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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Husseini v. Husseini (5/7/2010) sp-6474
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
| JANICE PARK HUSSEINI, | ) |
| ) Supreme Court No. S- 13299 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-09516 CI | |
| v. | ) |
| ) O P I N I O N | |
| JALAL KEITH HUSSEINI, | ) |
| ) No. 6474 May 7, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jack W. Smith,
Judge.
Appearances: Janice Park Husseini, pro se,
Anchorage. No appearance by Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices.
PER CURIAM.
I. INTRODUCTION
Janice and Jalal Husseini are in the midst of a divorce
proceeding. In February 2008 the trial court bifurcated the
parties divorce over Janices objection, granting the divorce but
reserving all issues of equitable distribution of property.
Before the full trial on property issues, the court issued an
interim order allowing Janice thirty days to refinance the
parties marital home in her name if she wanted to keep it. When
she was unable to do so, the court issued an order for the sale
of the residence prior to trial. Although Janice argued that the
sale of the residence could cause a loss for the parties, the
trial court accepted Jalals representation that the equity
realized from the sale could be used to pay other ongoing marital
debts and refused to stay its order for the sale of the
residence.
The trial court issued several orders, including a writ
of assistance to physically remove Janice from the residence and
a clerks deed conveying her interest in the property to Jalal so
that a quitclaim deed could be delivered for the sale. Jalal and
third-party buyers closed on the sale of the home in October
2008. Janice filed a lis pendens to prevent the buyers from
recording the deed after closing. The trial court ordered that
the lis pendens was null and void, but stayed that order pending
the resolution of this appeal. On appeal, Janice challenges both
of the trial courts orders implementing the sale of the marital
home prior to a final judgment on property division and the
bifurcation of the divorce.
Although Janices appeal of the bifurcation is untimely,
we review it on the merits and conclude that the decision to
bifurcate was harmless error. Due to the lack of both factual
findings and a statement of legal reasoning from the court below,
we are unable to determine whether the trial court abused its
discretion in ordering the sale of the residence prior to the
final property distribution. Accordingly, we vacate the trial
courts orders for the sale of the marital home and for a clerks
deed and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Janice Park Husseini and Jalal Keith Husseini were
married in Las Vegas, Nevada in April 2000. On August 27, 2007,
Jalal filed a complaint seeking dissolution of the marriage and
division of the parties property. At the time of the divorce
proceedings before Superior Court Judge Jack Smith, the Husseinis
were residents of Anchorage, Alaska. They have no children
together.
After the parties separation, Janice occupied the
marital home, and Jalal was ordered not to return because of
tension between the parties. At a hearing on January 15, 2008,
the court ordered Jalal to pay the mortgage and utilities until
the trial date in February in lieu of providing interim spousal
support.1 In her trial brief, Janice expressed a desire to
remain in the marital home and requested ninety days to
investigate the possibility of refinancing.
During a hearing on February 1, 2008, the trial court
issued an interim order giving Janice thirty days to refinance
the marital home in her own name. The order further stated that
if Janice did not obtain approval to refinance, a realtor would
be selected and the house would be listed for sale within seven
days. The trial court also decided sua sponte, over Janices
objection, to bifurcate the divorce proceedings from outstanding
issues of equitable distribution of property. A decree of
divorce was granted on February 18, 2008 that dissolved the legal
marriage between the Husseinis.
When Janice was unable to refinance the marital home in
her own name within the specified time period, the court entered
an order appointing a realtor to list and sell the residence.
Janice sought to stay the sale, arguing there was likely little
or no equity in the residence and offering to assume the existing
mortgage and provide Jalal with a credit for whatever equity the
parties had accrued in the residence. Jalal countered that there
was approximately five to ten thousand dollars of equity in the
residence that could be used to pay other marital bills, that the
sale of the residence would relieve the parties of the obligation
to make mortgage payments, and that the mortgage payments already
in arrears could be rolled into the sale. The court refused to
stay its order to sell the residence. In July 2008, after the
appointed realtor informed the court that there were interested
buyers who were likely to qualify for financing, the trial court
signed a writ of assistance providing Jalal with possession of
the residence and ejecting Janice. Janice was removed from the
residence by the police on August 5, 2008.
After considering Janices opposition to the sale of the
residence, the trial court granted Jalals motion for a clerks
deed that transferred any and all interest of defendant Janice L.
Husseini [sic] in the parties marital residence to Jalal by
quitclaim deed, and the clerk subsequently executed a deed
conveying the residence to Jalal. A sale of the residence closed
that same day, October 2, 2008. The trial court made no findings
of fact related to the amount received from the sale.
Because of a mix up with the buyers bank, the deed was
not immediately recorded. When the buyers later attempted to
record, Janice had already filed a lis pendens providing
constructive notice of her claim of half-ownership of the
residence, effectively blocking recordation of the deed. At
trial on October 13, 2008, Jalals attorney requested that the lis
pendens be declared null and void. The trial court agreed that
because the sale was complete before the lis pendens was entered,
it did not provide the buyers with notice of pending litigation.2
This order was stayed for twenty-four hours in order to give
Janice the opportunity to appeal.
Janice entered notice of the current appeal on October
14, 2008 and further amended her points on appeal in January
2009. She appeals issues relating to the forced sale of the
residence as well as the bifurcation of the divorce. The trial
court has stayed its order vacating the lis pendens pending
resolution of this appeal and has allowed Janice to move back
into the residence. Jalal did not participate in this appeal.
III. STANDARD OF REVIEW
We review for abuse of discretion the superior courts
decision to bifurcate the divorce proceeding3 and issue a clerks
deed or other order for the sale of marital property during a
divorce proceeding.4 An abuse of discretion is found when the
court is left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
ruling.5 We consider whether an order of the superior court is
appealable de novo.6
IV. DISCUSSION
A. Janice Failed To Appeal the Bifurcation of the Divorce
Proceedings in a Timely Manner, and the Decision to
Bifurcate Was Harmless Error.
Janice argues that the trial courts bifurcation order
that allowed the legal marriage to be dissolved while reserving
all issues of equitable division of the marital estate failed to
meet the requirements listed in AS 25.24.155. Janice contends
that [n]o finding of any kind was entered by the court [in]
reference to the benefits of bifurcation . . . , which amounts to
an abuse of discretion. For an issue of property division to be
reserved, AS 25.24.155 requires that the court make a finding
that the interests of a party opposing the motion will not be
jeopardized by the delay or reservation.7
We begin our analysis with the threshold question
whether Janices appeal of the bifurcation is timely. Although
Janice objected to the bifurcation of the divorce during the
February 1, 2008 hearing, she did not appeal the divorce decree
itself. Other than her initial objection, there was no
indication that Janice intended to challenge the bifurcation
until she filed a motion to amend her points on appeal on
January 30, 2009.
To determine whether Janices appeal of the bifurcation
was timely, we must first consider whether a divorce decree
dissolving a legal marriage is a final and appealable order that
disposes of the entire case and ends the litigation on the merits8
when associated issues of equitable division have been reserved.9
If the divorce decree was final and appealable, the current
appeal is untimely, as Janice failed to file a notice of appeal
within the thirty-day window available under Alaska Appellate
Rule 204(a)(1).10
Alaska Statute 25.24.155 authorizes trial courts to
reserve custody decisions or issues of property division, thus
creating a mechanism to allow the final legal resolution of some
issues before others in a divorce proceeding. When the resolved
issue is the dissolution of the legal marriage itself, parties
have a strong interest in finality, rather than having the issue
of their marital status reopened at some undetermined future
date. This finality provides the parties with certainty as to
their marital status for purposes such as tax filings and
remarriage because the divorce decree serves as proof of the
legal termination of the marriage and the date on which
termination occurred.11 Further, once a divorce decree is issued,
there are no further steps for a court to take to dissolve the
legal marriage the union between the parties has been
permanently broken. We therefore conclude that the divorce
decree issued on February 18, 2008 dissolving the legal marriage
between the Husseinis was final and appealable. This appeal is
thus untimely.
Alaska Appellate Rule 521 provides this court with some
flexibility to relax or dispense with the Rules of Appellate
Procedure where a strict adherence to them will work surprise or
injustice.12 We recognize that the rule that a divorce decree
dissolving a legal marriage is a final judgment, even when some
issues have been reserved, had not been announced prior to this
decision. Because it would be unjust and unrealistic to expect a
pro se litigant to have anticipated this ruling in order to make
a timely appeal, we go on to consider the merits of Janices
claim.
We begin our analysis by agreeing with Janices
contention that it was error for the trial court to reserve
issues of equitable distribution of marital property over her
stated objection without making any findings that her interests
would not be jeopardized by the delay or reservation.13 The trial
court failed to make the findings required by statute, and there
is no indication in the record that Jalal moved for bifurcation
and demonstrated good cause. Because bifurcation cannot be
granted without a showing of good cause by the moving party and
without a finding that the opposing partys interests would not be
jeopardized, we hold that the superior courts decision to
bifurcate the divorce proceedings was an abuse of discretion.
Our next consideration concerns whether this error
harmed or prejudiced Janice. Because the bifurcation in this
case only resolved the issue of the legal marriage, there was no
showing that the early dissolution of the marriage worked any
harm by impacting the outstanding property issues. Janices brief
explains that her objection to the bifurcation was based upon her
allegation that Jalal had been wasting assets and had refused to
obey court orders regarding mortgage payments and discovery.
Janice does not explain how the early dissolution of the legal
marriage impacted either of these outstanding issues, as her
challenge seems more closely related to the trial courts interim
order granting Jalal the sole and exclusive authority to manage
and operate the Husseinis business, Alaska Water Systems, during
the pendency of the divorce proceeding. Further, vacating the
dissolution of the marriage and declaring the parties to again be
married seems an inappropriate form of relief at this time.14
Accordingly, we conclude that while the trial court erroneously
granted the bifurcation in this case, this error was harmless.
B. We Review the Trial Courts Order Requiring the Sale of
the Marital Home Prior to the Final Property Division
Even Though It Is Not an Appealable Final Judgment.
Janice also argues that it was error to order the
execution of the clerks deed that conveyed her interest in the
marital home to Jalal to allow the sale of the residence and in
declaring her lis pendens null and void. After considering
Janices arguments, we conclude that her intended challenge is
most appropriately made to the superior courts order requiring
the sale of the marital home because she is seeking to prevent
the forced sale of the residence.
Because there has been no final property division in
this case, the trial court has entered no final judgment with
regard to the outstanding property issues reserved by the earlier
bifurcation. As discussed previously, an order must constitute a
final judgment, such that it disposes of the entire case and ends
the litigation on its merits,15 for this court to review it on
appeal.16 As a result of the bifurcation, there is now a final
judgment on the dissolution of the legal marriage but no final
judgment on any of the property division issues. Neither the
order requiring that the residence be sold nor the order for a
clerks deed constitute such a final judgment.
We recognize that issues surrounding the forced sale of
the residence have been fully briefed by Janice and that the
superior courts offer to stay its order vacating the lis pendens
if she appealed within twenty-four hours likely led her to
believe she could file a direct appeal to this court. Although
Janice should have exercised her interlocutory appeal rights in
March within ten days of the trial courts order appointing a
realtor to list and sell the home,17 she did file several motions
to stay the sale with the lower court and may not have considered
the decision to sell sufficiently final to warrant interlocutory
appeal until the clerks deed was issued. Janices status as a pro
se litigant and the importance of addressing the forced sale of
the home before it becomes unreviewable as a practical matter
persuade us to consider this issue on the merits. We therefore
decide, sua sponte, to treat this purported appeal as a petition
for review and [will decide] the questions presented to the same
extent and with the same effect as on appeal,18 to avoid causing
additional delays that would result in hardship or injustice for
the parties involved.
C. The Trial Courts Order Requiring the Sale of the
Marital Home Prior to the Final Property Decision Is
Not Supported by Adequate Findings.
Janice argues that it was error to order the execution
of the clerks deed that effectuated the courts earlier order to
sell the marital home. Janice contends that the trial court did
not have sufficient evidence to order the sale and that there was
no support for Jalals claim that there was substantial equity in
the residence that could be used to pay marital debts and prevent
other losses.
Alaska Statute 25.24.140(b)(6) provides that [d]uring
the pendency of the [divorce] action, upon application, a spouse
is entitled to necessary protective orders, including orders
. . . prohibiting a spouse from disposing of the property of
either spouse or marital property without the permission of the
other spouse or a court order. As our decision in Watega v.
Watega explained, this provision explicitly contemplates court
authority to order sales of property while divorce proceedings
are ongoing . . . .19 Although Watega leaves no doubt that trial
courts are empowered to exercise their discretion to dispose of
marital assets before the final property distribution, this
discretion is not unlimited and should only be exercised in
exceptional circumstances. Watega provides only one example of a
pressing reason that would justify requiring the sale of part of
the marital estate: prevention of waste of marital assets.20 As
the decision in Watega implied, a sale of property should not be
ordered absent a pressing reason, such as the preservation of
marital assets or significant gains to the marital estate.
In this case, the trial court suggested that it was
seeking to avoid the waste associated with having one of the
parties continue to own and maintain a residence that neither
party could afford to refinance. It is unclear from the record
before us whether foreclosure was imminent, but the trial court
listed avoiding foreclosure and bankruptcy as two of the factors
in favor of selling the house, particularly in light of the large
mortgage debt. Janice continued to object to the sale and
argued, through her lawyer at the time, that the sale price after
payment of the mortgage, the real estate commission, and other
things would prevent the parties from realizing any significant
proceeds from the sale. The trial court made no findings of fact
demonstrating that this sale would prevent loss to the marital
estate and did not ask the parties to submit relevant evidence
before ordering the sale of the residence. Because the trial
court made no findings and did not set out the calculations that
led it to conclude that an interim sale was necessary, we can
only guess as to why the court concluded that the pre-judgment
sale of the residence would benefit the parties. Without the
benefit of such findings, we cannot determine whether the
exceptional circumstances required by the Watega decision were
present in this case.
We take this opportunity to elaborate on our holding in
Watega. We leave to the discretion of the trial court the
varying circumstances that may justify the sale of the marital
assets and the utilization of the proceeds prior to the divorce
judgment.21 But we clarify that the trial courts decision to
order the sale of a marital asset prior to the final property
decision must be accompanied by factual findings that demonstrate
the exceptional circumstances justifying such a sale and that
specifically articulate the grounds upon which the order for sale
is based.
Given the lack of such findings in the case at hand and
our inability to divine the specific factors that the trial court
used to justify the order to sell the Husseinis marital home, we
are unable to determine whether the trial court abused its
discretion. Accordingly, we vacate the trial courts order
requiring the sale of the marital home and the later clerks deed
conveying Janices interest in the residence to Jalal and remand
for further proceedings consistent with this opinion. A new
order for the interim sale of the residence can be issued by the
trial court if there is sufficient evidence to support a finding
of exceptional circumstances. Because of the time that has
elapsed between the trial courts interim order and this decision,
we realize that the trial date on the property division may be in
the near future. The trial court has the discretion to take up
questions surrounding the sale of the residence in the context of
the final equitable distribution of property.
V. CONCLUSION
For the reasons stated above, the trial courts
bifurcation of the divorce proceedings is harmless error, but the
trial courts order that the marital home be sold prior to the
final property division is VACATED and REMANDED for further
proceedings consistent with this opinion.
_______________________________
1 On March 19 the trial court issued a new order
requiring that Jalal pay the mortgage and any costs associated
with the sale of the residence.
2 See AS 09.45.940.
3 See Sever v. Alaska Pulp Corp., 931 P.2d 354, 361 n.10
(Alaska 1996) (Bifurcation of a trial is generally within the
discretion of a trial court, and a ruling on this issue will not
be reversed absent an abuse of that discretion.).
4 See Watega v. Watega, 143 P.3d 658, 663 (Alaska 2006)
(We review a superior courts issuance of an order permitting the
sale of property using the same abuse of discretion standard that
we employ when reviewing other superior court orders.).
5 Id. (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650
P.2d 375, 378-79 (Alaska 1982)).
6 Mattfield v. Mattfield, 133 P.3d 667, 674 n.5 (Alaska
2006).
7 The text of AS 25.24.155(a) states:
The court may not delay or reserve a custody
decision under AS 25.24.150(f) or an issue of
property division under AS 25.24.160(c)
unless
(1) each party, and the guardian ad litem if
one has been appointed under AS 25.24.310,
expressly agrees on the record to the delay
or reservation; or
(2) a party who moves for an order of delay
or reservation shows good cause and the court
finds that the interests of a party opposing
the motion will not be jeopardized by the
delay or reservation.
8 Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007)
(internal quotation marks omitted).
9 Janices in-court objection was to the courts order to
bifurcate, which is not a final and appealable award. To obtain
appellate review of the order to bifurcate, rather than the
divorce decree, Janice was required to petition this court for
review within ten days of notice of the order. Alaska R. App. P.
403(a)(1)(A).
10 The clerks certificate on the decree of divorce
indicates that it was mailed to the parties on February 18, 2008.
Janice filed her current appeal on October 14, 2008 and later
amended her points on appeal to challenge the bifurcation in
January 2009. Even giving Janice the benefit of the date of the
initial notice of appeal, this appeal was filed almost seven
months after the expiration of the thirty-day time period for
appeal.
11 See Estate of Burford v. Burford, 935 P.2d 943, 954
(Colo. 1997) (describing practical reasons that a divorce decree
is a final and appealable judgment).
12 In deciding whether to relax the rules, the court
balances several considerations: the right to appellate review,
the willfulness and extent of the rules violation and the
possible injustice that might result from dismissal. Estate of
Smith v. State, 635 P.2d 465, 467 (Alaska 1981) (quoting Ballard
v. Stich, 628 P.2d 918, 921 (Alaska 1981)).
13 AS 25.24.155(a)(2).
14 During oral argument, Janice conceded that Jalal has
remarried in the time since the divorce decree was granted.
15 Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007)
(internal quotation marks omitted).
16 Alaska R. App. P. 202.
17 See Alaska R. App. P. 403(a)(1)(A).
18 Leege v. Strand, 384 P.2d 665, 666-67 (Alaska 1963).
19 143 P.3d 658, 662 (Alaska 2006).
20 Id.
21 Id. at 663 (quoting Randazzo v. Randazzo, 875 A.2d 916,
924 (N.J. 2005)).
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