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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barnett v. Barnett (8/27/2010) sp-6506

Barnett v. Barnett (8/27/2010) sp-6506, 238 P3d 594

     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- 13177
Appellant, )
) Superior Court No. 4FA-07-00905 CI
) O P I N I O N
) No. 6506 August 27, 2010
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge.
Appearances:    Thomas
          R.  Wickwire, Law Office of Thomas  Wickwire,
          Fairbanks,   for   Appellant.    Daniel    L.
          Callahan, Callahan Law Office, Fairbanks, for

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

          CHRISTEN, Justice.

          Alena  and Timothy Barnett met on the internet  in  the
fall  of  2004.  In September 2005 Alena relocated  to  Fairbanks
from  her  home in Belarus with her 18-year-old daughter.   Alena
and  Timothy  were  married the next month.   Timothy  filed  for
divorce in January 2007.  In April 2008 the superior court issued
findings  of  fact  and conclusions of law dividing  the  marital
property  and establishing spousal support.  Alena appeals.   She
challenges  the spousal support award on both federal  and  state
law  grounds, alleges procedural error by the superior court, and
appeals the award of attorneys fees.  We affirm the trial  courts
conclusions  that  Alena is not entitled to  spousal  support  or
attorneys fees under federal law, and we find no procedural error
by  the  trial  court.  But because the award of spousal  support
made   under   state   law   was   premised   on   an   erroneous
characterization  of  courtship costs  as  marital  debt  and  on
findings  insufficient to allow us to review  whether  the  award
meets  Alenas  needs,  we  reverse  the  award  and  remand   for
reconsideration.  We also vacate the award of attorneys fees made
pursuant to state law.
            Timothy  and Alena began a long-distance relationship
in  the  fall of 2004 after meeting on the internet.   Alena  was
living  and  working  in Zhlobin, Belarus; she  has  a  bachelors
degree  in  railroad  transportation  engineering,  and  she  was
employed   by  a  steelwork  company.   Timothy  was  living   in
Fairbanks; he is the Vice-Chancellor for Academic Affairs at  the
University of Alaska, Fairbanks (UAF).
          Between  January  and  September 2005  Timothy  visited
Alena  in  Belarus  several times.  In March  of  2005  he  began
immigration paperwork for Alena to relocate to Fairbanks, and  in
May  or  June of that year Timothy gave Alena $2,500 to  complete
the  purchase  of  her apartment in Belarus.  In  September  2005
Alena and her daughter Dasha moved from Belarus to Timothys  home
in  Fairbanks, where they lived with Timothy and his two teenaged
sons.   Alena  brought $1,000 with her when she  moved,  and  she
maintained title to her apartment in Belarus.  Timothy  paid  all
of the costs associated with the move.  Alena and Timothy married
on  October 8, 2005.  At the time of the marriage, Dasha  was  18
years old.
          During  the  marriage, Alena earned between $10.50  and
$11.50 per hour working as a salesperson at a hardware store  and
Timothy  continued  working  at UAF.   His  income  in  2004  was
$109,395.   Timothy and Alena completed renovations  to  Timothys
pre-marital  home,  sharing  the work  and  the  expense  of  the
project.  Timothy retained sole title to the home but took out  a
home  equity  loan  to pay down credit card debt,  including  the
costs incurred by Alena and Dasha in their move from Belarus.  In
Fairbanks, Timothy and Alena purchased a Toyota RAV4 for Alena to
drive,  and  Alena and Dasha used Timothys tuition  reimbursement
benefit to take English classes at UAF.
          The  Barnetts  filed  immigration paperwork  requesting
permanent  resident  status for Alena and Dasha  in  March  2006.
Timothy  served  as  sponsor for Alena and  Dasha,  and  in  that
capacity  he  signed  an  INS Form I-864  affidavit  pledging  to
support them at 125% of the federal poverty level.
         Timothy  filed  a Complaint for Divorce and  Motion  for
Temporary  Orders  Regarding Possession of Home  and  Support  on
January  10,  2007.   Alena agreed with the  allegations  in  the
complaint  and moved out of the Fairbanks home in May 2007.   The
court  ordered that Alena and Timothy agree on an interim support
amount, which they did.  By May 2007 Dasha was living in her  own
          Trial  was held in July 2007.  On August 15, 2007,  the
superior  court  issued an oral decision on record  dividing  the
parties  property  and establishing spousal support.   The  court
ordered  that  Alena  receive $5,875 from the  couples  2006  tax
refund  (compared  with Timothys $4,000 share),  the  RAV4  (with
approximately $20,000 in outstanding debt and $4,000 of  equity),
cross-country skis, a couch, a diamond ring, and a sewing machine
purchased  during  the  marriage.  The court  also  ordered  that
Timothy  pay  Alena $1,500 per month in spousal support  for  two
years  or until she remarries or until she dies or until  she  is
living  in the same house with another adult whose income she  is
relying on.  The court awarded Alena $2,000 in attorneys fees.
          Timothys  attorney  raised an  oral  objection  to  the
courts  spousal support award, observing that it seemed  to  have
been based on 125% of the poverty level for a family of five (the
size  of  the entire blended Barnett family pre-divorce),  rather
than  a  family  of one (the size of Alenas household  after  the
divorce).   The trial court judge stated that he would  reexamine
that portion of the decision and possibly reduce the award.
          In  March 2008 Timothy filed proposed findings of  fact
and  conclusions  of law, mostly memorializing  the  courts  oral
decisions  regarding property division and attorneys  fees.   The
proposed  findings granted Alena one-half of the marital  portion
of  Timothys  retirement  accounts,  car  payments  on  the  RAV4
($482.46  per  month) through July 2008, and spousal  support  of
$875  per month through the end of May 2008.1  On April 23, 2008,
the  superior court adopted the proposed findings and conclusions
without alteration.
          Alenas  Motion to Reconsider and Vacate  the  April  23
findings  of  fact  and conclusions of law was  denied,  and  she
appeals.   Alena challenges the superior courts award of  spousal
support,   some  of  its  findings  of  fact,  its  adoption   of
unsolicited   findings  and  conclusions  proposed  by   Timothys
attorney, and its award of attorneys fees.
          The  trial  courts interpretation of  a  statute  is  a
question  of  law  to  which we apply our  independent  judgment,
interpreting  the statute according to reason, practicality,  and
common  sense, considering the meaning of the statutes  language,
its legislative history, and its purpose.2
          Trial   courts  have  broad  discretion  in  fashioning
property  divisions.3  Trial courts allocations of  property  and
awards  of  spousal support are reviewed for abuse of discretion;
we reverse such awards only if they are clearly unjust.4
          We  review  a trial courts findings of fact  for  clear
error,  which is found only when we are left with a definite  and
firm  conviction based on the entire record that  a  mistake  has
been made. 5
          We  review  awards  of  attorneys  fees  for  abuse  of
     A.   The  Trial  Court Correctly Concluded That Timothy  Did
          Not Owe Spousal Support Under Federal Law.
          Alena  argues that the superior court erred by  failing
to  follow  the terms of 8 U.S.C.  1183a and the INS  Form  I-864
affidavit  Timothy signed.  8 U.S.C. 1183a requires that  a  non-
citizens  sponsor contractually commit to support the non-citizen
at  125%  of  the  federal poverty level.7  The sponsors  support
obligation  lasts  until  the  non-citizen  works  40  qualifying
quarters under the Social Security Act or departs from the  U.S.,
or  until  either  the  non-citizen or the  sponsor  dies.8   The
support  obligation  is  enforceable in state  or  federal  court
against  the sponsor by the non-citizen or the federal  or  state
government.   At  the time of sponsorship, the  required  support
level is 125% of the federal poverty level for a family unit of a
size  equal  to  the number of members of the sponsors  household
(including  family  and  non-family dependents)  plus  the  total
number of other dependents and aliens sponsored by that sponsor.9
The  Form  I-864 affidavit instructions stipulate that  [d]ivorce
does not end the sponsorship obligation.10
          Alena  argues that the superior court violated 8 U.S.C.
1183a by not awarding spousal support for 40 quarters.  She  also
questions the support award because it does not specify  how  and
when to adjust the support payments within the 40 quarters if her
circumstances change, whether 125% of the federal poverty line is
a   gross  or  net  measure,  whether  she  is  charged  with  an
affirmative  duty to mitigate the need for support,  and  whether
the size of her household should include Dasha.  We conclude that
the  superior court did not err in its interpretation of 8 U.S.C.
1183a  and  that the other questions raised by Alena  are  waived
because they were inadequately briefed.11
          Based  upon  Alenas  work  history  in  Fairbanks,  the
superior  court found that her earning capacity was approximately
$28,000  per year.  The court also found that she would have  the
capacity  to  earn  approximately $18,000 per year  even  if  she
scaled  back to working 30 hours per week to continue  university
classes  in  English and engineering.  The court  concluded  that
because  both  of  these amounts are greater  than  125%  of  the
federal  poverty  line  for  a one-person  household  in  Alaska,
neither 8 U.S.C.  1183a nor the INS Form I-864 affidavit required
that Timothy pay spousal support to Alena.12  We agree.  Existing
case  law  supports the conclusion that a sponsor is required  to
pay only the difference between the sponsored non-citizens income
and  the  125%  of  poverty threshold.13  And  the  parties  have
referred  us  to  no  authority supporting the  proposition  that
federal  law requires a sponsor to pay spousal support  when  the
sponsored non-citizens earned income exceeds 125% of the  federal
poverty threshold for a household the size of the sponsored  non-
citizens  household.   We  conclude that  federal  law  does  not
require  Timothy to pay a spousal support award to Alena at  this
time.   If  Alenas earned income falls below 125% of the  federal
poverty threshold for a family of one before the occurrence of  a
terminating  event  (completion of 40 quarters  of  work,  Alenas
          departure from the United States, or the death of Alena or
Timothy), she may bring suit in state or federal court to enforce
Timothys obligation.14
     B.   Spousal Support Was Incorrectly Calculated Under  State
          Alena  argues  that  the  superior  court  abused   its
discretion under Alaska law because its award of spousal support:
(1) was premised upon a property award which erroneously included
Timothys  courtship costs as a marital debt; (2)  was  not  based
upon  sufficiently specific findings; and (3)  did  not  properly
consider  her  rehabilitative needs.  She also  argues  that  the
courts  findings  regarding her comparative  welfare  before  and
after  marriage to Timothy and the possibility of her  return  to
Belarus  are erroneous.  We agree that the spousal support  award
was  premised  upon a flawed property award and  that  additional
findings  are  necessary to allow review of the courts  award  of
spousal support.
          1.   Courtship  costs  incurred  before  marriage   are
               presumptively separate debt.
          We  have repeatedly held that whenever possible a trial
court should provide for the needs of a divorced spouse through a
disproportionate  division of marital assets; awards  of  spousal
support  are  disfavored and only appropriate  when  the  marital
estate  is  insufficient  to meet the needs  of  a  disadvantaged
party.15  This precedent requires that we examine Alenas challenge
to  the  courts property division before reviewing her  arguments
challenging the adequacy of the courts award of spousal  support.
The amount of spousal support to which Alena is entitled, if any,
is  dependent upon the value of the marital property  awarded  to
her and whether her needs can be met with an unequal division  of
the marital estate.16
          A  trial courts equitable division of a marital  estate
is  a  three-step process.  First, the trial court must determine
what specific property is available for distribution. Second, the
court  must  find  the value of this property.   Third,  it  must
decide how an allocation can be made most equitably.17  Here, the
trial  court  acknowledged Timothys payment of travel  and  legal
expenses  during  the  courtship and the pre-marital  immigration
process  as  one  of  the factors it relied upon  in  making  its
division of marital property.  Alena argues that the trial  court
erred  by including the debt Timothy incurred during the  parties
courtship (on his travel to Belarus, Alena and Dashas relocation,
and  the legal aspects of sponsorship and immigration) as marital
debt.  We agree.18
          Under AS 25.24.160, courts are generally called upon to
divide property acquired only during marriage.19  Courts may look
to  property  acquired before the marriage when the balancing  of
the  equities between the parties requires it, but such  property
should not be treated as part of the marital estate and available
for  division unless the court specifically finds that  balancing
of  the  equities requires invasion of the premarital  holding.20
Here, the trial court did not invade a marital asset, but it  did
treat a debt that was incurred prior to the marriage as a part of
          the marital estate.  We have never held that courtship expenses
are properly considered marital debt, and the trial court made no
findings  explaining  why it treated the  courtship  expenses  as
marital  debt.   We  conclude it was error to  include  courtship
expenses   in   the  marital  estate  absent  specific   findings
explaining  why  the  balancing of  the  equities  required  such
          The trial court was aware of the great disparity in the
parties  incomes,  and found that [f]or that reason  the  greater
percentage of the marital assets should be distributed to  Alena.
The  superior  court also entered a support award in  her  favor.
But  because the superior courts assessment of the total  marital
estate available for distribution was skewed by consideration  of
the courtship costs, its calculation of spousal support was based
on  a  faulty  premise.   On remand, the  superior  court  should
reassess the size of the net marital estate and consider  whether
a disproportionate award of property can satisfy Alenas needs for
spousal support.  If the court determines that spousal support is
warranted,  it  should enter findings regarding  the  appropriate
amount and duration of Timothys support obligation.
          2.   The   spousal   support   award   was   based   on
               insufficient factual findings.
           Alena argues that the superior courts award of spousal
support  was  not  supported by adequate findings  of  fact.   In
Alaska,  spousal  support  is governed  by  AS  25.24.160.   This
statute  provides that a court may award spousal  support  for  a
limited   or   indefinite  period  of  time,  in  gross   or   in
installments,  as  may be just and necessary  without  regard  to
which  of  the  parties is in fault; such an  award  must  fairly
allocate  the  economic effect of divorce.21  Before  calculating
spousal support, a court must consider:
          (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
          (E)  the  conduct  of the parties,  including
          whether there has been unreasonable depletion
          of marital assets;
          (F)  the  division of property under  (4)  of
          this subsection; and
          (G) other factors the court determines to  be
          relevant in each individual case;[22]
          We  have  held  that a trial courts  award  of  spousal
support  must  be accompanied by adequate findings,  particularly
with  respect  to  the  financial needs  and  abilities  of  both
          parties. 23  Although a trial court need not make findings
regarding  every factor, we have remanded awards of alimony  when
there  is  an  insufficient analysis of the needs of the  alimony
recipient or the means of the paying party.24
          Support   awards   are   generally   of   two    types:
reorientation  and rehabilitative.  The purpose of  reorientation
alimony  is  to  allow the requesting spouse  an  opportunity  to
adjust  to  the  changed financial circumstances  accompanying  a
divorce.25  Rehabilitative alimony is awarded when the  recipient
spouse  intends to apply the alimony toward job training designed
to  lead to employment, in order to allow a recipient spouse  who
exits  a marriage with few job skills and little earning capacity
to  secure a means of earned income.26  Rehabilitative alimony is
narrowly  restricted  to  job training or  other  means  directly
related  to entry or advancement within the work force,  and  the
party  seeking rehabilitative alimony must intend to use  it  for
such purposes.27
             At  the  conclusion of trial on July 27,  2007,  the
superior  court  issued  preliminary oral  findings  and  rulings
recognizing  the  need for Alena to complete further  studies  in
English  and  engineering  in order to pursue  employment  as  an
engineer   in  the  U.S.,  and  implying  an  intent   to   award
rehabilitative support.28  A few weeks after trial, on August 15,
2007, the court made oral findings explaining its award of $1,500
per  month in spousal support and how it determined the  duration
of  Timothys  obligation to pay it.  The trial courts  award  was
made  pursuant  to  8  U.S.C.   1183a  and  the  INS  Form  I-864
affidavit.  The court estimated that it would be about two  years
before  Alena  would be eligible for citizenship  and  calculated
that $1,500 per month in spousal support was necessary to fulfill
Timothys obligation to support her at 125% of the federal poverty
level.   But the court rescinded this award when Timothys counsel
pointed out that it was based on a calculation for a household of
five  people,  not  one.  The parties left the  August  15,  2007
hearing  anticipating a set of corrected findings; the  corrected
findings were not entered until late April 2008, and they did not
rely  on federal law.  Instead, the corrected findings referenced
factors  from  AS 25.24.160(a)(2), including the  length  of  the
parties  marriage, the lack of minor children,  and  the  parties
relative  financial positions.  The court did not  make  findings
about  Alenas specific financial resources and needs, about  what
expenses Alena would incur if she attended university classes, or
about  how  long she would have to attend classes to achieve  her
educational goals.  As noted, trial ended in July of 2007 but the
court  did  not enter findings until April of 2008.   The  courts
written  findings  indicate  its  intention  that  Alena  receive
assistance through the end of the 2008 academic year,29  but  the
record  does  not  reveal whether Alena was enrolled  in  classes
during the interval between July 2007 and April 2008.  From  this
record  we  cannot  determine the scope of Alenas  rehabilitation
plan, her needs during the rehabilitation period, or whether  she
progressed  toward  or  completed her educational  goals  in  the
interval  before  the corrected findings were  entered  in  April
2008.   Because the court did not make findings concerning Alenas
          needs or indicate how its award of spousal support would meet
those  needs, we are unable to review the adequacy of the spousal
support award under state law.  We therefore remand this issue to
the trial court for reconsideration and additional findings.
          3.   The   courts  factual  findings  regarding  Alenas
               ability  to  support herself in  Belarus  and  her
               relative   position  after  this   marriage   were
               supported by the record.
          Alena   argues   that  the  superior  courts   findings
concerning  her  ability  to support herself  in  the  event  she
returns to Belarus and her relative financial position before and
after this marriage are clearly erroneous.  She also argues  that
the  courts written findings are contrary to its August 15,  2007
oral findings, and contrary to undisputed evidence concerning the
state of the economy in Belarus.30  We disagree.
          Alena  testified that she still owns her  apartment  in
Belarus  and  that the average pay in her former  profession  was
$100  per month.  The court orally found that although Alena  has
given  up  everything she has to come to this country, she  could
pick up and leave and go back to Belarus if she wants.  The court
recognized  that  it might be emotionally difficult  for  her  to
return  to  .  .  . Belarus and it  heard testimony  that  Alenas
relatives now live in her apartment, but the court found, she has
th[e]  option [of returning to Belarus] and she can do  what  she
wants  to.   The  court made no other factual  findings  on  this
point.   Alena  offered only her own arguments as  proof  of  the
economic  situation  in  Belarus  and  conceded  at  trial  that,
although  difficult, she might be able to get a  job  paying  the
average  salary of $100 per month if she returned  there.   This,
coupled with the evidence that she now owns her apartment free of
any  mortgage debt, supports the trial courts conclusion that its
award  was sufficient to support Alena for a period of months  in
Belarus;  it  was  not clear error.  Alena  does  not  provide  a
convincing  argument  that the trial courts  April  2008  written
findings conflict with its August 2007 oral findings.
          4.   Alena  waived  her arguments regarding  the  trial
               courts procedural decisions.
          Alena  also argues that the trial court made procedural
errors  by  issuing  the  written findings,  including  accepting
unsolicited   findings  drafted  by  counsel,  entering   written
findings  which  conflicted with the courts  oral  findings,  and
delaying  too long before issuing the findings.  Timothy counters
that  the  written findings, which were drafted by his  attorney,
were  submitted in accordance with Alaska Rule of Civil Procedure
78(a)31 and were adopted by the court in keeping with this courts
existing  case law on point.32  Alena only raises these arguments
in  her reply brief.  Because we deem waived any arguments raised
for  the  first time in a reply brief, we do not here  reach  the
merits of these issues.33
     C.   Alena  Is  Not  Entitled To Additional  Attorneys  Fees
          Under Federal Law.
          Alena  argues that the superior court erred by  failing
to  award her full attorneys fees for the time her attorney spent
on  efforts  to  enforce  Timothys federal  support  obligations.
Alena filed a record of her attorneys fees, as requested at trial
on  July  12,  2007.  She included a breakdown of the  hours  her
attorney worked overall, and specified the number of hours  spent
on  efforts to enforce the sponsors duty to support her  under  8
U.S.C.  1183a and the INS Form I-864 affidavit.
          8   U.S.C.    1183a(c)  does  provide  that  [r]emedies
available  to enforce an affidavit of support under this  section
include  .  .  .  payment  of  legal  fees  and  other  costs  of
collection.   The parties cite no precedent from any jurisdiction
providing for an award of attorneys fees to a party who  was  not
deemed  entitled  to spousal support under this federal  statute.
Instructions for the INS Form I-864 affidavit comport  with  this
conclusion.  In relevant part, the instructions state:
          If  you  [the sponsor] are sued [for  support
          owed  under  INS Form I-864], and  the  court
          enters a judgment against you, the person  or
          agency  that  sued you may  use  any  legally
          permitted   procedures   for   enforcing   or
          collecting  the judgment.  You  may  also  be
          required  to  pay  the costs  of  collection,
          including attorney fees.[34]
In  the  absence  of a judgment against Timothy  under  8  U.S.C.
1183a  to  enforce  an affidavit of support, the  superior  court
correctly  ruled  that  Alena is not  entitled  to  an  award  of
attorneys fees under federal law.
          Because the relative position of the parties may change
on  remand, we  vacate the fee award made pursuant to state  law.
The  superior  court  should reassess  the  fee  award  after  it
addresses the other issues remanded by this decision.
          For  the  reasons stated above, we AFFIRM the  superior
courts  conclusions that Alena is not entitled to spousal support
or   attorneys   fees  under  federal  law.    We   REVERSE   the
characterization of courtship costs as marital debt  and  REVERSE
the  award  of  spousal support under state law.  We  VACATE  the
award  of  attorneys fees under state law and remand for  further
proceedings in keeping with this decision.
     1     The  parties had agreed to $875 per month  in  spousal
support during the interim period.

     2     Parson  v. State, Dept of Revenue, Alaska  Hous.  Fin.
Corp.,  189  P.3d  1032,  1036 (Alaska  2008)  (citing  Grimm  v.
Wagoner, 77 P.3d 423, 427 (Alaska 2003)).

     3     Edelman  v.  Edelman, 3 P.3d 348,  351  (Alaska  2000)
(citing  Bellanich  v.  Bellanich,  936  P.2d  141,  143  (Alaska

     4     Id.;  see also Beal v. Beal, 88 P.3d 104, 110  (Alaska

     5     In  re  Protective Proceedings of W.A., 193 P.3d  743,
748  (Alaska 2008) (quoting Casey v. Secco Energy, Inc., 92  P.3d
379, 382 (Alaska 2004)).

     6    Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009).

     7    8 U.S.C.  1183a(a)(1)(A) (1996).

     8      8   U.S.C.    1183a(a)(3)  (1996);  INS  Form   I-864
instructions, page 3.

     9    8 U.S.C.  1183a(f)(6)(A)(iii) (1996).

     10    INS Form I-864 instructions, page 3.

     11      Alenas  briefing  only  raises  these  questions  as
potential  problems with the spousal support order; it  does  not
argue  that  the  superior court erred by incorrectly  addressing
any  of  these  issues.   We do not reach  these  issues  because
arguments are waived if they are inadequately briefed on  appeal.
Petersen  v. Mutual Life Ins. Co. of New York, 803 P.2d 406,  410
(Alaska 1990).

     12     At  trial,  Alena  argued that  the  spousal  support
calculation  should  have been based on  a  household  with  five
members,  the size of the Barnetts entire household at  the  time
Timothy  signed  the  Form I-864 affidavit.  The  superior  court
concluded  that  the calculation should be based on  a  household
with  one  person, relying on Stump v. Stump, No. 1:04-CV-253-TS,
2005  WL  2757329, at *5 (N.D. Ind. Oct. 25, 2005) (where parties
had  no minor children, federal obligation to pay spousal support
after  alien and sponsor divorce is not less than 125% of poverty
line for one person).

     13     Younis  v. Farooqi, 597 F. Supp.2d 552, 556  (D.  Md.
2009)  (To  determine  the  appropriate  [support  due  from  the
sponsor],  courts  compare  the  [sponsored  immigrants]   annual
income  for the particular years at issue . . . against the  125%
poverty  threshold for each particular year.); Shumye v. Felleke,
555  F.  Supp.2d  1020 (N.D. Cal. 2008) (calculating  a  sponsors
annual  support obligation by comparing the sponsored  immigrants
income  against the 125% poverty threshold); Naik  v.  Naik,  944
A.2d   713,  717  (N.J.  Super.  2008)  ([T]he  sponsor  is   not
necessarily  required to pay the sponsored immigrant 125  percent
of  the  Federal  Poverty Guidelines for the  appropriate  family
unit  size.   Rather,  considering the sponsored  immigrants  own
income,  assets  and other sources of support, the  sponsor  must
pay  any  deficiency  in  order to meet  this  minimum  level  or

     14     8 U.S.C.  1183a(a)(1)(B) specifies that the terms  of
the  I-864 affidavit are enforceable by the sponsored alien,  the
Federal  Government, any State (or any political  subdivision  of
such   State),   or  by  any  other  entity  that  provides   any
means-tested  public  benefit at any time during  the  period  of
obligation  specified  by the affidavit.  See  also  Cheshire  v.
Cheshire,  No.  3:05-cv-00453-TJC-MCR, 2006 WL 1208010,  at  *3-5
(M.D.  Fla.  May 4, 2006) (form I-864 creates a binding  contract
between  sponsored  immigrant and sponsoring spouse,  enforceable
by   sponsored  immigrant,  which  is  unaffected  by   divorce);
Schwartz  v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171,  at  *2
(W.D.  Okla.  May  10,  2005) (sponsored immigrant  may  maintain
support action against ex-husband at any point during the  period
specified  by the I-864 affidavit; divorce does not destroy  this
obligation); Moody v. Sorokina, 830 N.Y.S.2d 399, 402 (N.Y.  App.
2007)  (sponsored immigrant had a private cause of action against
her  ex-husband for fulfillment of support obligation under I-864

     15    See, e.g., Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska
1987) (We have announced a policy of encouraging trial courts  to
provide  for  parties  financial needs by  property  disposition,
rather  than  by  alimony. (citing Hunt v. Hunt, 698  P.2d  1168,
1172  (Alaska 1985))); Schanck v. Schanck, 717 P.2d 1, 5  (Alaska
1986)   (confirming  that  our  decisions  have   established   a
preference  for  meeting the parties needs with the  division  of
property, rather than with alimony, where the marital assets  are
adequate  to  do so. (citing Russell v. Russell, 623  P.2d  1221,
1224 (Alaska 1981))).

     16     See  Messina  v. Messina, 583 P.2d 804,  805  (Alaska

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

     18     Alena  also  argues  that the trial  courts  property
division  was error under federal law.  She argues that inclusion
of  courtship  expenses  violates  Timothys  support  obligations
under  8 U.S.C.  1183a and the INS Form I-864 affidavit.  We  see
no  merit in this claim: neither  1183a nor the INS affidavit say
anything about the division of debt or property upon the  divorce
of  a  sponsor  and  sponsored alien.   Nor  do  these  documents
require  a  sponsor  to pay for the cost of  a  sponsored  aliens
relocation to this country.

     19    AS 25.24.160(a)(4).

     20    Id.

     21    AS 25.24.160(a)(2).

     22    Id.

     23     Tollefsen  v.  Tollefsen, 981 P.2d 568,  572  (Alaska
1999)  (quoting  Davila v. Davila, 876 P.2d  1089,  1094  (Alaska

     24    Gallant v. Gallant, 882 P.2d 1252, 1255 (Alaska 1994).

     25     Tollefsen,  981  P.2d  at 572  (quoting  Richmond  v.
Richmond, 779 P.2d 1211, 1215 n.6 (Alaska 1989)).

     26     Fernau  v.  Rowdon, 42 P.3d 1047, 1058 (Alaska  2002)
(internal citations and quotations omitted).

     27     Id.  (citing  Edelman v. Edelman,  3  P.3d  348,  358
(Alaska 2000)).

     28     The  court  noted Alenas desire to go to  school  and
discussed  the  need  for  financial  support  from  Timothy   to
supplement  her loss of 10 hours a week at Lowes and so  she  can
go  to school.  The court went on to acknowledge that Alena would
require  approximately  two  years  of  courses  in  English  and
engineering  in  order to be able to work as an engineer  in  the
U.S.,  and,  in  response to questioning from Timothys  attorney,
stated  that  it  was probably a good thing to believe  that  the
courts  support  order  would be rehabilitative  spousal  support
tied to Alena attending school.

     29     The court ordered that Timothy pay spousal support of
$875  per  month  through May 31, 2008, the end  of  the  2007-08
school  year.   Because these findings were  not  executed  until
late  April  2008, the courts order only required one more  month
of spousal support.

     30     The  findings Alena specifically objects  to  are   8
([Alena]  has  the  opportunity to choose whether  to  return  to
Belarus  or  to  stay in this country.  With  the  funds  she  is
receiving  in  this divorce, she could afford to support  herself
in  Belarus until she found new employment) and  14(f) (With this
property   division   and  spousal  support   award,   Alena   is
substantially  better off financially than  she  was  before  she
came  to the United States.).  The superior court relied in  part
on  these  findings  for  its conclusion  that  the  division  of
marital  assets was fair and equitable and fairly  allocates  the
financial impact of the divorce between the parties.

     31     Rule 78(a) allows counsel for the successful party to
an  action  to prepare in writing and file and serve on  each  of
the  other parties proposed findings of fact, conclusions of law,
judgments,  and  orders.   Timothy and Alena  had  been  awaiting
findings  from  the  court since August 2007; in  February  2008,
Timothy  filed  a Request for Hearing to resolve the  outstanding
issues  in  the  case  and,  on March 6,  2008,  he  filed  draft
Findings  of  Fact and Conclusions of Law.  These  findings  were
adopted  by  the  court  on April 23,  2008.   According  to  the
certificate  of  service accompanying the  draft  findings,  they
were  served  on  Alenas attorney more than a month  and  a  half
before  the  court signed and entered them, allowing  ample  time
for Alena to object.

     32     See  Harris v. AHTNA, Inc., 193 P.3d 300, 306 (Alaska
2008) (quoting Indus. Indemnity Co. v. Wick, 680 P.2d 1100,  1108
(Alaska  1984));  Miller v. Miller, 105 P.3d 1136,  1140  (Alaska

     33     Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158
(Alaska  1992).   In  his briefing, Timothy  responded  to  these
issues  with  particularity only, it  seems,  because  Alena  did
argue them in her Motion to Reconsider and Vacate.  But the  fact
that  she mentioned these arguments more specifically below  does
not  change  the  fact  that she failed to include  them  in  her
opening brief on appeal.

     34    INS Form I-864 Instructions, page 7 (emphasis added).

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