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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Forshee v. Forshee (09/08/2006) sp-6044

Forshee v. Forshee (09/08/2006) sp-6044, 145 P3d 492

     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


JACK FORSHEE, )
) Supreme Court No. S- 11751
Appellant, )
) Superior Court No.
v. ) 3AN-04-06428 CI
)
SHAN FORSHEE, ) O P I N I O N
)
Appellee. ) No. 6044 - September 8, 2006
)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:  William T. Ford, Anchorage, for
          Appellant.   Joan M. Clover,  Law  Office  of
          Joan M. Clover, Anchorage, for Appellee.

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

          FABE, Justice.

I.   INTRODUCTION
          This  property division appeal arises from the  divorce
of  Jack  and Shan Forshee.  Jack argues that the superior  court
erred  in  its  identification and valuation of  several  marital
assets  and liabilities, including the marital residence,  a  lot
used  by  Jack to store business supplies, an investment property
in Washington State, retirement benefits originally held by Shan,
and  a list of several business debts.  Jack alleges that he  was
unable  to  present  adequate evidence because  he  lacked  legal
representation  at trial, and he claims that the  superior  court
erred in denying his motion for a partial new trial. Because  the
superior  courts  identification and valuation of  each  item  of
property  was supported by the evidence in the record, we  affirm
its judgment.
II.  FACTS AND PROCEEDINGS
     A.   Marriage and Divorce
          Shan and Jack Forshee were married on July 5, 1986, and
they  had three children during their marriage.1  From 1993 until
after the divorce trial, Shan was employed by the Municipality of
Anchorage as a real estate appraiser.  Her federal taxable  gross
salary  was  approximately  $55,000.   Jack,  who  ran  his   own
construction  business2 until he was diagnosed with  leukemia  in
2000,  was unemployed at the time of the divorce.  Although Jacks
leukemia  was in remission at the time of trial, the court  found
that  it was unlikely that [he would] be able to restart  any  of
his  business ventures quickly.  Shan and Jack separated on March
4, 2004.
     B.   Jacks Self-Representation at the Divorce Trial
          Although  the  form answer filed by  Jack  contained  a
space to request interim attorneys fees, and noted that the court
could  give these [fees] to [the litigant] before the end of  the
case,3  Jack did not move for interim attorneys fees.  The  court
ordered Jack to attend a Family Law Education Class to learn  how
to  handle  [his]  own case and what the Judge  [would]  expect[]
[him]  to do, and the Family Law Self-Help Center later certified
that Jack had completed the class.  At trial, Jack proceeded  pro
se.   At  the conclusion of Shans testimony, the court gave  Jack
the  option of cross-examining Shan or taking the stand  himself,
and suggested that the latter would be more effective:
          All  right,  Mr. Forshee, let me explain  how
          this  works and Ill . . . give you an option.
          Youre   entitled   to  ask   questions.    My
          experience  with people who . . .  dont  want
          lawyers,  dont really know how to  do  cross-
          examination, is that they often have a lot of
          points  that they want to make,  and  try  to
          make  these points in the questioning of  Ms.
          Forshee,  for  example.   And  that,  in  all
          likelihood, the more efficient way for you to
          get  across what you want me to hear,  is  to
          actually  just simply take the stand yourself
          and  tell  me  what you want  [me]  to  hear,
          rather  than  trying  to  get  her  to  admit
          whatever point youre trying to make . . . .
          
Jack  chose  to  testify, and he engaged in a dialogue  with  the
trial judge regarding each item of property.
     C.   Marital Property
          Several  items  of  marital  property,  including  real
property, personal property, and financial assets, were at  issue
during  the  divorce trial.  Before trial, the parties  disagreed
primarily  about  the  values of assets rather  than  who  should
receive  each  asset.  But the court departed from  the  proposed
          distribution in order to avoid the need for a large equalization
payment  and  to  give each party a similar  mix  of  assets  and
liabilities.
          1.   Marital residence
          Both  parties agreed that the Anchorage house that  had
been  their marital residence should be awarded to Jack, and both
agreed  that  the  mortgage balance at  the  time  of  trial  was
$55,562.   Jack claimed that the value of the house was $131,200,
citing as evidence a municipal tax assessment and two contractors
estimates  of  the cost of completing an unfinished addition  and
other  repairs  and upgrades.4  Shan claimed that  the  home  was
worth $285,000, citing the estimate of an appraiser who drove  by
the  home.   She  also estimated a significantly lower  cost  for
completing the addition.5
          The   court   determined  that  both   estimates   were
questionable, as Jack had provided little explanation  about  the
alleged  need  for  so  much work, and Shans  appraiser  had  not
inspected  the  interior  of  the house.   But  because  the  tax
assessment was simply . . . too low given the size of the  house,
the  court used Shans appraisal as a starting point and  deducted
$35,000 for the cost of completing the addition, and $25,000  for
needed repairs.6  The house was therefore assigned a gross  value
of $225,000, with net equity amounting to $169,432.
          Jack  retained an attorney immediately after the  court
issued its judgment, and filed a motion for a partial new trial.7
In this motion, Jack pointed out that the courts valuation of the
house was different from either partys estimate, and argued that,
as  a pro se litigant, he was unable to present adequate evidence
to  support his claims.8  He asserted that the court should  have
directed  the parties to obtain a current appraisal by a mutually
agreed qualified appraiser.  Although the court acknowledged that
the  evidence  presented was less than optimal,  it  declined  to
grant  a  new trial on this issue, and noted that Jack had  never
once  stated  that  his  medical  condition  or  emotional  state
precluded  him from participating in the trial or from presenting
the evidence that he wanted.
          2.   Commercial lot
          Jack  and  Shan also owned a commercial lot where  Jack
stored his construction equipment during his illness.  The  court
noted  that  Jack wanted to receive the lot, but determined  that
reaching  a realistic division that does not require an  enormous
cash payment from one to the other party required that the lot be
awarded to Shan.  Jack contended that the 48,000 square foot  lot
was  worth  $168,000, using his own estimate of $3.50 per  square
foot.   Shan  claimed  that it was worth  $262,000,  based  on  a
brokers estimate of between $5 and $6 per square foot.  The court
considered these values, as well as neighborhood conditions  such
as  new  construction,  and assigned the lot  a  gross  value  of
$240,000.  It awarded the lot to Shan on the condition  that  she
allow  Jack to store his vehicles and equipment on the  lot  rent
free until 1 July 2005[,] unless she has a buyer or lessor . .  .
before  then, in which case Shan was to provide reasonable notice
to Jack.
          In  November 2004 Shan found a buyer for the  lot.   In
          order to prevent her from selling it before he could move his
business  equipment, Jack filed a notice of lis  pendens.9   Less
than a week later, Shan filed an expedited motion for clerks deed
to  transfer Jacks interest to her, and Jack, now represented  by
counsel,  filed an opposition.  The court granted  Shans  motion.
Shan  then moved for an expedited order lifting the lis  pendens;
the  court  granted her motion on December 1 without  input  from
[Jack]  based on [Jacks] earlier responses to the related  motion
concerning  the  clerks deed.  Shan sold the  property  the  same
week, and Jack moved for reconsideration, arguing that he was not
given  notice of the order lifting the lis pendens until December
7,  and  seeking to buy Shans interest in the lot.  The  superior
court denied Jacks motion.
          In  addition to the lis pendens matter, Jack argued  in
his  motion for a partial new trial that the court had  erred  in
its valuation of the commercial lot, making similar arguments  to
those  that  he  made regarding the marital home.   The  superior
court declined to grant a new trial for the reasons that Jack had
been  provided  with ample opportunity to present evidence,  Jack
had  not  voiced  concern at trial about his ability  to  present
evidence,  and the evidence presented at trial, while  less  than
optimal, was adequate.
          3.   Washington State investment property
          In  1993  Jack  purchased  an  investment  property  in
Spokane,  Washington  by trading a parcel of  real  estate  worth
$64,00010 and an additional $18,000 of marital cash.  Jack and his
brother  each  owned a fifty percent interest in this  Washington
State  parcel, which contained a restaurant, bar, and cabins  and
operated  under the name of Forshees Last Resort.  In  June  2000
Jack  conveyed  his interest in the Washington  property  to  his
brother  by  quitclaim deed, receiving no direct compensation  in
exchange.   In  response  to  questions  from  the  court,   Jack
maintained that the total value of the property at the time  that
he conveyed his half to his brother was $350,000 and claimed that
he  conveyed the interest because his accountant recommended  it,
because  Shan was threatening to divorce him if he kept  it,  and
because  the investment never got the time and money it  required
to make a good go of it.  At the time of trial, however, Jack was
still listed by the State of Washington as a corporate officer of
Forshees  Last Resort.  Shan claimed that the transfer  was  made
because she and Jack werent getting along at the time and because
it would be easier to refinance under the name of Jacks brother.
          The court found that Jacks claims regarding the reasons
he  transferred  his interest were not credible,  and  determined
that  the real reason for the transfer was to remove the property
from  the marital estate, with the expectation that [Jack]  would
retain  a  de  facto interest in the property.   Discounting  the
$175,000  value of Jacks share because [a] third party  would  be
reluctant  to  purchase land that is intertwined with  a  closely
held  family business, the court found that the marital  interest
in  the  property had only appreciated to $100,000, and  credited
Jack with receipt of that amount.
          Jacks motion for a partial new trial claimed both  that
the superior court had erred in determining that Jack retained  a
          continuing interest in the property and that the court had erred
in  its  valuation  of his interest.  But the motion,  which  was
prepared by the attorney hired by Jack after trial, did not  deny
that the Washington State property was marital property when Jack
did  have an interest in it.  As it did for the marital residence
and  commercial lot, the court acknowledged that the  quality  of
evidence  was less than optimal, but it d[id] not find  that  the
quality  of  the  evidence was so poor that  a  new  trial  [wa]s
needed.
          4.   Shans PERS account
          At  the  time  of  trial,  Shan  had  three  retirement
accounts, including a vested PERS account.  At trial, the parties
expressed agreement about the value of the PERS account, but  did
not distinguish paid-in value11 from present value:
          Court:    Is  there  any  dispute  about  the
                    value of the PERS[,] 401(k)[,]  and
                    deferred compensation?
                    
          [Jack]:   No, Your Honor, I dont.....
                    
          Court:    Yeah, so.....
                    
          Mr. Lack: Then  I  would just move  to  admit
                    Exhibit 30, the value for the  PERS
                    retirement  is $43,000, the  401(k)
                    is  $44,000, and the deferred  comp
                    is $8,700.
                    
The  court admitted as an exhibit a benefit statement dated  June
30,  2003,  in which Shans PERS balance was listed as $43,676.79.
The trial court determined that the value of the PERS account was
$43,000, and awarded the PERS account to Shan.
          In  his  motion for a partial new trial, Jack  asserted
that  the court had erred by using the paid-in value of the  PERS
account instead of the present value, and argued that the present
value  was likely to be at least twice [the paid-in value].   The
court denied a new trial on this issue, stating that it
          cannot  determine if the value used  for  the
          PERS  was  reduced  [to  present  value]   or
          whether  that figure represented the  balance
          at the time of the trial.  The court suspects
          it  was  the  latter.  But if the account  is
          reduced  to  present  value,  only  Jack   is
          harmed.  The values of the marital estate and
          Shans  portion are reduced[,] while the value
          of  his  portion remains the same  while  his
          relative   percentage  is   increased.    The
          [c]ourt sees no reason to have a new trial to
          make this correction.
          
          5.   Additional debts
          In  his Property and Debt Worksheet, Jack listed  debts
totaling  $52,385 as of March 5, 2004.  He designated a  modified
version  of  this  list as an exhibit, but appears  not  to  have
introduced it into evidence at trial.12  When the court discussed
the  allocation of the couples debt, it engaged in the  following
          exchange with Jack:
          Court:    The   debts,  you  see   how   shes
                    allocated the debts on her property
                    list?
                    
          Jack:          Yes, sir.
                    
          Court:    That   you  know, you get the  ones
                    that she says you get and she keeps
                    the  ones  she says she  keeps,  is
                    that acceptable?
                    
          Jack:          Yes sir, I believe so.
                    
          Court:    Okay.
                    
          Jack:           There were a few things on my
                    list.....
                    
          Court:    All  right,  hang on, well  get  to
                    your list.
                    
          Jack:          Okay.
                    
Shortly  thereafter, the court asked if there was  anything  else
you  want  to  tell  me  about any other topic  involving  debts,
liabilities, value of things or the distribution of  things.   It
then inquired, [d]o you want to think about that for a while,  to
which  Jack responded, Id like to, yes sir.  Jack then raised  an
issue  relating  to  his sons testimony, and  the  court  took  a
recess.   The  court then asked him, is there anything  else  you
want to tell me?  Jack responded that there was not.  At the  end
of  the trial, the court asked both spouses if either of them had
anything else you want to present, to which both responded in the
negative.
          In  his  motion for a partial new trial,  Jack  claimed
that he had attempted to present evidence of significant business
obligations totaling $67,000, but that he was unable  to  present
this evidence [b]ecause of his inability to effectively represent
himself at trial.  The court denied the motion with regard to the
debts,  stating that Jack ha[d] provided no explanation  for  his
failure  to mention those debts at trial, and pointing  out  that
Jack  was  not  shy  about raising topics and had  shown  himself
capable  of  presenting cogent arguments  on  his  behalf.   This
appeal followed.
III. DISCUSSION
     A.   Standard of Review
          Property division entails determining what property  is
available  for distribution, assessing its value, and  allocating
it  equitably.13  We review the trial courts characterization  of
property  as  marital  or  separate for  abuse  of  discretion.14
Whether the trial court applied the correct legal standard  is  a
question  of  law that this court reviews de novo.15   The  trial
courts  factual  findings regarding the  value  of  property  are
reviewed  for  clear error, which exists if, upon review  of  the
entire  record,  we are left with a firm and definite  conviction
that   a  mistake  has  been  made.16   We  review  the  ultimate
          distribution of assets for abuse of discretion, and will reverse
it  only  if  the  distribution is  clearly  unjust.17   As  Jack
correctly  notes, this court reviews a trial courts denial  of  a
motion for a new trial for an abuse of discretion.18
     B.   The  Courts Failure To Solicit Additional Evidence from
          Jack
          
          Underlying  all  of Jacks arguments is  his  contention
that  he  did  not  receive  a  fair  trial  because  he  was  an
unsophisticated  pro  se  litigant who  was   recovering  from  a
serious  illness.  He alleges that he did not know that his  case
would  have been better served by presenting additional  evidence
regarding  the value of each item of property and that the  court
erred by failing to solicit additional evidence from him.
          1.   Jacks status as a pro se litigant
          Although  the pleadings of pro se litigants  should  be
held  to  less  stringent standards than those of lawyers,19  and
trial judges should take limited steps to mitigate the difficulty
of representing oneself,20 a trial judge may not compromise his or
her  impartiality  by  sav[ing] a litigant  from  his  choice  of
lawyer,  including  when  a  litigant chooses  himself  as  legal
representative.21
          Given  that the total marital estate amounted  to  over
$700,000, and that the form answer specifically informed  pro  se
litigants that they could move for attorneys fees before the  end
of  the  case, Jack presents no reason why he could not  hire  an
attorney  before  trial.   Jack concedes  that  he  consulted  an
attorney   immediately  after  receiving  the  courts   decision.
Furthermore,  as  the superior court noted in  its  rejection  of
Jacks motion for a partial new trial, Jack never once stated that
his  medical  condition  or emotional state  precluded  him  from
participating  in the trial or from presenting the evidence  that
he  wanted.  Thus, Jack appears to have knowingly and voluntarily
chosen  to proceed without counsel, and has not established  that
he was unable to represent himself.
          2.   Additional evidence regarding value
          Jack  cites this courts statement in Root v. Root  that
where a party identifies a significant marital asset but presents
no  evidence as to its value, the best practice is for the  trial
court to direct the parties . . . to fill the evidentiary void.22
But the same case noted, and subsequent cases reaffirmed, that it
is  the  duty of the parties, not the court, to ensure  that  all
necessary  evidence is before the court in divorce proceedings.23
Except in the situation where no evidence is presented,24 a party
who  fails to present sufficient evidence may not later challenge
the adequacy of the evidence on appeal.25
          In  the present case, evidence was presented as to  the
value  of  every  asset at issue except for the Washington  State
investment  property, in which Jack claimed he had no  continuing
interest,26  and  the business debts, which are addressed  below.
Both  parties presented appraisals of the house, and Jack offered
the  opinions  of  two contractors about likely  improvement  and
repair  costs.  Jack offered his own opinion of the value of  the
commercial  lot,  and  Shan  offered  a  brokers  estimate.    In
          addition, the courts opinion gives a detailed description of the
propertys geographic location,27 and discusses conditions in  the
surrounding  neighborhood that could affect the propertys  value,
such  as  commercial and high-density residential construction.28
Documents  detailing Shans retirement benefits were entered  into
the  record  with Jacks assent.  Although the evidence  was  less
than  optimal, the court was not wholly lacking in evidence about
any  of the assets at issue except for Jacks business debts.  And
Jack  was  not  denied  the  opportunity  to  present  additional
evidence.  For these reasons, we hold that the superior court did
not err by failing to solicit additional evidence from Jack.
     C.   Marital Residence
            Jack  also asserts that the superior court  erred  by
making  a  compromise  valuation of  the  marital  residence.   A
factual  finding unsupported by anything in the record, including
a compromise valuation, is clearly erroneous.29
          Here,  however, the trial court did not simply adopt  a
compromise  value  without weighing the  evidence.   Although  it
noted  that  the  evidence  was less than  optimal,  and  that  a
valuation  would necessarily be[] somewhat arbitrary,  the  court
does appear to have considered the evidence, given certain pieces
of  evidence  more weight than others, and explained its  reasons
for  doing  so.  For example, the court found problems with  both
Jacks  tax assessment and Shans appraisal, but chose to  use  the
appraisal  as  a  starting point because the size  of  the  house
suggested  that the tax assessment undervalued it.   Rather  than
selecting   a  value  midway  between  the  appraisal   and   the
assessment,  and  adopting  it  without  explanation,  the  court
reduced  the assessment value to account for the cost of interior
repairs,  as the appraiser had not examined the interior  of  the
home.   The court then factored in reduced repair costs,  on  the
grounds  that  the  estimates  submitted  by  Jack  were   likely
inflated.  Although this was an inexact method of calculating the
value  of the house, and could have been avoided if both  parties
had  submitted  complete appraisals and repair  estimates,30  the
trial court did not simply ch[o]ose a compromise figure somewhere
between31  $131,200  and $285,000.  Because the  superior  courts
valuation  of  the marital residence is supported by  a  detailed
consideration  of the evidence, we hold that it  is  not  clearly
erroneous.
     D.   Commercial Lot
          Jack  raises  a  similar argument with  regard  to  the
commercial lot and also states that he believes this  was  not  a
sale  to  a bona fide purchaser for value.32  As is true for  the
marital residence, evidence was presented by the parties, and the
court  appears to have weighed this evidence, rather than  merely
arriving  at  a compromise value.  The court chose to  give  more
weight to the brokers appraisal for the plausible reason that the
brokers  experience  of  over 11 years in  the  field  gives  his
opinion  more credibility than Jacks.  As noted above, the  court
also considered the lots location and aspects of the neighborhood
that  could  affect property values.  Thus, for the same  reasons
that  apply  to the marital residence, we hold that the  superior
courts judgment regarding the value of the commercial lot is  not
          clearly erroneous.
     E.   Washington State Investment Property
          1.   Identification as marital property
          Jacks next argument is that the superior court erred in
identifying  the Washington State lot as marital property.   This
argument is twofold:  first, Jack maintains that the court  erred
in referring to the parcel of real estate he initially traded for
$64,000  of  the  $82,000  investment as  marital  property;  and
second,  he  asserts that the court erred in imputing  to  him  a
continuing interest in the property.
               a.   Whether Jack challenged the marital nature of
                    the Washington State property below
                    
          Although  Jack  stated in his dialogue with  the  court
that  part  of  the  $82,000 investment in the  Washington  State
property was a $64,000 1031 exchange33 from a piece of property I
owned and bought in 1975,34 he did not argue at trial, or in  his
motion  for  a  partial  new  trial, that  his  interest  in  the
Washington  State property prior to its transfer to  his  brother
was  not  marital property.   Our requirement that  an  issue  be
preserved  by being presented in the superior court applies  even
to  pro  se litigants.35  And as Shan correctly notes, the motion
for partial new trial  which was filed after Jack had retained  a
lawyer   also  did not challenge the courts passing reference  to
the  traded  parcel  of real estate as marital  property  or  its
determination  that  the Washington State property  was  marital.
Because  Jack  failed  to claim below that the  Washington  State
property was not marital property, we will not consider his claim
for  the  first time here.  Moreover, in view of the considerable
investment  of  marital assets in the Washington  State  property
$18,000  of  marital funds and a parcel in which seven  to  eight
years  of marital mortgage payments had been invested  the  trial
courts  failure to address the question of transmutation  of  the
traded lot does not present plain error.36
               b.   Jacks continuing interest in the property
          Ample  evidence supports the courts determination  that
Jack executed the quitclaim deed to protect his share in the real
estate from the threat of division had they divorced in 2000.  As
the  court  correctly observed, it makes no sense  to  give  away
assets  that  cost $82,000 and likely had appreciated.   Even  if
Jack  simply  sought  to  get away from what  had  become  a  bad
investment, or to appease a spouse who wanted to discontinue  the
investment, he could have continued to list the property for sale
and  simply  lowered his asking price until he found  a  buyer.37
Jacks  decision to give away his interest appears  to  have  been
either  a  willful waste of marital assets or,  as  the  superior
court  found, a sham transaction designed to conceal a continuing
interest.
          Either  possibility  supports  imputing  to  Jack   the
portion of his interest that was marital property.  A spouse  who
engages  in  economic misconduct which has unreasonably  depleted
marital  assets can be credited with the assets that  he  or  she
dissipated.38  Jack argues that the superior court made no finding
of  fraudulent  intent on his part but the intent  to  engage  in
          economic misconduct  either fraud or massive waste  is obvious
from  the  record.39  For this reason, we hold that the  superior
court did not err in imputing to Jack the portion of his interest
in  the  Washington State investment property  that  was  marital
property.
          2.   Value of Jacks interest
          Jack  also  argues  that the superior  court  erred  in
determining  the  value of his interest in the  Washington  State
property.  But the court provided a plausible explanation of  its
estimate,   stating   that,  while  the   property   had   likely
appreciated, its value would be limited by its entanglement  with
a  family-run business.  It valued Jacks interest at $100,000, an
amount   significantly  lower  than  either  Jacks  estimate   of
$175,000,  or Shans estimate of over $350,000.40  Thus,  assuming
that Jack would attempt on remand to prove that the value of  his
interest was less than what the court imputed to him,41 he  would
be presenting evidence that contradicted his own testimony in the
first trial.42
          As noted above, a party who fails to present sufficient
evidence may not later challenge the adequacy of the evidence  on
appeal.43  Here, if Jack wished to convey to the court  that  his
interest was worth less than $100,000, he could have presented an
appraisal, tax assessment, or other evidence to that effect.   At
the  very least, he could have refrained from testifying that his
interest  was  worth  $175,000.   Because  the  superior   courts
determination  of  the  value of Jacks interest  is  not  clearly
erroneous, and because Jack waived the argument that his interest
was  worth  less  than $100,000 by admitting that  it  was  worth
seventy-five percent more, we affirm the judgment of the superior
court with regard to the value of Jacks interest.
     F.   PERS Account
          Jacks next argument is that the superior court erred by
failing  to  calculate  the present value of  Shans  vested  PERS
benefit.  This court has held that
          [t]he proper division of a vested pension can
          be  accomplished in either of two ways.   The
          court  can either award a lump sum discounted
          to  present  value to one party or  both,  or
          retain jurisdiction and have payments made to
          the   parties  as  retirement  benefits  come
          due.[44]
          
Although   this   court  has  remanded  for   a   present   value
determination  in at least one case where the appellant  did  not
present  evidence  of  present value  below,45  the  parties  are
generally responsible for presenting evidence to the trial court.46
Here,  the  parties stipulated to the value of  Shans  retirement
benefits, and presented an annual benefit statement as evidence.
          As  Shan points out, the parties effectively reached  a
settlement  on  the  value  of  the  PERS  benefit.   Settlements
regarding  the division of property are generally controlling  in
the  absence  of  fraud, duress, concealment of assets  or  other
facts  showing  that the agreement was not made  voluntarily  and
with  full understanding.47  Although the court admitted  in  its
          denial of Jacks motion for a partial new trial that it was unable
to  determine whether the value used for the PERS was reduced [to
present value] or whether that figure represented the balance  at
the time of the trial, there is no evidence that Jack was coerced
or  defrauded into stipulating to the value of the PERS  benefit.
In  these  circumstances, it appears that Jack had  an  agreement
with  Shan regarding the value of the PERS benefit, and  that  he
waived  any claim that he would otherwise have by stipulating  to
the  value.   For  this reason, we hold that the superior  courts
valuation of the PERS benefit was not clearly erroneous.
     G.   Business Debts
          Finally,  Jack  claims  that the  court  erred  by  not
revisit[ing]  his  list of business debts,  and  thereby  leaving
debts of $46,245.92 out of its calculation of the marital estate.
The  list, which Jack had previously filed as a Property and Debt
Worksheet,  is  marked  as Exhibit 10, but was  apparently  never
introduced  at  trial.48  A retrial to consider new  evidence  is
generally unwarranted unless the evidence at issue was not . .  .
discoverable, with due diligence, before trial.49 As noted above,
it  is the duty of the parties, not the court, to ensure that all
necessary evidence is before the court in divorce proceedings.50
          Here,  the  court did not prevent Jack from introducing
the list of debts into evidence or mentioning the debts.  Indeed,
the  court  actively solicited additional evidence and  arguments
from  Jack, and repeatedly asked if he had any additional  issues
to discuss.  Jack responded more than once that he did,51 and did
in  fact  raise  new issues, but at no point  did  he  raise  the
additional  business debts.  The last two times  that  the  court
asked  Jack  if  there was anything else, Jack responded  in  the
negative.   Short  of actually requiring Jack  to  introduce  the
exhibit,  it  is unclear what more the court could have  done  to
obtain  it.   Because  Jack  declined repeated  opportunities  to
introduce  the list of business debts, and has not  alleged  that
the  evidence was not discoverable with due diligence at the time
of  trial, we affirm the judgment of the superior court  on  this
issue.
IV.  CONCLUSION
          For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
     1     Custody was not disputed below and is not at issue  in
this appeal.

     2     From  2000  until the dissolution of the  business  in
2003,  Shan had power of attorney over its finances.  Jack claims
that  the cause of the dissolution of the business was Shans  use
of  business  accounts  to pay personal  and  household  expenses
instead of paying debts owed by the business.  Shan disputes this
claim,  and  maintains  that  the  construction  business  failed
because Jacks illness rendered him unable to work.

     3     The  form directed users to the website of the  Family
Law  Self-Help  Center, which provides pro  se  family  litigants
forms  and information on court procedure, including how to  file
motions.   See Alaska Court System, Family Law Self-Help  Center,
Motion   Practice    Requesting  an   Order   from   the   Court,
http://www.state.ak.us/courts/motions.htm.

     4     The estimates for completing the addition were $86,000
and  $107,000;  the  estimates for the  laundry  list  of  needed
repairs and upgrades were $95,000 and $113,000.

     5     The appraisers estimate of the cost of completing  the
addition  was  $15,000.   She gave no estimate  of  the  cost  of
interior repairs.

     6     It  noted that these figures were necessarily  .  .  .
somewhat  arbitrary,  but that Jacks cost estimates  were  likely
inflated, and it was not clear that all of the repairs sought  by
Jack were necessary.

     7     Shan  also filed a motion for partial reconsideration,
but  she  does not appeal the courts disposition of that  motion.
Jack,  however, contests the denial of his motion for  a  partial
new trial with regard to several items of property.

     8     He  also  claimed that Shan, as a municipal appraiser,
should have obtained a higher-quality appraisal.

     9     See  Waiste v. State, 10 P.3d 1141, 1146 n.17  (Alaska
2000) (citing Blacks Law Dictionary 1081 (Rev. 4th ed. 1968),  in
which  notice of lis pendens is defined as notice filed  for  the
purpose of warning all persons that the title to certain property
is in litigation, and that, if they purchase the defendants claim
to  the  same,  they are in danger of being bound by  an  adverse
judgment).

     10     Although  Jack  purchased the $64,000  traded  parcel
before  the  marriage,  Shan testified that substantial  mortgage
payments  on  the real estate were made from marital  assets  for
between seven and eight years.

     11     We use this term because it is used by the parties to
describe the account balance on Shans annual benefit statement.

     12     The document that Jack cites lists both business  and
credit card debts, some of which were addressed by the court.  As
Shan  correctly notes, the $46,245.92 figure appears  nowhere  on
the face of the document, although it is less than the sum of all
debts listed in the document.

     13    Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006).

     14    Id.

     15    Id.

     16    Id.

     17    Id.

     18    Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990).

     19    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     20    See id. (holding that a trial judge should inform a pro
se  litigant of the proper procedure for the action he or she  is
obviously  trying  to  accomplish); but  see  Collins  v.  Arctic
Builders, 957 P.2d 980, 982 (Alaska 1998) (noting that this court
has distinguished Breck by refus[ing] to . . . require judges  to
warn  pro  se litigants on aspects of procedure when the  pro  se
litigant  has  failed  to file at least a  defective  pleading  )
(quoting Bauman v. State, Div. of Family & Youth Servs., 768 P.2d
1097, 1099 (Alaska 1989)).

     21    Bauman, 768 P.2d at 1099.

     22    851 P.2d 67, 69 (Alaska 1993).

     23     See,  e.g., Brotherton v. Brotherton, 941 P.2d  1241,
1245 (Alaska 1997) (quoting Root, 851 P.2d at 69).

     24    In Root, the court found that the trial courts error in
valuing  one partys nonvested retirement benefits was  aggravated
by   the  fact  that  [the  party]  failed  to  present  evidence
indicating the present value of these benefits.  851 P.2d at  69.
But,  unlike the assets at issue here, the value of the  benefits
in Root was not established at all during the trial.  Id. at 68.

     25    Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).

     26     Although  no  evidence  was presented  regarding  the
current  value  of  the  Washington  State  property,  there  was
evidence  of  the  amount  of  the  initial  investment  and   of
circumstances,  such  as  its  connection  with  a   family-owned
business,  that would likely affect the value of  the  land.   In
addition, Jack testified that, at the time of the transfer to his
brother, he believed that his interest was worth $175,000.   Shan
testified that the total value of the property was 700  and  some
odd thousand the last time [she] checked.

     27     The  court describes the property as roughly one-half
mile  to  the  southwest from the Tesoro station on  Abbott  Road
across from the new GCI office and Chilis restaurant.

     28    It is unclear whether the court was discussing evidence
about the state of the neighborhood introduced by the parties, or
simply  taking  judicial notice, but its  discussion  shows  that
there  was not an evidentiary void, Root, 851 P.2d at 69,  as  to
the value of the commercial lot.

     29    Moffitt v. Moffitt, 749 P.2d 343, 347-48 (Alaska 1988)
(holding that the trial courts findings were not supported by the
record in a property division case where one party testified that
an  asset  was worth $300,000, the other testified  that  it  was
worth  $10,000, and the trial court apparently chose a compromise
figure somewhere between the two).

     30      Jacks   request  for  this  court  to  remand   with
instructions to select a mutually agreeable appraiser is not,  as
Shan  claims, impossibly vague and absolutely unworkable, but  it
is  misplaced.   Jack chose to rely on a tax assessment  and  the
contractors estimates, rather than presenting an appraisal.   The
superior  courts failure to be fully persuaded by this  evidence,
and  its decision to accord some weight to the evidence presented
by  Shan,  does not justify a remand.  Brotherton,  941  P.2d  at
1245.

     31    Moffitt, 749 P.2d at 348.

     32     It  is  unclear if this statement is intended  as  an
appeal  of the superior courts decision to lift the lis  pendens.
But  Jack   who is now represented by counsel  does not point  to
any  evidence in support of this claim, and none appears  in  the
record.

     33     See  Internal  Revenue Service, Like-Kind  Exchanges,
http://www.irs.gov/businesses/small/industries/article/0,,id=9849
1,00.html  (Generally,  if you exchange  business  or  investment
property  solely for business or investment property of  a  like-
kind,  no gain or loss is recognized under Internal Revenue  Code
Section 1031.).

     34    Shan also testified that the property belonged to Jack
before their marriage, but she claimed that mortgage payments had
been made from marital funds.

     35     Pieper  v.  Musarra, 956 P.2d 444, 446 (Alaska  1998)
(Notwithstanding  the  leeway given  to  pro  se  litigants,  the
requirement that an issue be preserved by being presented in  the
superior  court  arises out of notions of judicial  finality  and
efficiency as well as fairness to the opposing party.).

     36    Cf. Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App.
2000) (noting that [t]o qualify as plain error, an error must  be
so  prejudicial  that  failure to correct it  will  perpetuate  a
manifest  injustice) (citations omitted).  And even if the  trial
court erred in classifying the $64,000 parcel as entirely marital
property,  it does not appear to have erred in its classification
of  the Washington State property.  Although the Washington State
property  was  purchased using both marital and separate  assets,
there  was  no  evident intent to maintain it,  or  a  particular
percentage of it, as separate property.  Cf. Compton v.  Compton,
902  P.2d  805,  811  (Alaska  1995)  (holding,  in  spite  of  a
premarital agreement to the contrary, that one partys commingling
of  separate and marital property showed an intent to make a gift
to  the  marital  unit).   Furthermore,  the  approach  that,  in
marriages  of  short  duration, courts  may  treat  the  property
division  as  an  action in the nature of  rescission,  aimed  at
placing  the  parties in, as closely as possible,  the  financial
position they would have occupied had no marriage taken place  is
inapplicable  here.   Rose v. Rose, 755 P.2d 1121,  1125  (Alaska
1988).  The marriage at issue here lasted for nearly two decades,
and  the  Forshees owned the Washington State property  for  over
half of that time.

     37     Jack testified that the property as a whole had  been
for  sale for [$]550,000 off and on for the last three years  and
theyve never had a taker yet, but did not explain why he made  no
attempt to sell his interest at a lower price.  Barring a serious
defect  in  the property, common sense suggests that  Jack  would
have found a buyer long before the asking price reached zero.

     38     See Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997)
(interpreting  AS  25.24.160(a)(2)(E), which  permits  courts  in
property division cases to take into account the conduct  of  the
parties,  including whether there has been unreasonable depletion
of marital assets).

     39    Cf. Pattee v. Pattee, 744 P.2d 658, 660 (Alaska 1987),
overruled  on  other  grounds by Nass v.  Seaton,  904  P.2d  412
(Alaska  1995)  (Our  reading of the record leaves  us  with  the
definite and firm conviction that Richard intended to defraud Kim
when  [shortly  before the divorce] he sold his  interest  in  [a
business held as marital property].).

     40    Shan testified that the total value of the property was
[$]700 and some odd thousand.

     41      Because  of  the  superior  courts  stated  goal  of
divid[ing] the estate equally, Jack would only benefit  from  the
recalculation of the value of an interest imputed to him  if  the
recalculation yielded a lower value.

     42     Unlike his argument regarding the PERS benefits, Jack
does not claim that he was unfamiliar with any accounting concept
that was necessary to determine the value of the Washington State
property.

     43    Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).

     44    Hartland v. Hartland, 777 P.2d 636, 641 (Alaska 1989).
Determining  the  present  value  of  state  retirement  benefits
entails applying a series of actuarial and investment assumptions
relating to the employees life expectancy and probable retirement
age  to  the contractual or statutorily awarded benefit.   In  re
Marriage  of Kelm, 912 P.2d 545, 551 (Colo. 1996) (citations  and
quotation marks omitted).

     45     See Miller v. Miller, 739 P.2d 163, 166 (Alaska 1987)
(A  potentially more serious valuation error is that the superior
court  did  not  discount to present value the retirement  monies
that  Monte  will  receive when he reaches the  age  of  55.   On
remand,  the parties should . . . be required to submit  evidence
as to the present value of these funds, and the court should rely
on  the present value in fashioning the property division.);  but
see  MacCampbell v. MacCampbell, Mem. Op. & J. No. 1048  (Alaska,
October  3,  2001),  2001 WL 34818261, at *1 n.5  (affirming  the
trial  courts  acceptance  of the face  value  of  [one  spouses]
marital  contributions to [his] PERS account, and not  a  present
value   determination  where  neither  party   challenged   th[e]
valuation at trial or on appeal).

     46    See Hartland, 777 P.2d at 640 (noting that a party who
fails  to  present  sufficient evidence at trial  should  not  be
allowed on appeal to challenge the inadequacy of evidence).

     47     Jordan  v. Jordan, 983 P.2d 1258, 1264 (Alaska  1999)
(quoting  Notkin  v. Notkin, 921 P.2d 1109, 1111 (Alaska  1996)).
Had  the  parties reached a settlement on the question of present
value,  the  trial court could have accepted this  settlement  in
lieu  of  the  usual process of (1) determining what  assets  are
marital; (2) valuing those assets; and (3) equitably dividing the
assets.  Id. at 1263-64 (citing Wanberg v. Wanberg, 664 P.2d 568,
570 (Alaska 1983)).

     48     The  version marked as Exhibit 10 contains additional
markings, not all of them legible.

     49    Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1261 (Alaska
2001)  (discussing the standard for granting a  new  trial  under
Alaska Civil Rules 59 and 60(b)(2)).

     50    Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).

     51     In one exchange, it is unclear whether Jacks response
indicated  that he had new issues to raise or that he  wanted  to
think about whether he did.

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