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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. Johnson (08/28/2009) sp-6403

Johnson v. Johnson (08/28/2009) sp-6403

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 13251
) Superior Court No. 3AN-05- 14155 CI
v. )
) O P I N I O N
) No. 6403 - August 28, 2009
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances: Robert C. Erwin, Law Offices  of
          Robert   C.   Erwin,  LLC,   Anchorage,   for
          Appellant. Mary A. Gilson, Allison E. Mendel,
          Law   Offices   of   Mendel   &   Associates,
          Anchorage, for Appellee.

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

          CHRISTEN, Justice.

          Kathleen  and Samuel Johnson divorced in 2007.   During
the  divorce  proceedings,  Kathleen  drafted  a  proposed  order
regarding the division of Sams military retirement benefits.  Sam
filed  objections  to some of the documents provisions  with  the
superior court; Kathleen responded to the objections and filed  a
revised  proposed  order.  A month later, the  court  signed  the
revised order along with the couples divorce decree.  Nine months
after  the entry of the order, Sam filed a motion to correct  it.
Sam  argued that a provision stating that Kathleen will  continue
to  receive half of Sams retirement benefit payments, even if she
remarries,  was  inappropriately  included  in  the  order.   The
superior  court  denied  the  motion.   Sam  appeals,  making   a
different argument about the burden he will face should  he  ever
cease  to  receive the retirement benefits.  Because the superior
court  did  not abuse its discretion in denying Sams  motion  and
because  Sam raises a new argument for the first time on  appeal,
we affirm the superior courts order.
          Samuel   Corbin  Johnson,  III  and  Kathleen  Finnerty
Johnson were married in 1972; Kathleen filed for divorce in 2005.
A  trial regarding custody of one minor child, child support, and
the  division  of  assets took place in  the  superior  court  in
Anchorage  in  May of 2007.1  The focus of this  appeal  is  Sams
military  retirement  pension, which he and  Kathleen  agreed  to
split 50/50 in keeping with the parties mutual understanding that
they would evenly divide their marital estate.
          On the second day of the trial, Kathleens attorney told
the  court  that  Kathleen  had  a proposed  order  dividing  the
military  pension  and  Sams attorney acknowledged  that  he  had
received a copy of it.  Sams attorney asked for time to send  the
order  to  an  expert for review.  The court granted  permission,
instructing Kathleens attorney to send the order that day and  to
request  a  prompt response.  The court directed the  parties  to
submit  [the  order]  to the court by next Thursday,  giving  Sam
eight  days to respond.  On the final day of the trial, Kathleens
attorney again raised the issue of the retirement benefits order,
telling  the court that he had given it to Sams attorney but  had
not  received  any  response despite the courts  deadline  having
passed.    Sams  attorney stated that his expert had  the  order,
called  the expert from the courthouse, and then reported to  the
court that there was information missing from the document.   The
court gave Sam another deadline for submitting objections to  the
draft  order  and  Kathleen a date by which to  respond  to  Sams
          Sam  filed  objections  to  the  proposed  order.   The
objections related to personal information that was not included,
as  well as some concerns about extraneous language.2  There  was
no   objection  to  provisions  regarding  continued  payment  of
benefits  to Kathleen in the event she remarries or if Sam  stops
receiving payments from the military.  Kathleen filed a  response
addressing  each  of  Sams objections and asked  that  the  court
approve the First Revised Order Dividing Military Retired Pay and
Benefits, which she filed contemporaneously.3  On June 26,  2007,
the superior court issued a divorce decree as well as findings of
fact  and  conclusions of law. On the same day, the court  signed
the First Revised Order.
          Sam  filed  a  Motion to Correct Clerical  Mistakes  in
Judgment  on  March  26, 2008.  He asked the  superior  court  to
correct  a  clerical  mistake in the First  Revised  Order  which
awards 50% of husbands federal pension even on remarriage of  the
wife.4   He cited Civil Rule 60(a) and (b)(1) in support  of  his
motion.   The  memorandum in support included  little  additional
argument or explanation, although it did indicate that Section[s]
8  & 9 of the First Revised Order contained the language to which
          Sam objected.5  It also asserted that the order finds that the
pension  payments  continue from Sam  Johnson  even  if  Kathleen
remarries  even  though Air Force Retirement  benefits  cease  on
remarriage.  (Citation omitted.)
          Kathleen filed an opposition to Sams motion.  She noted
that   the   paragraphs  in  dispute  in  this  motion  practice,
paragraphs  eight (8) and nine (9) are identical in the  original
proposed  order  and in the first revised order.6   (Emphasis  in
original).   Kathleen argued that Sams claims  under  Civil  Rule
60(a),  which  allows for the correction of  clerical  errors  in
court   orders,  and  Civil  Rule  60(b)(1),  which  allows   for
corrections  in  cases  of  mistake,  inadvertence,  surprise  or
excusable  neglect, were without merit.  Kathleen  further  noted
that  according  to  an  American  Bar  Association  publication,
remarriage does not impact military retirement benefits.
          On  July  30,  2008,  the superior  court  denied  Sams
motion.  The court noted that the order was carefully crafted  by
the  parties  and reviewed by the defendants expert and  reasoned
that  the particular care of the parties here leads the court  to
the  conclusion  that the Motion to Correct the Order  should  be
          Sam appeals.
          Interpretations  of  court rules, including  whether  a
judgment or court order can appropriately be corrected under Rule
60,  are  questions  of  law.7  We  review  issues  of  law  with
independent  judgment, adopt[ing] the rule of law  that  is  most
persuasive in light of precedent, reason, and policy.8
          After  resolving any legal issues, we review the  trial
courts  decision to amend the judgment under Rule  60(a)  for  an
abuse  of  discretion.9  We have also stated  that  we  will  not
disturb  a  trial courts ruling on a Rule 60(b) motion unless  an
abuse of discretion is demonstrated.10
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Denying the Rule 60 Motion.
          Alaska  Civil  Rule  60(a) allows a  court  to  correct
clerical  errors  in judgments or orders.11  We have  interpreted
clerical  errors  to  mean  accidental omissions,  a  copying  or
computational mistake, or the like.12  Rule 60(b) allows a  court
to  change  a  judgment or order if doing so would be  just,  and
based on mistake, inadvertence, surprise or excusable neglect.13
          Sams  Rule  60  motion concerned only the provision  he
interprets  as providing that Kathleen will continue  to  receive
fifty  percent  of  Sams  military  retirement  benefits  if  she
remarries.   He argued that the provision constituted a  clerical
error  or  was  entered improperly by mistake.   In  denying  the
motion,  the  superior  court noted that  the  parties  carefully
crafted  the order before the court signed it.  It is clear  from
the  record that both parties had time to review the language  of
the  order,  and in particular that the court gave Sam additional
time to seek the advice of an expert before submitting objections
to  it.  These facts indicate that the remarriage provisions were
          neither a clerical error nor a mistake.  Thus, we hold that the
superior  court did not abuse its discretion in deciding  not  to
make any change to the order pursuant to Rule 60.14
          Sam  now  asserts  that  the remarriage  provision  was
slipped into the revised order.  Kathleen counters that the  only
changes  to  the order were in response to Sams objections.   The
original draft is not in the record, so we have no way to  assess
whether  Kathleens claim is correct.  But whether the  provisions
were  unchanged  or not, Sam did not make this  assertion  below.
Because the superior court was not presented with that issue,  it
is not properly before us.15
          Furthermore, we note that it is not contested on appeal
that the Uniformed Services Former Spouses Protection Act,16 which
allows  for the division of military retirement benefits  between
divorcing  spouses,  makes  the remarriage  of  a  former  spouse
irrelevant  for  purposes of the continued  right  to  receive  a
portion   of  military  retirement  benefits  accrued  during   a
marriage.17  The policy behind this statute is sound:
          The  spouses  of military  members  make
          important  sacrifices for  our  national
          defense.   Military  members  must  move
          frequently,  and  these  moves  make  it
          difficult for their spouses to establish
          traditional  careers and  large  earning
          capacities.  Military members must  also
          be  away  from  home for unusually  long
          periods  of time, and thus are not  able
          to  perform  homemaker  and  child  care
          duties  as consistently as spouses  with
          more  flexible schedules. . .  .  Former
          spouses  of  service  members  certainly
          make  greater sacrifices for our country
          than former spouses of civiliansand that
          is why it is fundamentally wrong to give
          former  spouses of service members  less
          property  rights  than  former   spouses
          generally.   For  purposes  of  dividing
          retirement  benefits upon  divorce,  all
          retirement  benefits, both military  and
          non-military,   should   generally    be
          subject to the same set of rules.[18]
Even if paragraphs eight and nine were not in the order signed by
the  superior  court, the consequence of any future  marriage  of
Kathleen would be the sameshe would continue to receive  half  of
Sams military retirement benefits.
     B.   Sams Argument Regarding Shortfall Provisions Is Waived.
          Sam  claims that provisions in the order place  a  life
long  obligation  on  Sam Johnson to pay  fifty  percent  of  his
military  pension to his ex-spouse; even if for some reason  that
pension  is  not  paid  to  him by the  United  States.   Sam  is
concerned  about  such provisions because [t]he present  economic
crisis  and the extraordinary demands for federal funds  to  cure
the present economic crisis could lead to a diminution of spousal
          pension benefits.  In such even[t], Sam Johnson would be liable
for  such reduction . . . .  Sam argues that this requirement did
not  appear in the draft [order] submitted for counsel  approval.
Sam  does not indicate which language in the order might lead  to
this  result,  but he does not contest Kathleens assumption  that
the  relevant  paragraphs  are numbers  sixteen,  seventeen,  and
          Sam  did  not raise this argument below, and so  it  is
waived.20   If  the  military  ever reduces  or  eliminates  Sams
retirement  benefits,  any dispute that arises  between  Sam  and
Kathleen  about whether and how much Sam is required to  continue
to  pay  Kathleen  should be brought to the  superior  court  for
          For the reasons explained above, we AFFIRM the superior
courts order denying Sams Rule 60 motion.
     1     Most  of what occurred at trial is irrelevant  to  the
appeal  here.   Sam  filed  a separate appeal  regarding  several
aspects of the division of marital property, and this court ruled
on that appeal on March 4, 2009.  Johnson v. Johnson, Mem. Op.  &
J. No. 1335, 2009 WL 564692 (Alaska, March 4, 2009).

     2     The  objections were: (1) Sams address,  his  date  of
birth  and  all of his service information were not  included  in
Paragraph  1  of  the  order; (2) in Paragraph  2,  Kathleen  was
incorrectly listed as the defendant in the divorce and  necessary
biographical information about her was missing; (3)  Paragraph  3
did not state the full dates of marriage; (4) Paragraph 4 reached
a  conclusion  about the length of marriage that was  unsupported
because  of  the  information  missing  from  Paragraph  3;   (5)
Paragraph  5 provides that Ms. Johnson is to receive 50%  of  Mr.
Johnsons military retired pay, which is defined in Paragraph 6 as
retired   pay  before  any  statutory,  regulatory,  or  elective
deductions are applied, but the Uniformed Services Former Spouses
Protection  Act  (USFSPA) calls for dividing  retirement  pay  as
defined therein; and (6) Paragraph 24 inappropriately referred to
an  agreement regarding life insurance. Attached to the  document
was  a  letter from Sams expert describing the six objections  as
well  as  information  from a handbook about  the  definition  of
retirement pay under the USFSPA.

     3     Neither  party  claims, nor does the record  indicate,
that Sam filed a reply to Kathleens response or in any other  way
indicated  further objections to the proposed order or the  First
Revised Order.

     4     Sam  also noted that the [order] for the husband  does
not  include any such provisions as to wifes pension  awarded  to
the  husband.   Attached to the motion was a copy  of  an  order,
signed  by  the court and the parties in late 2007, giving  fifty
percent of Kathleens federal retirement benefits to Sam.

     5    Paragraph 8 of the First Revised Order reads:

          Former  Spouse  will  receive  the  same
          proportionate  share  of  any   cost-of-
          living or other increases as part of her
          property  interest in  Members  military
          retired   pay.    Said  payments   shall
          continue during the joint lives  of  the
          parties regardless of the future marital
          status  of  either  party.   They  shall
          terminate only upon the death of  either
          Former Spouse or Member.
Paragraph 9 reads:

          The appropriate pay center shall pay the
          sums called for above directly to Former
          Spouse to the extent permitted by law at
          the   same   time  the  Member  receives
          retired pay.
     6    The original proposed order was purportedly attached to
the  opposition filing, but the exhibit contains only  the  first
page of that document, on which Paragraphs 8 and 9 do not appear.
The complete original proposed order does not appear anywhere  in
the record before us.

     7     Jensen  v. Froissart, 982 P.2d 263, 266 (Alaska  1999)
(citing   DeVaney  v.  State,  Dept  of  Revenue,  Child  Support
Enforcement  Div.  ex rel. DeVaney, 928 P.2d 1198,  1200  (Alaska
1996));  see also DeVaney, 928 P.2d at 1200 (Whether an error  is
properly classified as a clerical error as that term is  used  in
Rule 60(a) involves interpretation of that rule and therefore  is
a question of law.).

     8    Jensen, 982 P.2d at 266 (citing State, Dept of Revenue,
Child  Support Enforcement Div. v. Wetherelt, 931 P.2d  383,  390
n.11 (Alaska 1997)).

     9     Frost  v. Ayojiak, 957 P.2d 1353, 1355 (Alaska  1998);
see  also  Gibson v. GEICO General Ins. Co., 153  P.3d  312,  320
(Alaska 2007) ([D]emonstrating an abuse of discretion requires  a
showing  that the [outcome] was arbitrary, capricious, manifestly
unreasonable, or improperly motivated.   (quoting Sourdough  Dev.
Servs.,  Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004)) (internal
quotation marks omitted)).

     10    Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995).

     11     Alaska R. Civ. P. 60(a) (Clerical Mistakes.  Clerical
mistakes  in judgments, orders, or other parts of the record  and
errors  therein  arising  from  oversight  or  omission  may   be
corrected  by the court at any time of its own initiative  or  on
the  motion  of any party and after such notice, if any,  as  the
court orders.).

     12     See Jensen, 982 P.2d at 267-68 (quoting In re W. Tex.
Mktg.  Corp.,  12  F.3d 497, 504-05 (5th Cir.  1994))  (upholding
superior  courts decision to correct judgment to insert  date  on
which  interest  began to accrue where court had  made  clear  on
record  it  intended  the judgment to include that  information);
DeVaney,  928 P.2d at 1200-01 (upholding superior courts decision
to   correct  child  support  order  in  which  uncorrected  text
conflicted with parties and courts clear intent).

     13    Alaska R. Civ. P. 60(b) (On motion and upon such terms
as  are  just,  the court may relieve a party or a  partys  legal
representative  from a final judgment, order, or  proceeding  for
the  following  reasons: (1) mistake, inadvertence,  surprise  or
excusable neglect; . . . .).

     14     Sam  also  makes  an  argument  regarding  additional
statements in the superior courts order, but the portions of  the
ruling  to  which  he refers were not the basis  for  the  courts
decision.   He  further  contends that the  lack  of  a  parallel
remarriage  provision  in  a separate order  regarding  Kathleens
retirement  benefits  is significant, but we  are  affirming  the
superior courts ruling that the provision in Sams order was not a
mistake because the parties had thoroughly reviewed its contents.

     15     See  Brandon v. Corr. Corp. of Am., 28 P.3d 269,  280
(Alaska 2001) (A party may not raise an issue for the first  time
on appeal.).

     16    10 U.S.C.  1408 (2006).

     17    See id.; Marshal Willick, Military Retirement Benefits
in  Divorce 172-73 (1998).  Sams counsel acknowledged as much  at
oral argument on appeal.

     18      2   Brett  R.  Turner,  Equitable  Distribution   of
Property  6:3, at 21-22 (3d ed. 2005) (emphasis in original).

     19    Paragraph 16 of the First Revised Order reads:

          If  the amount paid by the military  pay
          center  to  Former Spouse is  less  than
          fifty  percent of Members gross  retired
          pay  Member shall initiate an  allotment
          to  Former Spouse in the amount  of  any
          such  difference  to be  paid  from  any
          federal  entitlements due  Member,  with
          said allotment to be initiated by Member
          immediately   upon   notice   of    such
          difference, and making up any arrearages
          in  installments not less in  amount  or
          longer   in  term  than  the  arrearages
Paragraph 17 reads:

          If  in  any month direct payment is  not
          made  to  Former Spouse by the  military
          pay   center,  and  federal  entitlement
          exists  against which such an  allotment
          may be initiated, or for whatever reason
          full payment by allotment is not made in
          that  month, or amount paid through  the
          allotment  is insufficient  to  pay  the
          difference specified above, Member shall
          pay  the amounts called for above herein
          directly  to Former Spouse by the  fifth
          day  of each month in which the military
          pay  center  and/or allotment  fails  to
          [do]  so, beginning upon entry  of  this
Paragraph 21 reads:

          Member   will  pay  Former  Spouse   her
          interest as herein provided.  Member  is
          not  relieved of this obligation  except
          to  the extent that he is notified  that
          the  interest of Former Spouse has  been
          paid  directly  to her by the  servicing
          Finance Center.
     20     See  Brandon v. Corr. Corp. of Am., 28 P.3d 269,  280
(Alaska 2001) (A party may not raise an issue for the first  time
on appeal.).

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