.5% interest if it were calculated from 1999.21
          As  an  initial matter, we note that Douglas has likely
waived  this  argument.  Civil Rule 69(d)(3)  states  that  [t]he
judgment  debtor  waives all defenses and  objections  which  the
judgment  debtor  does not present by answer as herein  provided.
In  this case, Douglas, although represented by a lawyer, did not
dispute the interest amount in his response to Tahnis motion  for
entry of judgment.
          But  even  assuming  that Douglas had  not  waived  his
objection  to the award of interest, his argument has  no  merit.
He  bases his argument merely on the  request that Tahni  not  be
allowed to benefit financially from her lack of diligence and  on
other concerns of injustice.  But Alaska has a clear rule on  the
effect  of  modification or reversal of a  judgment  on  interest
calculations.  Alaska Rule of Appellate Procedure 509 provides:
          If  a  judgment for money in a civil case  is
          affirmed, interest at the rate prescribed  by
          law  shall be payable from the effective date
          of  the judgment of the trial court. If in  a
          civil case a judgment is modified or reversed
          with directions that a judgment for money  be
          issued  by the trial court, interest  on  the
          new  judgment at the rate prescribed  by  law
          shall  be payable from the effective date  of
          the  prior  judgment which  was  modified  or
          reversed.
          
Thus,  if  an appeal modifies or reverses a judgment and  directs
that  a  judgment  for money be issued by the  trial  court,  the
interest  is  to  be  calculated from the date  of  the  original
judgment entered by the trial court.
          In  this  case, this court reversed the superior  court
and  remanded for a clarification of the findings with regard  to
the  Wasilla  property,  and  any necessary  adjustments  to  the
distribution resulting from these issues and the courts treatment
of the reduction of the marital debt.22  That language amounts to
a reversal with directions that a judgment for money be issued by
the  trial  court  and,  following the  direction  of  Rule  509,
interest at 10.5% is thus to be calculated from the date  of  the
original judgment of April 18, 1995.
V.   CONCLUSION
          We  AFFIRM  the rulings of the superior  court  on  all
issues.
_______________________________
     1     Brotherton v. Brotherton, 941 P.2d 1241, 1243  (Alaska
1997) (Brotherton I).

     2    Id.

     3    Id. at 1246-47.

     4    Id.

     5     Brotherton  v.  Brotherton, Mem.  Op.  &  J.  No.  957
(Alaska, March 1, 2000) 2000 WL 34545647.

     6     See  Alaska R. App. P. 204; Alaska Brick Co. v. McCoy,
400  P.2d  454,  457  (Alaska 1965) (Orderly procedure  will  not
permit an appellee to attack a judgment for the first time in his
brief in the appellants appeal.).

     7    Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999).

     8    AS 09.35.020.

     9     Id.;  Alaska R. Civ. P. 69(d); State, Dept of Revenue,
Child  Support Enforcement Div. ex rel. Inman v. Dean,  902  P.2d
1321, 1324-25 (Alaska 1995).

     10    Moody-Herrera v. State, Dept of Natural Res., 967 P.2d
79, 82 (Alaska 1998).

     11    Id.

     12    Guttchen v. Gabriel, 49 P.3d 223, 226-27 (Alaska 2002)
(holding that just and sufficient reasons existed as a matter  of
law  where  both  parties had the opportunity  to  present  their
positions  to  the  superior court in memoranda  and  affidavits,
neither  party  requested  an  evidentiary  hearing  before   the
superior court, and the critical facts surrounding the issue were
undisputed);  Foss Alaska Line, Inc. v. Northland  Servs.,  Inc.,
724 P.2d 523, 526 (Alaska 1986) (noting that we may apply a legal
doctrine  to  undisputed facts without deferring to the  superior
court).

     13    Tahni additionally claims that the five-year period for
execution of judgments under AS 09.35.020 should be measured from
the  date the superior court issued its order upon the conclusion
of  the appeal on April 4, 2000.  But in Alaska, absent a stay or
supersedeas bond, an appeal does not in itself prevent  execution
on  a domestic judgment.  Alaska R. App. P. 204(d) & 603; Liberty
Natl Ins. Co. v. Eberhart, 398 P.2d 997 (Alaska 1965).

     14      902   P.2d  at  1324.   In  Dean,  we  stated   that
administrative efforts to collect past-due support  payments  and
evidence  of previous attempts to execute might show good  cause.
Id. at 1325.  In Magdan v. Alaska USA Fed. Credit Union, we added
that delay was excused if execution on a judgment would be futile
because  no assets were available to be executed upon.   36  P.3d
659,  662  (Alaska 2001).  In Guttchen, we determined that  delay
was  justified when the party opposing the execution of  judgment
was  in  control of the preconditions to the filing of the motion
to execute.  49 P.3d at 227.

     15    Civil Rule 69(d) provides in relevant part:

               Execution After Five Years.  Whenever  a
          period of five years shall elapse without  an
          execution  being  issued on  a  judgment,  no
          execution shall issue except on order of  the
          court in the following manner:
          
               (1)  The judgment creditor shall file  a
          motion supported by affidavit with the  court
          where  the judgment is entered for  leave  to
          issue an execution.  The motion and affidavit
          shall  state the names of the parties to  the
          judgment, the date of its entry, the  reasons
          for failure to obtain a writ for a period  of
          five  years and the amount claimed to be  due
          thereon  or the particular property of  which
          possession  was  adjudged  to  the   judgment
          creditor remaining undelivered.
          
               (2)    Upon   filing  such  motion   and
          affidavit the judgment creditor shall cause a
          summons  to be served on the judgment  debtor
          in  accordance with the provisions of Rule 4.
          In the event the judgment debtor is deceased,
          the  summons may be served upon the  judgment
          debtors  representative.  The  summons  shall
          state  the  amount claimed  or  the  property
          sought to be recovered under the judgment.
          
               (3)   The  judgment debtor, or,  in  the
          event  of  the  judgment debtors  death,  the
          judgment debtors representative, may file and
          serve a verified answer to such motion within
          the  time  allowed  to  answer  a  complaint,
          alleging any defense to such motion which may
          exist.   The judgment creditor may  file  and
          serve  a verified reply to such answer.   The
          judgment  debtor  waives  all  defenses   and
          objections which the judgment debtor does not
          present by answer as herein provided.
          
     16    Douglas appealed the entirety of the property division
to this court (Brotherton I, 941 P.2d at 1241); filed a motion to
reconsider the superior courts order on remand, which was denied;
filed  another  appeal to this court resulting  in  an  order  on
remand for entry of a corrected order on remand; further appealed
that order to this court, resulting in our memorandum opinion and
judgment  of  March 1, 2000 (Brotherton, Mem. Op. &  J.  No.  957
(Alaska, March 1, 2000) 2000 WL 34545647); and finally filed  for
and  was  denied  a  petition for rehearing  of  that  memorandum
opinion and judgment.

     17    5 Am. Jur. 2d Appellate Review  433.

     18    Douglas argues that this reasoning implies that parties
to a divorce with contested custody actions would not be required
to  execute on a judgment as long as there was pending litigation
between  the parties.  But we note that Tahnis delay was not  due
to  just any lawsuit between the parties, but to repeated appeals
of the very monetary award at issue.

     19     Statutes of limitations attempt to strike  a  balance
between ensuring that claimants have enough time to file a  claim
and  protecting persons from due process concerns that arise when
subjected  to stale charges.  Long v. Holland Am. Line  Westours,
Inc.,  26  P.3d 430, 434 (Alaska 2001).  In this context,  it  is
noteworthy that AS 09.35.020 does not impose a definitive statute
of  limitations  on  the execution of judgments  but  leaves  the
balancing  of  rights  and  duties between  the  parties  to  the
discretion of the trial court.

     20     See ch. 26,  18, 19, SLA 1997; Marine Solution Servs.
v.  Horton,  70  P.3d  393,  415  (Alaska  2003).   AS  09.30.070
provides, in relevant part:

          [T]he  rate  of  interest  on  judgments  and
          decrees  for the payment of money,  including
          prejudgment  interest,  is  three  percentage
          points   above   the  12th  Federal   Reserve
          District discount rate in effect on January 2
          of  the  year in which the judgment or decree
          is entered[.]
          
     21    See Alaska Court System, How to Determine Pre- and Post-
Judgment Interest Rates, http://www.state.ak.us/courts/int.htm.

     22     Brotherton, 941 P.2d at 1248.

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