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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Partridge v. Partridge (5/21/2010) sp-6478

Partridge v. Partridge (5/21/2010) sp-6478, 239 P3d 680

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


) Supreme Court No. S- 13256
) Superior Court No. 3AN-06- 05416 CI
v. )
) O P I N I O N
) No. 6478 May 21, 2010
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances:  Donna C. Willard,  Law  Offices
          of   Donna   C.   Willard,   Anchorage,   for
          Appellant.   Herman G. Walker,  Jr.,  Limn  &
          Walker, Anchorage, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  (Eastaugh,
          Justice, not participating.)

          CHRISTEN, Justice.

          James and Erlinda Partridge obtained a final decree  of
divorce  in  June 2008.  James appeals the trial courts  property
division which allocated cash and income-expending assets to  him
and  the  marriages  most  significant  cash-producing  asset  to
Erlinda.  He argues that the trial courts allocation violates  AS
25.24.160(a)(4),  which requires that  property divisions  fairly
allocate  the economic effect of divorce.  James also claims  the
trial  court erred by mischaracterizing assets, failing to  value
each partys pension, and failing to consider his contributions of
separate  property  to the marriage.  Because  the  trial  courts
property  division was not an abuse of discretion, we affirm  it.
But we remand for further proceedings because the trial court did
not credit James for some of the marital debts he paid during the
separation  period,  and because the trial  court  credited  both
parties  with  the  full value of marital pension  payments  they
received during the separation period without determining whether
they spent these funds on normal living expenses.
          James  and  Erlinda  Partridge were  married  in  1987.
Erlinda  filed a complaint for legal separation in February  2006
and  converted  it into a complaint for divorce in  May  of  that
          The  case  was tried in December 2007 and  April  2008.
The  trial court determined that the legal date of separation was
June   30,  2006,  that  a  fifty/fifty  property  division   was
appropriate, and that the total value of the marital  estate  was
$7,666,445.  The court awarded James assets valued at  $3,667,251
and  Erlinda  assets totaling $4,013,130 and ordered  Erlinda  to
make  an equalizing payment of $172,940 to James by December  31,
2009.  If Erlinda made the equalizing payment after December  31,
2009, it was to be subject to 7.75% interest retroactive to April
28,  2008.  Both parties filed motions for reconsideration  which
the trial court denied.  James appeals.
          The  Partridges accumulated a substantial estate during
their  marriage.   James retired from his  job  as  a  pilot  for
Northwest  Airlines  in 1996 with a monthly  pension  of  $6,784.
Erlinda retired in 2001 after working for thirty-three years as a
flight  attendant.  She receives an annuity payment of  $789  per
month attributable to pre-marital employment.  This annuity  will
continue  indefinitely.   She  also receives  a  monthly  pension
payment  of $1,312 that will cease when she turns sixty-five  and
becomes  eligible  for social security.  At  trial,  Erlinda  was
sixty-one  years old and James was sixty-nine.  No children  were
born  during their marriage, and the superior court observed that
both parties were in basically good health.
     A.   Kent Corporate Park
          The  Partridges  owe  much of their  prosperity  to  an
investment in four warehouses located in Kent, Washington   known
as  Kent  Corporate Park (KCP).  The four buildings  sit  on  two
separate  parcels.  Lot three contains buildings  A  and  B  with
approximately 65,601 square feet of rentable space and a  monthly
base  rent of $28,168.  Lot four contains buildings C and D  with
72,553  square feet of rentable space and a monthly base rent  of
$32,837.  The two lots were separately owned until 1998 when  the
Partridges  predecessor-in-interest purchased them.  If  the  two
parcels had been owned separately at the time of trial, the owner
of  lot  four would have needed an easement across lot  three  to
access the only available road.
          The  Partridges acquired KCP in 2001.  The  acquisition
was  the  culmination  of two tax-exempt exchanges  spanning  the
previous decade, with each exchange resulting in ownership of  an
investment  property of successively greater value.1   The  trial
court  adopted  Erlindas $9,027,288 valuation of  KCP.   At  this
value,  KCP  had  a total divisible equity of $3,541,375.   James
          never actively disputed KCPs status as marital property at trial;
he  referred  to  it as held jointly and as a  marital  asset  on
several occasions.
          Although  KCPs  equity comprises half  of  the  marital
estate,  it produced nearly two-thirds of the Partridges  monthly
income  at  the time of trial.2  A manager handled the day-to-day
operation of the warehouses and performed [n]inety-eight  percent
of the business management for KCP during the marriage.  Notably,
six-figure  maintenance burdens such as a  roof  replacement  and
flooding  repairs  created negative cash flow  for  KCP  in  some
recent years.
          James had exclusive access and control over income from
KCP  during the  separation period.  This included his unilateral
settlement  of  a  lawsuit arising from a  tenants  environmental
contamination of part of KCP for $400,000.  James did not  inform
Erlinda of the settlement amount until compelled to do so by  the
court.3   He  spent  much of the approximately  $259,000  in  net
settlement proceeds to purchase property in Wasilla.  James  also
took  twenty-two  monthly draws of $8,000 each  and  $120,000  of
additional draws from KCP during the separation period.   Erlinda
received  no income from KCP during this time and testified  that
she  borrowed  funds  from  family  members  to  pay  her  living
expenses.  The trial court awarded KCP entirely to Erlinda.
     B.   Wasilla Property
          In  the  summer of 2006,  James purchased  a  home  and
several residential lots on Lake Lucille in Wasilla.  James  used
income  from  KCP  to  make a down payment on  the  home  and  to
purchase  two adjoining lots.  Erlinda co-signed on the note  for
the  purchase  of the house, but not on the adjacent  lots.   She
testified  that she signed for the house because [James]  couldnt
buy  the Lake Lucille house without my signature . . . . I agreed
to  sign so he could have a place to heal.  James testified  that
the house and lots were marital property because he had hoped  at
the time of purchase that he and Erlinda would reconcile and live
together in a new home built on one of the lots.4
          While living on the Lake Lucille property prior to  and
during trial, James spent nearly $70,000 on mortgage payments and
insurance  for the Lake Lucille home.  He also used approximately
$67,000  to  renovate it and improve the adjoining  lots.   These
improvements were made without consulting Erlinda and using funds
over  which she had no control, but James characterized  them  as
marital expenses.
          In  his closing argument, James again characterized the
Lake  Lucille home and adjacent lots as marital property, but  he
asked  that  the  court award them to him so  he  could  continue
living  there.   The trial court determined that  the  house  and
adjacent   lots  were  Jamess  separate  property.    The   court
               Although Ms. Partridges name is  on  the
          house,  shes not on the adjoining lots.   And
          its  clear to me from the testimony that  the
          Wasilla  home was not intended to be a  joint
          investment by the parties.

               Mr.  Partridge  has  made  a  number  of
          improvement[s] on the property where he seeks
          to  reside,  but those were not  improvements
          that  were made as joint decision[s], to  cut
          down trees and put in doors and other things.
          Those   were  decisions  that  he  made   for
          property that he alone has resided in.  So  I
          dont  see  that  the  Wasilla  property   and
          adjacent lots should be considered  to  be  a
          marital  estate  marital assets.   And  thats
          consistent with the June 06 separation date.
          The  trial court found there has been depletion of  the
marital  estate by Mr. Partridge in the purchase of  the  Wasilla
home  and the considerable funds that he spent there.  The  court
recaptured  those  funds  by  treating  them  as  a  prior   cash
distribution to James in its accounting.

     C.   Yamhill Investment Property
          The  couples  third significant asset is  approximately
sixty-five  acres of undeveloped land in Yamhill  County,  Oregon
with  a  stipulated value of $1,459,557. James and Erlinda  owned
the Yamhill property free and clear at the time of trial.
          In  June  2005  James contracted with  Al  Nordgren  to
develop  the  Yamhill  property.   The  agreement  provided  that
Nordgren  would submit a zoning change application to  allow  for
subdivision  and  development of the property.  If  the  rezoning
application is successful, Nordgren will receive fifty percent of
the  net  profit  realized  from the investment.   Nordgren  will
receive  nothing  if  the rezoning application  is  not  approved
within two years of its submission.
          At trial, James argued that Yamhill should be equitably
divided  between the parties with the goal of fairly allocat[ing]
both  the  risk  and the benefit of ownership of [Yamhill].   The
trial court awarded Yamhill solely to James, finding that he  had
a far better demonstrated ability to develop it.
          We   review  the  trial  courts  judgment  in  property
division  cases  for  abuse  of  discretion  as  provided  by  AS
25.24.160(a)(4).5   Property  division  involves  a  three   step
process  in  which the trial court determin[es] what property  is
available for distribution, assess[es] its value, and allocat[es]
it equitably.6
          We  review  step  one, characterizing the  property  as
separate  or  marital,7 under the abuse of  discretion  standard,
although it may involve legal determinations to which this  court
applies its independent judgment.8  An abuse of discretion occurs
where  the  court considers improper factors, fails  to  consider
relevant statutory factors, or assigns disproportionate weight to
some  factors while ignoring others.9  All assets acquired during
the  marriage  become marital property excepting  only  inherited
property  and property acquired with separate property  which  is
kept as separate property.10
          We review step two, placing a value on the property, as
          a factual determination that we will upset only upon a showing of
clear  error.11  Reversal for clear error requires that  we  find
ourselves left with a definite and firm conviction on the  entire
record that a mistake has been made.12
          We   review   step  three,  allocating   the   property
equitably, under the abuse of discretion standard.13  We will not
disturb the trial courts allocation unless it is clearly unjust.14
     A.   The  Courts  Characterization of the Partridges  Assets
          Was Not An Abuse of Discretion.
          1.   James waived the argument that KCP is his separate
               property  by  failing to raise  it  in  the  trial
          James  argues  on  appeal  that  KCP  is  his  separate
property, but this argument bears little resemblance to his trial
court  presentation.   James expressly waived  this  argument  by
affirmatively characterizing KCP as a marital asset both in  open
court  and  in several filings, including his Supplemental  Trial
Brief  and  his written closing argument.  We will  not  consider
arguments  that  parties fail to raise in the  lower  court,  let
alone  arguments they have conceded below, unless the trial court
committed plain error.15  Because we find that no plain error was
committed  error so prejudicial that failure to correct  it  will
perpetuate  a  manifest injustice16  we affirm the  lower  courts
classification of KCP as a marital asset.
          2.   The   trial  courts  classification  of  the  Lake
               Lucille  home and lots as Jamess separate property
               was not an abuse of discretion.
          Following  separation, James moved out of  the  marital
home  in Anchorage and into the home he purchased on Lake Lucille
in Wasilla.  James spent hundreds of thousands of dollars on this
home,  the  adjacent lot, and on improvements in violation  of  a
standing injunction prohibiting the parties from dispos[ing]  of,
encumber[ing],  transfer[ing],  or  dissipat[ing]   any   marital
property  without written consent of the other party or an  order
from the court.  The trial court found that James had engaged  in
a  depletion  of the marital estate by using income from  KCP  to
purchase  the  Lake  Lucille properties and  other  lots  in  the
Wasilla area.  The court characterized these properties as Jamess
separate  property, and charged James with receiving  a  $776,836
advance of marital funds he had spent on them.  James argues that
if  the  KCP income is deemed marital, the trial court  committed
plain  error  by  characterizing the Wasilla  properties  as  his
separate property.
          The  real property James purchased can be divided  into
two  groups: property acquired before June 30, 2006   the  court-
determined  date of separation  and property acquired after  that
date.   The Lake Lucille home and an adjoining lot were purchased
in  June  2006.   James  argues that  these  properties  fit  the
definition of marital property  property acquired during marriage17
because  they  were  acquired before the  separation  date  using
          marital funds drawn from KCP.  We have held that the relevant
factors  for determining whether property should be characterized
as  marital  are  . . . (1) the use of property  as  the  parties
personal  residence  .  .  . , (2) the  ongoing  maintenance  and
managing  of the property by both parties, (3) placing the  title
of  the  property in joint ownership and (4) using the credit  of
the non-titled owner to improve the property.18
            Applying the facts to this legal framework,  we  find
that the trial court did not abuse its discretion by finding  the
Lake Lucille home and lot were Jamess separate property.  Erlinda
presented evidence regarding the first and second factors.  James
testified that Erlinda never intended to live at the Lake Lucille
home,  never  owned a key to the home, and never  spent  a  night
there.   As to the third factor, Erlinda explained that the  Lake
Lucille home was titled jointly because [James] couldnt buy  [it]
without  my signature and [I] agreed to sign so he could  have  a
place  to  heal.  We also believe it is significant  that  Jamess
expenditures  violated  the February 22,  2006  pre-trial  order,
which  prohibited both parties from using marital funds or assets
except  for  .  .  .  immediate, personal, and  necessary  living
expenses.   A  party may not disregard an injunction  prohibiting
the  use  of  marital funds, then strategically characterize  the
assets  acquired  in  violation  of  the  court  order  to  their
          Jamess  argument  that  the  other  Wasilla  properties
those  purchased after the date of separation  are marital relies
on  the  rule that assets acquired after separation can be deemed
marital  property  if they are acquired with marital  property.19
The  totality  of  the  evidence, including  Erlindas  testimony,
supports  the  courts  characterization of this  asset.   Erlinda
never  intended to live on or near the properties, her  name  was
not   on   the  titles,  and  James  decided  to  purchase   them
unilaterally.   His  purchase  of the  other  Wasilla  properties
amounted to conversion of marital assets into a non-marital form.20
          The   trial  court did not err by recapturing  the  KCP
cash distributions James used to buy the Wasilla properties.   We
have held that [w]here there is evidence that a marital asset was
dissipated, wasted, or converted to a non-marital form, the court
can  recapture  the asset by giving it an earlier valuation  date
and  crediting all or part of it to the account of the party  who
controlled  the  asset.21  The trial court recaptured  the  funds
James  spent  purchasing and improving the Wasilla properties  by
crediting him with receipt of the KCP income he invested in  this
real estate.
          Finally,  James contends that the trial court erred  by
charging  him  with all of the marital funds he spent  purchasing
and  improving  the  Wasilla  properties.   He  argues  that  his
expenditures were made for a valid marital purpose and  therefore
no  dissipation, waste, or conversion of marital assets occurred.
But  the same evidence that  supports the trial courts conclusion
that  the  Lake Lucille properties were Jamess separate  property
supports  the  conclusion that the funds were  not  spent  for  a
marital  purpose.  With the exceptions identified in  Part  C  of
this decision, the trial court credited James for expenditures he
          made on marital expenses during the separation period.
          It  was  not  an abuse of discretion for the  court  to
characterize the Wasilla properties as Jamess separate  property,
and to recapture the funds James invested in them as a prior cash
     B.             The  Trial  Courts Valuation of  the  Marital
                    Estate Was Not Clearly Erroneous.
          1.   It  was  not  clear error to divide the Partridges
               pensions by QDRO.
          James contends that the trial court erred by failing to
direct  the  parties to value their pensions.  This  argument  is
without  merit  because  the  court  accounted  for  the  parties
pensions by issuing a qualified domestic relations order (QDRO).22
Moreover, Jamess closing argument suggested dividing the  parties
pensions  by QDRO and did not pursue the valuation issue.23   The
trial  court  stated  in  its findings:  [t]here  was  inadequate
valuation evidence to determine a present value [of the pensions]
and so the QDRO solution, as our Supreme Court said[,] seemed  to
me  the  only  feasible way to approach that.   The  trial  court
accurately  interpreted our precedent and did  not  commit  clear
error by using a QDRO to divide the pensions.24
          2.   The trial court considered and properly valued the
               KCP reserve accounts.
          James argues that the trial court erred by finding  KCP
reserve accounts totaling over $209,000 to be inconsequential and
awarding  them to Erlinda without crediting them to  her  in  the
courts property division spreadsheet.  But James mischaracterizes
the  courts  finding.  The trial court found that  the  estimated
balance in KCPs reserve accounts roughly equaled its liabilities.
The  court added $47,712 from the environmental reserve  account,
$80,893 from the cash in operations account, and $43,693 from the
cash  in  reserve account, then subtracted the $120,000 allowance
for  a  roof  repair  and $47,712 from the  future  environmental
expense  account.   The  net  of these account  balances  totaled
$4,586,  which prompted the court to comment, I do not  see  that
there was sufficient evidence to warrant their inclusion [in  the
property division].  The court noted that the property taxes were
not  addressed by the evidence introduced at trial and  that  the
evidence  regarding the cost of the roof repair was inconclusive.
The  trial  courts decision to net KCPs approximate cash  balance
against  its  estimated  outstanding liabilities  was  not  clear
     C.   The  Trial Courts Allocation of Marital Assets Was  Not
          an Abuse of Discretion.
          James argues on appeal that the trial court erroneously
concluded that the parties could not jointly own KCP post-divorce
and  inadequately  considered  the possibility  of  dividing  KCP
between them.  He also challenges the trial courts application of
the  Merrill factors26 enumerated in AS 25.24.160.  Specifically,
he challenges the trial courts consideration of the circumstances
and  necessities of each party and the income-producing  capacity
          of the property at the time of the division.27  Finally, he
alleges  the  trial  court  failed  to  adequately  consider  the
separate property he brought into the marriage.
          The trial court has broad discretion to divide property
in divorce cases.28  We review the trial courts property division
purely  under the abuse of discretion standard.29  Alaska Statute
25.24.160(a)(4)  requires trial courts  to  fairly  allocate  the
economic  effect  of  divorce and codifies  several  factors  for
courts  to  consider to achieve this goal.30  We have  held  that
these  statutory factors are not exhaustive and  that  the  trial
court need not make findings pertaining to each factor,31 but  it
must  make sufficient findings to indicate the factual basis  for
the  conclusion  reached.32  We view  the  trial  courts  factual
findings  in  the  light most favorable to the  prevailing  party
below,33   and   will   not  reverse  a  trial   courts   factual
determinations accompanying equitable distribution except upon  a
finding  of  clear  error.34  We will  not  overturn  a  property
division unless it is clearly unjust.35
          1.   The  trial courts decision to award Yamhill solely
               to James was not an abuse of discretion.
          James challenges the trial courts decision to award the
Yamhill  County investment property entirely to him.   He  argues
that it would have been simple to divide Yamhill fifty/fifty  and
that  the  trial  court failed to account for  Jamess  contingent
liability to Nordgren.  We find these arguments unpersuasive.
          The  trial  court  awarded Yamhill  to  James  for  two
reasons.   First, the court concluded that the parties could  not
successfully  co-own the property due to Jamess  lack  of  candor
regarding  his  business dealings, including  his  dealings  with
Nordgren.   Yamhill  is  undeveloped  real  estate  and   jointly
developing  it would necessarily entail considerable  cooperation
and  communication between the parties.  The courts concern  with
Jamess candor and conduct supports awarding Yamhill to one  party
or  the  other. Because the court found that Jamess  relationship
with  Nordgren  put him in a far better position to  be  able  to
develop [Yamhill] and turn it into a[n] income producing property
within  a  reasonable time frame the court awarded  it  to  James
rather  than  Erlinda.  The court considered  Jamess  history  of
success  developing properties and commented, I see Mr. Partridge
as having a far better demonstrated ability to develop [Yamhill],
[and]  create  it  into  an income producing  property  than  Ms.
          James  also  contends that the trial  court  failed  to
account  for   the  obligation owed  to  Nordgren  for  his  help
developing  Yamhill.   But this argument  overlooks  the  parties
stipulation  regarding  Yamhills  value,  and  the  trial  courts
adoption   of  their  stipulation.   Stipulations  are  generally
controlling  in  the  absence of fraud,  duress,  concealment  of
assets  or  other facts showing that the agreement was  not  made
voluntarily and with full understanding.36  Because there  is  no
evidence  of  fraud,  duress, or concealment,  James  waived  his
argument challenging the Yamhill valuation.
          Finally,  James argues that the economic  downturn  has
          pummeled Yamhills value, its prospects for development, and that
he  is  left  bearing  all of the risk of  a  bad  economy.   The
argument that this constitutes error ignores settled law.  We  do
not  doubt  the serious impact a falling real estate  market  can
have on a party who receives a large allocation of real property.
But  we  have  repeatedly held that the date on which  the  trial
court  values marital property generally should be  as  close  as
practicable  to  the  date  of  trial.37   This  case   perfectly
illustrates  the importance of the rule.  No one can  divine  the
economys  next move, and we will not reverse the trial court  for
failing to anticipate market fluctuations that cause asset values
to change after they have been reasonably pegged at trial.
          2.   The  trial  court did not abuse its discretion  by
               awarding Erlinda the sole income-producing asset.
          James argues that the trial court abused its discretion
by awarding KCP to Erlinda because that allocation resulted in an
unequal  division of the parties monthly income.  In  support  of
this  argument  he compares his monthly income  and  expenses  to
Erlindas  projected income:  [Jamess] monthly expenses,  [$9,298]
of which are directly related to the property he received, exceed
his [monthly] income [of $5,934] by over $3,300.  As reflected on
the  other  side  of the same ledger, Erlinda  enjoys  a  monthly
income  of  $20,619.  Accepting Jamess claim  that  the  economic
effect  of  the  property division has been devastating  requires
that  we  ignore the assets he received in the property division.
The  trial  court awarded James the vast majority of the  marital
estates  liquid assets.38  Nevertheless, James contends that  the
trial court failed to divide the marital assets in a manner  that
fairly  apportions the overall monthly income stream.  He  argues
that  the  court  ignored the income-producing  capacity  of  the
          The  record  convinces  us that  the  trial  court  did
consider  the income-producing versus income-consuming nature  of
the  assets it awarded.40  The court was aware of the  effect  of
allocating KCP to Erlinda and Yamhill to James:
          With regard to income producing capacity .  .
          .  [KCP  has]  $3.6 [million] thereabouts  of
          value,  of  equity.   I  look,  however,   at
          Yamhill,  $1.4 [million] undeveloped,  but  I
          see  Mr.  Partridge as having  a  far  better
          demonstrated ability to develop that,  create
          it into an income producing property than Ms.
          Partridge . . . . I looked at that and I gave
          Mr. Partridge a lot of the cash, every bit  I
          could  except for $50,000 for what  I  assume
          would  go  toward any needs of Ms. Partridge,
          thats the other reason I put all the cash  in
          his corner, is to balance that out.
          The  trial  court  arrived at this  allocation  largely
because of Jamess own conduct: his lack of disclosure, candor and
forthrightness  with regard to [] finances during the  separation
period   convinced   the  court  that  the  parties   could   not
successfully  co-own assets such as Yamhill or  KCP.   The  trial
          court did not believe the parties should even be neighbors:  the
type  of  continued  contact of being adjoining  property  owners
requires an ability for each party to treat the other one  fairly
and openly.  That has not been demonstrated here.
          We  are mindful that the four warehouses comprising KCP
were  previously held by two separate owners and  that  the  only
physical   barrier   to  returning  to  the  previous   ownership
configuration  appears to be easily overcome:  an easement  could
be  provided to the owner of lot four to cross lot three.   James
makes  a  strong argument that it was an abuse of discretion  for
the  trial  court to decline to award one lot to  each  party  in
light of the income-producing capacity of KCP, the fact that both
parties  have retired and are no longer earning income,  and  the
absence  of  any  other income-producing assets  in  the  marital
estate.   This is admittedly a very close call, but we ultimately
conclude that the trial court did not abuse its discretion.   The
reason  for  this again relates to the courts findings  regarding
Jamess conduct during the separation period.
          Yamhill  and  KCP  are the two largest  assets  in  the
Partridge  estate.  James essentially created a third indivisible
subset of the marital estate by spending hundreds of thousands of
dollars  on the Wasilla properties during the separation  period.
The  court  credited  James  with a prior  cash  distribution  of
$776,836 for the reasons explained above.  And the court  awarded
Yamhill to James because it found that the parties should not co-
own  a  large undeveloped tract of real estate and because Jamess
experience  and  relationship with Nordgren made him  the  better
choice  to  receive that property.  The value of Jamess pre-trial
cash  distribution, plus the value of Yamhill, totals $2,236,393.
Given  these  awards, the court could not split KCP,  maintain  a
fifty/fifty  property  division, and  still  order  a  reasonable
equalizing payment.  Jamess conduct forced the courts hand.
          Finally,  the  trial court considered  the  value  each
party  bid  for  KCP.  Erlinda valued KCP at $676,000  more  than
James  did  and  was willing to have it awarded to  her  at  that
value.   The  courts  decision to adopt Erlindas  value  for  KCP
benefitted  James.  Having considered all of these circumstances,
we  do  not  find  that  the trial courts property  division  was
clearly unjust.41
          3.   The   trial   court  considered  Jamess   separate
               property contributions.
          James  contends that the trial courts property division
fails to account for  the separate property he contributed to the
marriage.   James makes two arguments.  The first pertains  to  a
farm  he  owned  in  Minnesota at the time the  parties  married.
James  argues that the court should have considered  whether  the
substantial  appreciation of the farm between 1987 and  1991  was
active or passive.  Because he believes it was passive, he argues
that  he should be credited with the appreciation as his separate
property.   Second,  James faults the court for  not  considering
$150,000 of pre-marital equity he had in condominiums.
          Jamess  arguments are not supported by the evidence  or
Alaska   law.   The  trial  court  expressly  considered   Jamess
          Minnesota farm in its order.  The evidence established that the
farm  was  exchanged for an apartment building, and  the  parties
later  exchanged  the equity in the apartment building  for  KCP.
James conceded at trial that KCP was marital property.  The court
did not fail to account for Jamess pre-marital ownership interest
in  the Minnesota farm; the court recognized that this equity was
contributed toward the purchase of an asset that was conceded  to
be marital.  Nor did the court overlook Jamess pre-marital equity
in  the condominiums.  Leaving aside the question of whether  the
condominium equity was transmuted into marital property over  the
course of the parties marriage, the trial court acknowledged that
Jamess  separate  property  contributions  were  noteworthy   but
concluded  that his pre-marital contributions of equity comprised
a  relatively small component in the amassment of wealth that has
occurred during the course of this 20-year marriage.
          We  have  held that contributions of separate  property
may be relevant to equitable division [but] we have not held that
failure  to make an adjustment for such contributions constitutes
an  abuse  of discretion.42  James may disagree with  the  weight
accorded to these contributions, but that alone does not  support
a  conclusion  that  the  trial court failed  to  consider  these
contributions or otherwise abused its discretion.43
          4.   Failing  to credit James for paying over  $100,000
               of marital debt was error.
          James  argues that the trial court erred by failing  to
credit him for $101,808 in marital loans that he paid during  the
separation period.44  We agree.
          A  bank statement for June 8 to July 7, 2006 shows that
the  Partridges  owed $101,808 on three debts near  the  time  of
their separation:  loans for a 2005 Roadtrek motorhome and a 1993
Monaco   motorhome,  and  a  line  of  credit.   Each   debt   is
presumptively marital because each was outstanding as of June 30,
2006,  the court-declared date of separation.  We have held that,
[a]bsent  any  showing that the parties intended  a  debt  to  be
separate,  the  trial  court must presume that  a  debt  incurred
during  the  marriage  is  marital and should  consider  it  when
dividing the marital estate.45
           James made four payments of $2,705.25 on the motorhome
loans in June, July, August, and September 2006.  In October 2006
James  paid  off  the loan balances for both motorhomes  and  the
credit  line.  It does not appear that James received  credit  in
the  courts final accounting for paying these marital debts.  The
court adopted Erlindas experts accounting and credited James  for
paying  just  $23,454.55 of marital debt  during  the  separation
period.  Erlindas expert explicitly classified Jamess payments on
the  motorhome loans as his separate property without explanation
and omitted his satisfaction of the balance on the line of credit
entirely.   Because  the trial court did  not  credit  James  for
retiring  these  marital  loans, we remand  the  courts  property
division for consideration of this credit.46
          5.   It  was  error  to  credit the  parties  with  the
               marital portion of pensions received between their
               separation and divorce without determining whether
          they spent    their    pensions   on   normal    living
          James  argues  that the trial court erred  by  charging
each  party  with  the  marital portion of the  pension  payments
received during the separation period.  During that period, James
received  $49,694  and  Erlinda  received  $27,192  from  marital
pensions. The trial court treated these amounts as pretrial  cash
distributions made to each party for property division purposes.
          Assets  that no longer exist at the time of  trial  are
normally  not available for distribution.47  Marital assets  that
are  spent after separation for marital purposes or normal living
expenses  are  not  typically taken into  account  in  the  final
property  division.48  Here, no evidence was presented  that  the
pension   payments  the  parties  received  during  the  two-year
separation  period still existed at the time of  trial.   Erlinda
testified that her pension was one of her only sources of  income
during  that  time.  James did not testify to  how  he  used  the
marital  portion  of  his  pension or  whether  the  funds  still
existed,  but  he argues on appeal that it was perfectly  obvious
that  both  parties were using the[] [pensions] to fund  ordinary
living expenses.
          We  remand  for  the trial court to  make  findings  on
whether  the  pension funds still existed at the time  of  trial,
whether they were spent on normal living or marital expenses,  or
whether  they  were disposed of differently before charging  each
party  with  the full value of the income received from  pensions
during the separation period.
          We  REVERSE and REMAND for consideration of the  credit
due  to  James  for paying marital debt and for findings  on  the
disposition   of  the  pension  payments  received   during   the
separation  period.  We AFFIRM the trial courts judgment  in  all
other respects.
     1     The  Partridges purchased KCP with a mortgage  and  an
Internal  Revenue Code  1031 tax-free exchange of equity  from  a
Seattle apartment complex they owned.

     2     The parties monthly income also included their pension
payments and Jamess social security payments.

     3     James  claims to have submitted the KCP  contamination
settlement information to his attorney who, he alleges, failed to
convey  the  information  to opposing counsel.   Jamess  attorney
attributed the belated disclosure of the settlement agreement  to
Erlindas counsels failure to pursue the issue in discovery.

     4     James  testified that he thought [Erlinda]  wanted  to
live  out there, we were planning on building a house on  one  of
the lots.

     5     Walker  v.  Walker, 151 P.3d 444,  447  (Alaska  2007)
(citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)).

     6     Forshee  v.  Forshee, 145 P.3d 492, 497 (Alaska  2006)
(quoting Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006)).

     7    Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

     8     Walker, 151 P.3d at 447 (quoting Moffitt, 749 P.2d  at

     9     Hansen   v. Hansen, 119 P.3d 1005, 1009 (Alaska  2005)
(citing West v. West, 21 P.3d 838, 841 (Alaska 2001)).

     10    Id. (quoting Lewis v. Lewis, 785 P.2d 550, 558 (Alaska

     11     Walker, 151 P.3d at 447 (quoting Moffitt, 749 P.2d at

     12     Hansen, 119 P.3d at 1009 (citing Martens v.  Metzgar,
591 P.2d 541, 544 (Alaska 1979)).

     13    Id. (quoting Moffitt, 749 P.2d at 346).

     14    Id.

     15     Tybus  v. Holland, 989 P.2d 1281, 1285 (Alaska  1999)
(citing  Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)).

     16     Forshee  v. Forshee, 145 P.3d 492, 500  n.36  (Alaska
2006) (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App.
2000) (citations omitted)).

     17    Hansen, 119 P.3d at 1009 (Alaska 2005).

     18    Beal v. Beal, 88 P.3d 104, 121 (Alaska 2004) (internal
citations omitted).

     19     Bosquet v. Bosquet, 731 P.2d 1211, 1217 n.14  (Alaska
1987)  ([A]ssets  acquired  subsequent  to  separation  are   not
considered marital property absent evidence that the spouse  used
marital  property to obtain them.); Schanck v. Schanck, 717  P.2d
1, 3 (Alaska 1986).

     20     We  note  that  the trial court characterized  Jamess
purchase  of the Wasilla properties as unreasonable depletion  of
the  marital estate.  We do not believe this characterization  is
technically  correct.  The term depletion is  generally  reserved
for  cases where one spouse used marital property for his or  her
own benefit with the intent to deprive the other spouse of his or
her  share of the marital property.  See Jones v. Jones, 942 P.2d
1133,  1140-41 (Alaska 1997).  Jamess conduct is better described
as  converting marital assets to a non-marital form.   But  under
either  characterization, the result  is  the  same:   our  cases
support  recapture where marital assets have been  dissipated  or
converted to a non-marital form.  Foster v. Foster, 883 P.2d 397,
400 (Alaska 1994).

     21    Foster, 883 P.2d at 400.

     22    James claims that Mellard v. Mellard, 168 P.3d 483, 486
(Alaska 2007), authorizes the court to direct the parties to fill
an  evidentiary  void  in situations where a couple  neglects  to
value  their  pensions.  Mellard only suggests this  solution  in
cases where the trial court did not wish to resolve the matter by
using  a QDRO.  Id.  The trial court used a QDRO in this case  so
Mellard does not control.

     23    James stated:  The marital portions of the pensions can
be  divided by QDRO or they can be left with the person presently
receiving them.

     24    James also mentioned the trial courts failure to order
the  parties  to  value their health insurance  benefits  in  his
points on appeal.  Since James failed to brief this issue, it  is
waived.   Carpentino v. State, 42 P.3d 1137,  1139  (Alaska  App.
2002) (A partys failure to brief an issue constitutes abandonment
of  that  issue)  (quoting Booth v. State, 903  P.2d  1079,  1090
(Alaska App. 1995)).

     25     See  Ogden  v. Ogden, 39 P.3d 513, 520 (Alaska  2001)
(holding  that  the valuation step of division of marital  assets
involves  factual determinations reversed only  where  the  trial
court clearly erred in making them) (citing Dodson v. Dodson, 955
P.2d 902, 905 (Alaska 1998)).

     26     Merrill  v.  Merrill, 368 P.2d 546, 547  n.4  (Alaska

     27    AS 25.24.160(a)(4)(G) and (I).

     28    Abood v. Abood, 119 P.3d 980, 984 (Alaska 2005) (citing
Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).

     29     Walker  v.  Walker, 151 P.3d 444, 447  (Alaska  2007)
(quoting Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)).

     30     AS  25.24.160(a)(4)(A)-(I), otherwise  known  as  the
Merrill  factors.   Merrill, 368 P.2d at 547 n.4.   AS  25.24.160
states, in relevant part:

     The  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 an 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 the     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.

     31     Nicholson  v. Wolfe, 974 P.2d 417, 422 (Alaska  1999)
(citing Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)).

     32    Id. (citing Merrill, 368 P.2d at 548 n.10).

     33     Rausch  v.  Devine, 80 P.3d 733,  737  (Alaska  2003)
(citing  Klosterman  v. Hickel Inv. Co.,  821  P.2d  118,  121-22
(Alaska 1991)).

     34    McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996) (citing
McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992)).

     35     Wanberg  v.  Wanberg, 664 P.2d 568, 574  n.20  (Given
adequate  factual findings, and a demonstration  that  the  trial
court weighed those facts in reaching its conclusion, we will not
overturn a property division unless it is clearly unjust.).

     36     Forshee  v. Forshee, 145 P.3d 492, 502 (Alaska  2006)
(citing Jordan v. Jordan, 983 P.2d 1258, 1264 (Alaska 1999)).

     37    Id.

     38    The courts division provided James $228,357 in cash, a
$62,572   retirement   savings  account,  a  $20,307   investment
account,  and  an  equalizing payment of $172,940    a  total  of
$484,176 in liquid assets.

     39    AS 25.24.160(a)(4)(I).
     40     The  court adopted Erlindas appraisal of   KCP  which
itself was based on an income approach.

     41    McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996).

     42    Fortson v. Fortson, 131 P.3d 451, 459 (Alaska 2006).

     43    Id.

     44     James argues the court failed to account for  marital
loans  of  $101,898.88. But the sum of the debts he cited  equals
$101,808.88 (38,902.11+14,209.34+48,697.43).

     45     Ginn-Williams v. Williams, 143 P.3d 949, 956  (Alaska
2006)  (quoting  Hansen v. Hansen, 119 P.3d  1005,  1009  (Alaska

     46     We note that while the trial court must consider  the
payments James made to maintain the marital property, it  is  for
the trial court to decide whether he should receive a dollar-for-
dollar  credit in the final property division.  Ramsey v. Ramsey,
834 P.2d 807, 809 (Alaska 1992).

     47     Brandal v. Shangin, 36 P.3d 1188, 1194 (Alaska  2001)
(citing Cox v. Cox, 882 P.2d 909, 918 n.5 (Alaska 1994)).

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

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