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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

Husseini v. Husseini (5/7/2010) sp-6474, 230 P3d 682

     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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