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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Young v. Lowery (12/24/2009) sp-6444

Young v. Lowery (12/24/2009) sp-6444

     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

SCOTT H. YOUNG, )
) Supreme Court No. S- 13180
Appellant,)
) Superior Court No. 3KO-07- 20 CI
v. )
) O P I N I O N
)
CHERYL K. LOWERY, ) No. 6444 - December 24, 2009
)
Appellee.)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Kodiak, Joel  H.  Bolger,
          Judge.

          Appearances:   Mary  A.  Gilson,  Allison  E.
          Mendel,  Mendel & Associates, Anchorage,  for
          Appellant.   Steven P. Gray,  Law  Office  of
          Steven P. Gray, Kodiak, for Appellee.

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

          WINFREE, Justice.

I.   INTRODUCTION
          A husband and wife sought a divorce and the division of
their marital property.  The trial court granted the divorce  and
divided the property unequally, awarding the wife a larger share.
As  part  of the division, the court awarded the wife a share  of
the  husbands military pension, ordered him to pay her a  portion
of the pension payments he had already received, and authorized a
constructive  trust  on his assets in the  event  he  causes  the
amount of her payments from his pension to decrease.  The husband
challenges  specific  aspects of the  pension  division  and  the
overall  property division.  We affirm the property  division  as
within  the trial courts discretion, but we vacate, reverse,  and
remand certain elements of the pension division.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Cheryl  Lowery  and Scott Young were married  in  1994.
Each had three children from an earlier marriage.  Neither Lowery
nor  Young adopted the others children, and they had no  children
together.  The couple moved from Florida to Kodiak in 2000, where
Young worked for the United States Coast Guard.
          In  2001  Lowerys  two  sons were  killed,  and  Lowery
received a $655,802 wrongful death settlement in 2002.  The funds
were placed in joint accounts actively managed by Young.
          The  marriage became strained in November 2006.  Lowery
entered   a  residential  alcohol-abuse  treatment  facility   in
California  in  early  December 2006.  She  spent  one  month  in
treatment  and  another  in aftercare.  Young  and  Lowery  never
reunited,  and the trial court determined the functional  end  of
their marriage was approximately November 30, 2006.  Lowery filed
for divorce in January 2007.  She then moved to Florida and found
work  with a former employer.  Young moved to Arkansas  in  March
2007 and retired from Coast Guard service on May 1, 2007.
     B.   Proceedings
          Trial  was  held in early April 2008.  The trial  court
calculated  Youngs  Coast Guard pension  value  as  $706,125  and
determined the marital portion of the pension to be 50.68%.   The
court  found  that  Young maintained a 55% survivor  benefit  for
Lowery,  ensuring that if he predeceased her, she would  continue
to  receive a share of his retired pay for the rest of her life.1
The  court  also  found that Young received  military  disability
benefits.   Under current federal law, a veteran  cannot  receive
the full amount of both retired and disability pay and must waive
a  portion  of  retired pay in order to receive disability  pay.2
The  court  recognized this, but concluded that  [n]either  party
presented  any  persuasive evidence on exactly how much  [Youngs]
retirement benefits will be reduced.3
            The  trial court calculated the value of the  parties
other  marital assets to be  $689,725.  The court noted that  the
bulk  of  these  assets  originated  as  Lowerys  wrongful  death
settlement, but concluded that the settlement proceeds  had  been
transmuted into marital property.  Adding the marital portion  of
the Coast Guard pension, the court calculated the total value  of
the marital estate to be $1,047,589.
          The  trial court awarded Lowery one-half of the marital
portion of Youngs pension, which amounted to $178,932.  The court
also  ruled that [t]he balance of the marital property should  be
divided on an unequal basis in order to allow [Lowery] to  secure
additional retirement and health benefits or equivalent financial
security.  It awarded Lowery $524,298 (roughly 75%) of  the  non-
pension   marital  property  and  awarded  Young  the   remaining
$165,428.  Lowery thus received roughly 67% of the total  marital
property, including the equally divided Coast Guard pension.  The
court  ordered Young to pay Lowery $7,372, representing one  half
of  the marital portion of the retirement pay he received for the
period  from  May 1, 2007 through April 30, 2008 and to  continue
          purchasing survivor benefits for Lowery.
          The  trial  court entered a qualified order instructing
the  Coast Guard to distribute each spouses share of the  retired
pay  directly  to  that  spouse.  The  qualified  order  requires
division  and  payment according to the percentages announced  in
the  courts  written  decision, but states that  Lowerys  monthly
payment   shall not be less than $614.36 per month with  cost-of-
living increases.  The order also provides:
          If at any time after the entry of this order,
          action  is taken which causes a reduction  in
          [Youngs]  disposable retired pay, other  than
          his  election of benefits under the  Survivor
          Benefit  Plan required hereunder,  from  less
          than  it would have been on the date of  this
          Order absent such action(s), [Young] shall be
          deemed  to have created a constructive  trust
          for [Lowery] under Federal and all applicable
          State law for the amount by which payments to
          [Lowery]   are   reduced.    [Lowery]   shall
          thereupon have an interest in, and the  right
          to   immediate  possession  of,  so  much  of
          [Youngs] property as is necessary to  satisfy
          said trust.
          
          Young  moved  for  reconsideration.   The  trial  court
corrected a typographical error in the original written order but
otherwise denied the motion.  Young appeals.
III. STANDARD OF REVIEW
          We  review  the equitable division of marital  property
for  abuse  of discretion and will affirm the trial court  unless
the division is clearly unjust.4  Factual findings supporting the
division  will  not  be reversed unless clearly  erroneous.5   We
review de novo whether the trial court applied the correct  legal
rule  in  exercising its discretion.6  Whether the  trial  courts
equitable  division  of  a military pension  is  consistent  with
federal law is a question of law we review de novo.7
IV.  DISCUSSION
     A.   The Military Pension Division
          Young makes three arguments challenging the division of
his  military  pension.   First, he argues  the  $614.36  minimum
payment  to  Lowery violates federal law by effectively  dividing
disability  payments  that should not  be  subject  to  division.
Second,  he  argues  the  creation of a  constructive  trust  was
erroneous.    Third,  he  argues  the  trial  court  abused   its
discretion  by requiring him to pay the majority of  the  expense
for Lowerys survivor benefits.  We address each argument in turn.
          1.   It was error to order Young to pay Lowery no less than the
               fixed-dollar sum of $614.36 per month.
               
          The trial court determined that the marital portion  of
Youngs  pension  was  50.68%  and awarded  Lowery  half  of  that
portion,  or 25.34%, of Youngs total monthly retired pay.   After
issuing  a  written decision, the court issued a qualified  order
incorporating this percentage.  The qualified order also  states:
          Provided, however, [Lowerys] award shall not be less than $614.36
per  month  with  cost-of-living increases.   Young  argues  that
because  he is required by law to use a portion of his  $2,424.45
monthly  pension  payment  as  a substitute  for  his  disability
payment,  the  court-ordered $614.36 minimum  payment  to  Lowery
erroneously reduces his disability payment.  We agree.
          Young  retired in May 2007 and was awarded  $2,593  per
month  in  total retired pay.  He elected survivor benefits,  and
the  monthly  fee of $168.55 was deducted from his total  retired
pay,  leaving  him with disposable retired pay of $2,424.45.   On
April  1, 2008, a week before trial, Young was awarded disability
pay  retroactive  to  June 1, 2007.  Because  a  portion  of  his
retired pay must be waived to receive that disability pay, at the
time  of  trial  Youngs disposable retired pay was actually  less
than  $2,424.45,  but the exact amount was unknown.8   The  court
awarded  Lowery 25.34% of Youngs monthly disposable retired  pay,
but  required Young to pay Lowery no less than $614.36 per month.
Although $614.36 is exactly 25.34% of $2,424.45, it is more  than
25.34%  of  the actual disposable retired pay Young was receiving
at the time of trial.
          State courts have limited authority to equitably divide
a military pension upon divorce.  The United States Supreme Court
held in McCarty v. McCarty9 that federal law on military pensions
preempted  state domestic relations law and barred  state  courts
from  treating military retired pay as marital property divisible
upon divorce.10  The following year Congress overruled McCarty by
passing  the  Uniformed  Services Former Spouses  Protection  Act
(USFSPA),11 allowing state courts to treat a portion of a service
members military retired pay  termed disposable retired pay12  as
marital  property  divisible  upon  divorce  according  to  state
domestic  relations law.13  Disposable retired pay is defined  in
the   USFSPA   as  total  (gross)  monthly  retired   pay   less:
(1)  amounts waived in order to receive military disability  pay;
(2)  deductions for the cost of survivor benefits; and (3)  other
deductions not pertinent here.14  After Congress passed the USFSPA
the Supreme Court ruled in Mansell v. Mansell15 that a state court
may  consider  only  USFSPA-defined  disposable  retired  pay  as
marital property divisible upon divorce.16  Accordingly, a  court
may  not  equitably divide total retired pay;  it  may  equitably
divide  only the amount of retired pay remaining after the  court
deducts  waived  retired pay and the cost of purchasing  survivor
benefits.
          Failing to limit the property division to Youngs actual
disposable  retired pay violates the USFSPA.   It  was  therefore
error to set the minimum monthly payment at $614.36 per month and
we must vacate this portion of the qualified order.
          The  trial  court  also ordered  Young  to  pay  Lowery
$7,372,  representing  one half of the  marital  portion  of  the
retirement  pay  he  received for the period  from  May  1,  2007
through  April  30,  2008.  Young correctly argues  this  sum  is
erroneously calculated because it is based on the monthly  figure
and does not account for retired pay waived to receive disability
benefits,  which were awarded retroactive to June  1,  2007.   We
therefore  must also reverse this portion of the courts  decision
          and remand for re-calculation of the correct amount to be paid to
Lowery.
          2.   It  was error to create a constructive trust,  but
               other   means   of   indemnification   would    be
               appropriate.
               
          Because Lowery receives a proportional share of  Youngs
disposable  retired  pay, any reduction in the  amount  of  total
disposable  retired pay  occasioned, for example, by an  increase
in  Youngs disability pay requiring additional waiver of  retired
pay   would  cause  a decrease in Lowerys monthly  payment.   The
qualified  order  provides that if Young takes future  action  to
reduce  his disposable retired pay, a constructive trust will  be
created  for  the  amount  that  Lowerys  payments  are  reduced,
allowing  Lowery  the  right to immediate  possession  of  Youngs
property  sufficient to satisfy that amount.  Young  objected  to
the trial courts inclusion of the constructive trust language  in
the  qualified order, arguing that the conversion of retired  pay
to   disability  pay  under  federal  law  is  not  the  kind  of
unconscionable conduct necessary to support the imposition  of  a
constructive trust.
          When  the trial court entered the qualified order,  the
amount  of  Youngs  retired pay converted to disability  pay  was
unknown.17  On appeal Youngs argument concerns the effect of  the
constructive trust on the governments initial conversion  of  his
retired  pay to disability pay.  That portion of his argument  is
moot in light of our reversal of the trial courts calculation  of
Youngs  disposable  retired  pay.  However,  the  effect  of  the
constructive  trust  on  possible  future  decreases  in   Youngs
disposable  retired  pay is included in Youngs  argument  and  is
still at issue.
          A  constructive  trust  is  an  equitable  remedy  that
becomes available upon clear and convincing proof that the  party
against whom the trust will be imposed has been unjustly enriched
by  receiving  assets that rightly belong to the party  in  whose
favor the trust will be created.18  [T]he trust arises to prevent
the property holder from retaining property obtained by reason of
unjust, unconscionable, or unlawful means. 19
          The  trial  court did not expressly forbid  Young  from
taking  action  that would reduce Lowerys monthly retired  pay;20
instead  it required him to make up that difference if he elected
to  do  so.  Young therefore would not violate the terms  of  the
courts  order by waiving more retired pay, nor would  he  violate
any  state  or federal law by doing so.  We also do  not  believe
that  choosing to receive more disability pay in lieu of  retired
pay  to reduce ones tax burden, which federal law permits, is  so
unjust  or  unconscionable as to warrant a constructive  trust.21
But  the trial court may expressly order Young not to reduce  his
disposable retired pay and require Young to indemnify Lowery  for
any  amounts by which her payments are reduced below  the  amount
set  on  the  date the amended qualified order is entered.22   We
vacate  the  portion  of  the  qualified  order  relating  to   a
constructive  trust; on remand the court may  in  its  discretion
replace that language with an appropriate indemnity provision.
          3.   The  trial court did not abuse its discretion with
               respect to the cost of the survivor benefit.
               
          The  trial  court found that Young elected  to  provide
Lowery  a  55%  survivor benefit and ordered  Young  to  continue
purchasing  that  benefit to protect Lowerys interest  in  Youngs
pension.   Relying on our decision in Hooper v.  Hooper,23  Young
contends the trial court abused its discretion because it did not
explain the allocation of the survivor benefit cost.
          As  discussed above, the portion of a military  pension
which  may be equitably divided upon divorce  disposable  retired
pay   already  reflects  a deduction for  the  cost  to  purchase
survivor benefits.24  As a result, the cost of purchasing survivor
benefits  is automatically allocated between the parties  in  the
same proportion as their share of disposable retired pay.25
          In Hooper we held the trial court abused its discretion
in  allocating the entire cost of purchasing survivor benefits to
the  husband, without explanation, when the marital property  was
split 67% to 33% in the wifes favor.26  The pension in Hooper was
a  Federal  Employees  Retirement System (FERS)  pension,  not  a
military  pension,27 and federal law does not limit state  courts
authority to divide FERS pensions upon divorce.28  When  a  court
divides  a  FERS  pension the cost of survivor  benefits  is  not
automatically allocated; the court may allocate that cost  as  it
sees  fit.29   The trial court in Hooper decided to allocate  the
entire  cost  of  the FERS survivor benefit to the  husband,  but
lacking  an explanation for that decision, we could not determine
if it was arbitrary or reasoned.30
          Here  federal law automatically allocates the  cost  of
purchasing  survivor benefits between the spouses  because  Young
received 74.66% of the retired pay, federal law allocates to  him
74.66% of the cost of purchasing survivor benefits.31  Although it
may  have  been permissible to re-allocate that cost  some  other
way,  perhaps by requiring Lowery to reimburse Young,32 the trial
court  did not abuse its discretion by declining to do so.33   We
therefore affirm the order for continuing survivor benefits  with
the natural allocation of the cost under federal law.
     B.   The Marital Property Division
          1.   The  trial  court did not commit  legal  error  in
               dividing the marital property unequally.
               
          Young  argues  the  trial court committed  three  legal
errors in dividing the parties marital property unequally.
          Young first argues the courts findings of fact lack the
specificity  required  to justify an unequal  property  division,
citing Lang v. Lang.34  When dividing marital property, the trial
court must consider the factors enumerated in AS 25.24.160(a)(4).35
These  factors are not exhaustive, and the trial court  need  not
make findings pertaining to each factor, but its findings must be
sufficient  to  indicate  the factual basis  for  the  conclusion
reached.36
          In  undertaking the property division in this case, the
trial  court considered the duration of the marriage, the parties
ages  and  health  (specifically noting Lowerys  prior  need  for
          substance abuse treatment), and their earning capacities, future
access  to  health benefits, financial conditions,  and  expected
retirement  incomes.  The courts justification  for  the  unequal
division  was  Lowerys need to secure additional  retirement  and
health  benefits  or equivalent financial security.   Unlike  the
trial  court  decision reversed in Lang,37 the  order  adequately
explains the factual basis for the property division.
          Young  next  argues  that  the  trial  court  erred  in
attempting  to  equalize the parties financial conditions  rather
than   considering  only  Lowerys  reasonable   needs.38    After
separately  dividing Youngs pension, the court ruled the  balance
of  marital  property should be divided on an  unequal  basis  in
order  to  allow  [Lowery]  to secure additional  retirement  and
health  benefits or equivalent financial security.   Young  links
this statement with the courts earlier observation that Young  is
in  a  far superior financial condition and will receive  greater
health  and retirement benefits than Lowery, and argues that  the
court   incorrectly  tried  to  give  Lowery  financial  security
equivalent to his own.
          We  disagree.   The  courts statement about  equivalent
financial  security  referred  to  Lowerys  need  for  additional
retirement and health benefits, not Youngs financial condition.39
A  court  properly  considers  the  financial  condition  of  the
parties, including the availability and cost of health insurance,40
when dividing marital property.  The court therefore committed no
legal error in awarding a greater share of the marital assets  to
Lowery   so  she  could  either  purchase  adequate  health   and
retirement  benefits or maintain a financial cushion  to  provide
similar protection.
          Finally,   Young  argues  the  trial  court  erred   in
determining that his disability pay justifies a greater award  to
Lowery.   He  contends  the  court  erroneously  considered   his
disability  pay as income without recognizing it compensates  him
for  a  disability (primarily migraine headaches) that may  cause
chronic  health  problems  or  prevent  him  from  working.    We
disagree.    Youngs   benefits  guarantee  him   some   financial
protection  in the event his health problems become  debilitating
and he cannot work.41  Lowery has no guaranteed protection in the
event her own health issues  problems with alcohol and depression
become  debilitating,  and  the court  therefore  awarded  her  a
greater  share of the assets so she can obtain some  security  in
this regard.  Because the court may properly consider each partys
financial   condition,  including  the  availability  of   health
insurance  and  disability pay, it did  not  err  in  considering
Youngs disability pay.
          2.   The  trial  court did not abuse its discretion  in
               dividing the marital property unequally.
               
          The  trial  court divided the marital share  of  Youngs
military  pension equally but awarded Lowery roughly 75%  of  the
remaining  marital  property, resulting in an  overall  award  to
Lowery  of roughly 67% of the marital assets.  The court  divided
the  marital  property unequally primarily to  enable  Lowery  to
secure  additional health and retirement benefits.  Young  argues
          the evidence does not show Lowery needs additional benefits and
that  the  court  abused its discretion by considering  that  the
source   of  the  marital  assets  was  Lowerys  wrongful   death
settlement proceeds.
          Young correctly asserts that Lowery testified to having
no health problems presently preventing her from working and that
she  was eligible for health insurance through her employer  once
the divorce became final.  But Lowery has a history of alcoholism
and  depression  stemming from the death of her sons,  which  may
continue  or  worsen in the future and require  her  to  re-enter
treatment   or   residential  therapy.   Because  her   currently
available  health benefits are tied to employment, she  may  well
need  the  ability to fund her own treatment in the future.   The
finding  that Lowery needs to secure additional health  benefits,
or their financial equivalent, is not clearly erroneous.
          Young  also  argues that Lowery presented  no  evidence
that  her  retirement needs are unmet.  At  the  time  of  trial,
Lowery  was  forty-four years of age and earning roughly  $45,000
per  year.   No evidence was presented that she has a  retirement
plan  through her employer, and her portion of Youngs pension  is
modest.   Given  her age and the small portion of Youngs  pension
that  she receives, we are not convinced the court clearly  erred
in finding Lowery needs additional retirement security.
          Finally,  Young  asserts  the trial  court  abused  its
discretion by assigning undue weight to the fact that almost  all
of   the  non-pension  marital  assets  originated  from  Lowerys
wrongful  death settlement.  He contends that the origin  of  the
marital  estate does not justify an unequal division absent  some
findings that [Lowerys] needs justify it.  But the court did  not
find  that  the  origin of the marital assets was a justification
for  the unequal division.  And if this factor did play some role
in the courts decision, it would not necessarily be improper.   A
trial   court   may  properly  consider  a  spouses   substantial
contribution  of separate property in making an unequal  division
of the marital estate.42  Awarding Lowery a greater share of money
originally intended to compensate her for the loss of her sons is
not clearly unjust.
          The  overall  property division  roughly two-thirds  to
Lowery,  one-third to Young  is a significant departure from  the
fifty-fifty  norm, but not outside the parameters  of  the  trial
courts  broad  discretion.   We have  previously  concluded  that
awarding two-thirds of the marital property to one spouse was not
an abuse of discretion when justified by the long duration of the
marriage  and  that spouses lower income, greater  responsibility
for  child-rearing, and need to refinance or repair  the  marital
home.43   In  this  case, the bulk of marital  assets  came  from
Lowerys separate property contribution; Youngs decision to  elect
disability  benefits has rendered Lowerys share  of  his  pension
quite  modest;  and the court determined that  Lowery  needed  to
obtain  additional health and retirement benefits, or  equivalent
financial  security.  We therefore conclude  the  court  did  not
abuse its discretion in awarding Lowery two-thirds of the marital
assets.
V.   CONCLUSION
          I.   We AFFIRM the unequal division of marital assets as within
the  trial  courts  discretion.  We VACATE that  portion  of  the
qualified  order expressing Lowerys share of monthly retired  pay
as  a minimum fixed-dollar amount and that portion authorizing  a
constructive  trust on Youngs assets.  We REVERSE  the  award  of
accrued  retired  pay  owed by Young to Lowery  and  REMAND  with
instructions  to re-calculate this figure.  We AFFIRM  the  trial
courts allocation of the survivor benefit cost.

_______________________________
     1     When  a  service  member dies, retired  pay  generally
ceases  and  the  service members spouse  loses  that  source  of
income.  Purchasing survivor benefits allows a service member  to
ensure that a surviving spouse continues to receive a portion  of
the  service  members monthly retired pay even after the  service
members  death.  A service member purchases survivor benefits  by
paying  a fee that is deducted from the monthly retired  pay.   2
Brett R. Turner, Equitable Distribution of Property,  6:2,  at  6
(3d ed. 2005).

     2     38  U.S.C.   5305.  Young was awarded  disability  pay
retroactive  to June 1, 2007, but his disability  pay  was  being
withheld  to  prevent  a double payment.  Legally,  however,  the
retired pay is considered waived during that period.  See id.

          Veterans find it advantageous to receive disability pay
in  lieu  of  retired pay because disability pay is  not  taxable
income,  but retired pay is.  Clauson v. Clauson, 831 P.2d  1257,
1259  n.2 (Alaska 1992) (citing Mansell v. Mansell, 490 U.S. 581,
583-84 (1989)).

     3     The  law  governing  the  interplay  between  military
pensions  and military disability payments has changed in  recent
years,  and calculating the amount of retired pay a veteran  must
waive  to  receive disability pay is difficult.  Before 2004  the
amount  of  retired pay waived was the amount of  disability  pay
received.   38  U.S.C.  5305 (2000) amended by Veterans  Benefits
Improvement Act of 2004, Pub. L. No. 108-454, Tit. III,   308(b),
118 Stat. 3598, 3614 (2004).  Congress passed a law effective  in
2004  allowing veterans with a disability rating of 50% or higher
(as  determined  by  the  Department  of  Veterans  Affairs)   to
concurrently  receive  disability  and  retired  pay.    National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No.  108-
136, Div. A, Tit. VI.  641, 117 Stat. 1392, 1511 (2003) (codified
at 10 U.S.C.  1414(c) (2006)).  The law created a ten year phase-
in  period, during which veterans must waive a portion of retired
pay that is less than their disability pay.  Each year the waived
retired  pay is a smaller portion of the disability pay,  and  by
2014  veterans will receive the full amount of each  entitlement.
10 U.S.C.  1414(c).

     4    Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005).

     5    Hooper v. Hooper, 188 P.3d 681, 687 (Alaska 2008).

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

     7    See Clauson, 831 P.2d at 1261-62.

     8     The  trial court found that [n]either party  presented
any  persuasive evidence on exactly how much [Young]s  retirement
benefits will be reduced.  Lowery argues the burden was on  Young
to  produce this evidence and, having failed to do so, he  cannot
now  claim error.  At the close of trial, the court indicated the
evidence  presented was sufficient for the court to make findings
on  the issue.  It allowed Lowery the option of moving within ten
days to offer further evidence of the amounts waived, but did not
give  that option to Young.  Although Youngs expert was not  able
to  supply  persuasive evidence at trial (being  unaware  of  the
recent  changes  in  federal law), because Young  was  not  given
additional time as Lowery was to procure evidence, we conclude he
did not forfeit his ability to claim error on appeal.

     9    453 U.S. 210 (1981).

     10    Id. at 223, 235-36.

     11    Pub. L. No. 97-252, Tit. X,  1002, 96 Stat. 730 (1982)
(codified as amended at 10 U.S.C.  1408 (2006)).

     12     The  initial  language  of  the  Act  used  the  term
disposable  retired  or retainer pay, but  our  decision  is  not
affected  by  the change to the current term.  Id.; Abernathy  v.
Fishkin, 599 So. 2d 235, 237 n.1 (Fla. 1997).

     13     10 U.S.C.  1408(c)(1) (Subject to the limitations  of
this section, a court may treat disposable retired pay payable to
a  member  .  . . either as property solely of the member  or  as
property of the member and his spouse in accordance with the  law
of the jurisdiction of such court.).

     14    10 U.S.C.  1408(a)(4).

     15    490 U.S. 581 (1989).

     16     Id.  at  589.   The opinions in McCarty  and  Mansell
specifically  barred  the  treatment  of  total  retired  pay  as
community  property,  the approach to marital  property  division
used  in  California, where both cases originated.  McCarty,  453
U.S.  at  232-33;  Mansell, 490 U.S. at 584  n.2.   We  held  the
Mansell  decision applies to our system of equitable division  in
Clauson, 831 P.2d at 1262.

     17    See note 8, above.

     18     Riddell  v.  Edwards, 76 P.3d 847, 852 (Alaska  2003)
(citing  McKnight  v. Rice, Hoppner, Brown &  Brunner,  678  P.2d
1330,  1334-35  (Alaska  1984) and City  of  Lakewood  v.  Pierce
County, 30 P.3d 446, 450 (Wash. 2001)).

     19    Id. (quoting McKnight, 678 P.2d at 1335).

     20     Courts  in  other jurisdictions have  concluded  that
Mansells  prohibition against equitably dividing  waived  retired
pay  does  not  bar  a  court from enforcing a  lawful  equitable
division by ordering the military spouse not to reduce disposable
retired pay.  In re Marriage of Strassner, 895 S.W.2d 614, 617-18
(Mo.  App. 1995); Owen v. Owen, 419 S.E.2d 267, 269-70 (Va.  App.
1992);  see also Abernathy, 699 So. 2d at 236-37, 240 (concluding
that  court  may enforce final judgment where payment  to  spouse
arose   through   an  indemnification  provision  providing   for
alternative  payments  to  compensate  for  reduction   in   non-
disability  retirement benefits divided as  part  of  a  property
settlement agreement).

     21     See, e.g., Rausch v. Devine, 80 P.3d 733, 744 (Alaska
2003) (holding grantor not entitled to constructive trust when he
gratuitously quitclaimed property to woman and then sought return
of property when relationship deteriorated because the argument .
.  .  that  it  is  unfair that [grantee] should  hold  title  to
something  that [grantor] paid for does not justify  constructive
trust); Riddell, 76 P.3d at 852-53 (vacating a constructive trust
and  noting  that  the surviving spouse of an  incompetent  woman
could  not  have  obtained  his  statutory  benefits  by  unjust,
unconscionable,  or  unlawful means because  the  superior  court
found  the  marriage  was valid) (quoting McKnight  678  P.2d  at
1335).

     22     E.g., In re Marriage of Strassner, 895 S.W.2d at  618
(Under  these  circumstances  it  was  within  the  trial  courts
discretion  to prohibit husband from reducing his retirement  pay
or to indemnify wife for any breach.).

     23    188 P.3d 681.

     24    10 U.S.C.  1408(a)(4)(D).

     25    2 TURNER, note 1, above,  6:46, at 283.

     26    188 P.3d at 690-91.

     27    Id. at 684.

     28    5 U.S.C.  8345(j)(1).

     29    See 5 C.F.R.  838.807.

     30    188 P.3d at 690-91.

     31    See 10 U.S.C.  1408(a)(4)(D).

     32     In Berry v. Berry, 978 P.2d 93 (Alaska 1999), we held
that if a spouse desired the protection of a survivor benefit and
were  willing to bear the cost, then the other spouse  should  be
required  to  facilitate covering her under the survivor  benefit
plan to the extent of her interest.  Id. at 98.  However, we  did
not describe how to execute this arrangement.

     33    Professor Turner recognizes that a court could override
the  default  allocation by requiring one party to reimburse  the
other  outside  the parameters of a qualified domestic  relations
order,  but  characterizes this arrangement as a needless  burden
upon  all  involved  and suggests this area  of  federal  law  be
amended.  2 Turner, note 1, above,  6:46, at 283.

     34    741 P.2d 1193 (Alaska 1987).

     35    AS 25.24.160(a)(4) provides in pertinent part:

          [T]he   division  of  property  must   fairly
          allocate  the economic effect of  divorce  by
          being based on consideration of the following
          factors:
          
          (A) the length of the marriage and station in
          life of the parties during the marriage;
          
          (B) the age and health of the parties;
          
          (C)  the  earning  capacity of  the  parties,
          including   their  educational   backgrounds,
          training,     employment     skills,     work
          experiences, length of absence from  the  job
          market,  and  custodial responsibilities  for
          children during the marriage;
          
          (D)  the  financial condition of the parties,
          including the availability and cost of health
          insurance;
          
          (E)  the  conduct  of the parties,  including
          whether there has been unreasonable depletion
          of marital assets;
          
          (F)  the desirability of awarding the  family
          home,  or  the  right to live  in  it  for  a
          reasonable period of time, to the  party  who
          has primary physical custody of children;
          
          (G) the circumstances and necessities of each
          party;
          
          (H) the time and manner of acquisition of the
          property in question; and
          
          (I)  the  income-producing  capacity  of  the
          property and the value of the property at the
          time of division.
          
     36     Nicholson  v. Wolfe, 974 P.2d 417, 422 (Alaska  1999)
(citing  Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)  and
Merrill v. Merrill, 368 P.2d 546, 548 n.10 (Alaska 1962)).

     37     741 P.2d at 1196 (vacating and remanding where  trial
court gave no indication of which, if any, of the Merrill factors
[codified  and  expanded  in AS 25.24.160(a)(4)]  it  weighed  in
deciding that its allocation was fair and equitable ).

     38     Young errs in relying on our discussion of reasonable
needs in Odom v. Odom, 141 P.3d 324, 341 (Alaska 2006).  In  Odom
we held that before awarding one spouses separate property to the
other  spouse, a court must first determin[e] whether an  unequal
division of the marital estate would balance the equities .  .  .
in light of the parties reasonable needs.  Id. at 339-40.  We did
not  hold that the division of marital property is determined  by
looking  at only one partys reasonable needs.  In the context  of
equitable  division of marital property, reasonable  needs  is  a
relative  concept:   The most significant equitable  distribution
factor  outside  the  marital partnership theory  is  the  future
financial needs of the parties.  The theory behind this factor is
simple:  more marital property should go to the party who has the
most  need  for  it.   2 Turner, note 1, above,   8:15,  at  866.
Factors  may include comparative future earning capacity, assets,
liabilities, age, health, and education.  Id.  8.16-8.20, at 867-
82.

     39    At oral argument on appeal Youngs counsel conceded this
interpretation may be correct.

     40    AS 25.24.160(a)(4)(D).

     41     The  trial  court found that neither  party  had  any
serious  health  problems  that  currently  prevented  them  from
working, a finding Young does not challenge.

     42    Laing v. Laing, 741 P.2d 649, 654 (Alaska 1987).

     43    Hooper, 188 P.3d at 685-87.

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