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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Williams (09/08/2006) sp-6043

Williams v. Williams (09/08/2006) sp-6043, 143 P3d 949

     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

MELANIE GINN-WILLIAMS, )
) Supreme Court No. S- 11927
Appellant, )
) Superior Court No.
v. ) 3AN-04- 3449CI
)
CHANNING O. WILLIAMS, ) O P I N I O N
)
Appellee. ) No. 6043 - September 8, 2006
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,  Sharon   L.
          Gleason, Judge.

          Appearances:  Melanie Ginn-Williams, pro  se,
          Anchorage,   Appellant.   No  appearance   by
          Appellee.

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

          BRYNER, Chief Justice.
                         
I.   INTRODUCTION
          Melanie Ginn-Williams and Channing O. Williams divorced
after  five  years of marriage.  At their trial, they  agreed  to
share  legal custody of their children and acknowledged that  the
superior courts acceptance of their agreement would be final  and
binding.   On appeal, Ginn-Williams challenges the courts  denial
of  her  motion to reconsider the shared legal custody  award  in
light of new evidence offered to show that Williams had a history
of  domestic  violence   evidence that  might  have  triggered  a
statutory  presumption disqualifying Williams from sharing  legal
custody.   Ginn-Williams also questions the  courts  decision  to
award  Williams  a  dependency exemption for their  son  (who  is
living  with her, not with Williams), and its decision  to  treat
two  debts as marital property.  We affirm, holding: (1)  because
Ginn-Williams   offered  no  evidence  of  changed  circumstances
affecting  the  childrens  best  interests,  the  superior  court
properly  declined to reconsider its joint legal  custody  award;
(2)  the disputed dependency exemption complies with federal  and
state law, even though Williams is a noncustodial parent; and (3)
substantial  evidence  supports the superior  courts  rulings  on
marital debt.
II.  FACTS AND PROCEEDINGS
          Melanie  Ginn-Williams and Channing O. Williams married
in  1999  and  separated  in  August 2002.   Their  two  children
remained  with  Ginn-Williams,  and  the  parties  made  informal
arrangements  for  visitation by Williams.   Williams  filed  for
divorce in January 2004; the parties then engaged in some marital
counseling.   By October 2004, the parties efforts  to  reconcile
had  apparently  stalled,  and Superior  Court  Judge  Sharon  L.
Gleason scheduled the case for a trial to begin in January  2005.
Judge  Gleason tried the case in three separate hearings held  in
January,  March,  and April 2005. Throughout the  superior  court
proceedings, both parties appeared pro se.
          At   the   January  2005  hearing,  the  court   mainly
considered issues of custody and visitation.  The parties arrived
at  an  agreement  that  allowed Ginn-Williams  to  keep  primary
physical  custody  of  both  children, established  a  visitation
schedule  for  Williams, and provided for shared  legal  custody.
After  finding  the  agreement  to  be  in  the  childrens   best
interests, the superior court accepted it as a final and  binding
determination of the custody issues.
          Less  than  a  week  later,  Ginn-Williams  moved   for
reconsideration of the decision allowing Williams to  have  joint
legal  custody, alleging for the first time that Williams  had  a
history  of domestic violence and that, under a recently  enacted
law,  the  court  was  obliged to consider  this  history  before
deciding the legal custody issue.
          At  the  March 2005 hearing, the superior court  denied
Ginn-Williamss motion for reconsideration, declining  to  revisit
its  shared-legal-custody order.  The court noted that the  order
reflected  a  voluntary and binding agreement; that both  parties
had  acknowledged  that the agreement would be in  the  childrens
best    interests;   and   that   Ginn-Williamss    motion    for
reconsideration  failed  to make any showing  that  shared  legal
custody  would  prove unworkable or that it might not  serve  the
childrens best interests.
          Apart from denying the motion for reconsideration,  the
court  mainly used the March hearing to address issues  of  child
support.  After it became clear that neither party had all  their
required  financial  documentation, the court  postponed  further
consideration  of child support until early April,  when  another
hearing  had  already  been set to consider  unresolved  property
issues.
          The  court  resolved  the  remaining  issues  of  child
support  and  property division at the April  2005  hearing.   It
decided, among other things, that Williams could claim a  federal
income tax dependency exemption for the couples older child; that
the  second mortgage for the parties marital home was  a  marital
debt; and that an automobile loan the parties had received to buy
a   minivan  was  also  a  marital  debt.   The  superior   court
incorporated these rulings in the divorce decree.
          Ginn-Williams now appeals.1
III. DISCUSSION
     A.   Denial of Motion To Reconsider Legal Custody Award
          Ginn-Williams initially challenges the superior  courts
order  denying  her  motion  to reconsider  the  courts  decision
awarding  joint  legal  custody, resting  her  challenge  on  the
evidence she presented below to show that Williams had a  history
of  domestic violence.  Ginn-Williams argues, as she  did  below,
that  the  court  was required to consider this evidence  because
recently  enacted amendments to AS 25.24.150 create a  rebuttable
presumption  that  a  parent who has a  history  of  perpetrating
domestic  violence against the other parent . .  .   may  not  be
awarded . . . joint legal custody[.]2
          Our  review  of  the  record  convinces  us  that  this
argument  is  unpersuasive.3  At the outset of the  January  2005
hearing,  the superior court and the parties informally discussed
custody  and  visitation issues with a view  toward  reaching  an
agreement.  Neither party had expressed any interest in  altering
the  existing  physical custody arrangement,  under  which  Ginn-
Williams  exercised  primary custody  of  both  children.   Ginn-
Williams   and  Williams  eventually  agreed  upon   a   detailed
visitation  schedule for Williams.  The court then  informed  the
parties  that  they  also needed to address the  issue  of  legal
custody,  which neither Ginn-Williams nor Williams had  evidently
specifically addressed.  After the court described the concept of
legal custody and explained what it actually entails, the parties
agreed upon shared legal custody.
          Since  the parties seemed to have agreed on all custody
and  visitation issues, Judge Gleason proceeded to summarize  the
agreements  terms.  The judge then formalized  the  agreement  by
placing  Ginn-Williams and Williams under oath,  asking  each  of
them  separately  whether  they  understood  the  agreement,  and
inquiring  whether both parties believed that it would serve  the
childrens  best  interests.   Williams  answered  yes   to   both
questions.   Ginn-Williams initially hesitated,  expressing  some
reservations  regarding  Williamss  ability  to  abide   by   the
visitation schedule; but after discussing her concerns with Judge
Gleason   and   receiving  further  clarification,  Ginn-Williams
assured  the judge that she understood the agreement, was willing
to  try  it, and believed that it would serve the childrens  best
interests.
          Judge  Gleason then addressed the parties once more  to
ensure that they understood the agreement and accepted its terms;
the judge emphasized that, once the court accepted the agreement,
it  would  be pretty much in concrete  final and binding.   Ginn-
Williams  and  Williams  both  reassured  the  court  that   they
understood,  and  believed that the agreement  would  be  in  the
childrens  best interests.   Judge Gleason then gave  the  courts
formal approval: All right, then, it sounds like youve got . .  .
          a final and binding agreement of the custody issues.
          Five  days  after the January 26 hearing, Ginn-Williams
filed  a  motion  to reconsider the order granting  shared  legal
custody.   Although  neither party had previously  mentioned  any
domestic violence problems and their pleadings were silent on the
issue,4  Ginn-Williams alleged that the parties had a history  of
domestic  violence  in  their relationship  and  that  under  the
recently enacted provisions of AS 25.24.150(g), the court  should
have  considered  this history before entering the  shared-legal-
custody order.
          Judge  Gleason addressed Ginn-Williamss motion  at  the
next hearing, on March 7, 2005.  After noting Alaskas traditional
preference for keeping both parents involved in the limited types
of  basic  decisions encompassed by the right to  exercise  legal
custody,  the  judge asked, I guess my question is:  why  do  you
think  that you and Mr. Williams couldnt make that type of  those
types   of   decisions  together?   In  response,   Ginn-Williams
disclosed  that, upon recently visiting the family law self  help
center, she had realized that, because Williams had a history  of
domestic violence, the new law would not allow him to have  legal
custody.   Ginn-Williams  went on to say  that  the  trouble  she
foresaw with shared legal custody was that, during the period  of
their  separation, Williams had been hard to reach  and  slow  to
answer when questions arose concerning the children:  Now, we  do
not get along.  If I call him, it takes him three or four days to
return the phone call.  For any decision.
          Judge  Gleason  expressed  doubt  as  to  whether   the
recently  amended  law  would  apply,  noting  that  the  alleged
incidents of domestic violence had occurred before the amendments
effective   date.   The  judge  then  proposed  a   middle-ground
arrangement  that  would enable both parents  to  participate  in
decisions concerning the childrens school and their medical care,
while  giving Ginn-Williams authority to make those decisions  on
her  own  if Williams proved to be non-responsive or unavailable.
When  asked,  Is  that something you might see as workable  here?
Ginn-Williams replied, That might be workable, cause, I mean,  in
past and present I have called him, tried to involve him, and  it
just  takes  him days to be back with me[.]  But when pressed  to
decide whether she might be willing to try a shared legal custody
arrangement  that would give her the final say if  you  tried  to
reach  him and . . . you couldnt . . . hear back from him,  Ginn-
Williams answered that she would rather just be able to make  the
decision myself.
          After   considering  Ginn-Williamss   position,   Judge
Gleason  decided  to  deny  the motion to  reconsider  the  legal
custody  order.  In reaching this decision, Judge Gleason pointed
out  that  her order incorporated an agreement that both  parties
had  accepted as a workable resolution of the legal custody issue
a resolution that would be in their childrens best interests.  At
the same time, the judge emphasized that she would be willing  to
revisit  the  issue if she saw any sign that the  shared  custody
arrangement might actually be turning out to be problematic:
          [W]hat Ive said is that, if this doesnt work,
          were  going to change it. But if it can work,
          your  children  are going to be  better  off.
          And I am going to rely on your testimony that
          you  thought it could work.  And it,  and  it
          effectively has. . . . [T]he two of you  have
          been separated for two and a half years,  and
          I  can only assume thereve been difficulties,
          I   mean  most  people  separating  have  had
          difficulties.  But . . . what I see from  the
          two  of you is very little which . . .  means
          that I have higher hope for your ability, for
          your childrens sake, to work things out.  But
          if  you  cant,  were going to  make  changes.
          Thats  thats what I am saying here.
          
          Judge  Gleason  further expressed the opinion  that  AS
25.24.150(g)  did not preclude this conclusion.   In  the  judges
view,  the new statute did not automatically override the parties
agreement  and,  in  any event, it might not  apply  to  domestic
violence occurring before its enactment.5
          On this record, we conclude that Ginn-Williamss belated
attempt  to invoke AS 25.24.150(g), did not require the court  to
reopen  the  legal custody issue.  At the January 26 hearing  the
court  had  resolved  all  pending custody  issues  based  on  an
agreement that both parties believed would be workable and  would
serve   their   childrens  best  interests.    When   the   court
incorporated the agreement in its custody decision, Ginn-Williams
understood  that the custody ruling would be final  and  binding.
Her  subsequent motion for reconsideration did not  dispute  this
point; nor did it assert that she had acted involuntarily or that
she had been pressured, confused, or misled in any respect.
          To  be  sure,  Ginn-Williams did contend at  the  March
hearing  that  she had been unaware of the new domestic  violence
provision  when  the agreement was accepted.  But  the  new  laws
existence  did  not  by  itself amount to a changed  circumstance
requiring  the  court  to  revisit  its  decision.   As   already
mentioned,  before  filing her motion for reconsideration,  Ginn-
Williams never alleged that domestic violence played any role  in
the  parties  divorce or that it might have  any  effect  on  the
pending  custody issues.  Moreover, as the superior court  noted,
during  their  two-plus  years  of  pre-divorce  separation,  the
parties  had managed to share legal custody of their children  on
an  informal  basis  without ever encountering an  insurmountable
problem.
          And even after alleging that Williams had a history  of
domestic  violence, Ginn-Williams never established  any  obvious
link  between  Williamss  alleged history  of  violence  and  her
reasons for wanting to have sole legal custody.  To the contrary,
the  potential problems Ginn-Williams predicted at  the  March  7
hearing  were  essentially  the same ones  she  described  before
agreeing to share legal custody at the January 26 hearing: during
their  two years of separation, Williams had simply been hard  to
reach  and slow to respond when questions concerning the children
arose.
          Considering the totality of these circumstances, we see
          no legal error or abuse of discretion in the superior courts
refusal to reopen its custody determination on the sole basis  of
the   new  statutes  existence.   Alaska  law  has  traditionally
encouraged parties to resolve custody disputes amicably,6 and  we
have  rarely hesitated to enforce parties custody agreements when
they appeared to further the childrens best interests.7  Based on
a careful consideration of the evidence before her, Judge Gleason
had expressly found that the parties agreement in this case would
serve  the  childrens best interests. Having made that  decision,
Judge  Gleason  could  properly find that,  absent  any  apparent
connection between Williamss alleged history of domestic violence
and  Ginn-Williamss reasons for seeking sole legal  custody,  her
late  invocation of AS 25.24.150(g) did not justify restructuring
the parties final and binding agreement.8
     B.   Award of Dependency Exemption to Williams
          Ginn-Williams  next  challenges  the  superior   courts
decision  to  allow  Williams to claim a federal  tax  dependency
exemption  for  the  couples son, who lived  with  Ginn-Williams.
She  claims that this ruling violates federal law.  Specifically,
Ginn-Williams argues that under federal law only primary physical
custodians can lawfully claim dependency exemptions.
          But  this  claim  lacks merit.  The  federal  tax  code
provisions that directly control this issue are 26 U.S.C.  151(c)
and 152(e).9  Subsection 151(c) specifically allows an individual
taxpayer to claim an additional exemption for each individual who
is  a  dependent, as that term is defined in  152.10   Subsection
152(e)(1), in turn, defines a dependent to include a child  of  a
noncustodial  divorced parent who (a) is primarily  supported  by
the income of one or both divorced parents; (b) lives with one or
both  of the parents for more than one-half of the year; and  (c)
meets  the  requirements  of   152(e)(2).   Subsection  152(e)(2)
provides  that  its requirements will be met for  a  noncustodial
parent  of  a child if that parties divorce decree provides  that
the  noncustodial  parent  shall be  entitled  to  any  deduction
allowable under section 151 for such child.11
          Here,  the divorce decree issued by the superior  court
expressly  provided that, after 2004, Williams would be  entitled
to receive the additional exemption allowed under  151(c):
          Ms.  Ginn-Williams is entitled to claim  both
          of  the  children as dependents on  her  2004
          federal   income  tax  return.    Thereafter,
          Father may claim the parties older child as a
          dependent  so long as he is not more  than  4
          months   in  arrears  on  his  child  support
          obligation  as of December 31 for that  year.
          When  the parties oldest child can no  longer
          be  claimed as a dependent, the parties shall
          alternate claiming the parties younger child,
          with  Ms.  Ginn-Williams to be able to  claim
          that child first.
          
          Williamss son was thus a qualifying child who could  be
claimed   as  a  dependent  by  his  noncustodial  parent   under
152(e)(1),  since: (a) the child was primarily supported  by  the
          income of one or both divorced parents; (b) the child lived with
one  or  both of his parents for more than one-half of the  year;
and (c) the divorce decree met the requirements of  152(e)(2)  in
other  words, the decree expressly allowed Williams to  have  the
exemptions.
          Ginn-Williams  separately claims  that  the  dependency
exemption  fails  to  comport with Alaska  law  by  violating  AS
25.24.152.   But  Ginn-Williamss reliance on  this  provision  is
equally   unavailing.   Alaska  Statute  25.24.152(a)   expressly
authorizes  courts to grant a noncustodial parent  the  right  to
claim  a  child as a dependent under federal tax laws for  a  tax
year  if  the  noncustodial parent satisfies the requirements  of
federal law and was not in arrears at the end of the tax year  in
an  amount  more than four times the monthly obligation.   As  we
have  seen,  Williams satisfied the requirements of  federal  law
with  respect to the disputed exemption.  And the divorce  decree
specifically  limited  his right in the  manner  required  by  AS
25.24.152(a)  by providing that he could claim the exemption  for
any  given  year only so long as he is not more than 4 months  in
arrears  on  his child support obligation as of December  31  for
that year.
          Thus, in awarding the additional exemption to Williams,
the superior court complied with both federal and state law.
     C.   Property Division
          Ginn-Williamss  final claim is that the superior  court
erred in classifying the parties second mortgage and auto loan as
marital  debts.   She argues that both debts  were  the  separate
property  of Williams.  But in our view, the record supports  the
trial courts ruling.12
          Evidence presented to the superior court indicated that
Williams took out a loan from Denali Alaskan Federal Credit Union
in  2000 to buy a Mazda MPV minivan for Ginn-Williams to use.  In
late  2003, after the parties had separated, Williams surrendered
the  minivan to the credit union to help pay off the  loan;  this
left  an outstanding balance of about $8,000.  The superior court
considered  this obligation to be clearly . . . a  marital  debt.
Ginn-Williams  nevertheless argues that the  loan  was  Williamss
property  because  her  name was not  on  the  loan  and  because
Williams  had control of the minivan when he returned it  to  the
bank.
          But  [m]arital property includes all property  acquired
during  the  marriage  excepting  only  inherited  property   and
property  acquired  with  separate  property  which  is  kept  as
separate  property.  13   We have also held  that,  [a]bsent  any
showing  that  the  parties intended a debt to be  separate,  the
trial court must presume that a debt incurred during the marriage
is  marital  and  should consider it when  dividing  the  marital
estate.14  Here, the parties incurred the disputed debt during the
marriage.   Moreover,  Williams  testified  that  he  bought  the
minivan  for  Ginn-Williams to drive, that she  was  the  primary
user,  and  that  she  joined, or at  least  acquiesced,  in  the
decision  to  surrender it to help repay the loan.  Ginn-Williams
points  to  no  evidence suggesting an intent to  keep  the  debt
separate besides Williamss name on the note, and the fact that he
          physically returned the minivan to the credit union.  On this
record, because Williamss testimony provides substantial evidence
to  support  the trial courts ruling, we find no clear  error  or
abuse of discretion in treating the loan as a marital debt.
          Ginn-Williams similarly argues that the superior  court
erred in treating the second mortgage on the marital residence as
a  marital  debt.  Although she acknowledges that  the  residence
itself became marital property because Williams added her name to
the  title  after  they married, Ginn-Williams  points  out  that
Williams obtained the second mortgage in his name shortly  before
the  marriage and never added her name to the note. Ginn-Williams
reasons  that, under these circumstances, the home became marital
property  but Williams remained the sole owner of the  underlying
debt.   The  superior  court  disagreed,  ruling  that  the  debt
accompanied  the  home and that both transmuted  into  a  unitary
marital asset during the marriage.
          Again, substantial evidence supports this ruling, so we
find  no  clear  error.   Whether an  initially  nonmarital  debt
transmutes  into a marital liability is a question of intent  and
acceptance.15  Here, the home was Williamss separate property when
he  obtained  the  second mortgage shortly before  the  marriage.
According to Williams, both parties used the mortgage proceeds to
pay  off their respective credit card debts.  After the marriage,
Williams  added  Ginn-Williamss name to the  title;  the  parties
lived  in  the  home together, and regarded it as  their  marital
residence.  There is no indication that Williams made postmarital
payments on the mortgage with nonmarital funds.
          Given  this  evidence, the trial court  could  properly
conclude  that when the home transmuted to marital property,  the
mortgage  transmuted  too, because the parties  showed  no  clear
intent  to  keep the debt separate.16  In other words,  as  Judge
Gleason put it,  When you bring an asset into the marriage,  [you
bring in] both the good and the bad.17
          Because  the  record  supports the  courts  rulings  on
marital  debt,  we affirm the superior courts decision  to  treat
both the auto loan and the second mortgage as marital debts.
IV.  CONCLUSION
          For  these  reasons,  we  AFFIRM  the  superior  courts
judgment.
_______________________________
     1    Williams has not entered an appearance or filed a brief
in response to Ginn-Williamss appeal.

     2    AS 25.24.150(g) provides:

          There  is  a  rebuttable presumption  that  a
          parent  who  has  a history  of  perpetrating
          domestic violence against the other parent, a
          child,  or a domestic living partner may  not
          be  awarded sole legal custody, sole physical
          custody,   joint  legal  custody,  or   joint
          physical custody of a child.
          
     3     We generally review custody decisions and accompanying
best-interests  determinations for  abuse  of  discretion.   See,
e.g.,  McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986).   But
we apply de novo review to determine whether the trial court used
the   correct   legal   standard  in   reaching   its   decision.
Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001).

     4      Ginn-Williamss  comments  at  the  March  7   hearing
suggested  that she had raised the issue of domestic violence  in
her  answer  to  Williamss complaint.  But our  review  of  Ginn-
Williamss  answer and the paperwork that accompanied  the  answer
reveals no mention of the issue.

     5     Our  decision that the statute does not  automatically
trump  a  voluntary  custody agreement makes  it  unnecessary  to
consider  whether  AS 25.24.150(g) applies to  conduct  occurring
before the provisions effective date.

     6     See,  e.g., An Act Relating to Child Custody, ch.  88,
1(b),  SLA  1982 ([I]t is in the best interests  of  a  child  to
encourage  parents to implement their own child  care  agreements
outside of the court setting.); see also Crane v. Crane, 986 P.2d
881,  889 (Alaska 1999) (The legislature recognized these effects
when  it  found that it is in the best interests of  children  to
have  their  own parents fashion custody agreements  rather  than
have courts impose custodial regimes upon them.).

     7     See, e.g., Crane, 986 P.2d at 889 (commenting on  need
to  encourage custody agreements in a system where litigation  is
both  expensive  and, in the context of child  custody  disputes,
emotionally  debilitatingand observing that  a  contrary  holding
would   have   a   counterproductive  effect  by   discourag[ing]
settlement and defeat[ing] settlement efforts).

     8     Regarding  the  superior courts custody  order,  Ginn-
Williams  also  briefly  argues  that  Judge  Gleason  erred   by
directing both parties not to consume alcohol within twelve hours
of  having contact with the children.  Because Williams  was  the
one with the drinking problem, Ginn-Williams alleges, [t]he judge
took  away Ms. Ginn-Williamss right to consume alcohol.  But  the
record reveals that Judge Gleason imposed this mutual restriction
only after both parties expressly agreed to have it added to  the
terms  of their visitation agreement.  Since Ginn-Williams points
to  nothing  in  the record suggesting that she later  asked  the
superior  court to rescind the restriction, we find no  error  on
this point.

     9     In  support of her argument, Ginn-Williams  cites  IRS
Publications  504  and  929,  two  worksheets  designed  to  help
taxpayers in claiming exemptions.  Because these publications are
based  on   26  U.S.C.  151(c) and 152(e) and have no independent
legal significance, our analysis here relies directly on the  tax
code provisions.

     10     26  U.S.C.  151, Allowance of deductions for personal
exemptions, provides, in relevant part:

          (a)   Allowance of deductions.In the case  of
          an  individual,  the exemptions  provided  by
          this  section shall be allowed as  deductions
          in computing taxable income.
          
          . . . .

          (c)   Additional exemption for  dependents.An
          exemption  of the exemption amount  for  each
          individual who is a dependent (as defined  in
          section  152) of the taxpayer for the taxable
          year.
          
     11    26 U.S.C.  152(e) (2004) (amended 2005).  The relevant
text of  152(e) is as follows:

          (e)  Special rule for divorced parents, etc.

               (1)  In general. . . . [I]f
     
                    (A)  a child receives over one-half
               of   the   childs  support  during   the
               calendar year from the childs parents
               
                         (i)    who  are  divorced   or
                    legally separated under a decree of
                    divorce or separate maintenance,
                    
                         . . .  and
                    
                    (B)   such child is in the  custody
               of  1 or both of the childs parents  for
               more than one-half of the calendar year,
               such child shall be treated as being the
               qualifying child or qualifying  relative
               of   the  noncustodial  parent   for   a
               calendar   year   if  the   requirements
               described in paragraph (2) are met.
               
               (2)     Requirements.For   purposes   of
          paragraph (1), the requirements described  in
          this paragraph are met if
          
                    (A)    a   decree  of  divorce   or
               separate    maintenance    or    written
               separation agreement between the parents
               applicable to the taxable year beginning
               in such calendar year provides that
               
                         (i)   the noncustodial  parent
                    shall  be entitled to any deduction
                    allowable  under  section  151  for
                    such child, or
                    
                         (ii) the custodial parent will
                    sign a written declaration (in such
                    manner  and  form as the  Secretary
                    may  prescribe)  that  such  parent
                    will  not  claim such  child  as  a
                    dependent for such taxable year, or
                    
               . . . .

               (3)   Custodial parent and  noncustodial
          parent.For purposes of this subsection
          
                    (A)    Custodial  parent.The   term
               custodial  parent means the parent  with
               whom  a  child shared the same principal
               place  of abode for the greater  portion
               of the calendar year.
               
                    (B)   Noncustodial parent.The  term
               noncustodial parent means the parent who
               is not the custodial parent.
(Emphasis added.)

     12    We review a trial courts decision classifying property
in  a  divorce  action  for abuse of discretion;  but  we  review
factual  findings  the court makes to support  its  decision  for
clear error.  See Abood v. Abood, 119 P.3d 980, 984 (Alaska 2005)
(a finding that the parties intended to treat property as marital
will  be disturbed only if it is clearly erroneous); cf. Veselsky
v.  Veselsky,  113 P.3d 629, 632 (Alaska 2005) (The determination
of  what  property  is  marital  is  reviewed  for  an  abuse  of
discretion although the classification of some items may  present
a question of law to which we apply our independent judgment.).

     13     Hansen  v. Hansen, 119 P.3d 1005, 1009 (Alaska  2005)
(quoting Lewis v. Lewis, 785 P.2d 550, 558 (Alaska 1990)).

     14    Veselsky, 113 P.3d at 636; see also Leis v. Hustad, 22
P.3d 885, 889 (Alaska 2001).

     15     See  Brett  R.  Turner, 2 Equitable  Distribution  of
Property   6:97  DebtsClassification  of  debts  (3d  ed.   2005)
(Nonmarital assets can become[] marital assets if the owner makes
an express or implied gift to the marital estate.  Under the same
theory, a nonmarital debt can become marital if the non-incurring
spouse agrees to accept liability.).

     16    Cf. Chotiner v. Chotiner, 829 P.2d 829, 832-33 (Alaska
1992)  (Separate property can become marital property where  that
is  the  intent  of the owner and there is an act or  acts  which
demonstrate  that intent. For example, separate real  estate  can
become  marital where the owner permits the non-owner  spouse  to
lend her credit to improve the property, or to devote substantial
efforts  to its management, maintenance or improvement, or  where
the  parties  use  the  premises as their  personal  residence.);
Schmitz  v.  Schmitz, 88 P.3d 1116, 1128 (Alaska 2004) ([P]lacing
separate property in joint ownership is rebuttable evidence  that
the owner intended the property to be marital.).

     17     Although  we recognize that the classification  of  a
secured debt does not necessarily hinge on the character  of  the
underlying  security,  see  Turner, 2 Equitable  Distribution  of
Property  6:97, it seems reasonable to infer that, in the absence
of  evidence clearly establishing a specific intent to treat  the
debt separately, when a solely owned premarital home becomes  the
marital   residence   and  transmutes,  the   accompanying   debt
ordinarily   transmutes  with  it.   Cf.  Turner,   2   Equitable
Distribution  of Property  6:97 (The definition of joint  benefit
for  purposes  of  [the  rule that a marital  debt  is  any  debt
incurred  during  the  marriage for  the  joint  benefit  of  the
parties] does not require that both spouses directly benefit from
every single marital obligation.).

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