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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ethelbah v. Walker (11/13/2009) sp-6434

Ethelbah v. Walker (11/13/2009) sp-6434

     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

LAWRENCE J. ETHELBAH, )
) Supreme Court Nos. S- 12994/S-13013
Appellant and )
Cross-Appellee, )
) Superior Court No.
v. ) 1JU-07-506 CI
)
MARY SUE WALKER f/k/a )
ETHELBAH, ) O P I N I O N
)
Appellee and )
Cross-Appellant. ) No. 6434 - November 13, 2009
)
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:  Gregory W. Lessmeier, Lessmeier
          &  Winters, Juneau, for Appellant and  Cross-
          Appellee.  Chrystal  Sommers  Brand,   Family
          Lawyer   (An   Alaska  Corp.),  Juneau,   for
          Appellee and Cross-Appellant.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          I.   A husband appeals the property division in his divorce.
He argues that the trial court erred in distributing a retirement
survivorship benefit by present value instead of by  a  qualified
domestic   relations  order;  in  valuing  a  retirement   health
insurance benefit, an excavator machine, and two trucks;  and  in
ordering  recapture  of marital income earned  from  his  pension
during the period of separation.  The wife cross-appeals, arguing
that  the  court erred in depriving her of the right to devise  a
pension  survivorship  benefit and in valuing  a  marital  escrow
account.   We affirm the superior courts decision in all respects
except  its order that pension income paid to the husband  during
the separation period should be recaptured.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Lawrence  Ethelbah  and  Mary  Sue  Walker  married  in
Arizona in 1966.  They divorced in October 2007.  At the time  of
divorce,  Lawrence was sixty-eight years old  and  Mary  Sue  was
sixty-four.   They had one adult son.  During the marriage,  Mary
Sue  worked for the Alaska Department of Education and for Alaska
school districts. Lawrence worked for the United States Bureau of
Indian Affairs.  Lawrence retired from the federal government  in
1994  and  Mary  Sue  retired from state service  in  1998.   The
Ethelbahs  lived  summers in Alaska and  winters  in  a  home  in
Pinetop,  Arizona  on  an  Apache  Indian  reservation.    During
retirement, the parties started two businesses that bought, sold,
and leased machinery.  Mary Sue was the corporate officer of both
corporations.
          On January 10, 2007, Mary Sue was diagnosed with breast
cancer  and  underwent  surgery and  chemotherapy.   The  parties
permanently  separated  on  or  about  January  12,  2007.    The
separation  was not amicable.  Each party accused  the  other  of
stealing  personal property from the estate.  Lawrence  filed  an
action  in  an  Arizona tribal court seeking  to  have  Mary  Sue
arrested  for  these alleged thefts.  Mary Sue offered  testimony
(which  the  court called believable) that she fled  the  Arizona
home after Lawrence threatened her with a gun.
     B.   Proceedings
          The   divorce  trial  was  held  October  11-12,  2007.
Superior  Court  Judge Patricia A. Collins ordered  the  sale  of
several  items  of real and personal marital property,  with  the
proceeds  to  be  divided  equally.  Other  property  items  were
allocated  to the parties, with the distribution to  be  balanced
later  by  an  equalizing payment.  These included  a  number  of
vehicles,  boats,  trailers, pieces of heavy  machinery,  halibut
fishing  quotas, and other items.  The court found that  Lawrence
had  received  but  not shared certain marital funds  during  the
period  between  separation and trial, including pension  income,
proceeds   from  halibut  fishing  quotas,  income  from   rental
properties,  and  proceeds  from  selling  a  Linkbelt  excavator
machine.  The court placed these funds on Lawrences side  of  the
marital  property ledger so they would be factored later into  an
equalizing payment.
          At the time of the divorce, each party was receiving  a
defined  benefit  retirement pension.  Mary  Sues  was  from  the
Teachers  Retirement  System (TRS) and Lawrences  was  a  federal
civil  service pension.  The trial court ordered that the marital
portion  of  each partys pension benefits be divided  equally  by
qualified   domestic  relations  order  (QDRO)  or  Court   Order
Acceptable  for Processing (COAP).1  Each party was also  awarded
survivorship benefits associated with the other spouses  pension,
and they were to share the costs of the survivorship benefits.
          Mary Sue also had a medical insurance retirement policy
from  TRS  that the court determined to have a present  value  of
$111,821.   This  policy  provided  a  survivorship  benefit   to
Lawrence  in  the  form of lifetime medical  coverage  should  he
survive  Mary Sue, which the court estimated had a present  value
to  him  of  $45,064.  Rather  than distribute  the  TRS  medical
survivorship  benefits by QDRO, the court used the present  value
estimates, placing $45,064 on Lawrences side of the ledger in the
tabulation of marital assets, and $111,821 on Mary Sues side.
          The  court  ordered  that bank accounts,  which  likely
contained more than $400,000, be divided equally after tracing by
a   jointly-selected   CPA.   The  court  prepared   a   property
distribution table dividing the assets fifty-fifty as closely  as
possible.   An equalizing payment would be calculated  after  the
CPA  completed  the  tracing of the assets in  the  marital  bank
accounts.   Later,  however, the parties  stipulated  that  there
would be no tracing and that monies withdrawn from these accounts
by  the  parties  during the separation were used for  reasonable
living expenses.
III. STANDARD OF REVIEW
          A  trial court has broad discretion to provide for  the
equitable division of property between the parties in a divorce.2
We  review the trial courts equitable distribution under an abuse
of  discretion standard, and will reverse only if the division is
clearly  unjust.3  We review a trial courts decision to  classify
property  as  marital  for abuse of discretion,  and  review  the
courts   underlying   factual  findings  on  classification   and
valuation  of  marital property for clear  error.4   Clear  error
exists when we are left with a definite and firm conviction  that
the  superior court has made a mistake.5  We review questions  of
law de novo, adopting the rule of law that is most persuasive  in
light of precedent, reason, and policy.6
IV.  DISCUSSION
     A.   The  Superior Court Did Not Err in Assigning a  Present
          Value  to Lawrences Survivorship Interest in Mary  Sues
          Retirement  Health Insurance, Rather than  Distributing
          It Through Qualified Domestic Relations Order.
          Lawrence  objects to the way the court distributed  the
health  insurance survivorship benefit that he  was  entitled  to
under  Mary  Sues  retirement  plan.   He  argues  that  the  law
prohibits  distributing a survivorship benefit  according  to  an
estimate of present value, that doing so was unfair, and that  it
should   have  been  distributed  by  QDRO  instead.   While   we
ordinarily  prefer  the  QDRO  method  for  distributing  pension
benefits,7  the trial court retains discretion to use  a  present
value   distribution  for  vested  pension  benefits,8  including
survivorship  benefits, where justified by the circumstances  and
the  need for an equitable distribution.9 We find the trial court
did not abuse its discretion in this case.
          An  expert  witness  testified  that  Mary  Sues  post-
retirement  medical  insurance benefit had  a  present  value  of
$111,821  to her, based on actuarial calculations given  her  age
and  history of cancer.  The expert similarly estimated Lawrences
survivorship benefit from that insurance to have a present  value
          worth of $45,064 to him.  The court accepted these valuations and
treated these amounts as marital property possessed by each party
in its tabulation for the equitable division of property.
          Lawrence argues that assigning a present value  to  the
survivorship  benefit places an unfair risk on him  by  crediting
him  with possession of $45,064 in marital property, even  though
he  will  receive this benefit only if he outlives Mary  Sue  and
enjoys  the  benefit for the amount of time the expert predicted.
He calls the benefit speculative and highly contingent.  Lawrence
points out that the other survivorship benefits in this case were
not  assigned  present  values.  Citing Tanghe  v.  Tanghe10  and
Nicholson v. Wolfe,11 he says that it was error to capitalize this
survivorship  benefit because doing so placed an unfair  risk  on
the  non-employee[] spouse and was inconsistent with the wait and
see  approach  underlying the use of qualified domestic  relation
orders.  He also cites Laing v. Laing,12 in which we rejected the
present value method of dividing non-vested pensions in favor  of
a QDRO approach.
          Mary  Sue argues that there was a good reason to  treat
the  medical  survivorship  benefit differently  from  the  other
retirement benefits that were distributed by QDRO.  Unlike  those
pension  benefits,  which  provided each  party  a  corresponding
survivorship  benefit,  only  Mary  Sue  had  retirement   health
insurance  benefits  with a survivorship for  the  other  spouse.
Therefore  there was no offsetting health insurance  survivorship
benefit  that  a  QDRO could allocate to Mary Sue from  Lawrences
retirement plan.
          As  we  noted  in Laing, courts have used  two  primary
methods  of  valuing and dividing pension benefits upon  divorce:
the   present   value  approach  and  the  reserved  jurisdiction
approach.13   In  the  present value  approach,  the  court  uses
actuarial and other calculations to estimate how much the  future
receipt  of  pension  benefits is worth  to  the  beneficiary  in
present value dollars.14  That amount is then awarded at the time
of  divorce, with an equalizing offset to the other party.15   In
contrast,  we  have  called the QDRO a wait and  see  approach.16
Unlike  the  present  value, immediate offset  approach,  a  QDRO
provides  that  when  the nonowning spouse becomes  eligible  for
benefits  in  the future, the owning spouse or the  pension  plan
pays him or her those benefits at that time.17
          We  have  considered whether the superior court  should
use a QDRO or a present value distribution in several similar but
distinct  contexts.    In Laing, we rejected  the  present  value
method  of  dividing  nonvested  pension  benefits,  because   it
unfairly  places all risk of possible forfeiture on the  employee
spouse.18    In   Broadribb  v.  Broadribb,19  we  affirmed   the
distribution of survivorship benefits in a vested retirement plan
according to present value, albeit under unusual circumstances.20
In Nicholson, we held that the choice between a present value and
QDRO  approach  was  within the trial courts discretion  for  the
distribution  of  vested retirement benefits.21   In  Tanghe,  we
expressed  disfavor for the present value method of  distributing
pension survivorship benefits,22 although we did not actually hold
that using it would necessarily be error.  In Mellard v. Mellard,23
          we affirmed that a present value approach to distributing vested
pension  survivorship  benefits  lay  within  the  trial   courts
discretion.24
          Lawrence,  citing  Laing and Tanghe,  argues  that  the
present  value approach is unfair because it means that the  non-
owning  spouse bears all the risk that the benefit may  never  be
realized.   It is true that a spouse in Lawrences position  bears
the  risk  of forfeiture, that is, of getting nothing.  Mary  Sue
gets  her  offset up front during the divorce, and Lawrence  gets
nothing  unless he outlives her.  However, as we noted in  Laing,
the  situation  changes when a pension vests,  making  a  present
value  payout  much  less speculative and reducing  the  risk  of
forfeiture:
          [R]eserving jurisdiction does not necessarily
          mean  that a protracted pay-out to the former
          spouse  will  follow vesting.   Once  vesting
          occurs, that portion of the pension which  is
          marital property can be calculated as of  the
          time of the divorce. The non-employee spouses
          share  of  this  figure may,  in  appropriate
          cases,  be  payable  in  a  lump  sum  or  in
          installments  which do not particularly  have
          to  be  keyed  to the time that  the  pension
          benefits are actually received.[25]
Although the  QDRO method is ordinarily preferable, the court  in
          the  present  case had reasons of equity for  taking  a
          present  value  approach  to  this  particular   asset.
          Alaskas  divorce  statute calls  for  the  division  to
          fairly  allocate  the  economic effect  of  divorce  by
          taking  into  account  several factors,  including  the
          station  in  life of the parties during  the  marriage,
          their  age  and health, earning capacity, and financial
          condition.26  In this case, it is likely that Mary  Sue
          will  predecease  Lawrence due to her  age  and  breast
          cancer, and that Lawrence will thus benefit financially
          from   the  survivorship  benefit.   A  present   value
          distribution allows both parties to share this  marital
          asset  during  their lifetimes.  The  trial  court  was
          consistent  in its treatment of this retirement  health
          insurance   benefit,  crediting   Lawrence   with   the
          estimated  present  value of the survivorship  benefit,
          but  also crediting Mary Sue with the estimated present
          value  of  her insurance coverage.  The court  did  not
          abuse  its  discretion in distributing these  benefits.
          B.   The Superior Court Did Not Err in Its Valuation of
          Mary Sues Retirement Health Insurance Benefits.
          The  court  valued  Mary  Sues post-retirement  medical
insurance  benefit at $111,821.  Lawrence argues that  the  court
undervalued this asset.  He cites Hansen v. Hansen27 to argue that
the  superior court failed to look to the amount of  the  premium
subsidy  provided  by the employer, rather  than  to  either  the
proceeds  or  the  cost of procuring comparable insurance.28   We
conclude that the trial court did not err and followed the Hansen
requirement  to base the valuation on the amount of the  employer
          premium subsidy.
          An  expert  witness  provided three different  ways  of
estimating the value of the health insurance benefit.  The  court
selected the middle estimate of $111,821 based on what the expert
termed  the  individual  rate.  Lawrence argues  that  the  court
should  have  chosen  a higher estimate based  on  the  so-called
composite rate, which would have placed the value at $166,026.29
          Retirement   medical  insurance  for  TRS  members   is
provided  by  AlaskaCare, a health insurance plan funded  by  the
State  of  Alaska  Retiree Health Fund, and administered  by  the
States  Division  of  Retirement and Benefits.30   The  State  of
Alaskas  Commissioner of Administration sets  premiums  to  cover
estimated  costs of claims to be paid in the coming  year.   Mary
Sues  expert witness described the difference between the use  of
the  individual  rate and the composite rate for  estimating  the
employer premium subsidy:
          The  individual rate approaches reflect  what
          Ms.   Ethelbah  would  pay  to  the  Teachers
          Retirement Fund, if she were required to  pay
          premiums  (for herself only).  The  composite
          rate reflects what TRS pays from the Teachers
          Retirement  fund  to  the  State  of   Alaska
          Retiree Health Fund.  Each month during 2007,
          employers   participating  in  the  [Teachers
          Retirement  System]  pay  $876  per   benefit
          recipient  . . . to the Retiree Health  Fund.
          (Emphasis in original.)
TRS  paid  the composite rate of $876 per month per  employee  to
cover  its Tier I employees such as Mary Sue.  Because  Mary  Sue
was  a  Tier  I TRS member, she received fully subsidized  health
insurance.   Employees  in certain other  categories  (which  are
determined  based on factors such as date of hire)  have  to  pay
their own premiums.31  Individual employees without dependents who
purchased  their own insurance paid the individual rate  of  $590
per month.
          The  expert testified that the composite rate is higher
than  the individual rate because it is based on an average  cost
of  coverage for all employees that includes not only coverage of
the  participant, but also spouses and minor children.   So  this
results in the composite rate being about 50 percent higher  than
the individual rate.  Thus, the composite rate is actually a less
precise measure than the individual rate as to how much it  costs
TRS  to  insure Mary Sue.  The expert witness observed  that  the
composite rate is a weighted average that reflects the value  and
incidence  of coverage of spouses and children, as  well  as  the
retiree.  It takes into account not only the coverage of  spouses
and  dependents, but also the probability that a given individual
will acquire a new spouse or new children in the future.
          The  assumptions  inherent in the composite  rate,  for
dealing  with unknown future familial status, are not  applicable
to Mary Sue.  It was known that Mary Sue was sixty-four years old
and  had  breast cancer, making her less likely than the  average
insured to remarry or acquire additional dependent children.  The
composite  rate is better viewed not as the size of  the  subsidy
          provided to an individual like Mary Sue, but as an estimate of
average per-employee costs for all insureds, used to assure  that
in  aggregate TRS pays AlaskaCare enough to cover the  claims  of
its  entire pool of insureds.  Thus, the expert witness concluded
that  in  Mary  Sues  case, the individual  rate  would  be  more
appropriate  than the composite rate because the  composite  rate
would likely overstate the cost of Mary Sues coverage:
          The  composite  rate primarily  reflects  the
          probability of marriage, remarriage following
          divorce. And I think to some extent a  person
          would  want to discount that where  a  person
          has  a life-threatening illness.  So I think,
          in  this  case,  given Ms.  Ethelbahs  breast
          cancer,  one might want to shy away from  the
          composite rate.
The  expert  testified that in his view both the  individual  and
composite  rates were different ways of estimating the  employers
premium subsidy in accord with the Hansen mandate.  As the  trial
court  concluded,  the individual rate most closely  approximates
the  likely premium rate charged by the State for estimated costs
of  claims,  given  Ms.  Walkers  life  expectancy  and  personal
circumstances.   We conclude that the court  did  not  err  as  a
matter  of law or make any erroneous factual findings in adopting
the individual rate calculation to value this asset.
     C.   It  Was  Error  To  Order Recapture of  Pension  Income
          Lawrence Received During the Separation Without Finding
          that the Income Was Wasted, Dissipated, or Converted to
          Non-Marital Form.
          Both  parties received monthly retirement income  after
they  separated, which the court classified as marital  property.
Lawrences  pension payments were higher than Mary Sues by  $1,216
per  month.  This monthly difference in retirement income totaled
$10,945  during  the period between separation  and  trial.   The
trial  court concluded that Lawrence failed to share this marital
asset,  and placed a $10,945 marital property credit on Lawrences
side of the property distribution table.  We conclude that it was
error to order recapture of these funds without making sufficient
findings  based  on evidence that the funds had been  dissipated,
wasted, or converted to non-marital form.
          The   party  that  controls  a  marital  asset   during
separation may have to compensate the other party if  he  or  she
dissipates  or  wastes the asset or converts  it  to  non-marital
form.32   The  marital  asset  is not  considered  to  have  been
dissipated,  wasted or converted if it was expended  for  marital
purposes  or normal living expenses.33  In a majority of  courts,
[t]he spouse claiming dissipation bears the burden of proving the
first  two  elements of dissipation  the fact that the  asset  in
question  existed, and the fact that it was lost during or  after
the  marital  breakdown.34  Once that burden is met,  the  burden
shifts  to  the  owning spouse to show that he  or  she  did  not
dissipate the asset.35
          An  order  of  recapture is thus not justified  without
findings  of  fact  that  the assets in  question  were  actually
wasted,  dissipated, or converted to non-marital form.36    These
          findings cannot be merely conclusory, but must be based on
evidence.  In Ogden v. Ogden,37 we noted that [o]rdinarily, . . .
neither  party  is  charged for loss  in  the  value  of  marital
property occurring in the interim between separation and trial.38
However, we have occasionally recognized an exception that allows
recapture of property that has been dissipated or wasted  in  the
interim  between separation and trial where there are exceptional
circumstances warranting recapture.39  In Brandal v. Shangin,40 we
vacated  a  trial  courts  recapture of Exxon  Valdez  settlement
monies  paid  to the husband during separation because  [i]t  was
error  to  charge  the  settlement amount .  .  .  without  first
conducting  a  recapture analysis.41  In Foster v.  Foster,42  we
reversed  an order recapturing pension payments received  by  the
husband  after separation but spent by the time of  trial.43   We
held that the trial court erred . . . in recapturing the payments
which  had  been  made  to and spent . . . before  trial  without
making findings that circumstances existed which warranted  their
recapture.44
          In  this case, the trial court appears to have inferred
the  dissipation,  waste, or conversion  of  the  pension  income
solely from the fact that Lawrence had a larger income than  Mary
Sue during the period of separation, and that his various sources
of   income,  taken  together,  exceeded  his  living   expenses.
However, the court did not cite any evidence or make any findings
about  what  Lawrence actually did with his pension income.   The
court  does  not  appear to have considered the possibility  that
Lawrence  deposited any pension income beyond his  normal  living
expenses into marital bank accounts, as Lawrence asserts  in  his
brief.   These marital bank accounts likely contained  more  than
$400,000  at  the time of trial.  It appears that no  tracing  of
withdrawals  or deposits was made because the parties  stipulated
that  withdrawals from these accounts were for reasonable  living
expenses.  If Lawrence did deposit any excess pension income into
marital  bank accounts, it would be double-counting to order  its
recapture  because  these  accounts  were  divided  equally.   We
conclude there were insufficient findings supporting the order of
recapture.
     D.   The Superior Court Did Not Clearly Err in Its Valuation
          of the Linkbelt Excavator.
          After  separation,  Lawrence sold an  item  of  marital
property, a Linkbelt excavator, without notice to or the  consent
of  Mary  Sue.  The court found that the sale was an  unjustified
dissipation of marital assets and that Lawrence had sold  it  for
far  less  than  market value.  It added the fair  market  value,
which  it  set  at  $92,000, to Lawrences  side  of  the  marital
property ledger.  In his points on appeal, and in the headings of
his  brief,  Lawrence  disputes  both  the  conclusion  that   he
dissipated this asset and the valuation.  However, in  his  brief
he provides arguments regarding only the valuation.  We therefore
treat  the dissipation issue as waived and focus on the valuation
question.45  We conclude the court did not commit clear error  in
this valuation.
          When a marital asset is sold after separation and there
is  evidence that the asset was wasted or converted to nonmarital
          form, the court may recapture the asset by crediting all or part
of  its  value  to  the account of the party who  controlled  the
asset.46  The court accepted Mary Sues estimate of $92,000, while
Lawrence argued that the fair market value was $51,156.
          Mary  Sue  argued that the excavator was purchased  for
$98,085.  Lawrence did not dispute this.  It was three and a half
years  old at the time Lawrence sold it to a broker for  $54,240.
However,  what  he actually received was $25,865 in  cash  and  a
sawmill  that  he  testified  was  worth  $26,400.   This  totals
$52,265, so it is unclear why he also states that the sales price
was  $54,240.  In any event, he put its value at $51,156,  so  he
said  the  price he got was a good deal.  Mary Sue estimated  its
value at the time of sale at $92,000, based on the excavators low
number of hours, and its excellent condition, and her familiarity
with this kind of equipment.
          In  explaining  why  $54,240 (or less)  reflected  fair
market  value,  Lawrence  factored in  a  twelve  percent  annual
depreciation rate, along with a ten percent brokerage fee.   Mary
Sue testified that Lawrence overstated the amount of depreciation
because  the machine only had 71.6 hours on it.  So that is  very
low mileage . . . .  This is a practically new machine . . . .
          Lawrence  argues  that Mary Sue  did  not  support  her
opinion  of  the excavators value with any documentation  or  any
informed  third-party opinion.  While that is true, the same  can
be  said  of  Lawrences  opinion of  the  excavators  value.   In
general, the opinion of a lay owner as to the value of his or her
property is admissible evidence.47  The evidentiary weight to  be
accorded  such  opinion and the adequacy of  its  foundation  are
matters which fall squarely within the trial courts discretion.48
Mary  Sue  was  the corporate officer of the Ethelbahs  equipment
leasing  and sales companies, and was involved in the buying  and
leasing   of  its  equipment.   The  trial  court  accepted   her
valuations  of  all the heavy equipment assets at issue,  finding
her  testimony  on their value more credible than Lawrences.   On
appeal,  we will generally accept the determination of  witnesses
credibility that are made by the court as a trier of fact,  since
the court heard and observed the witnesses first hand.49
          Part  of Lawrences argument is that the court erred  by
ignoring  depreciation.   We have held that  we  disapprove[]  of
property  divisions  which  fail  to  consider  appreciation  and
depreciation.50  However, in this case, the court did not fail to
consider  depreciation.  Rather, it credited Mary Sues  testimony
regarding  the  condition  of  the  machine  and  the  amount  of
depreciation.  Given conflicting testimony, it is not  error  for
the trial court to decide which testimony it finds more credible.
Evidence of the price paid for personal property is probative  of
value where there has been no substantial change in the propertys
condition in the interim.51
          Lawrence  also  faults the trial court for  failing  to
consider the ten percent brokers fee.  However, Lawrence  offered
no  explanation of why it was necessary to use a broker  to  sell
the  excavator.  The most likely explanation is that Lawrence was
in  a  hurry to sell the excavator and therefore chose to  use  a
broker  for his own benefit.  He sold the machine to a  broker  a
          week before he filed the complaint for divorce, taking $2,000 in
earnest  money.   A  week  later, the  court  issued  a  domestic
relations order prohibiting the sale of marital assets.   Several
weeks  later  he  received the cash and the  sawmill,  minus  the
brokers  fee.  When asked why he sold the excavator, and  why  he
could not get more money for it, he said,
          I knew this was going to become a very costly
          divorce,  and  [I] wanted the  sawmill  worse
          than  I  did  the excavator.  So  I  thought,
          well, a 50/50 split between the cash and  the
          sawmill   would  be  a  good  deal  for   me.
          And  .  .  . I dont have any more work  under
          [the  machinery  company].  She  owns  [that]
          company.  And so I sold the excavator, and  I
          sold  it for what I felt like was well within
          fair  market value . . . Ive got a  bunch  of
          logs to mill here.
Because  Lawrence  likely  used  a  broker  to  further  his  own
financial gain rather than to maximize the return on the sale, it
was  within the courts discretion to view the expenditure of  the
brokers fee as a dissipation of marital assets.
     E.   The Superior Court Did Not Clearly Err in Its Valuation
          of Two Trucks.
          In  his  points  on appeal, Lawrence asserts  that  the
court  erred  in concluding that the parties owned  a  2006  John
Deere  loader  motor and in assigning its value to Lawrence.   He
also claims the court erred in its valuation of several trucks in
Lawrences possession, and that it erred in not ordering them sold
so the proceeds could be divided equally.  Lawrence has abandoned
several  of these issues by not arguing them in his brief,52  but
two remain: the valuations of a 1995 Dodge Ram pickup truck and a
1999  Ford  pickup truck.  We conclude the court did not  err  in
valuing  these  assets.  The court adopted the values  for  these
vehicles  proposed  by Mary Sue, which it found  generally  track
Blue Book when available.
          1.   Value of the 1999 Ford truck
          Mary testified that she looked up Blue Book values  for
each of the vehicles (although it appears she actually looked  up
the  values  on the website AutoTrader.com).  The court  accepted
the  value of $10,000 for the 1999 Ford truck Mary Sue researched
in  this way.  She testified that the estimate was based  on  her
classification  of  the  Ford as being in  very  good  condition.
Lawrence does not agree the truck is worth $10,000.  He testified
that  he  had been trying to sell it for $9,000 without  success,
and  then reduced the price to $7,000 and nobodys called me  yet.
Therefore,  he concludes that the truck would probably  sell  for
$6,000.  He testified that it was formerly a Forest Service truck
and  as  such had an uncomfortable bench seat, and that  the  air
conditioning did not work.
          The  court  was  thus faced with conflicting  testimony
about  the condition and value of this truck.  It concluded  that
Mary Sues estimates generally track Blue Book when available  and
that her testimony was far more credible than Lawrences regarding
the value of the vehicles.  As noted above, we generally defer to
          the finder of fact with regard to the credibility of witnesses.53
We  conclude  it  was not clearly erroneous to accept  Mary  Sues
estimate of the market value of this truck.
          2.   Value of the 1995 Dodge truck
          The  court  also  adopted the  $8,500  value  Mary  Sue
estimated for the value of the 1995 Dodge truck.  It is not clear
from  the record how she classified its condition when she looked
up  its market value.  Lawrence testified that this truck was not
worth  the  book value because it was inoperable due to  a  leaky
transmission.    He   testified  that  a  repair   service,   A-1
Transmission, estimated a repair cost of $5,500.  He offered into
evidence a photo of the truck showing a pool of liquid underneath
it, which he testified was transmission fluid.
          In valuing the Dodge truck according to its book value,
the  trial  court evidently chose to discount Lawrences testimony
about the condition of the transmission.  Again, the court had to
base its valuation on the credibility of the witnesses.  As noted
already, it did not find Lawrence as credible as Mary Sue on  the
value  of  the vehicles, and we generally defer to the finder  of
fact with regard to the credibility of witnesses.54  We have also
held that it is the duty of the parties, not the court, to ensure
that  all  necessary  evidence is before  the  court  in  divorce
proceedings  and  that  a party who fails to  present  sufficient
evidence may not later challenge the adequacy of the evidence  on
appeal.55  Given that Lawrences challenge to the courts valuation
is  based  only on his own testimony, that the court doubted  the
credibility  of  this  testimony,  and  that  such  judgments  of
credibility  are  afforded strong deference,  we  find  that  the
courts valuation of the Dodge truck was not clearly erroneous.
     F.   The  Superior  Court Did Not Err in  Taking  Mary  Sues
          Right  To  Devise  Her  Share of  Lawrences  Retirement
          Benefits to her Heirs.
          Mary  Sues  TRS  retirement plan  is  governed  by  the
Employee  Retirement Income Security Act (ERISA), under which  in
the event the non-owning spouse, Lawrence, predeceases the owning
spouse, Mary Sue, then Lawrences share of the plan benefits  must
revert  to  Mary  Sue.  In order to balance this out,  the  court
attempted   to  fashion  a  symmetrical  treatment  of  Lawrences
retirement plan.  It ordered that for Lawrences pension,  if  the
non-owning spouse, Mary Sue, predeceased Lawrence, then Mary Sues
share  of  the plan benefits would revert to Lawrence.  Mary  Sue
argues that this order deprives her of her full property interest
in  Lawrences pension and that she should have retained the right
to devise her share of the benefits to her heirs or estate.
          Mary Sue cites the cases of Wahl v. Wahl56 and Zito  v.
Zito57 for the proposition that an award of retirement benefits in
a divorce must include the full benefit of her property interest,
including  the  right to devise her share to her  children.   She
also  cites Turners treatise to the effect that most courts grant
a  non-owning  spouse  the  right to devise  retirement  benefits
awarded in a divorce, in keeping with the principle that deferred
distribution  is  a  full  transfer  of  all  ownership   rights,
including the right to devise to an heir.58
          However, Mary Sue misconstrues these authorities,  none
          of which states or implies that a court must always award to one
party  the  full  suite of property interests associated  with  a
given  pension.  Trial courts have broad discretion to reallocate
property  rights  in  pursuit of equitable  division.59   Alaskas
divorce statute provides:
          [T]he  court,  in  making the  division,  may
          invade  the  property . . . of either  spouse
          acquired  before marriage when the  balancing
          of  the equities between the parties requires
          it;  and  to accomplish this end the judgment
          may  require that one or both of the  parties
          assign, deliver, or convey any of their  real
          or  personal  property, including  retirement
          benefits, to the other party; the division of
          property  must fairly allocate  the  economic
          effect of divorce . . . .[60]
Neither  of  the  main cases cited by Mary Sue,  Wahl  and  Zito,
limits  the  discretion of the court to alter  existing  property
rights  associated  with a pension.  The only question  posed  in
those  cases was whether an award of retirement benefits under  a
divorce  agreement  should be construed as  including  associated
property  rights  such as survivorship benefits and  devisability
where  the  agreement  was silent on that question.61   In  other
words,  these  items  should  be  treated  like  other  kinds  of
property, and should ordinarily carry the full suite of  property
rights  unless otherwise stated.  As Turners treatise notes,  the
fact  that  pension  benefits awarded in divorce  are  ordinarily
devisable is merely another application of the general rule  that
deferred distribution is a full transfer of all ownership rights,
including the right to devise to an heir.62
          None  of  these  authorities states or implies  that  a
court lacks discretion to award a spouse something less than  the
full bundle of property rights normally associated with a pension
plan, any more than it lacks such discretion with regard to other
property such as a house or business.  To take the example  of  a
house,  a  party  awarded title to a house ordinarily  gains  the
rights of occupancy and devisability.  However, trial courts  may
separate  and reallocate the bundle of property rights associated
with  the marital home.  For example, a court may award a  spouse
raising  children  an  exclusive right of  occupancy  during  the
minority  of the children without granting him or her a right  to
devise  the house to heirs.63  Similarly, an award of  a  pension
benefit  is  ordinarily  an  award of  all  the  property  rights
associated with that benefit, and in most circumstances  such  an
award  is  preferable.   However, a court has  discretion  to  do
otherwise  where  circumstances make that  more  equitable.   The
courts  order  to  have Mary Sues portion of   Lawrences  pension
benefits  revert to him if Mary Sue predeceased him  was  not  an
abuse of that discretion.  The court ordered this because it  was
attempting  as  nearly as possible to divide the  marital  estate
equally,  and this arrangement made the benefit Mary Sue received
from Lawrences pension more closely resemble the benefit Lawrence
received from Mary Sues pension.
          Mary Sues other argument against making her portion  of
          the pension revert to Lawrence upon her death is that she wants
to  be  free of any control or entanglements with Lawrence.   She
says she is fearful of Lawrence and cites some incidents in which
she  says  Lawrence physically threatened her, including  one  in
which  he  threatened her with a gun.  It is true  that  we  have
stated  a strong policy to disentangle fully interspousal affairs
upon dissolution. 64  But the trial courts order does not require
that  Mary Sue have any contact with Lawrence, nor does it create
any  more entanglement than the parties have as a result  of  the
survivorship  interest  that exists with  respect  to  Mary  Sues
retirement  plan;  the order merely makes Mary Sues  survivorship
benefit mirror Lawrences survivorship benefit.  We see no  reason
why  this  arrangement  would  unacceptably  entangle  Mary  Sues
affairs with Lawrences or bring the two into unwanted contact.
     G.   The  Superior Court Did Not Clearly Err in  Failing  To
          Value the Roswell Escrow as of the Date of Separation.
          The Ethelbahs had an escrow account containing proceeds
from  the sale of real property near Roswell, Arizona.  At trial,
Lawrence  introduced into evidence a statement  from  the  escrow
company indicating that the account had a balance of $5,298 as of
May  1, 2006.  The trial court credited this $5,298 to Mary  Sues
side of the marital property ledger.  Mary Sue objected that this
overvalued the account, which she claims was worth only $3,403 at
the  date  of separation.  The court concluded that it was  using
the  most recent valuation available at trial.  Mary Sue  appeals
this determination.
          The  date of the account statement relied upon  by  the
court  was  May 1, 2006, which was about eight and a half  months
before the separation date of January 12, 2007.  Mary Sue arrives
at  the lower figure of $3,403 by taking the monthly amount  that
was  being dispersed from the account and multiplying it  by  the
number  of  months from May 1 to the date of marital  separation,
and  then  subtracting that total ($1,896) from the known  May  1
balance shown on the account statement.
          Mary  Sue is almost certainly correct that the  account
was worth less at the time of trial than the amount it was valued
at  by  the court.  It is not clear why Mary Sue argues that  the
date of separation should be used, rather than the date of trial.
However, there is no dispute the account contained less than  the
$5,298  valuation used by the court.  Lawrence agreed that  there
had  been some monthly payments out of the account after  May  1,
although  Lawrence  disputes  the  number  and  amount  of  those
payments.   Mary Sue testified that based on a conversation  with
the  escrow company, she expected to receive the balance  of  the
account  in a check for about 4,200.  Lawrence estimated  in  his
own testimony the balance was 4,000-something.
          It  is  true  that  the date on which the  trial  court
values   marital  property  generally  should  be  as  close   as
practicable  to  the  date  of trial.65   However,  as  close  as
practicable  is  an  important qualifier.   It  was  not  clearly
erroneous  to  view  the amount on the escrow statement  admitted
into  evidence as being the best estimate as close as practicable
to  the  date  of trial.  If Mary Sue did not want  to  use  that
statement,  she could have obtained and introduced a more  recent
          statement.  We have held that it is the duty of the parties, not
the  court,  to ensure that all necessary evidence is before  the
court  in  divorce  proceedings and that a  party  who  fails  to
present  sufficient evidence may not later challenge the adequacy
of the evidence on appeal.66  The courts only alternative to using
the $5,298 figure based on the May 1, 2006 escrow statement would
have  been  to pick a number out of the air that roughly  matched
the   parties   back-of-the-napkin   calculations.    The   court
reasonably relied on the most recent solid evidence it had of the
value of the escrow account.


V.   CONCLUSION
          While  we  generally favor use of a QDRO to  distribute
pension  benefits, a present value distribution of vested pension
benefits,  including survivorship benefits, is not  barred  where
circumstances make that method more equitable.  Because only Mary
Sue  had  a  retirement health insurance benefit, and  given  her
shorter  life  expectancy, the trial  court  did  not  abuse  its
discretion  in  making a present value award  of  her  retirement
health insurance and Lawrences survivor interest in that benefit.
We  also conclude that the court properly based its valuation  of
Mary  Sues  retirement  health insurance on  the  amount  of  the
employer  subsidy.  Because we defer to the trial  court  in  its
assessment  of  witness  credibility,  and  because  it  is   the
obligation  of  the  parties  to  produce  sufficient   valuation
evidence, we conclude that the court did not clearly err  in  its
valuation  of  the excavator, two trucks, and the Roswell  escrow
account.   Although  an  award of pension  benefits  is  normally
devisable, we conclude the trial court did not err in making Mary
Sues   interest  in  Lawrences  pension  benefits  non-devisable,
because  courts  retain broad discretion to  reallocate  property
rights  in  pursuit of an equitable property  division.   It  was
error,  however,  to order recapture of pension  income  Lawrence
received  during  the separation period, because  there  were  no
findings that he wasted, dissipated, or converted these assets to
non-marital form.  We therefore VACATE the order for recapture of
these  funds,  and REMAND for the trial court to  reconsider  the
distribution of these assets.  It should only order recapture  if
it  can  make  evidence-based findings that Lawrence  dissipated,
wasted, or converted the disputed income to non-marital form.  We
AFFIRM on all the other issues raised in this appeal.

_______________________________
     1    QDROs are the orders used to distribute the majority of
pension plans governed by the federal Employee Retirement  Income
Security  Act  (ERISA),  29 U.S.C. 1056  (2009).   Federal  civil
service  pensions are divided by COAP. 5 C.F.R.   835.305.  Since
the  distinction  between  QDRO and COAP  is  not  important  for
purposes  of  this  case, we will refer to qualified  orders  for
deferred division of both kinds of pensions as QDROs.

     2     AS  25.24.160(a)(4); Nicholson v. Wolfe, 974 P.2d 417,
421 (Alaska 1999).

     3     Brotherton v. Brotherton, 941 P.2d 1241, 1244  (Alaska
1997).

     4    Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007); Doyle v.
Doyle, 815 P.2d 366, 368 (Alaska 1991).

     5    Josephine B. v. State, Deptt of Health and Soc. Servs.,
Office  of  Childrens  Servs., 174 P.3d 217,  220  (Alaska  2007)
(citations omitted).

     6    Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).

     7     See, e.g., Tanghe v. Tanghe, 115 P.3d 567, 570 (Alaska
2005).

     8     A  pension is said to have vested at the point in time
when  an  employee  would still have a right to receive  benefits
even  if he or she were to leave the employer immediately.  Brett
R.  Turner, Equitable Distribution of Property  6.2, at  6-7  (3d
ed. 2005).

     9    Mellard v. Mellard, 168 P.3d 483, 487 (Alaska 2007).

     10    115 P.3d 567 (Alaska 2005).

     11    974 P.2d 417 (Alaska 1999).

     12    741 P.2d 649 (Alaska 1987).

     13    Id. at 656.

     14    Id. at 656-57.

     15    Id. at 657.

     16    Tanghe v. Tanghe, 115 P.3d 567, 568-69 (Alaska 2005).

     17     2  Turner, supra note 8,  6:30, at 192.   A  domestic
relations  order granting property rights to the  pension  owners
spouse  is  qualified  if it is determined by  the  pension  plan
administrator  to comply with the requirements  of  federal  law.
See id.  6:19, at 96-98.

     18    Laing, 741 P.2d at 657-58.

     19    956 P.2d 1222 (Alaska 1998).

     20     Id.  at  1227.  Broadribb dealt with  a  couple  that
married  and  lived in England before moving to Alaska,  and  the
trial  court  ruled  that  under  British  law  the  pension  and
survivorship benefits were not subject to QDRO or division by the
court.  Id.   Broadribb thus did not deal with a situation  where
the  court  had  a  choice between a present  value  and  a  QDRO
approach.

     21    Nicholson v. Wolfe, 974 P.2d 417, 425-26 (Alaska 1999).

     22    Tanghe v. Tanghe, 115 P.3d 567, 568-71 (Alaska 2005).

     23    168 P.3d 483 (Alaska 2007).

     24    Id. at 487.

     25    Laing v. Laing, 741 P.2d 649, 657 (Alaska 1987).

     26    See AS 25.24.160(a)(4).

     27    119 P.3d 1005 (Alaska 2005).

     28    Id. at 1016.

     29    Neither party argues the lowest of the three estimates,
referred  to  as the post-65 rate, should have been chosen.   The
post-65  rate attempts to factor in the cost savings for retirees
in the health plan as a result of receiving Medicare.

     30      State  of  Alaska  Retiree  Health  Fund,  Financial
Statements,    June   30,   2007   and   2006,    available    at
http://doa.alaska.gov/drb/ghlb/retiree/pdf/fs07rhf.pdf.

     31    See id.

     32    Foster v. Foster, 883 P.2d 397, 400 (Alaska 1994).

     33    Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997).

     34    2 Turner, supra note 8,  6:105, at 557.

     35    Id.

     36     See  Korn v. Korn,  46 P.3d 1021, 1023 (Alaska  2002)
(Although  we  have  sometimes recognized  that  orders  dividing
marital property may recapture a marital assets pre-trial loss in
value,  we  have  held  that such orders  must  be  supported  by
findings  that  the  assets  value  was  dissipated,  wasted,  or
converted  to a non-marital form by the party who controlled  the
asset  during  the  period  of separation.)  (internal  citations
omitted); Foster, 883 P.2d at 400 (Where there is evidence that a
marital  asset  was dissipated, wasted, or converted  to  a  non-
marital form, the court can recapture the asset . . . .).

     37    39 P.3d 513 (Alaska 2001).

     38     Id. at 521.

     39     Id.

     40     36 P.3d 1188 (Alaska 2001).

     41     Id. at 1194-95.

     42    883 P.2d 397 (Alaska 1994).

     43     Id. at 400.

     44     Id.

     45     Shearer  v.  Mundt, 36 P.3d 1196, 1199 (Alaska  2001)
([I]ssues  not  briefed or only cursorily briefed are  considered
waived.).

     46    Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997).

     47     Schymanski  v.  Conventz, 674 P.2d 281,  286  (Alaska
1983).

     48    Id.

     49     Dodson  v.  Dodson,  955 P.2d 902,  907  (Alaska1998)
(quoting Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)).

     50    Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992).

     51    31A C.J.S. Evidence  339, at 478 (2008) (citing Esteel
Co. v. Goodman, 348 S.E.2d 153 (App. N.C. 1986)).

     52     See  Vezey v. State, 798 P.2d 327, 336 (Alaska 1990);
Kodiak  Elec.  Assn, v. DeLaval Turbine, 694 P.2d  150,  153  n.4
(Alaska 1984).

     53    Dodson v. Dodson, 955 P.2d 902, 907 (Alaska 1998).

     54    Id.

     55    Root v. Root, 851 P.2d 67, 69 (Alaska 1993).

     56    945 P.2d 1229 (Alaska 1997).

     57    969 P.2d 1144 (Alaska 1998).

     58    See 2 Turner, supra note 8,  6.33, at 213-14.

     59    Nicholson v. Wolfe, 974 P.2d 417, 421 (Alaska 1999).

     60    AS 25.24.160(a)(4).

     61    Wahl, 945 P.2d at 1232; Zito, 969 P.2d at 1147-48.

     62    2 Turner, supra note 8,  6:33, at 214.

     63     See  id.,  6:85, at 444-45 (noting that a  court  can
recognize  one  spouses  special need for  the  marital  home  by
awarding  that spouse exclusive use of the home and its  contents
until  the  emancipation of the youngest minor  child,  at  which
point the occupying spouse could purchase the home or it could be
sold and the proceeds divided).

     64     Musgrove v. Musgrove, 821 P.2d 1366, 1370 n.7 (Alaska
1991)  (quoting   Voyles  v. Voyles, 644 P.2d  847,  849  (Alaska
1982)).

     65    Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991).

     66    Root v. Root, 851 P.2d 67, 69 (Alaska 1993).

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