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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krushensky v. Farinas (08/08/2008) sp-6296

Krushensky v. Farinas (08/08/2008) sp-6296, 189 P3d 1056

     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 Nos. S- 12395/12416
Appellant and )
Cross-Appellee, ) Superior Court No. 3AN-04-12528 CI
v. ) O P I N I O N
CHRISTINE FARINAS, ) No. 6296 August 8, 2008
Appellee and )
Cross-Appellant. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:    Andrew  L.   Josephson,   Law
          Offices   of   Dan   Allan,  Anchorage,   for
          Appellant  and  Cross-Appellee.    Karla   F.
          Huntington,  Eagle River,  for  Appellee  and

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

          EASTAUGH, Justice.

          In  accordance  with  Kevin  Krushensky  and  Christine
Farinass property settlement agreement and a memorializing  final
property order, qualified domestic relations orders (QDROs)  were
to be entered for Kevins two retirement plans.  The QDROs were to
designate Christine the surviving spouse to be awarded  all  pre-
retirement death benefits . . . for at least a 55% annuity.   But
as ultimately entered, the QDROs also awarded Christine qualified
pre-retirement  survivor annuities (QPSAs).   Kevin  appeals  the
QPSA  awards.   Because  the  QDROs  correctly  used  a  separate
interest  approach  to  divide each retirement  plan,  Christines
interests  were separate from Kevins upon entry of the QDROs  and
would  not  be reduced if he died before retiring.  Awarding  the
QPSAs  to Christine therefore gave her more than what the parties
agreed  to  and  more than what the memorializing final  property
order  required.   We consequently vacate the  bench  order  that
approved  including QPSAs in the QDROs, and remand.   Kevin  also
appeals  the  denial  of  his request for  a  visitation  credit.
Because  Kevin  has waived any challenge to the  superior  courts
ruling that his request was untimely, we affirm.
          Kevin  Krushensky  and  Christine  Farinas  married  in
August  1993.   They  have one child,  born  in  July  1999.   In
November  2004 Kevin filed for divorce.  Christine is a  resident
of  Hawaii  but she submitted to the jurisdiction of  the  Alaska
court  for  all  issues governing dissolution  of  the  marriage,
division  of  the marital property, and child support.   In  June
2005  the  parties  reached  a settlement  of  all  property  and
financial   issues,  including  a  division  of  Kevins   British
Petroleum  (BP)  and  ConocoPhillips defined  benefit  retirement
accounts, and orally placed the settlement on record.
          In  September  2005 the superior court issued  a  final
property  order  that  was  intended to memorialize  the  parties
settlement  agreement.   The final property  order  provides  for
entry of qualified domestic relations orders (QDROs):
               3.    A  QDRO  shall issue awarding  Ms.
          Farinas-Krushensky  55%   of   Mr.   Farinas-
          Krushenskys  work[-]related  defined  benefit
          pension(s)  earned  by Mr. Farinas-Krushensky
          from  date  of marriage through November  15,
          2004.   These are known as the BP  Retirement
          Accumulation Plan, and the Retirement  Income
          Plan  of  Phillips Petroleum.  In each  QDRO,
          Ms.  Farinas-Krushensky shall  be  designated
          the  surviving spouse to be awarded all  pre-
          retirement death benefits, and she  shall  be
          designated the surviving spouse for at  least
          a  55% annuity benefit in the event that  Mr.
          Farinas-Krushensky dies before her.  The cost
          of  the  survivor annuity benefits  shall  be
          shared  equally between the parties.  To  the
          extent  allowed by the retirement  plan,  she
          shall  be  allowed  to  begin  receiving  her
          benefits at the earliest allowable date.  Ms.
          Farinas-Krushenskys attorney  is  responsible
          for drafting the QDRO orders.
(Emphasis  added.)   The final property order  also  states  that
[t]he  monthly child support shall not be reduced for any  reason
other than the medical premium.
          Christine   filed   proposed   QDROs   for    BP    and
ConocoPhillips  in the superior court.  Kevins  lawyer  forwarded
Christines  proposed QDROs to David Watson, a former employee  of
the State of Alaskas Division of Retirement and Benefits, who was
deemed an expert in this case.  Watson explained that the BP  and
ConocoPhillips  plans had particular technical requirements  that
the  proposed QDROs likely did not meet.  Kevin filed  a  Limited
Opposition to Christines proposed QDROs, stating that he does not
oppose  them  but  is  skeptical about their prospects  for  plan
approval.  The superior court signed the QDROs for both plans and
Christine   promptly   sent  them  to   their   respective   plan
administrators for approval.
          In  December  2005 BPs plan administrator rejected  the
signed  BP QDRO as not qualified because the order  which  failed
to identify whether Christine was awarded a shared interest or  a
separate   interest  in  the  retirement  account   was   unclear
regarding Christines award.
          Under   a  shared  interest  approach  to  dividing   a
retirement account, the parties interests are intertwined and the
alternate  payee  can  receive  benefits  only  when   the   plan
participant  chooses  to retire and begins  receiving  benefits.1
Under  this  approach  the  alternate payees  benefits  terminate
completely upon the plan participants pre-retirement death.2  But
under a separate interest approach, the alternate payees interest
is  severed  from the plan participants interest  upon  the  plan
administrators  acceptance of the plan, and the  alternate  payee
may  receive benefits when the plan participant reaches, or would
have  reached,  the plans earliest retirement age, regardless  of
whether  the  plan participant continues working  after  reaching
retirement age or dies before reaching that age.3
          Marsha   Dunham   of   ConocoPhillips   also   informed
Christines lawyer that the ConocoPhillips QDRO would be rejected.
Dunham likewise indicated confusion over whether the QDRO was  to
be   a   shared  benefit  award  or  a  separate  benefit  award.
ConocoPhillips formally rejected the QDRO in December 2005.
          Christine  filed amended proposed QDROs in March  2006.
Her  amended proposed BP QDRO contained language similar  to  the
language  of  the  final property order.   Her  amended  proposed
ConocoPhillips  QDRO contained a survivorship  provision  in  the
form  of  a  qualified  pre-retirement surviving  spouse  annuity
(QPSA).4  According to Watson a QPSA is typically awarded when  a
retirement  plan  is divided under the shared interest  approach;
the  QPSA  protects the alternate payee in the event of the  plan
participants pre-retirement death.  A QPSA is an annuity  payable
to  the  alternate payee for her lifetime if the plan participant
dies before reaching retirement age.5
          Kevin  opposed the amended QDROs proposed by Christine,
arguing  that granting Christine both a separate interest  and  a
QPSA  would amount to double-dipping: in the event of Kevins pre-
retirement death, the award would enable Christine to receive, in
addition  to  her  separate interest entitlement,  a  portion  of
Kevins entitlement as the surviving beneficiary.
          Kevin  then  filed proposed QDROs prepared  by  Watson.
These  QDROs contained no QPSAs.6  Kevin also moved for attorneys
fees  incurred  in  reviewing and challenging Christines  amended
          proposed QDROs.
          In  June 2006 the superior court held a hearing on  the
retirement  issue.  Watson testified that Kevins  proposed  QDROs
accurately fulfilled the final property order because QPSAs  were
not  needed to protect Christines separate interest in the  event
Kevin  died  before  retirement.   Watson  also  testified   that
Christines amended proposed QDROs did not accurately reflect  the
final  property order because the final property  order  did  not
state  that  pre-retirement benefits were to come out  of  Kevins
remaining separate interest.
          The  superior court ruled from the bench that Christine
was entitled to pre-retirement benefits in the form of QPSAs, but
limited the QPSA benefits to the period of coverture.  The  court
indicated that it would sign Kevins proposed QDROs in the interim
and directed Watson to prepare new QDROs conforming to the courts
bench  ruling.   The  court  signed Christines  amended  proposed
QDROs, not Kevins, the same day.
          Kevin  submitted the court-ordered QDROs  on  June  20,
noting his objections concerning the survivorship benefits issue.
Both  court-ordered QDROs contain a QPSA provision.  For example,
the court-ordered ConocoPhillips QDRO states:
          (12) Pre-retirement Death of Participant:
               In  the event the Participant dies prior
          to  commencing  his  benefit,  the  Alternate
          Payee  will  be  treated as the  Participants
          spouse for the purpose of receiving a portion
          of  the Participants Qualified Pre-retirement
          Survivor Annuity (QPSA) attributable  to  the
          Participants    remaining    benefit.     The
          Alternate Payee is entitled to a share of the
          QPSA  proportionate to the  Alternate  Payees
          share   of  the  Participants  total   vested
          accrued  benefit as of the last  day  of  the
          month  of November, 2004, in addition to  the
          awarded benefit.
(Emphasis in original.)
          In  October 2006 Kevin asked for a visitation credit on
the theory that the Hawaii court, which had jurisdiction over the
child  custody  issues,  had awarded  him  twenty-eight  days  of
visitation  each  July.  Kevin also requested  a  ruling  on  his
motion for attorneys fees.  In February 2007 the court denied the
visitation  credit  motion, both because  the  time  for  seeking
reconsideration of the final property order or for appealing  had
run,  and  because Kevin had not presented evidence to support  a
finding of changed circumstances.
          Kevin  appeals  the  bench  order  awarding  QPSAs   to
Christine  and the denial of his renewed motion for a  visitation
credit.  Kevin also alleges that the court committed plain  error
when it signed Christines amended proposed QDROs after indicating
that  it would sign Kevins proposed QDROs.  Finally, Kevin argues
that  he  should be awarded attorneys fees incurred in monitoring
Christines  proposed QDROs and drafting the court-ordered  QDROs.
Christine cross-appeals the bench order limiting the QPSA  awards
to the coverture period.7
     A.   Standard of Review
          We  construe property settlement agreements in  divorce
actions in accordance with basic principles of contract law.8  If
contract  language is unambiguous, we decide the meaning  of  the
contract  as  a  matter of law.9  We determine  de  novo  whether
relief  requested by a former spouse constitutes  enforcement  or
modification of a property settlement agreement.10
          This  case requires us to interpret the final  property
order  that  was  intended to memorialize the parties  settlement
agreement.   The  order  was  not  intended  to  be  the   courts
independent determination of how the property should be  divided.
We  therefore apply to the final property order the  same  review
principles we apply to contract disputes.  Likewise, in  entering
the bench order that approved inclusion of QPSAs in the QDROs, it
appears the superior court was attempting to give effect  to  the
parties  agreement as memorialized in the final  property  order.
We   therefore  give  that  bench  order  de  novo  rather   than
deferential review.
          The  award  of  attorneys fees in a divorce  action  is
committed to the sound discretion of the trial court . . .  [and]
will   not  be  disturbed  on  appeal  unless  it  is  arbitrary,
capricious,  manifestly unreasonable, or stems from  an  improper
motive.11   We  also  review a superior courts  ruling  on  child
support for abuse of discretion.12  An abuse of discretion will be
found if, after reviewing the record as a whole, we are left with
a definite and firm conviction that a mistake has been made.13
     B.   Inclusion   of   Qualified   Pre-Retirement    Survivor
          Annuities in the Qualified Domestic Relations Orders
          1.   Signing Christines orders
          At  the  June 2006 hearing the superior court  directed
Watson  to prepare corrected QDROs conforming to his bench order.
Noting  that a delay in the preparation of corrected QDROs  might
cause  the parties to miss BPs filing deadline, Christines lawyer
asked  the court to sign either Christines amended proposed QDROs
or  Kevins  proposed QDROs as placeholders, with  it  being  very
clear  that this court, which retains jurisdiction to change  the
orders,   would  change  them  almost  immediately.   The   court
indicated   that  it  would  sign  Kevins  proposed  QDROs   but,
apparently  inadvertently,  instead  signed  Christines   amended
proposed QDROs on the day of the hearing.
          Kevin  argues  that the superior court committed  plain
error  when it signed Christines amended proposed QDROs.  But  as
Kevin himself acknowledges, any error that the superior court may
have committed is harmless because on September 7, 2007 the court
signed the court-ordered QDROs.
          Kevin  also  argues  that Christines  amended  proposed
QDROs added terms and provisions in favor of Christine that  were
not  granted  in  the courts final property order.   Because  the
court-ordered   QDROs  signed  on  September  7   supersede   the
previously  signed QDROs, it is irrelevant whether the previously
          signed QDROs conflict with the final property order.
          2.   Awarding  Christine  pre-retirement  benefits   in
               addition   to  a  separate  interest   in   Kevins
               retirement plans
          The  final  property  order  requires  entry  of  QDROs
designating Christine the surviving spouse to be awarded all pre-
retirement  death benefits . . . for at least a 55%  annuity  for
Kevins  two  retirement plans.  The parties disagree  on  how  to
functionally  interpret  the  phrase  all  pre-retirement   death
benefits.  The superior court interpreted the phrase to refer  to
a  QPSA,  and  awarded  Christine a QPSA under  each  QDRO,  with
benefits  limited  to  the amount earned  during  the  period  of
          Kevin  argues that the final property orders  inclusion
of  the words pre-retirement death benefits merely indicates that
the  parties  intended to protect Christines entitlement  in  the
event of Kevins pre-retirement death.  Kevin asserts that because
each  retirement plan was a defined benefit plan under which each
party  received  a  separate, disentangled  interest,  Christines
interest  would  be protected without including a  QPSA  in  each
QDRO.   Kevin argues that the segregation of interests  nullifies
the   survivorship  provision  by  negating  the  need   for   it
          Kevin also argues that as a matter of public policy the
QPSAs  should  not be awarded.  He points to David Watsons  sworn
statement that [a] QDRO that awards the alternate payee a  shared
interest in the participants separate interest in addition to her
awarded  separate  interest defeats the  rationale  for  separate
interest  QDROs. (Emphasis in original.)  Kevin argues that  this
type  of  award  inequitably enriches the former  spouse  at  the
expense of future beneficiaries.
          Christine argues in response that parties can  identify
and  exchange  assets  in a settlement in a  manner  that,  while
permissible,  is  not likely to occur in a judge[-]crafted  order
after  a  trial.   She  asserts that the  parties  agree  on  the
technical  wording of the final property order: they  agree  that
the  phrase  pre-retirement death benefits refers to a  QPSA  and
that  the  final  property orders statement  that  she  shall  be
allowed to begin receiving her benefits at the earliest allowable
date indicates the parties intended a separate interest award  to
Christine.  Christine also argues that the public policy interest
in encouraging and supporting settlements14 supports the superior
courts  interpretation of the final property  order  because  the
QPSAs  awarded to Christine resulted from a settlement agreement,
not from an equitable division by a court.
          Even  though the final property order memorialized  the
parties  settlement agreement, the court-ordered  QDROs  fail  to
achieve  what the parties intended.  The parties agree  that  the
QDROs  should  be structured so that each party  has  a  separate
interest  in  the  retirement benefits.  Watson explained  in  an
affidavit that
          [a]  properly drafted separate interest order
          allows  the  parties  to  disentangle   their
          affairs  and it is fair to both  parties.   A
          separate  interest QDRO means  the  alternate
          payee  owns  her  separate interest  and  can
          commence  her  benefit when  the  participant
          attains  the  plans earliest retirement  age,
          even though the participant may remain active
          in the plan.
          Watson  also explained that defined benefit  retirement
plans   such as the BP and ConocoPhillips retirement plans   that
apply  a  totally  severed  approach to separate  interest  QDROs
create  the  alternate payees separate interest immediately  upon
acceptance and qualification of the order.  He further  explained
that  a  separate  interest QDRO, in which the  alternate  payees
entitlement  is  severed  from the plan participants  entitlement
when  the  QDRO is entered, enables an alternate payee  to  begin
receiving  her  entitlement  when the  plan  participant  reaches
retirement  age,  whether  the participant  actually  retires  or
continues   working.   If  the  plan  participant   dies   before
retirement, the alternate payee may begin receiving benefits when
the   participant   would  have  reached  retirement   age;   the
participants  death,  whether  it  occurs  before  or  after  the
participant reaches retirement age, therefore does not affect the
alternate payees entitlement.15
          But  including  a  QPSA  in a  separate  interest  QDRO
affects  the  entitlements of both the alternate  payee  and  the
participant  if  the participant dies before reaching  retirement
age.   On  the date the participant would have reached retirement
age,  inclusion  of  a QPSA would allow the  alternate  payee  to
receive, for the rest of her life,16 both her separate entitlement
and a percentage of the participants separate entitlement.
          Christine  argues  that QPSAs should  be  awarded  here
because  both  parties  agree on the technical  meaning  of  pre-
retirement benefits.  At the June 2006 hearing Kevin identified a
March 2006 email from ConocoPhillipss Marsha Dunham defining pre-
retirement death benefits as a qualified pre-retirement  survivor
annuity  (QPSA).   But this does not establish that  the  parties
understood  the ramifications of QPSAs or agreed  to  QPSAs  when
they  entered  into  their June 2005 settlement  agreement.   The
parties may have misapprehended the nature of the plans, and thus
did not understand that the plans were defined benefit plans that
fully protected Christine against the risk Kevin would die before
becoming eligible to retire.  But in any event, the text  of  the
final  property order, given the true nature of the plans,  fully
protected  Christine and no QPSAs were needed.   The  opportunity
for  any misapprehension was significant.  QPSAs are infrequently
encountered and Watson refers to awarding a QPSA in a  QDRO  that
provides  each  party a separate interest as  a  common  drafting
error.   But the agreed-upon goal of protecting Christine against
Kevins  pre-retirement death did not justify  or  require  QPSAs,
especially  after  Watsons affidavit revealed  that  the  parties
misapprehended the nature of the parties interests under the  two
          Moreover,  the text of the QDROs ultimately entered  by
          the court is inconsistent with paragraph three of the final
property  order  because  the QDROs gave Christine  substantially
more  than the parties bargained for.  The bargained-for  benefit
as described in paragraph three gave Christine fifty-five percent
of  Kevins  defined  benefit retirement plans for  the  coverture
period.   But the court-ordered QDROs containing the QPSAs  state
that  Christine is entitled to a share of the QPSA  proportionate
to  the  Alternate Payees share of the Participants total  vested
accrued benefit  or fifty-five percent of the QPSA if Kevin  died
before retirement.
          ConocoPhillipss  Dunham informed the parties  that  the
QPSA for the ConocoPhillips retirement account is a 50% joint-and-
survivor  annuity  benefit; in other words, the  QPSA  under  the
ConocoPhillips plan would award the alternate payee fifty percent
of  the  benefits earned in the retirement account  if  the  plan
participant  died  before retirement.  The QPSA percentage  under
the  BP account is not clear from the record.  We assume for  the
sake  of discussion that the BP account also uses a fifty-percent
QPSA.   In  the  event Kevin died before retirement and  assuming
fifty-percent  QPSAs  in both accounts, the  court-ordered  QDROs
potentially  gave  Christine 67.4 percent  of  Kevins  retirement
plans.17  This inconsistency further demonstrates that the court-
ordered  QDROs  did  not achieve what the  parties  intended,  as
memorialized in paragraph three of the final property order.
          This  does  not  mean that the parties could  not  have
settled on the terms Christine proposes.  Watson testified that a
QDRO could award an alternate payee both a separate interest  and
a shared interest in the participants remaining benefit; in other
words,   he  acknowledged  that  a  separate-interest  QDRO   may
permissibly  include a QPSA. But given that such a bargain  would
have  been  unusual, and that such a bargain in this  case  would
have conflicted with the language in the final property order and
with  the parties reasonable expectations, enforcement of such  a
bargain would require much clearer language than is contained  in
the final property order.  We consequently vacate the bench order
approving QPSA awards and remand for entry of corrected QDROs.
          Because  the QPSA awards will be deleted on remand,  we
do  not  need  to address Christines argument that  the  superior
court erred in limiting the awards to the coverture period.
     C.   Denial of Kevins Visitation Credit Request
          Kevin  next  argues  that he is  entitled  to  a  child
support  visitation credit because the Hawaii court  granted  him
visitation for twenty-eight days each July.18  Because  Christine
was  awarded  the  Hawaii  home in the settlement  and  the  home
carries  no  mortgage,  Kevin  argues  that  Christine  bears  no
increased expenses associated with their child when the child  is
in Alaska with Kevin.
          Kevin  first  argued  in  his  Alaska  Civil  Rule   78
objections to the final property order that he was entitled to  a
visitation credit.  His objections asserted that the parties  did
not  discuss  visitation credits during  settlement.   When  they
settled,  the parties had not resolved visitation issues  in  the
Hawaii  court.   After the Hawaii court granted Kevin  visitation
for  twenty-eight days each July, Kevin filed what  he  styled  a
          Renewed Motion for Visitation Credit Based on Change of
          The  superior court denied this motion for two reasons.
The  court  concluded  that the motion was untimely  because  the
court had already ruled on all issues and claims relevant to  the
visitation  credit.  The court also determined that  the  parties
had  been aware that a custody ruling was forthcoming but did not
reserve  the  visitation dispute as a reason  to  further  reduce
child support; the visitation order therefore did not change  the
parties circumstances.  The court further determined that even if
Kevins motion was timely, he failed to present evidence regarding
additional  costs  he would likely incur during  their  daughters
visitation  that  would  support  a  reduction  in  his   support
          As   Christine  notes,  Kevin  does  not  address   the
timeliness  issue in his opening brief on appeal; he argues  only
that the visitation award is a changed circumstance supporting  a
visitation  credit award.  Kevins reply brief  disputes  that  he
waived  his timeliness argument.  He points to his Amended Points
on  Appeal, which include this point: Appellant contends that the
lower  court erred when it denied a renewed motion for visitation
credits.   Kevin argues that the high court could  conclude  that
this  proffer is comprehensive enough to speak to any reason that
caused  the  denial.  Although he argues that his appeal  of  the
motion  was timely, Kevin does not address the timeliness of  the
underlying  motion.   He merely asserts that the  superior  court
erred; he does not assert facts to support a contention that  the
underlying  motion  was  timely.  We consequently  consider  this
argument  waived.19   Because Kevin  has  waived  his  timeliness
argument,  we  do  not  need to reach his  changed  circumstances
argument.20  We therefore affirm the superior courts decision not
to award a visitation credit.
     D.   Denial of Kevins Attorneys Fees Request
          Finally,  Kevin asserts that he has had to  circle  the
wagons  and  spend  thousands  of dollars  monitoring  Christines
efforts  to  double-dip.  He therefore argues that he  should  be
awarded attorneys fees.
          Kevins   opening  brief  on  appeal  states  that   his
attorneys  fee  motion  has  not been  ruled  on  by  the  court.
Although the superior court did not explicitly deny Kevins motion
for  attorneys  fees  or state that neither  party  prevailed,  a
statement the court made to Christines lawyer at the end  of  the
July  2006 hearing implied that the court would not grant  Kevins
          But  because  the court did not expressly rule  on  the
motion for attorneys fees, we cannot determine whether the  court
exercised  its discretion by deciding that no award of  fees  was
either  justified or required.  Even though this appellate  issue
is  mooted by our remand, Kevin may renew his motion on remand in
the superior court.
          We  therefore  AFFIRM as to the visitation  credit  but
VACATE the QPSA awards and REMAND for entry of corrected QDROs.
     1    David Clayton Carrad, The Complete QDRO Handbook 70 (2d
ed. 2004).

     2    Id.

     3     Id.  at  111-12; see also Pamela D. Perdue, Bankruptcy
and Qualified Plans, in ALI-ABA Course of Study, Fundamentals  of
Employee Benefit Law 799, 823 (2007), available at SM058  ALI-ABA
799 (Westlaw).

     4    The ConocoPhillips amended proposed QDRO stated:

          If   this  Order  is  received  by  the  Plan
          Administrator prior to Participants death and
          is  subsequently determined to be a Qualified
          Domestic Relations Order and Participant dies
          before  the Alternate Payee, Alternate  Payee
          shall be considered a surviving spouse of the
          Participant under Section 401(a)(11)  of  the
          Internal  Revenue  Code and  Section  205  of
          ERISA,  and  Alternate Payees  share  of  the
          qualified  pre-retirement  surviving   spouse
          annuity (QPSA) shall be 100%.
     5     Gale  S.  Finley,  Assigning  Retirement  Benefits  in
Divorce  61  (2d  ed. 1999).  Section 417(c)(1) of  the  Internal
Revenue Code defines qualified preretirement survivor annuity as:

          a  survivor  annuity  for  the  life  of  the
          surviving spouse of the participant if
          (A)   the  payments  to the surviving  spouse
          under  such  annuity are not  less  than  the
          amounts  which would be payable as a survivor
          annuity   under  the  qualified   joint   and
          survivor  annuity  under  the  plan  (or  the
          actuarial equivalent thereof) if
          (i)   in  the case of a participant who  dies
          after  the  date  on  which  the  participant
          attained  the earliest retirement  age,  such
          participant  had  retired with  an  immediate
          qualified joint and survivor annuity  on  the
          day before the participants date of death, or
          (ii) in the case of a participant who dies on
          or  before  the date on which the participant
          would  have  attained the earliest retirement
          age, such participant had
          (I)   separated from service on the  date  of
          (II) survived to the earliest retirement age,
          (III)     retired with an immediate qualified
          joint  and  survivor annuity at the  earliest
          retirement age, and
          (IV)  died on the day after the day on  which
          such  participant  would  have  attained  the
          earliest retirement age, and
          (B)   under the plan, the earliest period for
          which  the  surviving spouse  may  receive  a
          payment under such annuity is not later  than
          the month in which the participant would have
          attained  the earliest retirement  age  under
          the plan.
I.R.C.  417(c)(1) (2006).

     6     Kevins  proposed QDROs similarly granted  Christine  a
separate interest of fifty-five percent but stated:

          (b)  If  the  Participant dies or  terminates
               his  employment with the  Company  after
               satisfying  the vesting requirements  of
               the   Retirement  Plan  but  before  the
               Alternate   Payee  has   commenced   her
               benefit,  the Alternate Payee  shall  be
               entitled  to the benefit provided  above
               as  though the Participant has not died,
               and  no  other benefit shall be provided
               to  the Alternate Payee under the  Plan.
               Once  retirement benefit  payments  have
               commenced  to the Alternate  Payee,  the
               Alternate  Payees  separate  entitlement
               under  her separate interest award shall
               not be affected by the death of the Plan
               Participant.  It is understood that  the
               Plan  Administrator  applies  a  totally
               severed approach in administering  their
               separate  interest QDROs, and  that  the
               Participants  death,  either  before  or
               after  retirement, will not  affect  the
               Alternate Payees rights to her  benefits
               as  set  forth  herein.  The  retirement
               benefit assigned to the Alternate  Payee
               under  the  Order shall not be  reduced,
               abated, or terminated upon the death  of
               the Plan Participant.
(Emphasis in original.)

     7    The captions on the parties appellate briefs list their
names  as  Kevin  Farinas-Krushensky and  Christine  R.  Farinas-
Krushensky, but it appears that they have since returned to their
pre-marriage names.

     8     Keffer  v.  Keffer, 852 P.2d 394,  397  (Alaska  1993)
(holding that husband was not obligated to ex-spouse for payments
derived  from  investment  income because  dissolution  agreement
excluded income earned outside of primary place of employment).

     9    Id.

     10     Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999)
(holding that agreement obligating former husband to name  former
wife  as  recipient  of  pensions survivorship  benefit  did  not
entitle  former  wife to guaranteed annuity in amount  she  would
have   received  had  she  remained  statutorily   eligible   for
survivorship benefits).

     11     Gallant  v. Gallant, 945 P.2d 795, 803 (Alaska  1997)
(citation  omitted) (holding that superior court did not  err  by
refusing to award ex-husband attorneys fees absent finding of bad
faith on part of ex-wife).

     12    Duffus v. Duffus, 72 P.3d 313, 316 (Alaska 2003).

     13    Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997).

     14    In support, she cites Notkin v. Notkin, 921 P.2d 1109,
1111  (Alaska  1996), and Murphy v. Murphy,  812  P.3d  960,  965
(Alaska 1991).

     15    Carrad, supra note 1, at 70.

     16    Finley, supra note 5, at 61.

     17    Applying those assumptions, Christine would receive her
fifty-five  percent separate entitlement plus fifty-five  percent
of  the QPSA for each plan.  Each QPSA would be fifty percent  of
Kevins  forty-five percent separate entitlement.  The two  awards
would  therefore grant Christine 67.4 percent of each  retirement
account (55% + 55% (50%  45%) = 67.4%).

     18    Alaska Civil Rule 90.3(a)(3) provides:

          The  court  may allow the obligor  parent  to
          reduce  child support payments by up  to  75%
          for  any  period in which the obligor  parent
          has   extended   visitation   of   over    27
          consecutive days.  The order must specify the
          amount of the reduction which is allowable if
          the extended visitation is exercised.
Commentary  to the rule states that [i]n considering a visitation
credit, the court may consider the financial consequences to  the
parties  of the visitation arrangement and a credit.   Alaska  R.
Civ. P. 90.3 cmt. IV.B.

     19    Bodkin v. Cook Inlet Region, Inc., 182 P.3d 1072, 1076
(Alaska 2008); Petersen v. Mut. Life Ins. Co., 803 P.2d 406,  410
(Alaska  1990)  (Where a point is not given more than  a  cursory
statement in the argument portion of a brief, the point will  not
be considered on appeal.).

     20     See  United States v. Hatchett, 245 F.3d 625,  644-45
(7th  Cir. 2001) ([I]n situations in which there is one  or  more
alternative holdings on an issue, . . . [the appellants]  failure
to  address one of the holdings results in a waiver of any  claim
of  error  with  respect to the courts decision on  that  issue.)
(internal  quotations  omitted); see also San  Antonio  Press  v.
Custom  Bilt  Mach., 852 S.W.2d 64, 65 (Tex. App. 1993)  (When  a
separate and independent ground that supports a judgment  is  not
challenged on appeal, the appellate court must affirm.).

     21     This  exchange occurred at the end of the  July  2006

          ms.  huntington  [Christines  lawyer]:      I
          just  have  one  last question,  Your  Honor,
          thats more housekeeping.  Mr. Josephson filed
          a  motion for costs and fees on the 13th.  My
          understanding  is unless Your Honor  makes  a
          decision   of   who  prevail  --   whos   the
          prevailing party, neither of us are going  to
          be  paying costs and fees, and I dont want to
          respond  to  a motion I dont have to  respond
          the court:     Save your money.
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