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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hooper v. Hooper (07/25/2008) sp-6292

Hooper v. Hooper (07/25/2008) sp-6292, 188 P3d 681

     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


TAGGART HOOPER, )
) Supreme Court No. S- 12356
Appellant, )
) Superior Court No. 3AN-04-11587 CI
v. )
) O P I N I O N
SABRA HOOPER, )
) No. 6292 July 25, 2008
Appellee. )
)

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

          Appearances:  Herbert M. Pearce,  Law  Office
          of   Herbert   M.   Pearce,  Anchorage,   for
          Appellant.  No brief filed by Appellee.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          When  Sabra  and Taggart Hooper divorced, the  superior
court  awarded  nearly sixty-seven percent of  the  main  marital
estate  to Sabra, and thus gave her about $110,000 more  than  it
gave   Taggart.   Taggart  challenges  this  division  and  other
rulings.   We  affirm the property division because  we  conclude
that it was supported by sufficient findings of fact and that the
court  did  not  abuse its discretion.  But  because  some  other
awards require additional explanation, we vacate those awards and
remand.
II.  FACTS AND PROCEEDINGS
          Sabra  and Taggart Hooper married in 1991, and in  2004
Sabra  filed  for divorce.  The parties agreed as to custody  for
their two children, but were unable to agree on other issues.  In
late 2005 the superior court conducted a trial as to the disputed
issues;  both  parties testified.  In late May 2006 the  superior
court entered findings of fact and conclusions of law.
          The  court found that Sabra had not worked fulltime for
more  than seven years and that her current employment as a part-
time teachers assistant (earning $1,200 net per month during  the
school year) was reasonable.  The court found that Taggart earned
at least $3,000 net per month[].1
          As  to  the property division issue, the court  decided
that  Sabra  was entitled to sixty-seven percent  of  the  estate
based on
          the  length  of the marriage, the time  Sabra
          spent  raising  the  children,  the  relative
          earning  capacities of the two, the disparate
          incomes  of  the two, the relatively  greater
          time that Sabra will be rearing the children,
          and   the  economic  needs  of  the  parties,
          including  Sabras need for money to refinance
          the marital home to keep it for the children,
          if she can, or to pay for costs of repairs in
          order to sell the house if she must.
          
          The  court  found that the total value of  the  marital
estate  apart from the parties retirement accounts was  $348,537.
It  then awarded Sabra $229,162 and Taggart $119,375 of the  non-
retirement  account  portion  of the  marital  estate.   It  thus
awarded Sabra slightly less than sixty-seven percent of this part
of  the  marital estate.  As the superior court observed,  sixty-
seven percent of this part of the marital estate would have  been
$233,520.   The  court noted that although it was awarding  Sabra
slightly less than sixty-seven percent of the marital estate,  it
believed the actual division was fair and equitable, and is close
enough to what the court believes is a just division that further
refinement is not warranted.  The courts awards of this  part  of
the  marital assets had the effect of giving Sabra about $110,000
more than they gave Taggart.
          As  to  the retirement accounts, the court stated  that
Qualified  Domestic  Relations Orders (QDROs)  would  be  entered
awarding  Sabra sixty-seven percent of Taggarts unvested  Federal
Employees  Retirement  System (FERS) account,  Taggarts  National
Guard  pension  account, and Sabras Public  Employees  Retirement
System  (PERS) account.  By stipulation, the court awarded  Sabra
all of her Alaska Airlines retirement account.
          The  portion of the marital assets valued by the  court
at  $348,537 included much of Taggarts Thrift Savings Plan (TSP),
which  had  a  marital value of about $194,417 as of  July  2005.
When  Taggart, who had agreed to pay the mortgage on the  marital
home following separation, did not make some of the 2005 mortgage
payments,  the  court ordered him in mid-2005 to  borrow  $10,000
from his TSP account so he could continue to make those payments.
The monthly mortgage payments were about $1,500.  At trial, there
          was a dispute whether the superior court should treat this loan
as  marital  property,  as  Taggart  contended,  or  as  Taggarts
individual  property, as Sabra contended. The  courts  post-trial
decision   characterized  Taggarts  mortgage  payments  following
separation  as  payments  in lieu of child  support,  found  that
Taggart  had  agreed to pay the mortgage instead of paying  child
support,  and  concluded that the loan would be  counted  against
Taggarts portion of the TSP.
          Taggart testified at trial that in August 2005  he  had
begun paying monthly child support of $500.  The findings of fact
did not discuss these payments.
          The   findings  and  conclusions  ordered  Taggart   to
purchase, at his expense, FERS survivor benefits for Sabra.   The
findings  did  not  determine  the  cost  of  these  survivorship
benefits.
          The  findings  also divided Taggarts  employment  leave
that  he  had accrued during the marriage.  The parties  were  to
determine  its  value,  and Taggart was to cash  out  sixty-seven
percent  of the accrued leave and pay that amount to Sabra.   The
court  did  not specify whether the leave to be divided  included
sick leave.
          The  court  also awarded Sabra $3,000 in rehabilitative
alimony  to assist her in acquiring new job skills and  returning
to  work.  Sabra had requested $10,000 in rehabilitative  alimony
so  she could complete college and obtain an elementary education
degree.   The  court declined to award that amount, stating  that
Taggart  could not reasonably afford to make payments over  three
years totaling $10,000 in addition to his child support and other
payments and obligations, and that such an award would be unfair.
          The superior court also awarded Sabra attorneys fees of
$5,000  [b]ased on the disparity in income between the  parties.2
It  denied  her request for an award of nearly $12,000  to  cover
credit card debt she incurred in paying her legal fees and  child
expenses.  It also denied her request for an award of $21,372  to
repay  a  loan  she claimed she had obtained from her  mother  to
support herself and the children after separation.
          Taggart  appeals.   Sabra has filed a  notice  of  non-
participation in the appeal.
III. DISCUSSION
     A.   The  Court  Did  Not Err in Awarding Sabra  Sixty-Seven
          Percent of the Marital Estate.
          
          1.   Standard of review

          Taggart  argues that the superior court did not appl[y]
the   appropriate  legal  standards  in  exercising   its   broad
discretion   when  it  awarded  Sabra  approximately  sixty-seven
percent  of  the  marital estate.  He asserts that  his  argument
raises  a  question  of  law, to which we apply  our  independent
judgment.   But  it  appears that he also takes  issue  with  the
courts  findings  of  fact  and its  exercise  of  discretion  in
applying the factors listed in AS 25.24.160(a)(4).  We have  held
that, [a]lthough an equal division of property is presumed to  be
the  most  equitable,  the trial court has  broad  discretion  to
          deviate from absolute equality.3  We therefore review the
superior courts decision to award Sabra approximately sixty-seven
percent  of the estate under the abuse-of-discretion standard  of
review.
          For  us to review an award, we must be informed by  the
[superior]  court  what it found to be the  ultimate  facts  upon
which it based its conclusion that the property should be divided
as  it  has decreed.4  Whether there are sufficient findings  for
informed  appellate review is a question of law.5  We  apply  our
independent judgment to questions of law,6 and review findings of
fact for clear error, a standard met only if, after review of the
entire  record,  we are left with a definite and firm  conviction
that a mistake was made.7
          2.    Whether  the trial court applied the  appropriate
legal  standards          We first consider whether,  as  Taggart
argues, the trial court committed legal error by failing to apply
the   appropriate  legal  standards  in  exercising   its   broad
discretion.
          The  equitable division of marital assets is  a  three-
step  process:  first,  the court must  determine  what  specific
property is available for distribution; second, it must find  the
value  of  this property; third, it must decide how an allocation
can  be  made most equitably.8  In determining the most equitable
division,  the  starting point is the presumption that  an  equal
division is the most just.9  From there, the superior court  must
consider  the  Merrill v. Merrill10 factors now  codified  in  AS
25.24.160(a)(4).11  The superior court may divide the assets  and
liabilities  unequally if it finds that such a division  is  just
after considering the statutory factors.12
          Before unequally dividing property, the superior  court
must  consider  the necessities element of AS 25.24.160(a)(4)  by
specifically  discussing the parties individual needs.   We  have
upheld  an  unequal division of property in a case in  which  the
superior  court  discussed each of the statutory  factors,13  and
affirmed  a fifty-six/forty-four percent property division  in  a
case  in  which  the superior court found the wife needed  future
income while pursuing a professional degree.14  Likewise, we have
vacated  an  unequal property division and remanded  because  the
superior court did not appear to discuss the needs of the parties
beyond discussing the property available.15
          The superior court here entered thoughtful and detailed
findings of fact discussing all of the relevant factors  set  out
in  AS  25.24.160(a)(4).16  The findingsdiscussed Sabras  present
relative lack of employment skills, the parties relative  earning
capacities, the disparity in the parties incomes, the duration of
the  marriage,  the time Sabra spent and will spend  raising  the
children,  and   in  a  general way  the economic  needs  of  the
parties, including Sabras need for money either to refinance  the
home  or to repair and sell it.  The findings also discussed  the
amount  of equity in the home and the exact amount the court  was
awarding each party from the marital estate, apart from what they
were  also  to  receive  from  the  retirement  accounts.   These
findings  addressed the appropriate legal standards for  property
division.  The trial court therefore committed no legal error.
          We  next  consider whether the findings are  sufficient
for  appellate  review  of  the disparate  awards  challenged  by
Taggart.   In  deciding whether to deviate from the presumptively
appropriate fifty/fifty division, a superior court must  consider
the   statutory   factors,   including   the   parties   economic
circumstances  and  necessities.17  The superior  court  did  not
explain the mathematical process by which it reached a conclusion
that  Sabra  should  receive  about sixty-seven  percent  of  the
marital  property,  and thus $110,000 more of the  non-retirement
account   property  than  Taggart  received.   But  the  findings
discussed  the parties significant income disparity  and  broadly
discussed Sabras need to keep the family home, if possible.   The
findings  did  not  directly address the parties  monthly  needs.
They   did   not  identify  Sabras  specific  monthly   financial
necessities,18  or the value of any extraordinary expenses  Sabra
might  face  that might themselves justify the disparity  in  the
awards.19   On  the  other hand, Taggarts main property  division
theme  at trial was that Sabra was voluntarily underemployed  and
capable  of  earning  more  than she  did.   The  court  rejected
Taggarts  contention that Sabra had unilaterally  chosen  not  to
return  to full-time employment; there was no significant dispute
that Sabra was disadvantaged economically, to the point the court
declined  to  penalize her after she violated a  court  order  by
selling marital property to pay expenses. And when Taggart failed
to make several mortgage payments on the marital home in 2005,  a
foreclosure  notice was issued for the marital home  occupied  by
Sabra  and  the children.  As the court noted, this left  her  in
financial difficulties.  The court thus effectively found   Sabra
had  no  financial  reserves.  The trial courts  order  correctly
noted that the parties had noticeably disparate incomes, and that
Taggart  earns  far  more than Sabra and has  a  greater  earning
capacity.  The court found that Taggart earns at least $3,000 net
monthly,  and Sabra earns $1,200 net monthly, during  the  school
year.20 These figures reflect a roughly 2.5-to-1 disparity in the
parties incomes; that disparity exceeds the approximately  2-to-1
disparity  between the parties property awards.  The  court  also
noted  that Taggart had regularly deposited more than 7.5 percent
of his income in his retirement plans.
          The  findings and conclusions sufficiently explain  why
the  court awarded Sabra approximately two times what it  awarded
Taggart.   We are therefore able to determine whether the  awards
were within the superior courts considerable discretion.
          This  is not to say that the size of the disparity from
the  fifty/fifty  norm  for  property  division  does  not  cause
concern.   Care must be taken to adhere to the norm unless  there
are  good  reasons for deviating from it.  Here, the reasons  for
deviation are sufficient and we are influenced in this conclusion
by the relatively modest size of the marital estate.
          3.   Taggarts challenge to specific rulings
          Taggart  also challenges specific rulings of the  trial
court,  although  he contends that he is only  arguing  that  the
superior  court applied the wrong legal standard. Some  of  these
rulings resolved fact disputes or were based on factual findings.
Factual  findings  will not be reversed unless they  are  clearly
          erroneous.21  The others we review for abuse of discretion.22
          Taggart  first argues that Sabra refused to  return  to
work  fulltime and that this created financial problems  for  the
parties.  He implies that her refusal was contrary to the parties
agreement.   The superior court found that Sabra was a  part-time
Anchorage  School District teaching assistant during  the  school
year,  that this employment was reasonable, that she would slowly
re-enter  the  work  force, and that she  was  not  underemployed
during the school year.
          Taggart testified only that he had expected Sabra to go
back  to work fulltime when the children were in school.  He  did
not  testify  that Sabra had refused to return to work  fulltime,
that  she  had  failed  to  abide by any agreement  between  them
regarding her employment, or that her part-time schedule  created
any  financial difficulties.  Sabra testified that she was in the
process  of returning to work fulltime, and that the parties  had
agreed that she would not work at all between 1997 and 2001.  The
superior  court  therefore did not clearly err  by  finding  that
Sabras employment was reasonable.
          Taggart   next   asserts  that  Sabra  is   voluntarily
underemployed,   because   [t]he   evidence   presented   clearly
demonstrated that Sabra had the skills and ability to work  full-
time  at a wage of at least $13.00 an hour.  He implicitly argues
that  such jobs were actually available to Sabra.  When asked  by
Taggarts  attorney if she would take a full-time  job  that  paid
$13.15  per  hour,  Sabra testified that  she  would.   She  also
testified  that  she thought she could earn $13  per  hour.   But
Sabra  did  not testify expressly or implicitly that a  full-time
job  paying  $13 per hour was available to her.    She  explained
that  she  no longer has the skills necessary to do the work  she
had  previously  done for Alaska Airlines, when she  last  earned
about $13 per hour in full-time employment.  Sabra also testified
that  she had applied for several full-time jobs with the  school
district  and had not been hired.  The record does not  compel  a
finding   that  Sabra  actually  could  have  obtained  full-time
employment for $13 per hour, and it does not demonstrate that the
court clearly erred in failing to find that she could have.
          The  superior court did not clearly err by finding that
Sabras  current  level of employment was appropriate,  given  her
skills.   The court also did not clearly err in finding that  she
was  not underemployed during the school year.  And as to  summer
employment,  the  court  reasoned that while  the  children  were
young,  child  care expenses of at least $750  monthly  would  be
incurred; it seemed to assume that if she worked thirty  hours  a
week  at  $13  per hour these expenses would consume about  fifty
percent  of  her summer earnings.  We are unconvinced  that  this
finding and this implicit assumption were clearly erroneous.
          Taggart next asserts that Sabra will earn more money in
the  future, when and if she obtains a teaching degree.  But  the
statute  requires  the  court  to consider  each  partys  earning
capacity.23  It does not require the court to consider the partys
potential   future   earning   capacity   following   significant
additional education.  There was no evidence Sabra would  earn  a
teaching certificate in the near future.  She testified  she  had
          about ten credit hours and needed about 112 more to obtain a
teaching  certificate.   It was not an  abuse  of  discretion  to
decline to attribute a teachers earning capacity to Sabra.
          Taggart   next  asserts  that  the  trial  court   also
justified  [awarding] 67% of the marital estate  to  Sabra  based
upon  the fact that if she was unable to refinance the home  then
she would need to pay for cost[s] of repairs in order to sell the
house if she must.   We assume Taggart is not contending that the
prospect  of  pre-sale  repair  expenses  was  the  courts   only
justification   for  the  disparate  award;  the  findings   also
discussed  a  variety  of  other facts which  the  court  thought
rendered  a sixty-seven/thirty-three division fair and equitable.
It  appears the court regarded pre-sale repair costs as a logical
alternative  to its finding that Sabra needed money to  refinance
the marital home to keep it for the children, if she can . . .  .
It also appears, as Taggart argues, that there was no evidence in
the  record that the house needed repairs, whether or not it  had
to  be  sold.   But there is likewise no indication the  superior
court gave the possibility of repair costs significant weight.24
          Taggart also seems to argue that in determining whether
Sabra was to receive more than half the marital estate, the court
improperly  considered the cost of child care and the  amount  of
time  Sabra spent raising the children.  We have stated that  the
list  of factors in AS 25.24.160(a)(4) is not exhaustive and that
it  is  entirely appropriate for a court to consider factors  not
enumerated  in that statute.25  The statute did not  prevent  the
court  from considering these circumstances.  To the extent these
circumstances   may  have  been  relevant  to   Sabras   economic
necessities  not otherwise covered by child support payments,  it
was not inappropriate to consider them.
          Taggart   also  argues  that  the  court  should   have
considered his child-care costs.  Because Taggart testified  that
he had no child-care costs, we are unpersuaded by this argument.
     B.   It  Was  Error To Deduct the $10,000 Loan from Taggarts
          Portion of the TSP Without a More Detailed Explanation.

          In  mid-2005  the  superior court  ordered  Taggart  to
borrow $10,000 from his TSP account so he could continue to  make
mortgage payments on the marital home occupied by Sabra  and  the
children.  Although the superior court found the marital  portion
of  the TSP account was worth about $194,000 in July 2005, in its
2006 decision the court attributed the entire $10,000 TSP loan to
Taggart,  rather  than dividing it between the parties.   Taggart
argues  that it was error to treat the loan as his, and  that  it
should  have  been  classified as a marital loan  to  be  divided
between the parties.
          The  May  31, 2006 findings of fact and conclusions  of
law  characterized  all mortgage payments, including  those  made
from  the TSP loan, as payments made in lieu of child or  spousal
support.26  Thus, the superior court found:
     
     
     After  separation,  Taggart agreed (and  his  agreement
     subsequently  was  made  into  an  order)  to  pay  the
     mortgage  on the marital home in lieu of child support.
     He  stopped  paying the mortgage on occasions,  leaving
     Sabra in financial difficulties, and Taggart eventually
     was  ordered to take a loan of $10,000 from the TSP  to
     continue  to pay mortgage payments in the interim,  and
     to  pay for a second appraisal. . . .  The $10,000 loan
     amount  from the TSP shall be counted against  Taggarts
     33% share of the TSP, because he agreed and was ordered
     to pay the mortgage from his post-separation income.
     
The  court  then  added that to the extent the mortgage  payments
exceeded  Taggarts  child support obligation,  it  was  fair  and
equitable to deem the excess interim spousal support.
          Taggart argues that although he did originally agree to
continue to make the mortgage payment on the marital residence in
lieu  of  child support at the onset of this litigation,  by  the
time  he  took out the TSP loan, he no longer wished to  pay  the
mortgage  in lieu of child support.  Instead, beginning  in  mid-
2005  Taggart filed repeated motions asking the court to issue  a
written  decision  and to award the home (and the  responsibility
for  making the mortgage payments) to Sabra.  Taggart argues that
because the court delayed issuing its decision,27 and because the
TSP  loan was utilized to preserve the marital estate, it  should
have been split between the parties
          Taggart  is correct in arguing that the superior  court
must  consider  payments made to maintain marital  property  from
post-separation  income  when dividing marital  property,28  even
though we have recognized that [w]e have not . . . held that  the
spouse  who makes such payments must necessarily be given  credit
for  them  in  the  final property division.29  Here  it  appears
Taggart  may  be  correct in arguing that  the  court  entered  a
separate interim $500 per month child-support order at about  the
same  time the court ordered him to take out the TSP loan to make
the  mortgage payments.  This would seem to be inconsistent  with
treating the mortgage payments as Taggarts own obligation on  the
theory  they  were in lieu of his child support payments.   Also,
because  most of Taggarts TSP account was marital, in effect  the
loan  (although  taken  out by Taggart) used  marital  assets  to
preserve  another marital asset (the parties home) before  trial.
It therefore would have been appropriate to presume that the loan
was  marital.  Nonetheless, the findings of fact and  conclusions
of law do not discuss whether the court considered these payments
when  it  divided  the  property.  We remand  for  more  detailed
findings explaining why the TSP loan should not be treated  as  a
marital debt to be divided equitably between the parties,  rather
than counted only against Taggarts share of the TSP.
     C.   It Was Error To Overlook Taggarts Interim Child Support
          Payments.
          Taggart  claims that he testified that  he  made  three
child  support  payments  of  $500  for  August,  September,  and
October, 2005.  The findings of fact and conclusions of  law  did
not  mention these payments.  Taggart argues that he began paying
child  support based upon the trial courts oral order entered  on
July  22, 200[5].  We assume he is referring to the July 21 order
          requiring that child support be calculated in accordance with
Alaska Civil Rule 90.3, beginning August 1.  Taggart did not file
a  Rule  90.3  income affidavit at that time.   Nevertheless,  in
Ogard  v.  Ogard,  we held that payments made on  behalf  of  the
children  were  to  be  credited against  interim  child  support
obligations.30  On remand, the superior court should  clarify  to
what  extent, if any, Taggart should receive credit  for  interim
child support payments he made beginning in August 2005.31
     D.   It  Was  Error To Require Taggart To Purchase  Survivor
          Benefits Without Determining Their Cost.
          
          The  superior  court ordered the division  of  Taggarts
unvested  FERS account by QDRO, awarding sixty-seven  percent  to
Sabra  while  requiring Taggart to bear the  cost  of  purchasing
survivor  benefits.  Taggart argues that the cost  of  purchasing
the  survivor  benefits  should have been allocated  between  the
parties in the same proportion as the rest of the marital estate.32
          We  express  no opinion about how the cost of  survivor
benefits  should  have been divided.  But allocating  the  entire
cost  to Taggart effectively deviated from the allocation  scheme
the  court  stated it was following.  Absent a determination  (or
undisputed   evidence)  that  the  cost  of  the   benefits   was
financially insignificant, Taggart should not have been  required
to  pay  the  entire  cost  of purchasing  the  benefits  without
determining  how  much the benefits cost and without  considering
how  imposing  that expense on Taggart would affect the  property
division.   As  we  held in Lang v. Lang, we  need  to  know  the
ultimate  facts  that  the  property division  was  based  on  to
determine whether the superior court abused its discretion.33  We
therefore  remand for determination of the cost of  the  survivor
benefits  and,  unless  the  cost is insignificant,  for  further
consideration  and  explanation  of  how  that  cost  should   be
allocated.
     E.   Taggart Waived His Argument Pertaining to Leave.
          Taggart  argues  that he should not have  to  cash  out
sixty-seven percent of his leave and pay Sabra its value  because
the  superior  court did not ascertain whether all of  his  leave
could  be  cashed out.  He contends that the court erred  by  not
determining  if some or all of Taggarts personal leave  that  was
accrued  is  sick leave that is only available  to  him  for  the
limited purposes of actual illness or for determining the  length
of  service  upon retirement its value is inherently speculative.
Because  Taggart presented no evidence at trial that any  of  his
leave could not be cashed out, he did not preserve this argument.34
     F.   The    Findings   Are   Inadequate   for   the   $3,000
          Rehabilitative Alimony Award.
          
          Taggart   argues  that  Sabra  was  not   entitled   to
rehabilitative  alimony  because  she  was  awarded   sixty-seven
percent  of  the  marital estate.35  Sabra sought  rehabilitative
alimony  of $10,000.  The court denied that request, but  awarded
her  $3,000.   In  doing so, the court did  not  explain  how  it
calculated  this amount, or what expenses and for  what  duration
this amount would cover.  And it did not explain why an award  of
          this amount was needed, given Sabras income and given the size of
the  marital  estate, its unequal allocation, and the  amount  of
marital  property awarded her. Sabra should not have been awarded
$3,000  in  rehabilitative alimony absent factual findings  about
the  cost  and duration of the projected rehabilitation plan  and
absent  findings  that her income and her share  of  the  marital
property   were   insufficient  to  allow   her   to   pursue   a
rehabilitation program at her own expense.36  We therefore vacate
this  award and remand for further findings.  The court,  at  its
discretion, may receive additional relevant evidence.
          G.   The Award of Attorneys Fees Was Reasonable.
          Taggart  argues that Sabra should not have been awarded
$5,000 in attorneys fees.  He asserts that [t]here was no finding
by  the  trial court that Sabras financial condition in  any  way
prohibited  her from litigating the divorce action  on  a  fairly
equal  plane.  He also argues that it was inconsistent  to  award
Sabra  attorneys fees after the court concluded that she was  not
entitled  to  be reimbursed for credit card debt she incurred  to
pay  for attorneys fees and the childrens expenses.  Taggart also
argues  that  Sabra received a significant award in the  form  of
mortgage payments and the property division.
          We  will not reverse an award of attorneys fees  unless
it  is arbitrary, capricious, or manifestly unreasonable.37   The
superior court did not need to make a specific finding that Sabra
would  be unable to litigate the divorce on a fairly equal plane.
As  Taggart  recognizes, cost and fee awards in a divorce  action
are  not  to  be  based  on  the prevailing  party  concept,  but
primarily on the relative economic situations and earning  powers
of  the parties.38  Taggart acknowledges that the superior  court
awarded  Sabra $5,000 [b]ased on the disparity in income  between
the  parties.  This was an adequate explanation for  this  award.
We therefore affirm the $5,000 attorneys fees award.
          Although  Taggart  has  prevailed  on  some  issues  on
appeal,  in Part III.A we affirmed the unequal property division.
The   amount  in  dispute  as  to  the  property  division   very
substantially exceeds the total amounts in dispute as  to  issues
on  which  Taggart prevailed at trial and as to those  additional
issues  on which he may prevail on remand.  We therefore  decline
to remand for reconsideration of the attorneys fees award.
IV.  CONCLUSION
          We  VACATE as to the treatment of the $10,000 TSP  loan
as  Taggarts, Taggarts claim of credit for interim child support,
the  cost and allocation of the survivor benefits, and the  award
of  rehabilitative alimony, and REMAND for additional proceedings
as  to  those disputes.  We AFFIRM the remainder of the  superior
courts  findings  of fact and conclusions of law,  including  its
property division.
_______________________________
     1    The Final Child Support Order entered in 2006 set basic
child  support  at  $885 per month and stated that  Taggarts  net
wages  were approximately $3,277.  We cannot confirm the accuracy
of  the  $3,277  figure, because the record does  not  include  a
signed Alaska Civil Rule 90.3 affidavit current as of the date of
trial. An unsigned affidavit stated that Taggarts adjusted annual
income was $50,388.  Taggart testified that his 2004 gross  wages
were  $64,990.  This figure reflected earnings from his full-time
job  as  an aircraft mechanic with the Department of Defense  and
his part-time job with the Alaska Air National Guard and may have
included  significant earnings attributable to  overtime.   There
was  no  trial  evidence clearly establishing  Taggarts  adjusted
annual  income  or bearing on whether his 2004 gross  wages  were
aberrationally high.

     2    Sabra was represented by counsel in the superior court.

     3     Ulsher  v.  Ulsher, 867 P.2d 819,  822  (Alaska  1994)
(affirming  award of two-thirds of marital estate to  wife  where
marriage  was  of  moderate  length, wife  worked  intermittently
during marriage, and wife earned half of what husband earned).

     4     Lang  v.  Lang,  741  P.2d 1193,  1195  (Alaska  1987)
(stating that court must make fact findings that are sufficiently
specific  to  indicate  basis  for  property  division)  (quoting
Merrill  v. Merrill, 368 P.2d 546, 547-48 (Alaska 1962) (footnote
omitted)).

     5     We have previously stated that [w]e review the alleged
inadequacy  of a trial courts fact findings to determine  whether
they  give  [us]  a  clear indication of the  factors  considered
important  by the trial court or allow us to determine  from  the
record  what  considerations  were  involved.   Borchgrevink   v.
Borchgrevink, 941 P.2d 132, 137 (Alaska 1997).  We conclude  here
that this threshold question presents a question of law.

     6     E.g.,  Wanberg v. Wanberg, 664 P.2d 568,  570  (Alaska
1983).

     7    Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005).

     8     Schmitz  v. Schmitz, 88 P.3d 1116, 1122 (Alaska  2004)
(citing  Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002) (citing
Lundquist  v.  Lundquist,  923  P.2d  42,  46-47  (Alaska  1996);
Wanberg, 664 P.2d at 570)).

     9     Burcell  v.  Burcell, 713 P.2d 802, 805 (Alaska  1986)
(citing  Jones  v.  Jones, 666 P.2d 1031,  1034  (Alaska  1983));
accord  Nicholson  v.  Wolfe, 974 P.2d  417,  422  (Alaska  1999)
(stating  that  [a]n  equal division of the marital  property  is
presumed  to  be  equitable  and approving  the  superior  courts
decision to begin its analysis with this presumption).

     10     Merrill v. Merrill, 368 P.2d 546, 547-48 n.4  (Alaska
1962).

     11    Tybus v. Holland, 989 P.2d 1281, 1286 (Alaska 1999).

     12    Id. at 1286.

     13    Id.

     14    Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988).

     15     Walker v. Walker, 151 P.3d 444, 450-51 (Alaska  2007)
(in  absence of findings under Merrill factors, unequal  property
division was abuse of discretion).

     16    AS 25.24.160(a) states in pertinent part:

          In  a  judgment in an action for  divorce  or
          action  declaring a marriage void or  at  any
          time after judgment, the court may provide
          . . . .
          (4)  for the division between the parties  of
          their    property,    including    retirement
          benefits, whether joint or separate, acquired
          only  during marriage, in a just  manner  and
          without regard to which of the parties is  in
          fault;  however,  the court,  in  making  the
          division,  may invade the property, including
          retirement   benefits,   of   either   spouse
          acquired  before marriage when the  balancing
          of  the equities between the parties requires
          it;  and  to accomplish this end the judgment
          may  require that one or both of the  parties
          assign, deliver, or convey any of their  real
          or  personal  property, including  retirement
          benefits, to the other party; the division of
          property  must fairly allocate  the  economic
          effect   of   divorce  by  being   based   on
          consideration of the following factors:
               (A)    the  length of the  marriage  and
          station  in  life of the parties  during  the
          marriage;
               (B)  the age and health of the parties;
               (C)    the  earning  capacity   of   the
          parties,    including    their    educational
          backgrounds,  training,  employment   skills,
          work experiences, length of absence from  the
          job  market,  and  custodial responsibilities
          for children during the marriage;
               (D)   the  financial  condition  of  the
          parties, including the availability and  cost
          of health insurance;
               (E)    the   conduct  of  the   parties,
          including whether there has been unreasonable
          depletion of marital assets;
               (F)   the  desirability of awarding  the
          family home, or the right to live in it for a
          reasonable period of time, to the  party  who
          has primary physical custody of children;
               (G)   the  circumstances and necessities
          of each party;
               (H)   the time and manner of acquisition
          of the property in question; and
               (I)   the  income-producing capacity  of
          the property and the value of the property at
          the time of division.
          
     17     AS 25.24.160(a)(4)(G); Veselsky v. Veselsky, 113 P.3d
629, 639 (Alaska 2005); cf. Hayes, 756 P.2d at 300.

     18    AS 25.24.160(a)(4)(G).

     19    There was no suggestion any possible repair costs would
approach   $110,000.   The  court  also  divided  the  retirement
accounts applying the sixty-seven/thirty-three percentage without
specifying  the value of these accounts or the net effect.    But
given  the  relatively modest values of these accounts  (Taggarts
FERS  account had not vested at the time of trial),  the  parties
relative youth, and the courts permissible use of QDROs to divide
these  accounts,  it  does not appear that the  division  of  the
retirement  accounts significantly contributes to  the  disparity
between the awards to Taggart and Sabra.

     20     This may understate Taggarts net income.  See note 1,
above.

     21    Beal v. Beal, 88 P.3d 104, 110 (Alaska 2004).

     22     Krize  v. Krize, 145 P.3d 481, 483 (Alaska 2006)  (We
review property division rulings for abuse of discretion.).

     23    AS 25.24.160(a)(4)(C).

     24     In her trial brief Sabra argued she had been given an
estimate  of  $18,000 to repair the house  for  sale.   She  also
argued  the repairs would be obligatory.  So far as we can  tell,
no evidence was offered at trial to support these contentions.

     25    Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999).

     26     Taggart does not argue that Sabra was not entitled to
interim spousal support.

     27     Citing  AS  22.10.190(b), Taggart  implies  that  the
decision was untimely.  The court issued its decision on May  31,
2006,   within  six  months  of  the  December  2,  2005  closing
arguments, satisfying AS 22.10.190(b).

     28     Cf. Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992)
(citation omitted) (holding that superior court was not  required
to   give  husband  credit  for  post-separation  payments   that
preserved marital estate, but recognizing that it could do so).

     29     Id.   In reviewing the division of property, we  have
held  that  the  division of property between the  parties  in  a
divorce action rests in the discretion of the trial judge, and we
should  not disturb such division unless clearly unjust.  Merrill
v. Merrill, 368 P.2d 546, 547 (Alaska 1962).

     30    Ogard v. Ogard, 808 P.2d 815, 817 (Alaska 1991).

     31     Taggart also argues that he was not given credit  for
his  post-November 2005 monthly support payments.   He  can  also
pursue that contention on remand.

     32    In reviewing the superior courts division of property,
we  will  not  disturb the division unless it is clearly  unjust.
Merrill, 368 P.2d at 547.

     33    Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987) (citing
Merrill, 368 P.2d at 547-48).

     34    Harvey v. Cook, 172 P.3d 794, 802 (Alaska 2007).

     35     We review rehabilitative alimony awards for abuse  of
discretion.   McDougall  v. Lumpkin, 11  P.3d  990,  992  (Alaska
2000).

     36     Cf.  Brown v. Brown, 914 P.2d 206, 209 (Alaska 1996);
but  see  Bays  v. Bays, 807 P.2d 482, 485 (Alaska 1991)  (citing
Schanck  v. Schanck, 717 P.2d 1, 5 (Alaska 1986)).  In  Bays,  we
stated that our preference for meeting the parties needs with the
property  division  does not apply to rehabilitative  alimony  or
support  of  limited duration.  807 P.2d at 485.  Here,  however,
the  question is not whether, given the property division, it was
an  abuse of discretion to award any rehabilitative alimony,  but
whether  there  were  adequate factual findings  to  justify  the
$3,000 award.

     37    Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).

     38     Rodvik  v.  Rodvik, 151 P.3d 338, 351  (Alaska  2006)
(quoting  Lone  Wolf  v. Lone Wolf, 741 P.2d 1187,  1192  (Alaska
1987)).

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