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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heustess v. Kelley-Heustess (05/25/2007) sp-6126

Heustess v. Kelley-Heustess (05/25/2007) sp-6126, 158 P3d 827

     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,


) Supreme Court No. S- 12126
) Superior Court No.
v. ) 3AN-04-12299 CI
Appellee. ) No. 6126 May 25, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:  Phyllis A. Shepherd, Law Office
          of  Dan Allan and Associates, Anchorage,  for
          Appellant.  D. Scott Dattan, Law Office of D.
          Scott Dattan, Anchorage, for Appellee.

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

          MATTHEWS, Justice.

          This  divorce  case  presents issues  relating  to  the
division  of property and child support.  We vacate the  property
division,  primarily because it was premised  on  decisions  that
transmuted  only  a  portion of the marital  house  into  marital
property  and  valued the house at the time of separation  rather
than  the  time  of  trial.  We also vacate the  award  of  child
support  for  the  period  before  the  parties  married  because
appellant did not have a fair opportunity to present defenses  to
this claim.
          In  1991 Bonnie Kelley and Allen Heustess had a  child.
At the time Bonnie and Allen did not live together, and Allen did
not financially support their child.  In 1993 Bonnie purchased  a
house  in  Chugiak and lived there with their child and  her  two
children  by a prior relationship.  Allen moved in with  them  in
1997  and  began turning over his paycheck to Bonnie for  deposit
into  her  checking account for general use.1  Allen  and  Bonnie
married on June 26, 1999.
          In   2002   Bonnie   was  seriously   injured   in   an
automobile/motorcycle  collision.   Bonnie   settled   with   the
automobile  drivers  insurer  for gross  settlement  proceeds  of
$10,000 to replace her destroyed motorcycle and $118,532 for  her
personal injuries.
          On October 23, 2002, the parties refinanced the Chugiak
house.   At  that time the house was valued at $200,000  and  was
subject to a mortgage of $113,273.  The principal amount  of  the
new loan was $160,000.  The loan proceeds were mainly used to pay
off  the  old  loan  on the house and loans on various  items  of
marital property.  In particular, $11,000 was used to pay a  loan
on a motorcycle owned by the parties and primarily used by Allen,
$20,412 was used to pay off a loan on a Chevy Blazer owned by the
parties  and used by Bonnie, $9,000 was used to pay off  land  in
Palmer that was marital property, and the remaining proceeds were
used  to pay off some debts.  At the time of the refinance Allens
name  was  added to the title to the house and he  became  a  co-
borrower  on  the  new note.  Shortly after the  refinancing  the
parties separated.  The trial court set the date of separation as
October  31, 2002.  Since the separation Bonnie has made  all  of
the payments on the new note.
          Bonnie   initially  filed  for  divorce  in  2003   but
dismissed the case.  She filed again on October 27, 2004.  Bonnie
was granted primary interim physical custody of their child.  The
superior  court  ordered  Allen  to  pay  interim  child  support
prospectively  at the rate of $512 a month and calculated  Allens
arrearages since the parties separation at $12,414.
          Allen is a truck driver; he was forty-four years of age
at  the time of trial.  He reported gross annual wages of $46,295
for  2004.  At the time of trial Bonnie was forty-nine  years  of
age  and  was working as a waitress.  Her gross wages as reported
on her 2004 return were $32,900.
          The  case  was tried on July 22 and 25, 2005.   At  the
conclusion  of  the trial the court announced  its  decision  and
subsequently entered written findings of fact and conclusions  of
          The  court  found  that  the home  was  only  partially
transmuted  into  marital  property.   Specifically,  the   court
concluded  that the home was two-thirds the separate property  of
Bonnie and one-third marital property.  The court also decided to
value  the Chugiak home as of the time of the parties separation,
rather than the time of trial.
          The  court determined that the marital estate had a net
value of $98,683 and distributed it as follows:
     undistributed marital equity at    $16,528   $8,264  $8,264
     the time of separation in Chugiak
     value of Palmer land               $22,500  $22,500        
     net value of vehicles awarded to   $41,855  $41,855        
     net value of vehicles awarded to   $15,300           $15,30
     Bonnie                                                    0
     hot tub                             $2,500   $2,500        
     Total                              $98,683  $75,119  $23,56

The  court decided that a sixty/forty division in favor of Bonnie
was  justified and that Bonnie should receive assets  of  $59,210
from  the  marital estate.  Since she actually received  $23,564,
the court ordered Allen to pay her the difference, $35,646.
          The  court awarded custody of their child to Bonnie and
reaffirmed both the prior award of arrearages accrued  since  the
parties  separation and Allens previously set obligation  to  pay
monthly child support.  During her rebuttal testimony Bonnie  was
asked  whether  Allen had paid child support for the  child  from
1991  to 1997.  After she answered in the negative she was  asked
whether  that should be taken into account here as well  and  she
answered in the affirmative.  At final argument, Bonnies  counsel
then  claimed  premarital child support for  their  child.   This
subject  was not mentioned in her trial brief or in any pre-trial
pleadings  and  was  raised for the first time  in  her  rebuttal
testimony.  The court concluded that such an award should be made
and  ordered that Child Support Services Division be required  to
calculate  arrearages owed between the childs date  of  birth  in
December of 1991 and the parties marriage in June of 1999.
          The  court  also  awarded Bonnie $10,000  in  attorneys
fees, finding that some of the work that her counsel was required
to  do  was  necessitated  by Allens vexatious  and  unreasonable
conduct.  The court also noted that it had considered the parties
relative economic circumstances, and the fact that plaintiff bore
most  of  the  burden of supporting [the child]  while  defendant
failed to pay interim child support contrary to the courts order.
     A.   Standard of Review
          Equitable allocation of property is reviewable under an
abuse  of discretion standard and will not be reversed unless  it
is  clearly  unjust.2   This court reviews  legal  determinations
relevant  to  property division and child  support  based  on  an
independent judgment standard.3  Factual determinations  made  by
the  superior court are reviewed deferentially under the  clearly
erroneous standard.4
     B.   Partial Transmutation of the House Was Improper.
          The   trial   court  found  that  the  Chugiak   house,
originally owned by Bonnie, was transmuted into marital  property
between  the  parties marriage in June of 1999  and  the  parties
separation  at the end of October of 2002.  The court  stated  in
its oral findings:
          I  agree  with Ms. Shepherd [Allens attorney]
          that   in  June  of  1999,  because  of   the
          contribution of money and effort . . . by Mr.
          Heustess  to  the home and the fact  that  he
          lived there with Ms. Kelley-Heustess and used
          it  as  a  marital residence,  and  from  the
          apparent intent of the parties to treat it as
          their  marital residence, that from  June  of
          1999  until  October of  2002  the  home  was
          marital property.
But  the  court  went on to conclude that only one-third  of  the
value  of  the  house  was transmuted.  The  court  reached  this
conclusion  for two reasons.  First, it found only  one-third  of
the  houses  value was transmuted because Bonnie  had  owned  the
house for nine years as of the time of separation and Allen  only
occupied  the  house as her husband for three  of  those  years.5
Second,  the  court  found that Allen had  deceived  Bonnie  with
respect  to the October 2002 refinancing because he did not  tell
her  that  he  was about to separate.  The court found  that  the
refinancing proceeds were used in large part for Allens benefit.
          Neither   of   these   reasons  justifies   a   partial
transmutation  of the house.  We have repeatedly  indicated  that
transmutation  of real estate converts the entire  property  from
separate   to  marital  in  character.   In  Miller  v.  Miller,6
Lundquist  v.  Lundquist,7 and Compton v.  Compton8  we  rejected
theories of partial transmutation apportioned according to ratios
like those used by the superior court in this case.
          The  rationale based on Allens deception  is  also  not
persuasive.   If  transmutation turned on  the  fact  that  Allen
obtained  title  as a result of the refinancing  there  could  be
merit  to  this  theory.  But, as the court made  clear,  it  was
Allens contributions and effort in maintaining and improving  the
house  and the parties intent before the refinancing that brought
about  the transmutation.  Moreover, with the exception of $1,400
that  the court found went to pay a pre-existing debt of  Allens,
all  of  the  proceeds of the refinancing were used  for  marital
purposes   mainly to pay debts on marital property.  Thus,  apart
from  the $1,400 debt, the refinancing did not convert the  house
equity into separate property.  The new loan mainly replaced high-
interest consumer debt on marital property with low-interest real
estate  debt.9  Allens deception was not shown to be  financially
harmful  and cannot  under any recognized legal theory justify  a
defeasance of two-thirds of his share of the Chugiak house.
     C.    It  Was  Error To Value the House as  of  the  Parties
          When  the parties separated the value of the house  was
$200,000.   By  the time of trial the house had appreciated.   An
appraisal  indicated that it was worth $230,000.  By valuing  the
house as of 2002 the court deprived Allen of any interest in this
          The  trial  court  recognized  the  general  rule  that
property  should ordinarily be valued at the time of trial.   But
the court decided that the circumstances of this case justified a
deviation  from  this rule for three reasons.  First,  the  court
noted that the parties ceased functioning as an economic unit  at
the  time of separation.  Second, the court noted that there  was
an  appraisal as of the time of separation.  And third, the court
relied on Allens deceptive conduct in failing to reveal to Bonnie
that  he  intended  to  leave  her at  the  time  the  house  was
          We  adopted the rule that valuation should be conducted
          as close as practicable to the date of trial in Ogard v. Ogard.10
In  so  doing we rejected a valuation date linked to the time  of
separation,  quoting  the  following  language  from  a   leading
               A  valuation date should be chosen which
          will  provide  the most current and  accurate
          information   possible   and   which   avoids
          inequitable results.  It is distinct from the
          date   marking  the  termination  point   for
          inclusion   of   property  within   equitable
          distribution.  The latter date marks the  end
          of  the marital team effort.  Since this date
          may  be  well  in advance of the  dissolution
          proceedings,  a valuation date linked  to  it
          may result in stale financial information.[11]
We also observed that
          there may be special situations in which  the
          date   of  separation  is  more  appropriate.
          Where,   for  example,  one  of  the  spouses
          dissipates  assets  or  deliberately   allows
          their  value to decline following separation,
          or  the  value of marital property  increases
          due to the efforts of one of the spouses, use
          of  the separation date may be warranted.  In
          that event, there should be specific findings
          as  to why the date of separation is the more
          appropriate choice for valuation.[12]
          In  the present case the three reasons for choosing the
earlier  valuation  date are unpersuasive.   The  fact  that  the
parties  ceased  operating as an economic unit merely  marks  the
date  of  separation  and  is not a reason  for  valuing  marital
property  at the date of separation.  The fact that an  appraisal
of  the  house  was made at the date of separation is  irrelevant
both  because a 2005 appraisal was also made and because the 2002
appraisal  is  just the sort of stale financial information  that
the  time  of  trial rule is meant to eschew.13  As  far  as  the
deceptive  conduct  of Allen is concerned, as already  indicated,
this conduct does not justify defeasing a part of Allens interest
in the house, including his interest in its appreciation.
     D.   Remedy on Remand Regarding the House
          For  the reasons stated in the preceding parts, it  was
error to decide that the house was only partly transmuted and  to
value it as of the time of separation rather than at the time  of
trial.   These  errors  require that  the  property  division  be
vacated so that they may be corrected.  In the process the  court
should  consider whether Bonnie should be given credit for  post-
separation mortgage payments she made from separate property  and
whether  any  such credits should be offset by the value  of  the
benefit of her post-separation occupancy of the house.14
     E.   The 60/40 Division
          Alaska Statute 25.24.160(a)(4) requires trial courts to
consider specific factors in dividing property.  When dividing  a
          marital estate, the trial court generally should begin with the
presumption  that an equal division of marital property  is  most
          In the present case, the trial court decided to deviate
from  the 50/50 norm.  The trial court gave four reasons for this
deviation.   First,  the  court cited  the  differential  in  the
parties  earning power.  Allen had earned $46,295 in 2004 whereas
Bonnie  had  earned  $32,900.  Second, the court  cited  the  age
differential  between  the  parties and  noted  that  Bonnie  had
lingering  physical disabilities from the accident.   Third,  the
court  cited Allens deception in failing to tell Bonnie  that  he
was  about  to leave when the house was refinanced.  Fourth,  the
court  found that Allens failure to pay interim child support  as
ordered  by  the  court  added  to  Bonnies  difficult  financial
          Allen challenges the 60/40 division on the ground  that
Bonnie  has  better occupational prospects than the court  found,
that  the  court erred in relying on Allens deceptive conduct  at
the  time  of  the refinancing of the house, and that  the  court
failed to take into account rental income that Bonnie was earning
at the time of trial from renting an apartment encompassed within
the Chugiak house.
          Allens first point is without merit.  The record  shows
that  Allen  is  healthier and has greater earning capacity  than
Bonnie.   Bonnies  injuries will probably  require  more  medical
care, and they limit her future employment options.16
          Allens  second point is correct.  It was error to  find
that  the  refinancing  of the house was a  source  of  financial
detriment for the reasons already explained.
          Allens  third point is also correct.  At  the  time  of
trial,  Bonnie was earning some $650 per month in rental  revenue
from renting an apartment contained in the house.  The court  did
not  consider  this  source of income in deciding  on  the  60/40
property division.
          The   errors  with  respect  to  the  effect   of   the
refinancing  and  failing to consider the rental  income  do  not
necessarily  mean  that  the  60/40  property  division  is   not
justified.  On remand, the court should reconsider whether and to
what  extent an unequal division of the parties assets should  be
made  in  view  of  the rental income  available  to  Bonnie  and
without  weighting  the  scale  against  Allen  because  of   his
deception at the time of the refinancing transaction.
     F.   Other Property Issues
          1.   Furnishings and household property
          Allen  argues that the trial court erred in failing  to
credit  Bonnie with $50,000 in furnishings and personal  property
left in the home at the time of separation.  As his only evidence
for  this value, Allen cites Bonnies refinancing application,  in
which  Bonnie  stated  that  she had  $50,000  in  furniture  and
personal property.
          Refusing  to rely upon this value was not clear  error.
Bonnies    uncontroverted   testimony   established   that    she
significantly   exaggerated  that  figure  on   her   refinancing
statement  to  obtain  the loan.  Belying his  $50,000  estimate,
          Allens financial statement claimed that the total value of
personal  marital property was well below $50,000, and the  trial
court  found  that  even these values were not  credible  because
Allen  used  purchase  price  rather  than  fair  market  values.
Further,  the  court  concluded that Allen  took  about  as  much
household property as he left and that the split of the items  in
question was a wash.  Allen has not shown that this determination
is clearly erroneous.
          2.   The negative value for the Blazer
          More  persuasive  is Allens argument regarding  Bonnies
Chevy  Blazer.   The  trial  courts findings  concerning  Bonnies
vehicles were that [p]laintiff owns a 2002 Harley at $23,000  and
a  2001 Ford Sports Track which has negative value because of the
Blazer  at ($7,700) for a total in her column of $15,300.   Allen
argues  that  because  Bonnie  paid  the  Blazer  debt  with  the
refinancing proceeds the superior court clearly erred by treating
the Blazer as a liability.
          The  facts  show that the loan on the Chevy  Blazer,  a
marital  vehicle,  was  completely paid  off  by  application  of
$20,412  from the refinancing proceeds.  Bonnie used  the  Blazer
for  some time after the separation and then traded it in  for  a
Ford  Sports Track.  She received trade-in credit for the  Blazer
of  some  $13,000.   The court should have  traced  this  marital
contribution,  less pro-rated depreciation, to the  Sports  Track
and  added  it  to  Bonnies vehicle account.17  It  follows  that
finding  the  Chevy  Blazer had a negative value,  when  in  fact
nothing  was  owed on it at the time that it was traded  in,  was
error,  as  was  deducting $7,700 on account of the  Blazer  from
Bonnies vehicle account.
          3.   Account balances as of September 2002
          Allen  claims that the court erred in failing to credit
Bonnie  with the $10,946 in the checking and savings accounts  as
of  September 30, 2002, the day that Allen stopped depositing his
paychecks  into  the parties mutual account.  He notes  that  the
court  found  that these amounts were later reasonably  used  for
living  expenses by Bonnie and her children.  Allen  argues  that
unless  he  receives some credit for his share  of  these  funds,
Bonnie  is  receiving a double recovery in  light  of  the  child
support  arrearages with which he has been charged for  the  same
period.  In our view this argument lacks merit because the  child
support  Allen  should  have paid was not  intended  for  Bonnies
support  nor was it meant to supply all of the support reasonably
needed  by  their child.  Thus, Bonnies use of the funds  in  the
account  for  support and her anticipated receipt  of  the  child
support arrearages do not amount to a double recovery.
          4.   The settlement funds
          Allen  also  argues that the court erred in failing  to
characterize a part of the personal injury settlement received by
Bonnie  and  the  property damage settlement of $10,000  for  the
destroyed motorcycle as marital.  This argument is irrelevant  in
view of the courts finding that the marital funds Bonnie retained
at  the  time  of  separation were later reasonably  expended  by
Bonnie  to support herself and her children.  As of the  time  of
the  trial  the  funds did not exist.  Since they  had  not  been
squandered  by  Bonnie  there  was  no  occasion  to  attempt  to
recapture them.18
     G.   Granting Premarital Child Support Violated Allens Right
          to Due Process.
          Pursuant  to a request that Bonnie made for  the  first
time  in her rebuttal testimony, the superior court ordered Allen
to  pay Bonnie child support for the period before the Heustesses
marriage,  during  which  Allen failed to  support  their  child.
Allen  asserts that by adjudicating a claim Bonnie did not  raise
until  late  in  the trial, the superior court denied  Allen  due
          Due  process  requires that a party  be  provided  with
notice and an opportunity for a hearing on issues of consequence.19
The  notice must be sufficiently early and specific to allow  the
party  to  prepare  and present a defense.20  Here,  Allen  first
received  notice of Bonnies claim for pre-marriage child  support
at  a  time when it was not possible to effectively contest  this
claim.21  Since Allen lacked notice and an opportunity to be heard
on  this issue, the superior courts order for pre-marriage  child
support must be vacated.
     H.   Attorneys Fees
          The purpose of awarding attorneys fees in divorce cases
is to allow the parties to litigate on an equal plane, and awards
are   accordingly   based  on  the  parties   relative   economic
circumstances.22  The superior court may also increase an award of
fees  where  a  party  has  engaged in  bad  faith  or  vexatious
litigation.23  When making an increased fee award, the court must
first  determine  what fee award would be appropriate  under  the
general rule, and only then increase the award to account  for  a
partys  misconduct.   Failure  to follow  this  two-step  process
constitutes  an abuse of discretion.24  In addition,  [w]hen  the
court   finds  that  one  spouses  misconduct  has  unnecessarily
increased  the other spouses costs, the court must  identify  the
nature and amount of these increased costs.25
          In the present case the court awarded Bonnie $10,000 in
attorneys  fees  based  both  on the  parties  relative  economic
circumstances and Allens vexatious and unreasonable conduct.26
          Because  the  property division must  be  vacated,  the
economic  conditions  on  which the  court  based  its  award  of
attorneys fees may change on remand.  It is therefore appropriate
to  vacate the attorneys fee award.  Further, it is impossible to
tell  to  what  extent  the  award was  made  because  of  Allens
vexatious conduct.  Since the portion of the award based on  such
conduct  must  be  vacated  for  the  reasons  explained  in  the
following  paragraph, and we do not know what  this  portion  is,
          this is an additional reason for vacating the entire award.  The
trial  court  should entertain fresh fee requests  based  on  the
parties  economic circumstances following the courts decision  on
          Insofar  as  the  attorneys  fee  award  was  based  on
vexatious  litigation conduct on the part of Allen, an  increased
award  of fees may be justified on remand.  But the present award
may  not  be  affirmed on that basis because the  court  did  not
follow  the  two-step  process referred  to  above  and  did  not
identify  the  increased costs that were the  product  of  Allens
vexatious conduct.
          The  order  dividing  the  parties  property  must   be
vacated.   The  trial court on remand should divide  the  parties
property  in accordance with the views expressed in this opinion.
In making this division, the court should bear in mind that [t]he
preferred  method for dividing a marital estate  is  to  transfer
title  where this can be reasonably accomplished, but it  is  not
error  per  se to make a cash award requiring one party  to  sell
illiquid  assets  (or make installment payments)  where  such  an
award causes no hardship.27  On remand therefore the court should
also  address  whether an equitable division  can  reasonably  be
accomplished  solely by transferring property and  whether  Allen
can,  without  hardship,  make a cash  payment  as  part  of  the
property division.28
          The  courts  order  awarding child  support  arrearages
between  the childs birth and the parties marriage must  also  be
vacated.  On remand the court should give Allen an opportunity to
present such defenses as he may have with respect to the claim of
child support for this period.
          The  award  of  attorneys fees is  also  vacated.   The
questions of whether to award attorneys fees and if so  how  much
should  be  addressed  at the conclusion of  the  proceedings  on
          The   court   is  authorized  to  conduct  supplemental
evidentiary proceedings on remand if the court in its  discretion
finds such proceedings to be desirable.
          VACATED and REMANDED for further proceedings.
     1      This  practice  ended  a  month  before  the  parties
separated.   Bonnie  testified that  Allen  started  holding  his
checks in September of 2002.

     2     Green  v.  Green,  29  P.3d  854,  857  (Alaska  2001)
(quotations omitted).

     3     Caldwell  v.  State,  Dept of Revenue,  Child  Support
Enforcement  Div.,  105 P.3d 570, 573 (Alaska 2005);  Schmitz  v.
Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).

     4    Caldwell, 105 P.3d at 573; Schmitz, 88 P.3d at 1122.

     5     The  court  ignored the two-year period of  premarital
cohabitation during which Allen lived in the house.  Our case law
permits  such  periods to be considered in deciding transmutation
questions.  See Abood v. Abood, 119 P.3d 980, 988 (Alaska 2005).

     6    105 P.3d 1136, 1141 (Alaska 2005).

     7    923 P.2d 42, 48 (Alaska 1996).

     8    902 P.2d 805, 812 (Alaska 1995).

     9    Bonnie testified that her house payments increased from
$1,100  each  month to $1,400 per month following the  refinance.
But  the  monthly payments eliminated because of the other  loans
paid  off  by  the  refinance proceeds must  be  considered  when
evaluating  the  impact  of  the  refinance,  and  there  is   no
indication that this was done.

     10    808 P.2d 815, 819 (Alaska 1991).

     11     Id. at 819 (quoting L. Golden, Equitable Distribution
of  Property   7.01,  at  207  (1983)) (citations  and  footnotes
omitted in original).

     12     Id. at 820 (quoting Golden, supra note 11,  7.02,  at

     13     Id. at 819 (quoting Golden, supra note 11,  7.01,  at

     14     The  need  to consider whether credits   and  offsets
should   be  given  for  post-separation  mortgage  payments   is
reflected in our case law.  See Korn v. Korn, 46 P.3d 1021, 1023-
24  (Alaska  2002)  (noting that this  court  has  approved  both
crediting a spouse for making payments of post-separation  income
to  preserve marital property, and offsetting this credit,  since
any  benefit [the spouse] may have imparted to the marital estate
was  offset by the benefit he received from the estate by  living
rent  free ) (quoting Rodriguez v. Rodriguez, 908 P.2d 1007, 1013
(Alaska 1995)).  See also Carr v. Carr, 152 P.3d 450, 454 (Alaska
2007)  (The  superior court may impute the rental  value  of  one
partys exclusive use of the marital residence after separation to
that  party when it equitably divides the marital estate  between
parties.); Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992)  (We
have  required  that  trial  courts  consider  payments  made  to
maintain  marital  property  from  post-separation  income   when
dividing  marital property.  We have not, however, held that  the
spouse  who makes such payments must necessarily be given  credit
for them in the final property division.).

     15     Fortson  v. Fortson, 131 P.3d 451, 456 (Alaska  2006)
(quotation omitted).

     16     Bonnie  testified  that  her  injuries  will  prevent
continued employment as a waitress.

     17     See  Hunt v. Hunt, 698 P.2d 1168, 1171 (Alaska  1985)
(Property  acquired after the permanent separation but  prior  to
final divorce should be included in the property settlement if it
was  acquired  with  property which  would  otherwise  have  been
subject to division.).

     18     See Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997)
(When  . . . [an] expended marital asset was wasted, or converted
to  a nonmarital form, the trial court may recapture the asset by
giving it an earlier valuation date and crediting all or part  of
it  to  the  account  of  the party who  controlled  the  asset.)
(quotations omitted).

     19     Carvalho v. Carvalho, 838 P.2d 259, 262, 263  (Alaska
1992)  (holding  that  the trial court  violated  a  parents  due
process  rights by rejecting his request to testify  in  a  child
support  hearing);  cf. Walker v. Walker, 960  P.2d  620,  621-22
(Alaska  1998) ([T]he notice and hearing afforded a  litigant  in
child  custody  proceedings involves due process considerations.)
(quotations omitted).

     20     See  Crutchfield v. State, 627 P.2d 196, 199  (Alaska
1980)   (holding  that  procedural  due  process   requires   the
government to give notice to individuals whose property interests
are   adversely  affected  by  government  action);  Aguchak   v.
Montgomery  Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)  (holding
that  due  process  requires notice of a  hearing  sufficient  to
convey information required to present objections).

     21     We note that in her late request for premarital child
support  Bonnie did not ask for support between the beginning  of
cohabitation in 1997 and the parties marriage.  The trial  court,
however, directed that arrearages be awarded to the time  of  the

     22     Lone  Wolf v. Lone Wolf, 741 P.2d 1187, 1192  (Alaska

     23     Kowalski  v.  Kowalski, 806 P.2d 1368,  1373  (Alaska

     24    Id.

     25    Id.

     26     The  court also noted that Bonnie bore  most  of  the
burden  of  supporting [the child] while [Allen]  failed  to  pay
interim  child  support  contrary to the  courts  order.   Allens
failure  to  pay  interim child support is  relevant  to  Bonnies
economic circumstances.

     27    Cox v. Cox, 931 P.2d 1041, 1045 (Alaska 1997).

     28    Id.

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