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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hartley v. Hartley (04/17/2009) sp-6366

Hartley v. Hartley (04/17/2009) sp-6366

     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


JOHN A. HARTLEY, )
) Supreme Court No. S- 13002
Appellant, )
) Superior Court No. 3AN-06-11964 CI
v. )
) O P I N I O N
TINA M. HARTLEY, )
) No. 6366 April 17, 2009
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:   G.R.  Eschbacher  and   Justin
          Eschbacher,    Anchorage,   for    Appellant.
          Jennifer  L. Holland, Law Offices of Jennifer
          L. Holland, Anchorage, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          I.   John and Tina Hartleys pre-divorce property settlement
agreement awarded Tina fifty-seven percent of the monthly benefit
accrued  in  Johns  Federal  Employee  Retirement  System  (FERS)
defined  benefit  plan.  The agreement did  not  specify  whether
Tinas  payments  should be based on Johns  highest  three  salary
years during the marriage or upon his future retirement.  Nor did
it  specify  who  should  bear the cost of  Tinas  FERS  survivor
benefit or how that benefit should be divided.
          The  superior courts FERS qualified domestic  relations
order  (QDRO)  based Tinas share on an average of  Johns  highest
three  salary years at retirement.  John contends that it  should
instead  be  calculated using the average of  his  highest  three
salary  years  during  the marriage.  He  also  argues  that  the
superior court should have held an evidentiary hearing to resolve
the  dispute, that he should not have to pay part of the cost  of
Tinas FERS survivor benefit, and that it was error to award  Tina
one-hundred percent of that survivor benefit.
          We  affirm.   The  agreement did not expressly  resolve
these  disputes,  and  the  superior  court  did  not  abuse  its
discretion in resolving them.  Nor did it err by failing to  hold
an evidentiary hearing.
II.  FACTS AND PROCEEDINGS
          John  and  Tina  Hartley married  in  August  1985  and
separated in March 2006.  Tina sued for divorce in October  2006.
In  June 2007 John and Tina entered into and filed with the court
a property settlement agreement that, among other things, divided
the  benefits from Johns FERS defined benefit plan and  from  his
other three retirement plans.1  The agreements relevant paragraph
concerning the FERS plan reads:
          Tina  Hartley shall be awarded 57.0%  of  the
          monthly  benefit accrued as a result of  John
          Hartleys   participation   in   the   Federal
          Employees  Retirement System  (FERS)  between
          August  3, 1985 and October 3, 2006, together
          with  any  gains  or  losses  on  that  57.0%
          interest  that have accrued since October  3,
          2006.   John  Hartley shall  be  awarded  all
          other interest in the FERS retirement.   Tina
          Hartleys interest will be addressed through a
          separate  interest QDRO or, if  that  is  not
          permitted by the Plan, a shared interest QDRO
          with a survivors benefit.
          
          In  June  2007  the  superior court held  a  settlement
hearing  at  which  John  and  Tina  both  testified  that   they
understood  the property settlement agreement, that it  was  fair
and   equitable,  and  that  they  entered  into  the   agreement
voluntarily.   The  superior court then orally  found  that  [the
property]  agreement represents a fair and equitable division  of
the parties[] marital estate.
          On  the same day, the court issued written findings  of
fact  and  conclusions of law in which it again  found  that  the
parties property agreement was fair and equitable and ruled  that
the property division provisions shall be ordered as set forth in
the  parties Agreement[].  The court also then issued  a  divorce
decree.
          In November Tina filed proposed QDROs for each of Johns
four  retirement  accounts.  The proposed  QDRO  for  Johns  FERS
account  stated that it was awarding to Tina fifty-seven  percent
of the marital portion of Johns FERS retirement benefits, but did
not  specify whether her portion would be based on Johns  average
high-three  salary years at the time of his future retirement  or
at the end of their marriage.  The proposed QDRO also stated that
          it was awarding Tina a pro rata share of Johns survivor annuity
and  that  John  and Tina would equally share the  cost  of  that
benefit.
          When  the proposed FERS QDRO was filed in November 2007
John  was fifty-one years old, and as of January 16, 2008 he  was
still employed by the federal government and had not yet retired.
          John  filed a partial opposition motion in response  to
Tinas proposed FERS QDRO.2  He argued that the proposed FERS QDRO
did  not  reflect his understanding of the parties agreement  and
that  the date for determining the high-three salary years needed
to  be  clarified.  He contended that Tinas share should be based
on Johns high-three salary years as of October 3, 2006, when Tina
filed  for  divorce.  He also argued that the property settlement
agreement  did not define who would pay the cost of the  survivor
benefit  and  that Tina should bear fifty-seven percent  of  that
cost.   Finally,  he  requested an  evidentiary  hearing  on  his
partial opposition motion.  Tina opposed Johns motion.
          In  January  2008  the  superior  court  adopted  Tinas
proposed   FERS   QDRO   and  implicitly  denied  Johns   partial
opposition motion.  The FERS QDRO, in relevant part, states:
          7.    Amount of Former Spouses Benefit:  This
          Order  assigns  to  Former Spouse  an  amount
          equal  to fifty-seven percent (57.0%) of  the
          Marital  Portion  of the Employees  Self-Only
          Monthly   Annuity  determined   as   of   the
          Employees  date of retirement.  For  purposes
          of   calculating  Former  Spouses  share   of
          Employees benefit, the Marital Portion  shall
          be  determined  by multiplying the  Employees
          Self-Only Monthly Annuity by a fraction,  the
          numerator  of  which is the total  number  of
          months  of Creditable Service under the  FERS
          earned  by  the Employee during the  marriage
          (from August 3, 1985 to October 3, 2006), and
          the  denominator of which is the total number
          of months of the Employees Creditable Service
          accrued  under  the FERS (including  military
          service  credited  to  the  FERS  should  the
          Employee  opt  out of receiving his  military
          retainer pay) based on Mr. Hartleys high-3 at
          the   time   of  retirement.   See  generally
          Wainwright v. Wainwright, 888 P.2d 762 at 765
          (Alaska 1995).
          
(Emphasis added.)  The FERS order also contained the courts  hand-
written  notation that oral argument was not necessary to resolve
the disputed issues.
          John  moved for reconsideration, arguing that the order
did  not  reflect  his  understanding of the property  settlement
agreement;  that the order violated state law by giving  Tina  an
interest   in  Johns  post-separation  labor;  that   the   court
misapplied Wainwright v. Wainwright;3 and that John should not be
required  to  contribute  to the cost of  the  survivor  benefit.
Johns   reconsideration  motion  attached   an   experts   letter
          discussing the FERS QDRO and the Wainwright case.
          The superior court denied Johns reconsideration motion.
The court held that it had permissibly based the distribution  of
Johns  FERS  pension  on his high-three  years  at  the  time  of
retirement,  that it had correctly applied Wainwright,  and  that
its  holding  was also supported by Faulkner v.  Goldfuss.4   The
court declined to reconsider Johns other arguments.
          John appeals.
III. DISCUSSION
     A.   Standard of Review
          A.   We construe property settlement agreements in divorce
actions  in  accordance with basic principles of  contract  law.5
Questions of contract interpretation are reviewed de novo.6
          When  the terms of a property settlement agreement  are
ambiguous,  the  superior  court must  attempt  to  resolve  [the
ambiguity]  by  determining the reasonable  expectations  of  the
contracting parties.7  If the division of marital property is not
determined  by  an  agreement between the parties,  the  superior
court  has  wide  latitude in fashioning an appropriate  property
division.8    We  review  these  determinations  for   abuse   of
discretion and reverse only if a review of the record  leaves  us
with  the firm and definite conviction that the [superior]  court
made a mistake.9
          A  superior courts decision to deny a motion requesting
an evidentiary hearing is subject to our independent review.10  A
hearing is not necessary if there is no genuine issue of material
fact before the court.11
     B.   The Superior Court Did Not Err by Applying the Time-Rule
          Formula To  Calculate Tinas Share of Johns FERS Pension.
          
          This  appeal concerns Johns FERS defined benefit  plan.
A  defined  benefit plan, as its name implies, is one  where  the
employee,  upon  retirement,  is entitled  to  a  fixed  periodic
payment.12   The size of the payment usually depends  upon  prior
salary  and years of service.13  Johns FERS defined benefit  plan
retirement  payment  will be based on his  highest  three  salary
years at the date of his retirement.
          The  property settlement agreement specifies that  Tina
is  to receive fifty-seven percent of the monthly benefit accrued
as  a  result  of  John Hartleys participation in [FERS]  between
August  3, 1985 and October 3, 2006, together with any  gains  or
losses on that 57.0% interest that have accrued since October  3,
2006.   John asked the superior court to interpret this provision
as  awarding  Tina a fifty-seven percent interest in  Johns  FERS
pension based on the average of Johns three highest salary  years
during  the  period  of  marriage.  The  superior  court  instead
interpreted the provision as awarding Tina a fifty-seven  percent
interest  in  Johns FERS pension based on the  average  of  Johns
three highest salary years at the time of his retirement.
          John argues that the courts award was erroneous for two
reasons.   First,  because it is inconsistent  with  the  parties
intentions  as  expressed by the plain meaning of the  agreements
language.  Second, because it impermissibly awards Tina a portion
of Johns post-separation earnings in contravention of our holding
          in Schanck v. Schanck.14
          Neither  argument persuades us that the superior  court
erred.   First,  we  hold  that the  superior  courts  order  was
consistent  with  the parties intentions.  In resolving  disputes
concerning  the  meaning  of  an agreement,  a  court  begins  by
viewing  the  contract  as  a whole and  the  extrinsic  evidence
surrounding  the disputed terms, in order to determine  if  those
terms  are ambiguous  that is, if they are reasonably subject  to
differing interpretation. 15  Here, as the superior court  found,
the  property settlement agreement could be interpreted  in  more
than  one way.  One clause of the agreement specifies that  Tinas
benefit  should  be  based  on Johns participation  in  the  plan
between  August  3,  1985  and  October  3,  2006.   This  clause
implicitly supports basing her benefit on Johns high-three salary
years  during the period of marriage.  But another clause of  the
agreement  grants Tina any gains and losses on the  benefit  that
have  accrued  since  October 3, 2006.   This  clause  implicitly
supports  including any gains (or losses) attributable  to  Johns
post-separation employment and basing Tinas benefit on Johns high-
three  years  at retirement.  Johns reply brief acknowledges  the
ambiguity  by  stating  that  the agreements  relevant  paragraph
contains  within its first sentence, contradictory commands.   We
review questions of contract interpretation de novo,16 and  agree
with   the  superior  courts  holding  that  the  provision   was
ambiguous.
          We  hold  that  the superior court did  not  abuse  its
discretion in resolving this ambiguity.  A court must resolve any
ambiguity  in  contract  language by determining  the  reasonable
expectations of the contracting parties in light of the  language
of  any disputed provisions, other provisions, relevant extrinsic
evidence,  and  case law interpreting similar provisions.17   The
superior court held that [a]lthough there is some logic to basing
the  high-three-years calculation on Johns wages at the  time  of
separation, basing the calculation on Johns high-three  years  at
retirement is more equitable and more logical.  In reaching  this
conclusion,  the superior court looked at a letter  submitted  by
Johns  expert  and at relevant precedent.  The court  noted  that
using  Johns approach would effectively award to him considerably
more  than 43% of the monthly benefit accrued during the  marital
years, in contravention of the parties agreement.18
          As  Tina concedes, the wording of the disputed term  in
the  settlement  agreement  was more  appropriate  to  a  defined
contribution  plan  . . . than a defined benefit  plan.   When  a
trial court divides the marital portion of retirement benefits in
a  defined benefit plan, it has two choices for distributing  the
benefits:   the   immediate  offset  method  and   the   deferred
distribution  method.19  Under the immediate offset  method,  the
value of the marital portion of the pension is reduced to present
value  and  divided  at the time of divorce, with  the  nonowning
spouse  receiving  a  lump  sum payment.20   Under  the  deferred
distribution  method,  [t]he  distribution  is  based  upon   the
benefits  actually  received  in  the  future,  and  not  upon  a
prediction of the benefits which would be received in the future.
. . .21  Turner notes in his treatise on equitable distribution of
          property that an advantage of the deferred distribution method is
that  the  division is based only upon actual facts. .  .  .   In
every  case, the nonowning spouse will receive his or  her  exact
correct  share of the retirement benefits.22  Under the terms  of
Johns  defined benefit retirement plan, calculation of his actual
future  retirement  benefit will be accomplished  by  applying  a
percentage to the average of his top three earning years  at  the
time of retirement.  If some other benefit formula not reflective
of  Johns  actual  retirement  benefit  calculation  were  to  be
substituted  in  the QDRO,23 as John advocates,  Tina  would  not
receive  her  equitable  share of the marital  portion  of  Johns
retirement benefit.
          The  language  of the parties agreement  is  consistent
with  the  intent to defer distribution of an equitable share  of
the  marital portion of the retirement benefit to be paid to John
upon  his retirement.  We are not left with the firm and definite
conviction  that  the superior court made a  mistake,24  and  its
determination  that  using  Johns  high-three  salary  years   at
retirement is consistent with the parties intentions was  not  an
abuse of discretion.
          The  result  would be the same had the  superior  court
held that the parties did not reach an agreement as to what years
the  high-three salary should be based on, and that the  property
settlement  agreement therefore did not address the issue.   When
there is no agreement between the parties as to the division of a
particular  item  or  class of property, the superior  court  has
discretion  to  divide that property equitably.25   The  superior
court  here  correctly reasoned that granting  Tina  an  interest
based on Johns high-three salary years at retirement was the most
equitable  approach  because  it  most  closely  effectuated  the
parties  intention  to  award fifty-seven  percent  of  the  four
pensions to Tina.  That decision was not an abuse of discretion.
          We  also disagree with Johns argument that the superior
courts order impermissibly awarded Tina an interest in Johns post-
marital property.  He argues that this award violates our holding
in  Schanck v. Schanck,26 and punishes him for continuing to work
for  his current employer.  Schanck held that [a]s a general rule
.  .  .  property accumulated with income earned  after  a  final
separation  that  is intended to, and does in  fact,  lead  to  a
divorce  is  excluded from the category of marital  property,  as
long as it is obtained without the invasion of any pre-separation
marital asset.27  Schanck addressed a question not at issue here:
whether  marital  property  includes property  accumulated  after
separation  but  before divorce.  Schank did not address  defined
benefit  plans  or classify a retirement benefit  as  non-marital
property, and does not bar using Johns high-three salary years at
the time of retirement.  Schanck does not apply here.
          Nor does the award penalize John for remaining with his
current  employer.  We rejected a similar argument in Tillmon  v.
Tillmon.28   The former husband in that case contended  that  the
property  division  allowed  his  former  wifes  share   of   his
retirement  to increase in value as a result of later  promotions
and  pay raises.29  But as we explained, the marital share of the
retirement  will  continue to decrease as  a  percentage  of  the
          entire retirement as he extends the duration of his service with
his current employer.30
          The superior court cited Wainwright v. Wainwright31 and
Faulkner  v. Goldfuss32 in support of its decision to  use  Johns
high-three  salary  years at the time of retirement.   Wainwright
held  that  the  non-employee spouse was entitled  to  receive  a
portion  of  the employee spouses cost of living increases  after
separation.33  Faulkner endorsed the use of a retirement  account
division  formula  based  on the entire length  of  the  employee
spouses  career.34  Although neither case is squarely  on  point,
both  support the superior courts decision to divide  Johns  FERS
pension using his high-three salary years at retirement.
          Turners   property  division  treatise   supports   the
superior   courts  approach,  which  is  known  as  the   marital
foundation  theory.35  This theory reasons  that  a  post-divorce
merit  increase  is  based upon the employees entire  history  of
service  to  the  employer.   In  other  words,  the  postdivorce
increases  are  built upon a foundation of prior marital  efforts
and  therefore  the increases are not separate  property.36   The
commentator describes this approach as better policy  because  it
avoids  undervaluation of contributions made early in a  marriage
and  gives  more  dollars  to  the spouse  who  assisted  in  the
development  of  the employees career, and less  dollars  to  the
spouse  who was the passive beneficiary of that career  after  it
was established.37  We approve this policy and conclude that this
approach  is generally the most equitable.  Absent clear language
to  the contrary in a property division agreement, a court should
base  the division of retirement benefits on the employee spouses
high-three salary years at the time of retirement.
     C.   The  Superior Court Permissibly Declined To Conduct  an
          Evidentiary Hearing To Determine the Intent of the Parties.
          
          John  argues  that  the superior  court  erred  by  not
granting his request for an evidentiary hearing to determine  the
meaning  of  the  ambiguous  terms  in  the  property  settlement
agreement.   The superior court held that oral argument  was  not
necessary  to  resolve the disputed issues  and  also  implicitly
rejected  Johns request for an evidentiary hearing.  We  exercise
our  independent  judgment in reviewing a  refusal  to  grant  an
evidentiary hearing.38
          John  cites  Burns v. Burns39 to support his contention
that [w]hen a contract provision is ambiguous, the intent of  the
parties is to be determined by a resort to extrinsic evidence  as
determined at a hearing wherein evidence is presented.  But Burns
does  not stand for this proposition.  The parties there disputed
an ambiguous term in a property division agreement, and the trial
court resolved the dispute after conducting an
  evidentiary hearing.40  We affirmed, but never stated  that  an
evidentiary  hearing was required there, or that  an  evidentiary
hearing  is  invariably required to resolve every  dispute  about
ambiguous terms in a settlement agreement.41
          An  evidentiary hearing is not necessary if there is no
genuine  issue  of material fact.42  Here there  was  no  genuine
factual   dispute,  only  a  legal  dispute   over   the   proper
          interpretation of the property settlement agreement.  John points
to  no  evidence  that would have resolved the ambiguity  in  the
settlement  agreement by establishing the  parties  intent.   The
only  extrinsic  evidence John proposed below was testimony  from
his  expert,  and  the  court considered  the  experts  extensive
analysis  and  quoted  from it in denying  Johns  reconsideration
motion.  Because there was no genuine issue of material fact,  we
hold that the superior court did not err in denying Johns request
for an evidentiary hearing.
     D.   The Superior Court Permissibly Ordered John To Pay a Portion
          of the Cost of the FERS Survivor Benefit.
          
          John  argues that the superior court erred by  ordering
him to pay half the cost of the FERS survivor benefit.  He argues
that either Tina should bear the full cost of the benefit, or the
issue  should  be  remanded  for  an  evidentiary  hearing.   The
superior   court  held  that  dividing  the  cost   equally   was
appropriate because Tinas survivor benefits would revert to  John
if she predeceased him.
          John  cites  Berry v. Berry43 for the proposition  that
this court has held that it was not error for the trial court  to
require  the  wife  to pay for the cost of the survivor  benefit.
Berry  is  factually distinguishable and does not  support  Johns
argument.  In Berry, as in this case, the parties disagreed about
who should pay the cost of the survivor benefit.44  But there the
superior court declined to grant a survivorship benefit to the ex-
wife.45  We held in Berry that the superior court implicitly ruled
that  the  ex-husband  should not pay  for  survivor  benefits.46
Because the ex-husband had offered to carry a survivor benefit at
the  ex-wifes expense, we held that he should facilitate covering
her under the plan.47  Berry does not support Johns argument that
Tina  should be required to pay the full cost of the survivorship
benefit.
          John  and Tinas property settlement agreement  did  not
address  the cost of the FERS survivor benefit.  If there  is  no
agreement  as to the division of a particular piece of  property,
the  superior  court  has  discretion  to  divide  that  property
equitably.48   The  superior court therefore  had  discretion  to
select an appropriate division based on what the court knew about
the parties economic situations.
          The  superior courts decision is also supported by  the
agreements  treatment  of Johns other retirement  accounts.   The
paragraph  dividing  Johns Southern Alaska Carpenters  Retirement
Plan states that it awards Tina a fifty-seven percent interest in
the  plans  survivor benefit and requires her to bear fifty-seven
percent of the cost of that benefit.49  This provision gives rise
to opposite inferences regarding the parties agreement concerning
the  FERS plan.  This provision could imply that the parties must
also  have intended to impose fifty-seven percent of cost on Tina
for  the  FERS survivor benefit.  But it could also  be  read  to
imply  that the parties were intentionally silent about the  cost
of  the  FERS plan survivor benefit because they could not  agree
how  to  divide  the cost.  Or it could imply  that  they  simply
overlooked  the issue.  Regardless, their failure to  express  an
          agreement on this aspect of the FERS plan means that the superior
court had discretion to divide the cost equitably.
          The agreement grants Tina fifty-seven percent shares of
the balances in two of Johns four retirement accounts, and fifty-
seven  percent shares of the pension benefits payable under Johns
FERS  plan and Southern Alaska Carpenters plan.  Imposing on Tina
a  large  percentage of the cost of the survivor benefit for  the
FERS  plan  would  make  it  impossible  to  achieve  the  fifty-
seven/forty-three division intended by the parties both  globally
and  for the FERS benefits specifically.  We therefore hold  that
the superior court did not abuse its discretion by requiring John
and Tina to split the cost of the FERS survivorship benefit.
          Likewise,  we  decline  to remand  for  an  evidentiary
hearing.    John  did  not  specify  what  additional   extrinsic
evidence, apart from the experts letter considered by the  court,
he  would  have  offered had the superior court  granted  such  a
hearing.   He  fails to show that there was a  genuine  issue  of
material  fact, and that the superior court erred by not granting
a hearing.50
     E.   The Superior Court Permissibly Awarded Tina One-Hundred
          Percent of the Survivorship Benefits.
          
          John  argues that the superior court erred by  awarding
Tina one-hundred percent of his FERS survivor annuity.  He argues
that  the  agreement  limits her to 57  percent  of  the  accrued
survivor  benefit.51  This latter contention is not  an  accurate
characterization   of  the  agreement.   Although   the   parties
generally  agreed  that  Tina  should  receive  only  fifty-seven
percent  of Johns four retirement plans, the agreement is  silent
about  how to divide the FERS survivorship benefit.  The superior
court  cited  Section 8445 of the United States Code in  awarding
the FERS survivor benefit to Tina.52  That statute states that  a
former  spouse  of a deceased employee . . . is  entitled  to  an
annuity  under  this  section, if and  to  the  extent  expressly
provided  for  .  . . in the terms of any decree  of  divorce  or
annulment   or   any  court  order  or  court-approved   property
settlement agreement incident to such decree.53
          The   parties  agreement  limits  Tinas  share  of  the
survivor benefit for a different retirement account to an  amount
equal to her proportional interest, but does not explicitly limit
Tinas share of the FERS survivor benefit in any way.
          Because  the parties agreement did not squarely address
the division of the FERS survivor benefit, the superior court had
discretion  to  divide the property equitably  in  light  of  the
parties circumstances.54 The superior court could have chosen  to
do  as  John wished: award Tina fifty-seven percent of  the  FERS
survivorship benefits, allowing John to leave his remaining forty-
three   percent  to  another  person.   The  property  agreements
division  of  Johns  Southern Alaska Carpenters  Retirement  Plan
stated that it was awarding to Tina a survivors benefit equal  to
her  proportional interest.  By expressly addressing an issue the
FERS  provision  did not mention, this passage permits  different
inferences.55   The parties choice in dealing with  the  Southern
Alaska  Carpenters plan might justify adopting a similar approach
for  the  FERS  plan.  But John does not argue that the  superior
court should have looked to the division of that retirement  plan
in deciding how to divide the FERS survivor benefit.  Instead, he
argues  that the FERS survivor benefit award impermissibly grants
Tina a portion of his future earnings.  We addressed and rejected
that contention in Part III.B above.
          We have consistently recognized that the superior court
is  in the best position to assess each partys circumstances  and
to  determine what division of property is most equitable.56  The
record  does  not leave us with the firm and definite  conviction
that  the superior court made a mistake, and we therefore  affirm
the superior courts decision.
IV.  CONCLUSION
          We therefore AFFIRM the superior courts FERS QDRO.
_______________________________
     1    John and Tina also agreed to divide Johns interest in a
Southern  Alaska  Carpenters Retirement Plan, a  Carpenters  Fund
defined  contribution plan, and a Thrift Savings Plan.   Per  the
agreement,  for these plans Tina received fifty-seven percent  of
the benefits accrued during the marriage.

     2     Johns partial opposition motion discussed all four  of
the  proposed  QDROs. John only appeals the  courts  decision  to
adopt Tinas proposed FERS QDRO.

     3    Wainwright v. Wainwright, 888 P.2d 762 (Alaska 1995).

     4    Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).

     5    Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (citing
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)).

     6    Id. at 1147.

     7    Id. at 1147 n.4.

     8     Tillmon  v.  Tillmon, 189 P.3d 1022,  1031-32  (Alaska
2008)   (reviewing  for  abuse  of  discretion  superior   courts
implementation  of  parties agreed-upon fifty-fifty  division  of
marital  portion of husbands military retirement).   The  husband
there argued that the implementation wrongfully allowed his  wife
to  benefit from his future pay raises because it did  not  limit
the  marital portion of the retirement benefit to his current pay
level.   Id.  at 1031.  The parties disputed what pay  level  the
marital portion of the benefit should be based on.  Id. at  1031-
32.

     9    Id. at 1032.

     10     Cf.  Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska
2001)  (applying  independent  judgment  standard  of  review  to
superior  courts  decision  not to hold  an  evidentiary  hearing
before  calculating child support income); see  also  Acevedo  v.
Burley,  944  P.2d  473, 476 n.2 (Alaska 1997) (For  purposes  of
determining the standard of review applicable to deciding whether
the  superior court erred in denying Acevedos motion  without  an
evidentiary  hearing,  we  draw  analogy  to  review  of  summary
judgment decisions. . . . [T]he question in this case is  whether
there  is  a genuine issue of material fact that, if established,
would  entitle Acevedo to the relief sought.  This is similar  to
our  focus  in  reviewing summary judgment cases.  Therefore,  as
with  summary  judgment decisions, we review the superior  courts
decision  using  our  independent judgment.) (internal  citations
omitted).

     11    Routh, 19 P.3d at 596.

     12     Commr,  Internal Revenue v. Keystone Consol.  Indus.,
Inc., 508 U.S. 152, 154 (1993).

     13    Id. at 154.

     14    Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986).

     15     Zito  v. Zito, 969 P.2d 1144, 1147 n.4 (Alaska  1998)
(quoting Wessells v. State, Dept of Highways, 562 P.2d 1042, 1046
(Alaska 1977)).

     16    Id. at 1147 n.4.

     17    Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993).

     18     Johns  expert calculated how much Tina would  receive
using   Johns  high-three  salary  years  at  the  time  of   his
retirement,  versus how much she would receive  using  his  high-
three salary years during the period of marriage.  He assumed for
purposes  of  the  calculation that John would  remain  with  his
current employer until retiring at age sixty and that the average
of  his  high-three salary years at retirement would be $100,000.
Using  these numbers, Johns monthly annuity, based on  his  high-
three salary projected at his future retirement, would be $2,131.
In  contrast, his high-three average salary at the  time  of  the
divorce was $67,844, and his monthly annuity at retirement  based
on that amount would be $1,446.

          Using  Johns  approach, Tina would get  $502  a  month.
This  is fifty-seven percent of the $880 marital portion of  what
the  total  annuity would be using Johns high-three salary  years
during  the  marriage.   (The marital portion  is  calculated  by
dividing the portion of Johns employment that occurred during the
marriage  (fifteen years and seven months) by the total  duration
of  his  employment  (twenty-five years and  seven  months),  and
multiplying the result by the total annuity.)

          But  Tinas $502 award would be only thirty-nine percent
of  the  $1,298  marital portion of what  the  total  annuity  at
retirement   would  be  using  the  hypothetical  numbers   above
($2,131).  As the superior court noted, this is not the 57% share
as to which both parties agreed.

     19     2 Brett R. Turner, Equitable Distribution of Property
6:32, at 192-93 (3d ed. 2005).

     20    Id.

     21    Id. at 197.

     22    Id.

     23     Turner  has described the use of QDROs to direct  the
plan  administrator to send separate retirement  checks  to  each
spouse  as the preferred method of paying a deferred distribution
award,  id.  at 203, and this was the method used  by  the  trial
court in this case.

     24    Tillmon v. Tillmon, 189 P.3d 1022, 1032 (Alaska 2008).

     25    Id. at 1030-32 (see note 8 above).

     26    Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986).

     27    Id. at 3.

     28    Tillmon v. Tillmon, 189 P.3d 1022, 1032 (Alaska 2008).

     29    Id. at 1032 n.35.

     30    Id.

     31    Wainwright v. Wainwright, 888 P.2d 762 (Alaska 1995).

     32    Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).

     33    Wainwright, 888 P.2d at 765-66.

     34    Faulkner, 46 P.3d at 1003 n.36.

     35     Turner, supra note 19, at 171-73, 183. The time  rule
formula  used by the superior court in this case is analogous  to
the  marital foundation theory.  See In re Marriage of Hunt,  909
P.2d 525, 534 n.8 (Colo. 1995).

     36     Turner,  supra note 19, at 171.  Among other  states,
Colorado,  Delaware, Indiana, New Hampshire, and  Illinois  apply
the  marital foundation theory to dividing post-divorce increases
in salary and cost of living payments.  Id.

     37    Id. at 183.

     38     Cf.  Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska
2001) (see note 10 above).

     39    Burns v. Burns, 157 P.3d 1037 (Alaska 2007).

     40    Id. at 1039-41.

     41    Id.

     42    Routh v. Andreassen, 19 P.3d 593, 596 (Alaska 2001).

     43    Berry v. Berry, 978 P.2d 93 (Alaska 1999).

     44    Id. at 97.

     45    Id.

     46    Id. at 97-98.

     47    Id. at 98.

     48     Tillmon  v.  Tillmon, 189 P.3d 1022, 1030-32  (Alaska
2008) (see note 8 above).

     49     The  agreements paragraphs dividing Johns  Carpenters
Fund defined contribution plan and his Thrift Savings Plan do not
address survivor benefits.

     50    See Part III.C above.

     51     John  also argues that the award impermissibly grants
Tina  a  portion  of  his  future earnings.   This  argument  was
addressed and dismissed above.  See page 12 above.

     52    5 U.S.C. 8445 (2007).

     53    Id. 8445(a).

     54     Tillmon  v.  Tillmon, 189 P.3d 1022, 1030-32  (Alaska
2008) (see note 8 above).

     55    See Part III.D.

     56     Tillmon,  189 P.2d at 1030; see also, e.g.,  Zito  v.
Zito, 969 P.2d 1144, 1146 (Alaska 1998).

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