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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sparks v. Sparks (6/25/2010) sp-6486

Sparks v. Sparks (6/25/2010) sp-6486, 233 P3d 1091

     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

SHEILA BETH SPARKS n/k/a )
SHEILA BETH VADEN, )
) Supreme Court Nos. S- 12935/12955
Appellant and )
Cross-Appellee, )
) Superior Court No.
v. ) 3AN-06-08780 CI
)
RICHARD ALAN SPARKS, ) O P I N I O N
)
Appellee and )
Cross-Appellant. ) No. 6486 - June 25, 2010
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

          Appearances:  Robert  C.  Erwin,  Palmier   ~
          Erwin,  LLC,  Anchorage,  for  Appellant  and
          Cross-Appellee.   Paul  J.  Nangle,  Paul  J.
          Nangle  & Associates, Anchorage, for Appellee
          and Cross-Appellant.

          Before:  Fabe, Chief Justice, Carpeneti,  and
          Winfree,  Justices. [Matthews  and  Eastaugh,
          Justices, not participating.]

          CARPENETI, Justice.
I.   INTRODUCTION
          I.   In this dispute about property division following a
divorce,  the  wife  appeals the trial courts  classification  of
settlement proceeds as marital property.  The husband appeals the
trial  courts classification of retirement health benefit as  the
wifes  separate  property  and  the  trial  courts  division   of
property,  claiming that he should have been  awarded  a  greater
share  due  to  health problems he suffered.   The  husband  also
appeals  findings regarding valuation of various items of marital
property and classifications of various other debts and assets as
marital or separate.  Because the evidence supported a finding of
intent  to donate the disputed portion of the settlement proceeds
to the marital unit, we affirm the trial courts classification of
the  settlement proceeds.  We also affirm all of the trial courts
other  rulings regarding the classification and valuation of  the
marital  property, with three exceptions:  We remand for  further
fact  finding  and clarification regarding (1) whether  agreement
was  reached  on the value of the parties personal property,  (2)
the  date on which certain credit card debt was accrued, and  (3)
the  calculation of the value of necessary repairs to one of  the
homes.
II.  FACTS AND PROCEEDINGS
          Richard Sparks and Sheila Vaden were married on  August
15,  1989  in  Wasilla, Alaska and separated  on  June  6,  2006.
Richard was fifty and Sheila was fifty-two at the time the decree
of divorce was issued in November 2007.
          Sheila  was employed by the state, and her interest  in
her  Public  Employee Retirement System benefits vested  in  June
1986.   She  medically retired in 1996 because  of  complications
from  diabetes.  In 2001 AETNA, her disability insurance carrier,
discontinued  her  disability  payments.   Sheila   sued   AETNA,
settling  in  2004.   Section 2.1(A) of that  settlement  (2.1(A)
annuity)  provided for a monthly payment of $4,362 for the  lives
of  Sheila  Sparks  and Richard Sparks and provided  for  reduced
payments  to  Richard if Sheila predeceased him.  Section  2.1(B)
provided  for  semi-annual payments to  Sheila,  and  2.1(C)  for
additional monthly payments.  The agreement designated the 2.1(A)
and  (B)  payments  as  damages on account of  personal  physical
injuries  or  physical  sickness and  2.1(C)  as  replacement  of
disability benefits.
          Richards  employment history was more complicated.   He
did not work in 2005, 2006 and 2007, and reported no earnings  to
social  security from 1998-2004.  In 1994-95 he  worked  for  the
Department of Corrections.  During the early 2000s he also ran  a
dry-walling  business and worked on Sheilas mothers  property  at
Solo  Creek, intending to eventually open a tourist business  and
lodge  there.   Richard  testified that he  had  health  problems
including a head injury and knee injury.  He indicated that  this
would prevent him from being rehired as a corrections officer and
that  he  could  not  physically  work,  but  had  not  sought  a
disability determination.
          Richard   and   Sheilas  contested   marital   property
included  two  homes, one on Caskill Road and  one  on  Phalarope
Road,  and eight lots at Birch Hill and personal property at  all
three locations.  They also disputed a cabin and one acre plot at
Solo  Creek  owned  by  Sheilas mother.  Miscellaneous  debt  and
property  will  be  further  set out  in  each  relevant  section
discussing Richards claims on cross-appeal.
          Following trial on division of the marital property  in
September 2007, the superior court rendered its oral decision  on
the  record  in October and issued written findings of  fact  and
conclusions  of law in November.  The parties each filed  motions
for reconsideration but Sheila filed this appeal before the court
had an opportunity to respond to the motions for reconsideration.
After   supplemental  briefing  regarding  the  superior   courts
jurisdiction to address the pending motions, the court  in  March
2008 issued a recalculated spreadsheet regarding the value of the
Caskill  residence and the crediting of negative  equity  on  the
family  vehicles.   Richard  requested clarification  of  certain
entries  on the recalculated spreadsheet, and the court issued  a
clarification in April 2008.
          Sheila  appeals  the courts treatment of  the  personal
injury  settlement with her disability benefit insurer.   Richard
cross-appeals   the  courts  decision  on  numerous   issues   of
characterization, valuation, and division of property.
III. STANDARD OF REVIEW
             The  division  of  marital  property  requires  that
property first be characterized as marital or separate, then that
the  property  be  valued, and finally  that  it  be  distributed
equitably.1  The determination of whether property is marital  or
separate  is a mixed question of law and fact.2  Characterization
of   proceeds  of  a  settlement  is  in  large  part   a   legal
determination that we review de novo, but we disturb findings  of
fact  made  in  determining  whether to  include  the  settlement
proceeds  in  the  marital  estate  only  if  they  are   clearly
erroneous.3
          Property  valuations  are  factual  findings  which  we
overturn only if clearly erroneous.4  We review the trial  courts
conclusions regarding the distribution of property for  abuse  of
discretion.5
IV.  DISCUSSION
     A.   With  One  Exception, The Trial Court Did  Not  Err  In
          Classifying The Parties Property As Marital Or Separate.
          
          1.   The AETNA settlement annuity
               
          1.   The designation of damages in a tort settlement does not
control whether the proceeds are marital or separate.6  Under our
decision in Bandow v. Bandow,7 the trial court must carry out  an
analysis   of  what  the  damages  were  intended  to   replace.8
Compensation  that  replaces  post-divorce  future  earnings   is
separate,  while compensation for economic loss  to  the  marital
unit is marital.9  Furthermore, compensation for pre-divorce non-
economic  damages,  such  as  pain and  suffering,  is  generally
separate property.10
          In  certain  circumstances, separate  property  may  be
transmuted to marital property if the owner intends to convey the
property  to the marital unit and the owners conduct demonstrates
that  intent.11   We  have held that placing separate  settlement
proceeds  into  joint title raised a presumption that  the  party
intended to donate separate property to the marital unit.12
          Here,  there were three types of periodic payments  set
out  in  Section 2.1 of Sheilas settlement agreement, in addition
to  a  lump  sum payment that covered the loss of income  to  the
marital  estate  before the settlement: 2.1(A)  Monthly  payments
of $4,362 (increasing annually by two percent) continuing for the
          lives of Sheila Sparks and Richard Sparks; 2.1(B)  semi-annual
payments of $19,500 payable to Sheila for four years; and  2.1(C)
monthly  payments of $1,934.95, payable to Sheila for 191 months.
The  superior court held that the payments provided for in 2.1(A)
and  2.1(C)  were marital and accordingly awarded  them  to  both
parties  (Section  2.1(A) payments were awarded  equally  to  the
parties,   while  2.1(C)  payments  were  divided  by   coverture
fraction).   Finding  that  the  2.1(B)  payments  were  separate
property,  and  that the parties stipulated that they  should  be
held for the parties son, the court awarded them all to Sheila.
          Sheila  argues that the payments in 2.1(A) and (B)  are
designated as damages on account of personal physical injuries or
sickness,  while  the payment in 2.1(C) was intended  to  replace
future lost income.  She asks us to conclude that Sections 2.1(A)
and  2.1(B) were intended to replace personal injury damages  and
therefore,  under Bandow v. Bandow,13 must be separate  property.
Because  the  court  awarded Section  2.1(B)  to  Sheila  as  her
separate  property,  she  appeals only  the  designation  of  the
annuity in 2.1(A), the payments which were designated to be  paid
for the lives of Sheila Sparks and Richard Sparks.
          The   third   provision  of  the  settlement   periodic
payments,  in Section 2.1(C), was intended to replace  disability
benefit  payments from the time of the settlement  forward.   The
trial  court awarded Sheila this income in full until she reached
retirement age.  Because she would receive these benefits in lieu
of  retirement  benefits, the court treated these  benefits  like
retirement benefits earned during the marriage, which are divided
using  a  coverture fraction based on the length of the marriage.
This is the correct treatment under Conner v. Conner,14 which held
that  income replacement such as workers compensation  and  long-
term  disability  replaces retirement benefits  after  the  payee
reaches retirement age.15  Therefore, it was proper to treat  the
post-retirement portion as imputed retirement payments and  apply
the  coverture  fraction to that payment.    Sheila  argues  that
Conner is inapplicable to 2.1(A) and (B), and we agree.  However,
she appears to concede that under Conner, the payments in Section
2.1(C)  could  be a partial replacement for long-term  disability
benefits  and  thus marital property.  In fact, the agreement  is
explicit and clear that the Section 2.1(C) payments replace long-
term  disability  benefits.  We therefore agree  with  the  trial
court  that  the  retirement portion is  a  marital  asset  under
Conner.
          The Section 2.1(A) annuity was designated as a personal
injury  payment.  However, there were factual disputes  regarding
Sheilas  intent  to  convey the settlement to the  marital  unit.
Given  that  she  may have had such an intent,  the  issue  arose
whether  the  personal  injury money  had  been  transmuted  into
marital  property.16  The inquiry into whether the  property  was
transmuted  required  the  court to  weigh  factual  evidence  of
conduct showing an intent to make a donation to the marital unit.17
We  have  held  in the past that where an inheriting  spouse  has
represented that the proceeds of an inheritance would  be  shared
by  the parties, this evidence is not sufficient to overcome  the
strong  presumption  that an inheritance is separate  property.18
          Similarly, we have concluded that an inheriting spouses belief
and  representation that the inherited assets would be  available
for  [both parties] during the marriage do not suffice to warrant
a finding that the assets were converted to marital property.19  A
spouses  statement that separate property will  be  available  to
both spouses must be understood as referring to the period during
which  the  parties remained married.20  In Sampson, we concluded
that  [b]ecause the inheriting [husband] made no promises to [his
wife]  upon which she relied, a finding that the husband intended
to  transmute his inheritance into marital property  was  clearly
erroneous.21
          The  key issue in transmutation cases involving a claim
that  the separate property has been transmuted based on a theory
of implied interspousal gift is the presence of donative intent.22
In  evaluating  and determining the intent of the alleged  donor,
[t]he  best  proof of intent to transmute is .  .  .  an  express
statement by the owning spouse that he intended to give the other
spouse  an interest in the property.23  The persuasiveness  of  a
spouses  express promise to make a gift of separate  property  to
the  other  spouse depends  on  the context and circumstances  of
the promise,24 and [w]here the statement was made with some degree
of formality, it is likely to carry significant weight . . . .25
          Here,   there  was  formal  documentation  of   Sheilas
decision to transmute the separate property, and she communicated
that  decision to Richard through both words and conduct. Richard
is  designated explicitly as a payee in Exhibit A, Addendum 1  to
the settlement for Section 2.1(A) payments, showing an intent  to
treat  these payments differently from the other portions of  the
settlement.  The payments are to continue for the lives of Sheila
Sparks  and  Richard  Sparks  and for  a  minimum  of  20  years.
Although   the   settlement  empowers  Sheila  to   designate   a
beneficiary  for the 2.1(A) payments in the event that  both  she
and Richard died, it prohibits her from selling, encumbering,  or
assigning  the  2.1(A)  payments during  her  lifetime.   Richard
testified at trial that Sheila was counseled that naming  Richard
as   a  payee  for  the  duration  of  his  life  would  make  it
not  . . . just her money anymore.  He also testified that he and
Sheila  decided together to structure that portion of the annuity
as  our long term retirement, and deliberately made it payable to
both of them contrary to her attorneys advice.
          Sheila  argues that she understood her attorney  to  be
telling  her  not to put the annuity in his name,  but  that  she
assumed  it would be fine to put the payments in both  names  and
that  she could later change the payees.  She testified that  the
annuity  is  solely  my ownership.  But the settlement  does  not
support that assertion, nor does it give her the power to  remove
Richard  as  payee  before  his death.  Multiple  inferences  are
possible  regarding  her  intent  at  the  time  she  signed  the
settlement  entitling  both parties  to  payment  of  the  2.1(A)
annuity.   The conflicts between Richards testimony  and  Sheilas
testimony,  and between Sheilas testimony and the settlement  and
addendum,  required  the trial court to  weigh  the  evidence  of
intent  based  on  the credibility of the two parties  to  decide
Sheilas intent at the time the settlement was drafted.26  It  was
          not clear error based on the evidence before the court to find
that Sheila promised Richard he would be entitled to part of  the
2.1(A) annuity.
          2.   Sheilas retiree health insurance benefits
          The  trial court concluded that Sheilas lifetime health
insurance  benefits vested before the marriage and were therefore
pre-marital   property.   Richard  challenges  this   conclusion,
arguing  that  Sheila continued to contribute to  her  retirement
benefits  with marital funds during the marriage and pointing  to
Sheilas  monthly  premium statements for support.   However,  the
monthly  premium statements provide no evidence that any  portion
of  the  monthly premium is being applied to anything other  than
that months insurance coverage.  Sheila responds that the correct
interpretation  of  the monthly statement is that  each  employee
payment  of a monthly premium constitutes only a contribution  to
that  months  coverage,  not to the long term  subsidy  that  the
employer provides.
          Sheilas  interpretation  is  better  supported  by  the
evidence in the record.  Her expert testified that Richard  could
not  have  acquired  an  entitlement to post-retirement  benefits
unless  he  was  married to Sheila on the date of her  retirement
under the states benefit scheme.  The expert also considered  the
premium  payments made during the marriage and testified that  no
payment  contributed  to  the  value of  Sheilas  post-retirement
benefit.   Finally,  the  expert  also  testified  that  once  an
employee vests in the retiree health insurance program, the state
of  Alaska  pays  the subsidy amount for the beneficiarys  health
insurance  from age of retirement forward.  The expert  testified
that  nothing  was  added  to the value of  that  subsidy  during
Sheilas work during the marriage.
          Under  our  rule  in Hansen v. Hansen,27  post-marriage
health insurance benefits acquired with marital funds are marital
property.28  The trial court distinguished Hansen on  the  ground
that  the  evidence showed that none of Sheilas work  during  the
marriage  increased  or contributed to the value  of  the  health
insurance  benefits.            Richard presents  an  alternative
argument:  that  the entire retirement health  insurance  benefit
should  be seen as transmuted because he was listed as  a  health
insurance  beneficiary.   But transmutation  does  not  apply  to
retirement  benefits,  which  are usually  designated  as  partly
marital  and  partly separate based on which portion  was  earned
during the marriage.29  Here, the evidence did not establish that
any  of  the  value  of her post-retirement benefits  was  earned
during the marriage.  Because the factual finding that all of the
value  of  Sheilas  post-retirement health benefits  were  earned
before  marriage  is  supported by the  record  and  not  clearly
erroneous, we affirm the trial courts conclusion that the  health
benefits are separate property.
          3.    Insurance payment for damage to privacy fence  at
Caskill home

          A  privacy fence at the Caskill property was damaged by
wind  six  months  after  the parties date  of  separation.   The
Caskill  property  was  a marital asset  and  the  value  of  the
          property was awarded to Richard.  The insurance payment for the
damage was paid to Richard.  Richard deposited the payment  in  a
joint  account, and then transferred it to his separate  account.
The trial court awarded half of that amount to Sheila.
          Richard  argues that the date of separation is relevant
to  when  he  incurred  the  expense of  the  fence  repair,  and
analogizes the situation to case law holding that debt  taken  on
after  separation to acquire an asset makes the asset separate.30
Richard  argues  that because he will have to bear  the  cost  of
repairing the fence, while Sheila will have no obligation  to  do
so,  he should have gotten the entire value of the reimbursement.
We disagree.
          Richard  is  not  in  debt  to  anyone  or  under   any
obligation  to replace the privacy fence.  The fence was  marital
property  when destroyed, and both parties suffered the  loss  of
the  value  of  the  fence.  Moreover, the trial  court  did  not
include  the fence in the calculation of the value of  the  home;
the  court valued the home using Sheilas appraisers valuation and
Richards list of repairs necessary to bring the home up to  code,
which  did not include the privacy fence.  The privacy fence  was
apparently not taken into account in the appraisal of the Caskill
property,  because  it  is  not mentioned  in  the  report.   The
valuation of the Caskill property occurred on June 28, 2007, more
than  a year after separation and therefore apparently long after
the wind damage occurred.  And Richard had not repaired the fence
as  of  the  trial on September 7, 2007, so clearly  it  was  not
repaired  before the appraisal.  Because both parties  owned  the
fence  when it was destroyed, and both shared any resulting  loss
in  the  homes  value, it was not error for the  trial  court  to
classify it as part of the marital estate.
          4.   Refund for marital carpet purchase
          During the marriage Richard paid $2,500 for carpets; he
used  the  marital  credit  card  for  this  purchase.   Then  he
transferred  the debt onto a card in his own name but  apparently
with the same account number.  When he received a refund for  the
carpet after the separation, it was credited to the card that was
now  in his name only.  The trial court ruled that the refund was
a  marital asset.  Richard argues that he retired a marital  debt
with  a marital asset and should not have owed Sheila any of  the
refund.   We  disagree.  Richard incurred  a  marital  debt,  the
burden  of which Sheila shared and which was part of the  balance
of  the account that was divided as marital debt.  But the refund
was  not  applied to that debt; rather, it reduced Richards  sole
debt  on  his separate credit card account many months after  the
date of separation.  It was proper for the court to classify  the
refund as a marital asset.
          5.   Discover card

          The  trial court did not address the Discover  card  in
Richards  name  during  its decision on  the  record  or  in  its
findings  of  fact.   In Richards motion for reconsideration,  he
claimed  the  balance  of that card was a marital  debt.   Sheila
argued that the balance on this card consisted entirely of  post-
separation  debt and therefore should not have been  included  in
          the  marital estate.  The trial court stated in denying
reconsideration that it had not included this debt in the marital
estate  because  it  was  post-separation  debt.   However,   the
official date of the parties separation in the findings  of  fact
was  June  6,  2006,  and  the statement for  the  card  reflects
purchases  from  May  2006 and includes  a  substantial  previous
balance.   For  that  reason,  we remand  for  clarification  and
further written findings regarding the pre-separation balance  on
this card.
     B.   The Trial Court Did Not Clearly Err In Its Valuation Of The
          Solo Creek Improvements Or The Birch Hill Lots.
          A.   Richard argues that the trial court erred in valuing his
improvements to the Solo Creek property and in valuing the  Birch
Hill  lots.   He notes that the court rejected his  estimates  of
value  even  though  a  property  owners  estimate  of  value  is
competent  evidence, and he argues that Sheilas expert never  set
foot  on  the property, failed to consider comparable sales,  and
developed a ludicrous estimate.  Sheila responds that the  weight
accorded  to  each  source of evidence  is  squarely  within  the
province of the trier of fact.
          The  trial  court  weighed  Sheilas  experts  appraisal
testimony  and  Richards  own  valuation  of  the  work  that  he
contributed  to the property in valuing the improvements  Richard
made  to  the  Solo Creek property.  Likewise, the court  weighed
Sheilas  experts  appraisal of the Birch Hill  lots  against  tax
appraisals  of  these  lots. Richard does  not  now  contest  the
qualification of the appraiser as an expert, nor did he object at
trial  to  the  appraiser being qualified.   He  did  not  submit
competing expert testimony.  He did submit tax valuations of  the
value  of the lots, which he argues are strong evidence of  their
actual  value.   However,  we  have  held  that  tax  assessments
ordinarily  are not good evidence of value.31  As Sheila  argues,
this leaves the trier of fact to weigh competing evidence, and we
will  not  overturn  the courts findings in  these  circumstances
absent  clear error.32  Because the trial courts valuations  were
not clearly erroneous, we affirm them.
     C.   The Trial Court Did Not Abuse Its Discretion In Distributing
          Assets.
          1.   Richards health concerns
          1.   Richard argues that the trial court did not correctly apply
the statutory factors in AS 25.24.16033 because it did not account
for  his  health or the availability and cost of health insurance
for  him.   The trial court found that Richard injured his  knee,
fell from a horse and injured his back, had twice been kicked  in
the head by horses, and had major dental problems associated with
being  kicked  by  the horses.  Richard did not  present  medical
records at trial.  Richard argues that a fifty-year-old male with
his health problems cannot obtain affordable health insurance and
that  the  court should be directed to account for his conditions
and the cost of health insurance.
          The  trial  court assumed in its oral decision  on  the
record that Richard could obtain his own health benefits from the
state at retirement: The court would note a spouse is entitled to
health benefits through the state retirement system [if] there is
          a [QDRO].  Under AS 39.35.535(d), a former spouse who is awarded
a  portion of a state employees Public Employee Retirement System
(PERS)  benefit under a qualified domestic relations order (QDRO)
is entitled to purchase state major medical coverage. Richard was
awarded  a  coverture  portion of Sheilas  PERS  account  in  the
decision on the record, and hence would be entitled under section
.535(d) to obtain health insurance.
           Even  if  this were not the case, we see no  abuse  of
discretion here.  In Martin v. Martin,34 we held that  the  trial
court did not abuse its discretion when it refused to award  PERS
benefits  which would have allowed the husband to obtain coverage
under AS 39.35.535(d)  because the husband failed to show that he
had  no other means of obtaining his own health insurance.35   We
noted  that  we  would only find an abuse of discretion  in  this
situation  if  the  superior courts decision produced  a  clearly
unjust result.36  Sheila argues that the result here is not unjust
because  (1) Richard presented inadequate evidence that he  could
not  work,  and (2) Richard had never sought disability  benefits
through  Social  Security that would be an  alternate  source  of
health insurance.  The superior court also found that the size of
the  estate was such that Richard would be able to obtain  health
insurance with his portion of the estate.  Even if he were unable
to  obtain state coverage, we would not find this to rise to  the
level  of  injustice  that would warrant a finding  of  abuse  of
discretion.
          2.   Sheilas Caskill property taxation payments
     Sheila was given a credit for half the amount she paid after
the  separation  date  on  the property  taxes  for  the  Caskill
property.   Richard  argues that Sheila made the  post-separation
payment of taxes on the Caskill home with marital funds, and that
as  a  result  it was error to give her a credit for  them.   The
payments  were made from the joint account containing  the  AETNA
settlement  part  2.1(A)  annuity payments  later  designated  as
marital property; Richard and Sheila were each awarded half these
payments. Therefore he claims that the payments were an  exercise
in using marital property to preserve marital property.
     In  Ramsey v. Ramsey,37 we noted that no fixed rule need  be
imposed for crediting a spouse who has used post-separation, non-
marital  income to maintain marital property.38  We held  that  a
court has broad discretion to determine how and whether to credit
such payments, including the discretion to credit the spouse with
all or none of such payments.39  Here, the situation is different
from Ramsey in that payments were made from the 2.1(A) settlement
annuity,  the  entirety of which the trial  court  classified  as
marital  and  then  divided evenly between  Sheila  and  Richard.
However, as Sheila points out, she was only credited with half of
the  tax payments.  We conclude that the trial court acted within
his  discretion  in  crediting Sheila  with  half  of  the  post-
separation  tax payments that she made with an account  that  was
half her property.

     D.   It  Was  Error To Accept The List Of Personal  Property
          Provided By Sheila As The Stipulated Division And Valuation.
          
          On  the  last day of trial, the parties told the  court
          that they would meet to divide the personal property by
stipulation.  In October 2007 when the parties met  for  an  oral
decision on the record, Sheilas counsel presented the court  with
Attachment  A-Y, which she said was the stipulated division  that
the  parties had earlier agreed to in court.  The court  appeared
to  agree  with  Sheila that the amounts had been  agreed  to  in
court.    Richards   counsel  contested  this,   said   that   no
stipulation  had  been  reached,  and  said  he  would  obtain  a
transcript showing that he in fact had only agreed to work  later
with  Sheila  on a written stipulation.  He also told  the  court
that  he  would  file  a  motion  for  reconsideration  with  the
transcript so that the division of the rest of the property could
be ruled on that day.  During this exchange, Richards counsel did
not state that his client agreed with Attachment A-Y.
          Sheila  asserts that Richards attorney  agreed  to  the
settlement  in open court, and that Richard did not  object,  but
Sheila  provides no evidence of this assertion beyond  citing  to
the  discussion  above,  which does not support  that  assertion.
When  Richard  filed  his  motion for  reconsideration  with  the
transcript of the relevant exchange in open court, the transcript
included  the  courts statement that the parties  would  meet  to
further  work out personal property division: [A]ll  the  parties
are  going  to  get together and see what they can  do  with  the
[property  division]  .  . . .  Given  that  this  was  the  only
discussion  of the matter, and that Richard clearly  objected  at
the October 2007 hearing to the claim that he had entered into  a
stipulation, it was error to base judgment on Attachment A-Y.
          Richard also points out an unexplained variance between
the  experts appraisal of the value of Sheilas personal  property
and  the amount the court credited her with having received.  The
appraisal  report itself appears to be the source of  the  error.
The  report  consists  of columns, one for  Sheila  and  one  for
Richard, with the value of each item allocated according  to  the
property division.  At the bottom of each page, there is a  total
handwritten  at the bottom of the columns.  When they  are  added
together,  the total is $28,450.  However, the typewritten  total
for  all  the  property at the end of the valuation  is  $12,391.
Sheila offers no explanation of the difference.
          We  therefore remand for fact-finding regarding whether
the  parties  ever  reached an agreement regarding  the  personal
property,  and, if not, for further proceedings as  necessary  to
reach an equitable division of the parties personal property.
     E.   The   Trial   Courts  Post-Trial  Reconsideration   And
          Recalculation Of The Spreadsheet Requires Clarification.
          
          A.   Richard argues that the court made an unexplained error in
recalculating  the  assets awarded to the parties after  Richards
motion  for reconsideration.  Specifically, he alleges  that  the
trial  court changed the figures used to calculate the  value  of
the  Caskill  home without explaining the change.   In  its  oral
findings  on  the  record, the court credited Richards  testimony
that  it  would be necessary to make $54,977 in repairs to  bring
the  house up to code, which would increase the houses  value  to
$215,000.   The court calculated the value in its spreadsheet  by
subtracting    $54,977   from   $215,000.    Richard    requested
reconsideration on the grounds that the outstanding mortgage debt
of  $24,949 should also have been subtracted, leading to a  value
for  the  home of $135,074.  The court recalculated the value  to
account  for  the mortgage, but changed the amount  necessary  to
make  repairs  to  $30,027 instead of the $54,977  it  originally
found  necessary.  In the courts explanation of its calculations,
it  is  not  clear  if  this change was intentional.   The  court
stated:   The   court  evaluated  the  evidence,  including   the
photographs of the residence and found Mr. Sparkss evidence  that
repairs  totaling $30,027.63 were necessary to make the appraisal
value  accurate were credible by a preponderance of the evidence.
While  a reevaluation of the value of the repairs and the use  of
an  adjusted amount would not necessarily have been an  abuse  of
discretion,  we  are unable to determine if the  new  figure  was
based  on  a reevaluation or a transcription error based  on  the
language of the order.40  We remand this issue for clarification.
V.   CONCLUSION
          We  AFFIRM the judgment below in all but three aspects,
which  we  REMAND to the trial court for further  proceedings  to
determine:  (1)  whether  agreement was reached  on  valuing  the
parties personal property and, if not, the correct valuation  and
division of the property; (2) the classification of the  debt  on
the  Discover  account  (related to the  date  on  which  it  was
incurred);  and (3) the value of the repairs necessary  to  bring
the Caskill home up to code.
_______________________________
     1    Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006).

     2    Id.

     3    Hatten v. Hatten, 917 P.2d 667, 672 n.11 (Alaska 1996).

     4    Brandal v. Shangin, 36 P.3d 1188, 1191 (Alaska 2001).

     5    Id. at 1192.

     6    Hatten, 917 P.2d at 672.

     7    794 P.2d 1346 (Alaska 1990).

     8    Id. at 1348.

     9    Id.

     10    Id. at 1349.

     11    Sampson v. Sampson, 14 P.3d 272, 276 (Alaska 2000).

     12     Abood  v.  Abood,  119 P.3d 980,  984  (Alaska  2005)
(holding that presumption overcome where wife introduced evidence
that  intent  in  placing  proceeds  in  joint  account  was  for
administrative  convenience  rather  than  to  make  donation  to
marriage).

     13     794 P.2d 1346, 1349 (Alaska 1990) (holding that  tort
damages  are separate property except where intended  to  replace
pre-divorce lost earnings).

     14    68 P.3d 1232 (Alaska 2003).

     15    Id. at 1235.

     16    See Hansen v. Hansen, 119 P.3d 1005, 1013 (Alaska 2005)
(holding  that separate property may become marital  property  if
spouse donates it to marital unit with intent at time of donation
that property become marital).

     17     See  id.; see also Abood, 119 P.3d at 984-85 (placing
property into joint title raises presumption of donative  intent,
although  presumption  may be overcome if evidence  of  different
intent at time of placement into joint title is produced).

     18    Lundquist v. Lundquist, 923 P.2d 42 (Alaska 1996).

     19    Sampson v. Sampson, 14 P.3d 272, 275 (Alaska 2000).

     20    Id.

     21    Id. at 277.

     22     1  Brett  R. Turner, Equitable Division  of  Property
 5:69, at 664 (3d ed. 2005).

     23    Id. at 665.

     24    Id. at 667.

     25    Id.

     26     See  Evans v. Evans, 869 P.2d 478, 481 (Alaska  1994)
(holding  that  it  is trial courts function to evaluate  witness
credibility and weigh conflicting evidence).

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

     28    Id. at 1015 (holding that health benefits earned during
marriage are marital asset of insured spouse).

     29    Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998).

     30    See Hunt v. Hunt, 698 P.2d 1168, 1171-72 (Alaska 1985).

     31     Harrower v. Harrower, 71 P.3d 854, 862 (Alaska  2003)
(holding that tax appraisals do not reliably measure true value).

     32    See Haisley v. Grant, 486 P.2d 367, 370 (Alaska 1971).

     33    AS 25.24.160(a) provides in relevant part:

          In a judgment in an action for divorce . .  .
          (4)  the  division  of property  must  fairly
          allocate  the economic effect of  divorce  by
          being based on consideration of the following
          factors: . . . (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] (D) the  financial
          condition  of  the  parties,  including   the
          availability and cost of health insurance . .
          . .
          
     34    52 P.3d 724 (Alaska 2002).

     35    Id. at 731.

     36    Id.

     37    834 P.2d 807 (Alaska 1992).

     38    Id. at 809.

     39    Id.

     40    Because the difference between the original amount that
the court attributed to necessary repairs ($54,977) and the later
amount that the court attributed to repairs ($30,027) is $24,950,
and  because  this  amount is almost exactly the  amount  of  the
outstanding mortgage that Richard said on reconsideration  should
have  been subtracted from the value of the house, ($24,949),  we
are unsure whether the new figure is accurate.

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