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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Worland v. Worland (10/1/2010) sp-6517

Worland v. Worland (10/1/2010) sp-6517

        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 

CHARLES B. WORLAND,                                ) 
                                                   )    Supreme Court No. S-13498 
                        Appellant,                 ) 
                                                   )    Superior Court No. 3AN-05-05282 CI 
        v.                                         ) 
                                                   )    O P I N I O N 
                                                   ) 
JACQUELINE K. WORLAND,                              )   No. 6517 - October 1, 2010 
                                                   ) 
                        Appellee.                  ) 
                                                   ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Craig Stowers, Judge. 

                Appearances: Herbert A. Viergutz, Law Office of Herbert A. 
                Viergutz, Anchorage, for Appellant.  Timothy P. Peters, Law 
                Office of Timothy P. Peters, LLC, Anchorage, for Appellee. 

                Before:    Fabe, Winfree, and Christen, Justices. [Carpeneti, 
                Chief Justice, and Stowers, Justice, not participating.] 

                WINFREE, Justice. 

I.      INTRODUCTION 

                Charles   and   Jacqueline   Worland   separated   in   2005   at   the   initiation   of 

divorce proceedings.        They attended a settlement conference in 2006 and agreed to a 

division of their marital property.       The superior court enforced the parties' settlement 

agreement over Charles's objection and issued its divorce decree, orders, and findings 

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of fact and conclusions of law.  We later affirmed the superior court's judgment.1                After 

we issued our decision the superior court granted Jacqueline's request for a clerk's deed, 

modified   its   orders   concerning   Charles's  military   pension,   sanctioned   Charles,   and 

awarded   Jacqueline   attorney's   fees.      Charles   appeals.     We   vacate   the   imposition   of 

sanctions, vacate the amended divorce decree and remand for corrections, and affirm the 

remainder of the superior court's orders. 

II.     FACTS AND PROCEEDINGS 

                Charles and Jacqueline Worland married on March 20, 1982, and separated 

on February 17, 2005, the day Jacqueline filed this divorce action.                  They attended a 

settlement conference in February 2006.            The parties agreed and placed on the record 

that:   (1) Charles would assume or refinance the mortgage on their house and Jacqueline 

would receive 60% of the equity; (2) Charles and Jacqueline would equally divide their 

pensions, including Charles's military pension; and (3) Charles would pay Jacqueline 

$2,000 in attorney's fees. 

                In July 2006 Jacqueline requested a hearing to resolve issues pertaining to 

the pension orders, the amount Charles was to pay Jacqueline for her share of the house 

equity,   and   the   final   divorce   decree.  The   hearing   took   place   in   October   and   was 

continued into November.           Both parties were represented by attorneys who entered 

appearances      after   the  settlement    conference.     The    following    month     Charles   filed 

paperwork arguing that no settlement existed and that the superior court should order a 

trial. 

                In May 2007 the superior court rejected Charles's argument and issued its 

divorce   decree,   orders,   and   amended   findings   of   fact   and   conclusions   of   law.  The 

military pension order submitted by Jacqueline and signed by the court provided that 

        1        Worland v. Worland, 193 P.3d 735, 743 (Alaska 2008). 

                                                   -2-                                               6517 

----------------------- Page 3-----------------------

Charles   had   served   248   months   after   the   marriage   and   assigned   Jacqueline   "[f]ifty 

[p]ercent (50%) of the marital portion of [Charles's] total disposable military retirement 

pay." The court divided the other pensions equally and ordered Charles to "refinance the 

marital home and pay [Jacqueline] 60% of [the] equity within 45-days."  The court later 

awarded $14,790.20 in attorney's fees to Jacqueline. 

                Charles     appealed,    and   we   affirmed    the  superior    court's   judgment     in 
September 2008.2       We rejected Charles's argument that the court erred by enforcing the 

settlement agreement.3        We determined the court did not err in dividing the marital 

property.4    Finally, we upheld the court's award of attorney's fees.5 

                In October 2008 Jacqueline moved to enforce the superior court's orders. 

She asserted that Charles had failed to (1) pay the attorney's fees awarded to her and (2) 

remove her name from the house mortgage and pay her 60% of the house equity, which 

she calculated to be $57,065.33.   Jacqueline requested that the superior court "issu[e] a 

clerk's deed awarding all interest in the marital home to [her]" at which point she "could 

. . . sell the home and obtain the majority of the proceeds owed to her."  Charles opposed 

the   motion   and   asked   the   superior   court  to   order   Jacqueline   to   make   the   mortgage 

payments going back to February 28, 2006, because she had continued to reside in the 

home. 

                The superior court granted Jacqueline's motion in late February 2009. The 

court specified that the clerk's deed would provide Jacqueline the "power of sale of the 

marital home" and would "substitute for $69,580.00 of the amount [Charles] owes to 

        2       Id. at 738, 743. 

        3       Id. at 739-41. 

        4       Id. at 741. 

        5       Id. at 741-43. 

                                                   -3-                                             6517
 

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[Jacqueline]." The court also ordered Charles to satisfy his remaining debt to Jacqueline 

on or before April 1. 

                In March Jacqueline moved to correct the final value of the house equity 
and for more than $30,000 in attorney's fees.6            She also asked the court to amend the 

military pension order and to award her the entire pension because (1) she was owed 
money for the previously unpaid share of the pension7 and (2) Charles "dropped [her] 

from the survivor benefit status, in complete disregard of the injunction preventing him 

from doing so."  In response, Charles moved for attorney's fees and sanctions. 

                On March 20 Charles apparently wrote a personal check to Jacqueline for 
$77,659.87 but did not deliver it,8 later claiming this satisfied his debt to her.  One week 

later Charles filed an expedited motion to vacate the clerk's deed.  Charles indicated he 

did not deliver the check because he was waiting to exchange it for a quit claim deed to 

the house. 

                The superior court denied Charles's expedited motion on April 9. The court 

also denied Jacqueline's motion to correct the final value of the house equity.                   With 

        6       According to Jacqueline's motion, "the equity in the home after sale . . . will 

likely only yield about $60,000 rather than . . . $69,580." 

        7       In   response     to  Jacqueline's    prior   inquiry,   the  Defense     Finance    and 

Accounting Service (DFAS) had explained that it could not pay her share of the pension 
retroactive to the February 2006 implementation date because the court had not issued 
a final order.    (In this context, a final order is "a decree from which no appeal may be 
taken."     10   U.S.C.      1408(a)(2)-(3).)    To   correct   for   the   arrears   accrued   after   the 
implementation date, as well as to effectuate the terms of the settlement agreement, 
Jacqueline asked the court to amend the military pension order and either add the amount 
of arrears to Charles's total oustanding debt or award a large percentage of the pension 
to Jacqueline in the order. 

        8       This amount appears to have been intended to pay 60% of the house equity, 

interest, and attorney's fees. 

                                                  -4-                                             6517
 

----------------------- Page 5-----------------------

respect to the military pension order, the court "granted in principle" Jacqueline's request 

"to correct for the arrears that have built up because of [Charles's] appeal and other 

delay" (emphasis omitted) and ordered Jacqueline to introduce evidence showing the 

amount of arrears.      The court also modified its prior order by requiring Charles, "as a 

sanction for his removing [Jacqueline's] name" from the survivor benefits plan, "to 

immediately obtain at his sole expense and maintain at his sole expense survivor benefits 

for [Jacqueline]." (Emphasis omitted.) The court denied Charles's motion for attorney's 

fees and sanctions. 

                Charles moved in our court for a stay of the clerk's deed.           An individual 

justice stayed the deed's issuance until May 20 and ordered that by that deadline: 

                Charles Worland shall tender to Jacqueline Worland or her 
                attorney a cashier's check in the amount of $74,995.60, which 
                amount represents the 60% of equity in the home and the 
                ordered   attorney's   fees   and   interest   through   October   17, 
                2008.   If this cashier's check is not tendered by the deadline, 
                the stay will dissolve without further order of this court.         If 
                the cashier's check is tendered by the deadline, the stay will 
                continue through the pendency of the appeal. 

Charles delivered a cashier's check to Jacqueline's attorney on May 20 for the required 

amount.  Although Jacqueline acted on the clerk's deed to refinance the house sometime 

between the superior court's denial of Charles's expedited motion to vacate the clerk's 

deed and the individual justice's grant of the motion to stay, Jacqueline states she "has 

not used the [d]eed following the [individual justice's] order and intends to wait and 

comply with whatever further order follows." 

                Responding to the superior court's April 9 order, Jacqueline claimed the 

amount of arrears for the military pension was $33,491.96.            She also contended that the 

court's prior military pension order misstated the total number of months Charles served 

in the military, and as a result she was to receive less than half of Charles's military 

                                                 -5-                                            6517
 

----------------------- Page 6-----------------------

pension.    Jacqueline asked the court to issue an amended divorce decree accounting for 

the correct number of months Charles served in the military.  Jacqueline also requested 

that the court issue its final order regarding attorney's fees. 

               In July the court entered an amended divorce decree assigning Jacqueline 

50% of Charles's "total gross military retirement pay." The court issued a separate order 

with    respect  to  the  military  pension   arrears,  requiring  Charles   to  pay   Jacqueline 

$33,491.96 "to accommodate a 50/50 division of [the] military pension."  The court also 

awarded   Jacqueline   $15,000   for   attorney's   fees   incurred   post-judgment.   It   denied 

Charles's motion for attorney's fees. 

               Charles appeals. 

III.    STANDARD OF REVIEW 

               We review the equitable allocation of property for abuse of discretion and 
will not reverse a superior court's allocation "unless it is clearly unjust."9   However to 

the extent a court makes a legal determination in deciding what property is available for 
distribution, we review that determination under the independent judgment standard.10 

"Whether . . . [apportionment] of a military pension is consistent with federal law is a 
question of law we review de novo."11       We review findings of fact for clear error.12    We 

        9      Green v. Green, 29 P.3d 854, 857 (Alaska 2001) (quoting Cox v. Cox, 882 

P.2d 909, 914 (Alaska 1994)). 

        10     Cox, 882 P.2d at 913 (citing Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 

1990)). 

        11     Young v. Lowery, 221 P.3d 1006, 1010 (Alaska 2009) (citing Clauson v. 

Clauson, 831 P.2d 1257, 1261-62 (Alaska 1992)). 

        12     Inman v. Inman, 67 P.3d 655, 658 (Alaska 2003) (quoting Am. Computer 

Inst., Inc. v. State, 995 P.2d 647, 651 (Alaska 2000)). 

                                               -6-                                          6517
 

----------------------- Page 7-----------------------

will uphold an award of attorney's fees absent abuse of discretion.13  We will conclude 

a superior court abused its discretion "if, after reviewing the whole record, we are left 
with a definite and firm conviction that the superior court erred in its ruling."14 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Err By Denying Charles's Motion To 
                Vacate The Clerk's Deed. 

                Charles argues it was error for the superior court to deny his motion to 

vacate the clerk's deed. He claims the court should have granted his motion because "he 

in all respects was prepared to and did tender a check for the agreed upon amount to 

[Jacqueline] pursuant to [the] [c]ourt [o]rder."  We disagree. 

                During   the   2006   settlement   conference   the   parties   agreed   that   Charles 

would assume or refinance the house mortgage and Jacqueline would receive 60% of the 

house equity.      We held in September 2008 that the court did not err by enforcing that 
settlement agreement.15      By February 2009 Charles still had not removed Jacqueline's 

name from the mortgage nor paid her for her share of the equity.  Given this unjustified 

delay, the court did not err either by granting the motion requesting entry of a clerk's 

deed or by denying Charles's motion to vacate the deed. 

                The record does not support Charles's claim that "he in all respects was 

prepared to and did tender a check for the agreed upon amount to [Jacqueline] pursuant 

to [the] [c]ourt [o]rder."  Charles is mistaken that the court's order allowed him to avoid 

issuance of the clerk's deed through payment.  The court granted the request for entry of 

        13      See Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007) (reviewing attorney's 

fees award for abuse of discretion). 

        14      Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citing Balough v. 

Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000)). 

        15      Worland, 193 P.3d at 739-41. 

                                                  -7-	                                          6517
 

----------------------- Page 8-----------------------

a   clerk's    deed    to  "substitute    for   $69,580.00      of  the   amount     [Charles]    owes     to 

[Jacqueline]." That amount represented payment toward Jacqueline's share of the equity 

in the house. The court also ordered Charles to pay Jacqueline directly for the remaining 
debt.16 

                 Although the record shows that Charles wrote a check to Jacqueline, the 

record does not support his assertion that Jacqueline rejected an attempt to pay her.  The 

only    evidence     supporting     Charles's     claim   is his   attorney's    affidavit,    stating   that 

(1) Charles tendered the check and was "prepared to hand [it] over" and (2) "neither 

[Jacqueline's] counsel nor [Jacqueline] ha[s] arrived at the offices of the undersigned to 

exchange the check for the [q]uit [c]laim [d]eed."              But the attorney does not state that 
Jacqueline   or   her   attorney   were   aware   of   or   refused   to   accept   a   delivered   check.17 

Additionally, as Jacqueline noted, a personal check is not payment but merely a promise 
to pay.18   Given that Charles had promised to make this payment more than two years 

earlier but had not done so, the court was not obliged to accept Charles's assertion that 

he would now follow through on a new promise. 

                 Because   our   review   of   the   record   does   not   reveal   "a   definite   and   firm 
conviction that the superior court erred in its ruling,"19 we conclude the court did not 

        16       The remaining debt included "all remaining equity payments, attorney fees 

and   costs   that   are   due   and   owing   after   applying   the   .   .   .   $69,580.00  credit   for   the 
[c]lerk[']s [d]eed." 

        17       In an affidavit filed in our court on May 1, 2009, Jacqueline's attorney 

stated that he had "never seen the actual check . . . other than by photocopy attachment 
to pleadings filed by [Charles]" and had "never been able to successfully secure either 
the personal check or a substitute Cashier's Check as a preferred form of payment." 

        18       11 Am. Jur. 2dBills and Notes  31 (2010). 

        19       Beal, 216 P.3d at 1162. 

                                                    -8-                                               6517
 

----------------------- Page 9-----------------------

abuse its discretion by denying the motion to vacate the clerk's deed.20 

        B.	     The Superior Court Did Not Err By Awarding Jacqueline $33,491.96 
                To Compensate For Her Unpaid Share Of The Military Pension. 

                Jacqueline did not receive her share of Charles's military pension from 

February     2006    through    December     2008.    The   superior   court   awarded   Jacqueline 

$33,491.96 "to compensate . . . for her 50% portion of the pension that she was entitled 

to."   Charles argues it was error to make the award because Jacqueline "was not entitled 

to receive military retirement benefits until the [a]ppeal had been concluded by its [f]inal 

[o]rder pursuant to law." 

                Charles is correct that a former spouse cannot receive payments directly 
from DFAS until the superior court issues a final court order.21            In this context a "final 

court order" is statutorily defined in part as "a decree from which no appeal may be 
taken."22   Because the court's order awarding Jacqueline 50% of the pension was not a 

final order within the meaning of the statute - the award was timely appealed - she 

was unable to collect that award directly from DFAS. 

                However, as DFAS explained to Jacqueline, she still was able to collect 
payment for the military pension arrears directly from Charles.23   Jacqueline expressly 

requested the alternative that Charles pay her directly.             When granting Jacqueline's 

        20      The record is unclear as to how Charles's equity in the house has been or 

will be resolved given the circumstances.          On remand the superior court should ensure 
that both parties' equity in the house is protected. 

        21      10 U.S.C.  1408. 

        22      Id. at (a)(2)-(3). 

        23      BRETT R. TURNER,EQUITABLE DISTRIBUTION OF PROPERTY  6:4, at 34 (3d 

ed.   2005)   (noting   that   although   "[t]he   federal   government   will   not   make   payments 
directly to a former spouse to pay off arrears in previously due payments," they "can be 
recovered . . . directly from the service member"). 

                                                  -9-	                                           6517
 

----------------------- Page 10-----------------------

motion, the court made clear that the award was to be collected directly from Charles, not 

DFAS:       "This   Court   .   .   .  hereby   orders   [Charles]   to   pay   [Jacqueline]   the   sum   of 

$33,491.96 . . . ."   (Emphasis omitted.)  Therefore it was not error for the court to make 

the award. 

        C.	     It Was Not Error For The Superior Court To Attempt To Correct The 
                Military Pension Order To Describe The Marital Share, But It Was 
                Error To Do So By Dividing Charles's Total Pension Pay Through The 
                Amended Divorce Decree. 

                Charles claims it was error for the court to issue its amended divorce decree 

because the decree "provid[ed] that [Jacqueline] was entitled to 50% of the total gross 

military retirement pay of [Charles], even though that retirement pay was not earned 

during the course of the marriage." 

                We first note that, based on the terms of the settlement and the superior 

court's findings, Jacqueline was entitled to half of Charles's military pension - not half 

of the marital portion of that pension.  But even assuming Jacqueline was entitled only 
to a marital share of the military pension,24 Charles's argument is still without merit. The 

record   indicates   that   Charles   earned   his  pension   entirely   during   the   marriage.  The 

amended divorce decree was issued to amend the military pension order to correct the 

number of months that Charles served in the military after the marriage - from 248 to 
256 - so that Jacqueline would receive half of the pension from the DFAS.25  Because 

Charles has not pointed to any evidence in the record demonstrating that he earned any 

part of his pension while he was not married to Jacqueline, we reject Charles's argument. 

        24      In the original military pension order the superior court assigned Jacqueline 

50% of the marital portion of Charles's total disposable military retirement. 

        25      Based on this error in the original order Jacqueline would have received 

48.4375% rather than 50% of the pension. 

                                                  -10-	                                             6517 

----------------------- Page 11-----------------------

                We do agree with Charles that it was error to assign Jacqueline half of 

Charles's "total gross military retirement pay" in the amended divorce decree.                As we 

explained in Young v. Lowery, "a court may not equitably divide total retired pay; it may 

equitably divide only the amount of retired pay remaining after the court deducts waived 
retired pay and the cost of purchasing survivor benefits."26   To the extent the superior 

court was using this mechanism to effectuate its sanction order requiring Charles to pay 

all of the survivor benefits cost, our decision vacating that sanction, discussed next, 

eliminates the need to determine whether the superior court's order was permissible for 

that purpose. 

                On remand, the court should correct the amended divorce decree and the 

military pension order to properly allocate Charles's "disposable retirement pay" as 

defined in 10 U.S.C.  1408(a)(4). 

        D.      We Vacate The Superior Court's Sanction Against Charles. 

                The superior court initially assigned Jacqueline half of Charles's "total 

disposable military retirement pay."        The court modified its military pension order by 

requiring Charles, "as a sanction for his removing [Jacqueline's] name" from the survivor 

benefits plan, "to immediately obtain at his sole expense and maintain at his sole expense 

survivor benefits for [Jacqueline]."  (Emphasis omitted.)  Charles contends the superior 

court erroneously sanctioned him. Without addressing the merits of the dispute, we agree 

with Charles that the sanction must be vacated. 

                "Alaska's   trial   courts   may   insure   proper   efficiency   and   discipline   by 

exercise of (1) the power of contempt authorized by statute and court rule, (2) the power 

to impose fines as sanctions authorized by court rule, or (3) the inherent power to punish 

        26      221 P.3d at 1011; see also TURNER, note 24, above, at 27-29. 

                                                 -11-                                             6517 

----------------------- Page 12-----------------------

for contempt."27    But because the superior court identified neither the nature of the 

sanction nor a rule on which it relied, we lack a sufficient basis to review the sanction 
and we therefore vacate it.28    In the interest of judicial economy, we will nonetheless 

consider possible bases to impose sanctions to guide the superior court on remand. 
               Civil Rules 70 and 90 provide that the court may hold a party in contempt,29 

and we have held that superior courts are inherently authorized to punish for contempt.30 

The superior court might have held Charles in contempt for not complying with its order 
concerning Jacqueline's rights under the survivor benefits plan.31        If so, this contempt 

was likely criminal, not civil, "because the sanction served a punitive, as opposed to a 
coercive, function."32  Additionally any contempt was indirect, because the court did not 

       27      Tobey v. Superior Court, 680 P.2d 782, 784 (Alaska 1984) (citingDavis v. 

Superior Court, 580 P.2d 1176, 1178 n.3 (Alaska 1978)). 

       28      See id. at 784 n.1 (citing Esch v. Superior Court, 577 P.2d 1039, 1043 

(Alaska 1978)) ("Failure to make a clear record of the authority the court relied upon in 
imposing sanctions, as well as the reasons for such sanctions, may require reversal in a 
particular case."). 

       29      See Alaska R. Civ. P. 70 (providing that court may hold party in contempt 

"[i]f a judgment directs a party . . . to perform any . . . specific act and the party fails to 
comply within the time specified"), 90 (explaining contempt types and procedures); see 
also AS 09.50.010(5) (stating that "disobedience of a lawful judgment, order, or process 
of the court" constitutes contempt). 

       30      Cont'l Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 408-09 (Alaska 

1976). 

       31      See Hartland v. Hartland, 777 P.2d 636, 648 (Alaska 1989) (holding that 

under Civil Rule 70 court was authorized to hold husband in contempt for failure to 
comply with court order to transfer stock). 

       32      Anchorage Police & Fire Ret. Sys. v. Gallion, 65 P.3d 876, 880 (Alaska 

2003) (citing Johansen v. State, 491 P.2d 759, 763 (Alaska 1971)). 

                                             -12-                                         6517
 

----------------------- Page 13-----------------------

witness Charles facilitating the removal of Jacqueline's name from the survivor benefits 
plan.33 A court may not impose indirect criminal contempt sanctions without providing 

specific procedural safeguards.34   Here the record does not establish that such safeguards 

were provided and therefore a sanction for indirect criminal contempt could not stand. 

              Alternatively Civil Rule 95 provides: 

              For any infraction of [the rules of civil procedure], the court, 
              after providing reasonable notice and an opportunity to be 
              heard, may withhold or assess costs or attorney's fees as the 
              circumstances of the case and discouragement of like conduct 
              in the future may require; and such costs and attorney's fees 
              may be imposed upon offending attorneys or parties.[35] 

But in its order the superior court neither identified a civil rule that Charles violated nor 
characterized the sanction as an award of costs or attorney's fees.36  Therefore Civil Rule 

95 does not seem to be an appropriate basis for the sanction. 

       33     See id. at 880 (citing Hutchison v. State, 27 P.3d 774, 779 (Alaska App. 

2001)) (noting that "contempt was indirect because the court did not witness or hear the 
conduct constituting the contempt"); see also Alaska R. Civ. P. 90(a)-(b) (distinguishing 
direct from indirect contempt). 

       34     See Alaska R. Civ. P. 90(b) ("[U]pon a proper showing on ex parte motion 

supported by affidavits, the court shall either order the accused party to show cause at 
some reasonable time, to be therein specified, why the accused party should not be 
punished for the alleged contempt, or shall issue a bench warrant for the arrest of such 
party."); Cont'l Ins. Cos., 548 P.2d at 402 ("Thus it may not be necessary to furnish any 
notice for a direct contempt committed in the presence of the court, but a notice and 
hearing is required for indirect contempts.") (footnote omitted). 

       35     Alaska R. Civ. P. 95(a). 

       36      Cf. In re Schmidt, 114 P.3d 816, 826 (Alaska 2005) ("[W]hen assessing 

attorney's fees under Rule 95(a) . . . the preferred practice is to cite a specific rule that 
has been violated."). 

                                             -13-                                       6517
 

----------------------- Page 14-----------------------

                The superior court may take this matter up on remand, but we note that 

Jacqueline does not appear to have incurred monetary damages from the temporary 

extinguishment of the survivor benefits option aside from the costs associated with filing 
motions and contacting DFAS.37 

        E.	     The Superior Court Did Not Err by Awarding Attorney's Fees To 
                Jacqueline. 

                The     superior   court   awarded     Jacqueline     $15,000     in  attorney's    fees, 

determining "that [Charles's] post appeal behavior has been similar to his prior conduct, 

and was unreasonable, vexatious, unfair and without basis in fact, law or equity."                  The 
superior court apparently made this award under the divorce exception to Civil Rule 82.38 

Charles argues the court abused its discretion because the evidence does not support the 

court's finding that his conduct (1) prevented the parties from litigating on an equal 

        37      During   the   period   when   the   survivor   benefits   option   was   not   in   place, 

Charles's   disposable   retirement   pay   was   higher,   and   Jacqueline's   50%   share   was 
therefore higher, because no deduction was made for the cost of the survivor benefits 
option.   When the survivor benefits option was reinstated, the cost became a deduction 
from  gross   retirement   pay,   thereby   allocating   the   cost   equally   between   Charles   and 
Jacqueline in the equal division of Charles's disposable retirement pay. 

        38      See AS 25.24.140(a)(1) (providing that spouse may be awarded "attorney 

fees and costs that reasonably approximate the actual fees and costs required to prosecute 
or defend the action").  In her motion for attorney's fees Jacqueline relied on a divorce 
exception case,Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991). The superior court 
signed Jacqueline's proposed order, which made no mention of the Rule 82 "prevailing 
party" standard. 

                We have previously explained that "the divorce exception to Rule 82 is 
inapplicable   to   post-judgment   modification   and   enforcement   motions."            Hopper   v. 
Hopper, 171 P.3d 124, 133 (Alaska 2007) (citing McGee v. McGee, 974 P.2d 983, 992 
(Alaska 1999)).   But neither Charles nor Jacqueline argues it was error for the superior 
court to award attorney's fees under the divorce exception to Civil Rule 82 instead of 
Civil Rule 82 itself. We therefore follow the parties' and the superior court's convention 
and analyze the award under the divorce exception. 

                                                  -14-	                                           6517
 

----------------------- Page 15-----------------------

economic plane or (2) amounted to bad faith or vexatious litigation.  We disagree. 

                 Although a court has broad discretion to award attorney's fees in divorce 

        39 
cases,    the primary purpose of such an award should be to allow the parties to litigate 
on an even plane.40      A court may increase an award for bad faith or vexatious conduct,41 

but the court cannot disregard the parties' relative economic situations simply because 
one of the parties engaged in misconduct.42             As we stated in Kowalski v. Kowalski, the 

court must follow a two-step process when increasing a fee award:  "the court must first 

determine what fee award would be appropriate under the general rule, and only then 
increase the award to account for a party's misconduct."43 

                 In   its   December   2,   2007,   order,   the  superior   court   recognized   that   the 

"purpose of awarding attorney's fees in divorce cases is to allow the parties to litigate on 

an equal plane, and [that] awards are accordingly based on the parties' relative economic 

circumstances."        The   superior   court   also   correctly   noted   that   "[w]hen   making   an 

increased fee award, the court must first determine what fee award would be appropriate 

under   the   general   rule,   and   only   then   increase   the   award   to   account   for   a   party's 

misconduct."  Finally, the court acknowledged that when "one spouse's misconduct has 

unnecessarily increased the other spouse's costs, the court must identify the nature and 

amount   of   these   increased   costs."       The   court   then   proceeded   to   apply   this   legal 

        39       Kowalski, 806 P.2d at 1372 (citingLone Wolf v. Lone Wolf, 741 P.2d 1187, 

1192 (Alaska 1987)). 

         40      Broadribb   v.   Broadribb,   956   P.2d   1222,   1229   (Alaska   1998)   (quoting 

Beard v. Beard, 947 P.2d 831, 833 (Alaska 1997)). 

         41      Kowalski, 806 P.2d at 1373 (citations omitted).                The court's findings of 

misconduct must be made expressly and explained clearly.  Id. 

         42      Id. 

         43      Id. 

                                                    -15-                                               6517
 

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framework   to   the   facts   before   it,   pointing  out   that   the   parties'   earlier   settlement 

agreement, while equally dividing the parties' substantial assets, had still provided for 

payment of $2,000 of Jacqueline's attorney's fees.               The court construed this fee award 

provision of the agreement to be "an implicit, if not explicit recognition that the parties' 

economic   circumstances   were   not   equal,   that   is   to   say,   the   parties   were   not   on   an 

economic equal plane."          And the court determined that "in the absence of [Charles's] 

unreasonable and vexatious litigation misconduct, the court would find that a 25% award 

of   [Jacqueline's]   reasonable   and   necessary   post-settlement   litigation   fees   would   be 

appropriate." 

                 Although the superior court did not repeat these findings in its July 11, 

2009, order for attorney's fees for post-appeal litigation, it did note that it was fully 

aware   of   the   "multiple   post   appeal   (first   appeal)   litigation"   and   then   discussed   the 

specific ways in which Charles had "unnecessarily dr[iven] up [Jacqueline's] attorney 

fees."  Charles now claims that "[Jacqueline] is very capable of paying her own attorney 

fees" because:  "[s]he has not paid the mortgage; she has not paid half the bills; she lives 

with her boyfriend . . . ; and she has taken thousands of dollars from [Charles]."                      But 

Charles provides no evidence for these allegations.  And more importantly, even if these 

allegations were true they do not sufficiently demonstrate that the parties are economic 
equals.44 

                 We are unable to conclude that it was an abuse of discretion for the superior 

court   to   award   Jacqueline   attorney's   fees.      We   first   note   that   Charles   waived   any 

        44       See, e.g.,Fernau v. Rowdon, 42 P.3d 1047, 1060 (Alaska 2002) (analyzing 

parties'    relative   economic      situations   in   light   of  their  job   prospects     and   earning 
capabilities); Doyle v. Doyle, 815 P.2d 366, 373 (Alaska  1991) (focusing on parties' 
incomes in determining relative economic situations);Johnson v. Johnson, 564 P.2d 71, 
77 (Alaska 1977) (identifying "the division of property and possibly the expenditure of 
fees" as relevant considerations). 

                                                    -16-                                              6517
 

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objection to the court's use of the Rule 82 divorce exception because he did not challenge 
it in his opening brief.45    The court complied with the required two-step process - the 

court appears to have treated Jacqueline's motion for attorney's fees as a continuation of 

her initial effort to enforce the judgment and to have implicitly found there was no need 
to reassess fees due under the general rule because it calculated those fees in 2007.46             We 

therefore view the court's award of an additional $15,000 in attorney's fees solely as a 

sanction   for   Charles's   continued   vexatious   conduct.      The   court   made   three   specific 

findings concerning Charles's misconduct:  (1) Charles's delay in paying Jacqueline for 

her share of the house's equity unnecessarily increased her attorney's fees; (2) Charles 

"unreasonably opposed [Jacqueline]'s request for an order establishing her portion of the 

military [pension order], which again, escalated [Jacqueline]'s fees and costs"; and (3) 

Charles needlessly increased Jacqueline's fees and costs by filing baseless motions for 

attorney's   fees   and   sanctions.    The   record   amply   supports   each   of   these   reasons. 

Charles's   actions   cannot   simply   be   characterized   as   "by-products   of  the   adversarial 
system itself."47 

                We therefore conclude the superior court did not abuse its discretion by 

awarding Jacqueline attorney's fees. 

        45      See Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) (citing Shearer 

v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)) ("[I]ssues not argued in opening appellate 
briefs are waived.").  We further note both parties waived any objection to applying the 
Rule 82 divorce exception in the initial appeal. 

        46      See Rodvik v. Rodvik, 151 P.3d 338, 352 (Alaska 2006) (holding that court 

did not abuse its discretion by awarding attorney's fees despite not making express 
finding about parties' relative economic situations, "because implicit within the trial 
court's   findings   was   a   threshold   determination  of   relative   equality   of   the   parties' 
income"). 

        47      Cf. Kowalski, 806 P.2d at 1373. 

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V.     CONCLUSION 

             We VACATE the superior court's amended divorce decree and the order 

sanctioning   Charles,  AFFIRM     the  court's  remaining  orders,  and  REMAND     for 

proceedings consistent with this opinion. 

                                         -18-                                    6517
 
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