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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stevens v. Stevens (10/14/2011) sp-6608

Stevens v. Stevens (10/14/2011) sp-6608

        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, email 

        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

SHARON L. STEVENS,                            ) 
                                              )       Supreme Court Nos. S-13379/13420 
        Appellant/Cross-Appellee,             ) 
                                              )       Superior Court No. 3AN-06-10594 
        v.                                    ) 
                                              )       O P I N I O N 
RONALD A. STEVENS,                            ) 
                                              )       No. 6608 - October 14, 2011 
        Appellee/Cross-Appellant.             ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, Mark Rindner, Judge. 

               Appearances:       Peter F. Mysing, Kenai, for Appellant/Cross- 
               Appellee.      David    S.   Houston,   Houston    &  Houston,   PC, 
               Anchorage, for Appellee/Cross-Appellant. 

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

               PER CURIAM.
 
               CHRISTEN, Justice, dissenting in part.
 

I.      INTRODUCTION 

               Ronald and Sharon Stevens separated in August 2006, ending a 40-year 

marriage.   In June 2007 they appeared before the superior court for their divorce trial. 

Before the trial ended, the parties entered into what they thought was a settlement on the 

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property   division   issues.    But   the   parties   could   not   agree   on   the   exact   terms   of   the 

settlement, and in August 2008 they returned to the superior court for a second day of 

trial on the property division issues.       The superior court valued the property, equitably 

divided the estate, and ordered each side to pay his or her own attorney's fees.  Pertinent 

to this appeal, the trial court valued the parties' two residences as of the date of the first 

day of trial. Sharon appeals and Ronald cross-appeals. We conclude that it was error for 

the superior court to value the real property as of the date of the first day of trial when 

the second and   final trial day occurred over a year later.             We therefore reverse and 

remand for further proceedings. 

II.     FACTS AND PROCEEDINGS 

        A.      Background Information 

                Ronald   and   Sharon   were   married   on   June   8,   1966,   and   separated   on 

August 8, 2006. Ronald had completed college and Sharon had a high school education. 

 During the marriage Ronald served 27 years in the United States Air Force and retired, 

after which he worked as a civil service employee for more than 12 years.   He is retired 

from the civil service.   Sharon was primarily a housewife but also worked various jobs 

during the marriage. 

                At the time of trial, Ronald was 62 years old and Sharon was 60 years old. 

Ronald testified at trial that he was in good health.              Sharon testified to many health 

problems including arthritis, two strokes that left her partially blind, high cholesterol, 

high blood pressure, and compressed discs in her neck.  She testified that she was unable 

to   work   due   to   her   health   problems   and   that   she   was   ineligible   for   Social   Security 

Disability payments.  Apart from her own testimony, she did not present other evidence 

regarding her health problems. 

                 At the time of separation Ronald and Sharon had substantial marital assets. 

Ronald   had   accumulated   a   thrift   savings   plan   (TSP)   account   worth   approximately 

                                                   -2-                                             6608
 

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$200,000. They owned two homes, one in Arizona and one in Alaska. The Alaska home 

was free of debt, but the Arizona home had a mortgage that Ronald and Sharon had taken 

out in order to improve the Alaska home.   They owned two vehicles, a Dodge truck and 

a Chevy Silverado. 

                At the time of trial, Ronald received approximately $3,400 a month from 

his military and civil service retirement accounts. Ronald also worked for his son's start- 

up business, earning approximately $1,000 a month.  He was eligible for Social Security 

payments of $1,400 a month but had not elected to take the benefits.                 Sharon was not 

working outside of the home and would become eligible for Social Security payments 

in July 2010. 

        B.      Procedural History 

                On   August   8,   2006,   Ronald   and   Sharon   separated   after   Sharon   filed   a 

petition for an ex-parte domestic violence protective order in the district court in Kenai. 

The district court issued an ex-parte 20-day domestic violence protective order against 

Ronald.    At the time, the parties had a Bank of America bank account and an Alaska 

USA   Federal   Credit   Union   bank   account,   with   $28,461   split   approximately   equally 

between the two accounts.  The district court did not provide for the payment of marital 

bills, but it awarded Sharon possession of the Alaska USA account. 

                On August 24, 2006, the district court held a hearing and entered a long- 

term domestic violence protective order.           In its long-term protective order, the district 

court ordered Ronald to pay Sharon $1,000 a month in spousal support until an order was 

issued in the divorce case.  At the time, Ronald was receiving $3,400 per month from his 

pensions.    There was little discussion of property at the long-term domestic violence 

hearing. 

                After   the   district   court   entered   the   long-term   protective   order,   Ronald, 

without informing Sharon, removed nearly all of the $28,461 from the joint accounts. 

                                                  -3-                                             6608
 

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Between August 2006 and June 2007 Ronald also collected approximately $32,250 in 

retirement income. During this period, Ronald used $10,000 of the money from the joint 

bank accounts and the retirement funds to pay Sharon $1,000 a month in support.  He 

also used the money from the joint bank accounts and from his retirement income to pay 

at least $27,443 in marital debts.        Because Sharon had no income besides the $1,000 a 

month in interim support Ronald was paying her, she accumulated more than $22,000 

in credit card debt. 

                On June 8, 2007, Ronald and Sharon came before the superior court for 

trial.  After they both testified, the parties met and agreed on a settlement.  According to 

this   oral   agreement,   Ronald   would   get   possession   of   the   Arizona   home,   valued   at 

$285,000, and Sharon would get the Alaska home, valued at $192,000.                     Sharon would 

receive all the personal property in the Alaska home and   the Silverado, and Ronald 

would receive all the personal property in the Arizona home and the Dodge.                   Ronald's 

retirement income would be split equally, and Sharon would receive 55% of the marital 

estate.  Both parties agreed that this agreement was fair "with a few exceptions." 

                The parties never memorialized their settlement in writing.  Although both 

parties contended that there was a settlement, they disagreed as to what the settlement 

actually was. In March 2008 Ronald withdrew his contention that there was a settlement 

and the court scheduled the trial to resume on August 6, 2008. 

                In the meantime, on May 30, 2008, the parties entered into a stipulation on 

the valuation and distribution of their property.           According to the stipulation, Ronald 

would get the Arizona home and Sharon would get the Alaska home. The parties agreed 

to value and divide all of their personal property through a blind bidding process using 

two lists: an "undisputed property list" and a "disputed property list."             Under the blind 

bid   process,   both   parties   would   bid   on   the   items   on   the   disputed   property   list   and 

whoever bid the highest price would receive the item at that price.                 The parties' two 

                                                  -4-                                             6608
 

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

vehicles   were   listed   on   the   disputed   property   list,   and   Ronald   bid   on   both   of   them. 

Sharon did not bid on the vehicles; instead she crossed the vehicles off the disputed list 

and noted: "drop from bid list; part of undisputed property."  The superior court created 

a compilation of the two bids, and the court designated the two vehicles as "undisputed." 

                On August 6, 2008, Ronald and Sharon came before the superior court for 

a second day of trial to resolve the remaining issues that they had been unable to agree 

on.  Ronald argued that the superior court should value the real property as of the second 

day of trial, not the first day of trial.   The value of the Arizona home had dropped from 

$285,000 to $245,000 between June 2007 and August 2008.                    The value of the Alaska 

home had increased from $192,000 to $197,600. 

                Ronald also argued that the court should distribute the vehicles according 

to the blind bid process, in other words, that he should receive both vehicles because he 

was the only party who had bid on them.              Sharon argued that the court should order 

Ronald to repay her, in cash, half of the $28,461 ($14,230) that he withdrew from their 

joint accounts in August 2006.  She argued that the court should award her 60% or 55% 

of the marital estate or, alternatively, award her spousal support.              She also sought an 

award of attorney's fees. 

                On September 11, 2008, the superior court issued written findings of fact 

and conclusions of law.        The court first valued the two homes using their June 2007 

appraised values. The court then divided Ronald's retirement income equally, with each 

party receiving $1,700 a month.          It distributed the $32,250 in retirement income that 

Ronald   collected   during   their   period   of   separation   according   to   the   amount   that   the 

parties actually received, with Ronald receiving $22,250.               The court thus allocated to 

Sharon $10,000 for the support she received from Ronald during their separation.  The 

court disregarded Ronald's bid on the vehicles and awarded the Silverado to Sharon and 

the Dodge to Ronald using their June 2007 values. 

                                                   -5-                                            6608
 

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                The court also found that both parties were in "essentially similar economic 

circumstances"   because   they   were   of   similar   age   and   because   Ronald's   retirement 

income was split equally.  It therefore equally divided the marital estate, with each party 

getting $385,351.50 in assets.        Each party received approximately $100,000 from the 

TSP account.      The court noted that Sharon had medical problems but found that they 

were not of sufficient severity to warrant unequal distribution.              It found that spousal 

support was unnecessary because both parties were "economically viable and capable 

of self support."    It finally denied Sharon's request for attorney's fees. 

                Sharon appeals and Ronald cross-appeals. 

III.    DISCUSSION 
                The    superior   court   has   broad   discretion   to  divide   marital   property.1 

"Equitable   distribution   of   marital   assets   by   the   superior   court   involves   a   three-step 

procedure.    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."2             Ronald appeals the superior court's 

valuation of the marital homes.         Sharon appeals the superior court's decision not to 

award attorney's fees.       Both parties appeal various portions of the court's equitable 

division of property. 

        1       Hatten v. Hatten, 917 P.2d 667, 671 n.9 (Alaska 1996) (citing Bays v. Bays, 

807 P.2d 482, 485 n.4 (Alaska 1991)). 

        2       Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000) (citing  Wanberg v. 

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

                                                  -6-                                              6608 

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       A.       Standard Of Review 

               The trial court's determination of which date to use for purposes of valuing 
property is reviewed for an abuse of discretion.3    "The valuation of available property is 

a factual determination that should be reversed only if clearly erroneous."4      A valuation 

is clearly erroneous if we are left with a definite and firm conviction on the entire record 
that a mistake has been made.5       The superior court has broad discretion to equitably 

divide the property between the parties in a divorce.6       We review the superior court's 

equitable division for abuse of discretion and will reverse the court's division only if it 
is clearly unjust.7 

               The award of attorney's fees in a divorce action   rests within the broad 

discretion of the superior court, and will not be disturbed on appeal unless it is "arbitrary, 
capricious, manifestly unreasonable, or stems from an improper motive."8 

       3       Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991);Hunt v. Hunt, 698 P.2d 

1168, 1172 (Alaska 1985). 

       4       Haines v. Cox, 182 P.3d 1140, 1143 (Alaska 2008) (quoting Cox v. Cox, 

882 P.2d 909, 913-14 (Alaska 1994)). 

       5       Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001). 

       6       Ethelbah    v.  Walker,    225   P.3d   1082,   1086   (Alaska    2009)   (citing 

AS 25.24.160(a)(4) and Nicholson v. Wolfe, 974 P.2d 417, 421 (Alaska 1999)). 

       7       Id. (citing Brotherton v. Brotherton, 941 P.2d 1241, 1244 (Alaska 1997)). 

       8       Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (quoting Zimin v. Zimin, 837 

P.2d 118, 124 (Alaska 1992)). 

                                              -7-                                         6608
 

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        B.       It Was Error To Use The June 2007 Trial Date As The Valuation Date. 

                 Ronald   argues   that   the   superior   court   erred   in   using   the   first   trial   date 

(June     8,  2007)    to   value   the   marital    property    instead    of  the   second    trial  date 

(August 6, 2008).  Ronald presented evidence to the superior court that the value of the 

Arizona home had dropped over 15% between 2007 and 2008.   Furthermore, the delay 

between the first and second trial dates was over a year long, and there was a discrete 

event - the widespread national housing market crash - that reduced the Arizona 

home's value.       He argues that he was unfairly charged with the loss in the value of the 

Arizona      home    that   occurred   during    the  proceedings      and   that  Sharon    received    an 

unexpected windfall in the appreciation of the Alaska home.                    Sharon argues that the 

superior court did not clearly err in using the June 2007 valuation date because it made 

specific findings as to why it used the earlier date. 

                 Alaska Statute 25.24.160(a)(4)(I) instructs the court to consider, in addition 

to   other   factors,   "the   value   of   the   property  at   the   time   of   division"   when   dividing 

property.  We held in Cox v. Cox that "while the date for classification of property is that 
of separation, the proper date for valuation is one as close as practicable to that of trial."9 

(Other   jurisdictions   also   hold   that   the   date   of   trial   is   normally   the   proper   date   for 
valuation.10)  The superior court should choose the valuation date that "will provide the 

most current and accurate information possible and which avoids inequitable results."11 

We noted in Ogard v. Ogard that there are situations where the superior court may use 

        9        882 P.2d 909, 917 (Alaska 1994) (citing Ogard v. Ogard, 808 P.2d 815, 

819 n.8 (Alaska 1991)). 

        10       See 2 BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY   7.4, at 

621 (3d ed. 2005). 

        11       Ogard, 808 P.2d at 819 (quoting L.GOLDEN,EQUITABLE DISTRIBUTION OF 

PROPERTY  7.01, at 207 (1983)). 

                                                    -8-                                              6608
 

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

the date of separation as the valuation date, but it must first make specific findings before 
doing so.12 

                In its order, the superior court acknowledged and cited Ogard,13 but it also 

stated: 

                [I]t is most equitable, under the facts of this case, to use the 
                first day of trial as the valuation date so as not to award or 
                punish    either   party   for  the   failure  of  their   settlement 
                agreement.  Use of the June 8, 2007, date puts both parties in 
                the same position they were in when the first date of trial 
                ended as the result of an announced settlement that was later 
                withdrawn. . . . The parties should not be deterred from trying 
                to [settle] the case during trial by the concern they will have 
                to use different property values if settlement efforts fail. 

In choosing to use the property values from the first day of trial, the superior court made 

explicit findings on why it chose this earlier date.       Our task is to determine if the court 

abused its discretion by selecting the earlier date for an impermissible reason. 

                We have held that the superior court's use of the date of separation as the 

valuation date was not an abuse of discretion where one party had dissipated marital 

        12     Id. at 820. 

        13      This case differs slightly from Ogard because here the superior court did 

not use the separation date as the valuation date.         Instead, the court used the earlier of 
two trial dates.  We hold that the Ogard analysis also applies to such situations.  In other 
words, trial courts should generally use the valuation date "which will provide the most 
current and accurate information possible," typically the later trial date. Ogard, 808 P.2d 
at 819. The court may, however, use the earlier trial date if it makes specific findings on 
why it did so, id. at 820, provided that its reason is consistent with the principles we 
elucidate in our case law. 

                                                 -9-                                           6608
 

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assets,14 where there was active appreciation of marital assets,15 and where the parties did 

not present evidence of a later valuation16 or object to the superior court's use of the 

earlier date.17  In Heustess v. Kelley-Heustess, we held that the superior court abused its 

discretion by using the separation date as the valuation date because of one   party's 

deceptive yet harmless conduct.18 

                In Ogard v. Ogard,19 we established the rule that marital assets should be 

valued on the date of trial.      We based this rule on the principle that "[a] valuation date 

should be chosen which will provide the most current and accurate information possible 

and which avoids inequitable results."20          We noted in Ogard that, "[t]he choice of the 

later   date   is   well   supported   by   authority   from   other   jurisdictions,"21  and   our   own 

        14      Foster v. Foster, 883 P.2d 397, 399-400 (Alaska 1994). 

        15      Brown v. Brown, 914 P.2d 206, 208 (Alaska 1996);Rodriguez v. Rodriguez, 

908 P.2d 1007, 1012 (Alaska 1995). 

        16      Brotherton v. Brotherton, 941 P.2d 1241, 1245 (Alaska 1997). 

        17      Odom v. Odom, 141 P.3d 324, 336 n.48 (Alaska 2006). 

        18       158   P.3d   827,   832   (Alaska   2007).   This   court   held   that   the   husband's 

deception   in   separating   immediately   after   refinancing   the   marital   residence   was   not 
"financially harmful" and did not justify defeasing his interest in its appreciation.  Id. 

        19      808 P.2d 815 (Alaska 1991). 

        20      Id. at 819. 

        21      Id.  Courts in other jurisdictions frequently require updated valuations in 

order to avoid applying stale data.  See, e.g., McDiarmid v. McDiarmid, 649 A.2d 810, 
812-13 (D.C. 1994). 

                                                  -10-                                             6608
 

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decisions after Ogard have cemented the rule.             For example, in Moffitt v. Moffitt,22 we 

expanded the Ogard rule to a situation where the trial court was directed to value the 

parties' marital business and its goodwill upon remand after a first appeal.                 There, we 

concluded that the trial court should use the date of the remand hearing to determine the 

value and marketability of the business and its goodwill.              We reasoned that "the same 

considerations discussed in Ogard appl[ied] . . . [t]hat is, in general, the later date best 

'advances the interests of accuracy and fairness.' "23             In Adrian v. Adrian , we again 

emphasized this goal, noting that the "underlying premise of our decision in Ogard is 

that the goal is to arrive at an income figure reflective of economic reality."24 

                There are limited exceptions to the Ogard rule.             In Ogard, we listed two 

possible   exceptions:   (1)   where   "one   of   the   spouses   dissipates   assets   or   deliberately 

allows their value to decline following separation," or (2) where "the value of marital 

property increases due to the efforts of one of the spouses."25            In the cases in which we 

have allowed the use of an earlier and less accurate valuation date, one spouse has either 

dissipated marital assets26 or caused their value to appreciate through individual efforts.27 

In   addition,   we   have   occasionally   approved   an   earlier   valuation   date   where   a   later 

        22      813 P.2d 674 (Alaska 1991).
 

        23      Id. at 678 (quoting Ogard, 808 P.2d at 819).
 

        24      838 P.2d 808, 811 (Alaska 1992).
 

        25      Ogard,   808   P.2d   at   820    (quoting   LAWRENCE       J.  GOLDEN,  EQUITABLE 

DISTRIBUTION OF PROPERTY  7.02, at 208 (1983)). 

        26      See, e.g., Foster v. Foster, 883 P.2d 397, 399-400 (Alaska 1994). 

        27      See, e.g., Brown v. Brown, 914 P.2d 206, 208 (Alaska 1996). 

                                                  -11-                                             6608
 

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

valuation date was less reliable.28  These "reliability" cases do not present true exceptions 

to the principles of accuracy underlying Ogard because in these cases the more accurate 

valuation was the earlier one.        In our many decisions applying the Ogard rule we have 

limited the exceptions to the two described in Ogard. 

                Neither of the two exceptions contemplated in Ogard applies in this case. 

Here, the trial court allowed the use of admittedly less accurate valuation data to create 

incentives toward settlement.   While promoting settlement is a worthy goal, none of the 

many   jurisdictions   that   favor   the   use   of   the   most   current   valuation   date   appear   to 

recognize an exception to encourage settlement.29             Moreover, it is not clear how using 

the earlier valuation date in this case could actually have promoted settlement.  Between 

the date of separation and the date of trial, the value of marital assets such as real estate 

always has the potential to fluctuate with the market.30             And neither spouse can know 

how real estate prices will change in the future. 

        28      See, e.g., Henderson v. Henderson, Mem. Op. & J. No. S-9725, 2002 WL 

844717, at *1-2 (Alaska, May 1, 2002) ("Here, we find no clear error in Judge Reese's 
acceptance   of   the   appraisal   as   the   most   reliable   estimate   of   the   home's   fair   market 
value."). 

        29      See Brett R. Turner, Determining the Date for Valuing Marital Property in 

Divorce Actions, 13 No. 2 DIVORCE LITIG . 17 (2001). 

        30      2 BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 3D  7:4, at 

635 (3d ed. 2005) ("Fluctuation in the value of the marital home is usually caused by 
market forces, and only rarely caused by the efforts of the possessing spouse."); see also 
Sutliff v. Sutliff, 543 A.2d 534, 537 (Pa. 1988) ("Volatile market conditions and changing 
economic circumstances can render assets that had been valuable months or years earlier 
virtually worthless in the present, and vice versa.             Publicly traded securities may be 
worth a fortune one day, and a pittance the next.   Privately owned business interests may 
be valued as a gold mine, or as a scrimption, depending on the times.   Automobiles that 
were   once     of   considerable   worth    may,   through    abuse    or  neglect,   rapidly   become 
valueless.    Other examples too numerous to mention scarcely require enumeration."). 

                                                  -12-                                             6608
 

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

                 The trial court's stated purpose of avoiding "a situation whereby somebody 

sort of gains an advantage by the delay in this case" seems irrelevant where there was no 

finding   that   either   party   was   trying   to   delay   or   manipulate   the   trial   date   in   order   to 

receive a valuation advantage. The trial court characterized its decision as designed "not 

to [re]ward or punish either party for the failure of their settlement agreement," but 

Sharon   was   rewarded   and   Ronald   punished   by   the   court's   selection   of   the   earlier 

valuation date.31     By varying from the Ogard rule and choosing the earlier date, the trial 

court assigned the Arizona home an artificially high value that had no basis in reality at 

the time the division was to take place. 

                 Turner's Equitable Distribution of Property states "the mere fact that time 

has   passed     between     the   date   of   trial   and   date   of   decision  does   not   alone   require 

revaluation."32     But Turner goes on to explain that when the value of an asset changes, 

even after the date of the trial but before the trial court's decision has become final, it is 

appropriate for the trial court to determine whether revaluation is appropriate.                      When 

revaluation is requested, "the trial court must evaluate the likelihood and amount of the 

change involved against the administrative costs of receiving new evidence. . . ."33                    And 

Turner adds that "[t]he important fact is the amount of the change in value, not the extent 

of the delay in time."34      Here, the change in value was significant; it exceeded the 15% 

        31       Some courts have used an earlier valuation date specifically for the purpose 

of punishing one party.        See, e.g., Oaks v. Cooper,          638 A.2d 208, 212-13 (Pa. 1994). 

        32       2 TURNER, supra note 30,  7:6, at 645. 

        33       Id.  7:6, at 642. 

        34       Id.  7.6, at 645. 

                                                    -13-                                               6608
 

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threshold we use to demonstrate a material change in circumstances for child support 

            35 
purposes. 

                 Turner,   in   his   journal Divorce   Litigation,   has   also   noted   that   "[i]f   the 

hearing lasts more than one day, the date of valuation is the last day on which evidence 

is presented."36    Turner acknowledges that the decision whether to revalue an asset after 

the date of trial is generally a matter committed to the trial court's discretion, but he notes 

that, "[o]ver the past ten years, the appellate courts have become materially more willing 

to find that revaluation is required."37          According to Turner, "[t]he cases holding that 

revaluation was required have tended to involve situations in which one year or more 

passed   between   the   hearing   and   decision,   situations   in   which   specific   proven   post- 

hearing events changed the value of marital property, or situations in which significant 

marital assets had an unusually volatile value."38            Indeed, in the 2010-2011 supplement 

to his treatise issued in November 2010, Turner adds language pointing out that "[t]he 

sharp     recession    beginning      in  the  fall  of  2008    is  likewise   strong    evidence    of  the 

importance of basing all divisions of property upon updated values, and of reconsidering 

non-final   orders   when   necessary   to   ensure   that   the   division   is   based   upon   the   most 

current financial information possible."39 

                 The    principle    of Ogard   controls       the  result   in  this  case.     Under    the 

circumstances of this case, the trial court should value the property as of the later trial 

        35       Flannery v. Flannery, 950 P.2d 126, 132 (Alaska 1997). 

        36       Turner, supra note 29. 

        37       2 TURNER, supra note 30,  7:6, at 642-43. 

        38       Id.  7:6, at 643-44. 

        39       Id.  7:6, at 262 (3d ed. Supp. 2010) (emphasis added). 

                                                    -14-                                               6608
 

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

date.   The   court's   valuation   determination   is   reversed   and   the   case   is   remanded   for 

further proceedings consistent with this opinion.  On remand, the parties should produce 

evidence of the properties' current values.40 

C.      The Superior Court Did Not Err In Dividing The Property. 

                 1.      The vehicles 

                 Ronald   argues   that   the   superior   court   erred   in   failing   to   distribute   the 

parties'   two   vehicles   according   to   the   blind   bid   process   along   with   the   rest   of   their 

personal property.       Because Sharon did not bid on the items, Ronald argues that he 

should have received both vehicles through the blind bid process.                   He also argues that 

the superior court erred by failing to make findings on why it chose the June 2007 date 

to value the vehicles instead of a more recent valuation date.41 

                 In this case, the parties had stipulated to two lists: an "undisputed property 

list" and a "disputed property list."   Under the stipulation, the parties would each bid on 

the items on the disputed property list, and the party making the highest bid would 

receive the item at that price. The vehicles were not on the undisputed property list.  The 

vehicles   were   on   the   disputed   list,   but   only   Ronald   bid   on   them.  Thus,   under   the 

stipulated agreement Ronald should have received both vehicles. 

        40       See Moffitt v. Moffitt 813 P.2d 674 (Alaska 1991). 

        41       Ronald also argues that the superior court abused its discretion because he 

did not have notice that he needed to present additional information on the value of the 
vehicles.   The superior court stated at the start of the second day of trial that the vehicles 
would be valued at their June 2007 value.             Our reaffirmance of the Ogard principle as 
it relates to the proper valuation date for the parties' real property applies equally to the 
valuation date of their vehicles.        On remand the trial court should use the current value 
of the vehicles if there is current valuation evidence admitted. 

                                                    -15-                                              6608
 

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               But the parties had also previously agreed during settlement talks on the 

 first day of trial that Sharon would receive the Silverado and Ronald would receive the 

 Dodge.  During the blind bidding process, Sharon evidently thought that this agreement 

was still in place because she crossed out the entries for the cars on the disputed property 

 list with the notation "drop from bid list; part of undisputed property."           Sharon also 

 contended at the second day of trial that she viewed them as "non-biddable items." 

               The superior court agreed with Sharon and listed in its combined property 

 sheet that the vehicles were "non-biddable."       In its order, the superior court noted that 

the parties had originally agreed as part of their early settlement efforts that Sharon 

would receive the Silverado and Ronald would receive the Dodge.  The court ruled that 

the   vehicles   should   be  distributed  using   the  June  2007    values  according    to  this 

 arrangement, stating that "[d]istributing the vehicles in this manner place[d] the parties 

 in exactly the same situation they were in on the first day of trial." 

               Generally, stipulations on valuation42 and division of property43 are binding 

between the parties.      "Insofar as an agreement relates to the division of property, the 

 separation agreement should be controlling in the absence of fraud, duress, concealment 

 of assets or other facts showing that the agreement was not made voluntarily and with 

full understanding ."44   But it is not clear that both parties actually agreed that the two 

vehicles were to be included on the disputed list, or that Sharon had a full understanding 

        42     Lacher v. Lacher, 993 P.2d 413, 422 (Alaska 1999); Musser v. Johnson, 

 914 P.2d 1241, 1242 (Alaska 1996).  See generally, TURNER, supra note 30,  7.11, at 
 663. 

        43     Jordan v. Jordan, 983 P.2d 1258, 1264 (Alaska 1999). 

        44     Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996) (internal citations 

 omitted) (emphasis added). 

                                               -16-                                         6608
 

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of how the vehicles were to be treated.  Given the apparent confusion about whether the 

vehicles were to be considered "disputed property" for the purposes of the blind bidding 

process and the parties' earlier agreement regarding the allocation of the two vehicles, 

we cannot say that the superior court abused its discretion in failing to distribute both 

vehicles to Ronald under the blind bid process. 

                2.      Sharon's $10,000 in interim spousal support 

                Sharon argues that the superior court erred in its final allocation of the 

marital estate by allocating to her as marital property the $10,000 in interim support 

payments she received from   Ronald   from September 2006 to June 2007, as he was 

ordered   to   pay   by   the   district   court. She   argues   that   the   superior   court's   division 

improperly made the interim support payments part of the marital property.45 

                In its order, the superior court found that Ronald paid Sharon $10,000 in 

spousal support from his retirement income and their joint funds.                   It also ruled that 

Sharon would receive $10,000 in the court's final allocation of the estate, which reflected 

the money she actually received.  The superior court explained that it had the discretion 

to "reallocate where necessary the monies awarded . . . and/or give credit for marital 

expenses paid" by the district court because the district court's property order was issued 

primarily during an ex-parte domestic violence proceeding. 

        45      Sharon also argues that the superior court erred in finding that Ronald paid 

Sharon with retirement income instead of with the parties' joint bank accounts and by 
crediting the support because there was a great disparity between their income earning 
capacity.  Sharon's arguments have no merit.  Whether Ronald paid Sharon the $10,000 
from the joint bank accounts or the retirement income does not affect whether the credit 
was proper. 

                                                  -17-                                            6608
 

----------------------- Page 18-----------------------

                We     have    held   several    times   that   spousal    support    is  separate    and 

distinguishable from marital property.46  In Lewis v. Lewis we held that, because alimony 

is not a property settlement, the superior court erred in treating the interim support as 

marital property without providing an explanation for why it did so.47 

                Our   review   of   the   superior   court's   order   convinces   us   that   it   did   not 

impermissibly treat Sharon's interim support as marital property.  Central to our holding 

is the fact that it was the district court, not the superior court, that awarded Sharon the 

interim spousal support during a domestic violence proceeding.   A superior court is not 

bound by a district court's support award: it has the discretion to recharacterize the 

interim money awarded to the parties once it has all the information                   on the parties' 

financial   circumstances   and   needs.48      In   other   words,   the   superior   court   can,   after 

examining the full facts of the case, determine that the district court's interim support 

award was unjustified and treat the support money as marital property. 

                We interpret the superior court's statement that "it has the discretion to 

reallocate where necessary the monies awarded" by the district court as acknowledging 

its authority to recharacterize the district court's spousal support award.               The superior 

court was implicitly exercising this power when it concluded that Sharon would receive 

$10,000, corresponding to her support payments, in the final distribution of the marital 

estate.   It stated that this allocation was necessary "[i]n order to properly allocate the 

        46      Korn v. Korn, 46 P.3d 1021, 1023 (Alaska 2002);Johnson v. Johnson, 836 

P.2d 930, 934 (Alaska 1992); Lewis v. Lewis, 785 P.2d 550, 554 (Alaska 1990). 

        47      Lewis, 785 P.2d at 554. 

        48      The superior court also has the ability to recharacterize as marital property 

interim spousal support that it awards if it finds that the initial award was unjustified. 
Hanson v. Hanson, 125 P.3d 299, 310 (Alaska 2005). 

                                                  -18-                                             6608
 

----------------------- Page 19-----------------------

benefits received by the parties" because Ronald had paid Sharon the support in addition 

to paying the marital bills of the parties during the interim period. We do not believe this 

recharacterization   was   clearly   unjust,   and   thus   the   superior   court   did   not   abuse   its 

discretion when it treated the $10,000 Sharon received during the interim period as an 

advance against her share of the marital estate. 

                 3.      Equal distribution of the marital estate 

                 The superior court, after considering the factors under AS 25.24.160(a)(4), 

found that equal division of the marital estate was appropriate.  It found that both parties 

were     of  similar   age,  were    in  essentially    similar   economic     circumstances      because 

Ronald's retirement income would be split equally, and would each have a home and a 

car.  It also stated that Sharon had medical problems but found that they were not "of 

sufficient severity to warrant an unequal division of the marital estate." 

                 Sharon argues that the superior court erred by failing to award her a larger 

share of the marital property.        She argues that the superior court's division was unjust 

because she is in poor health and unable to work and because Ronald has a much greater 

income earning capacity than Sharon. 

                 Because we are remanding the case for revaluation of the real property and 

the   vehicles,    the  trial  court   will  have    to  also  make    a  new    equitable    distribution 

determination, and it is free to reevaluate all of its rulings in light of new evidence.49 

        49          Sharon     also  argues    that  the   superior   court's    finding   that   she  was 

"economically   viable   and   capable   of   self   support"   is   clearly   erroneous   because   it 
conflicts with the court's finding that she was "in poor health and unable to work."  But 
these two findings are not necessarily mutually exclusive.   The court found that Sharon 
was in poor health and unable to work and, to compensate for this, included the pre- 
marital portion of Ronald's retirement as marital income.                The court's finding that she 
was "economically viable and capable of self-support" was based on the court's final 
                                                                                           (continued...) 

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                4.      Other arguments 

                Sharon also argues that the superior court abused its discretion in failing to 

require Ronald to return (in cash) $14,230   that he took from the parties' joint bank 

accounts after their initial separation in violation of the district court's protective order. 

The superior court found that it would have been inequitable to require Ronald to refund 

Sharon her half of the joint funds he withdrew from the parties' joint bank accounts 

because he used the funds to pay marital bills.          Instead, the superior court included the 

$28,461   from   the   joint   bank   accounts   with   Ronald's   assets   in   its   calculations.  The 

superior court therefore effectively increased Sharon's share of Ronald's TSP account 

by    $14,230.     In   doing   so,  the   superior   court   was    exercising    its  discretion   and 

"reallocat[ed] where necessary the monies awarded" by the district court.  The superior 

court did not abuse its discretion in failing to require Ronald to pay Sharon half of the 

money he had taken in cash.50 

                This is not to say that we condone Ronald's conduct in violating the district 

court's order and appropriating the money that the district court had awarded to Sharon. 

Ronald clearly circumvented the district court's order by removing cash from the bank 

account awarded to Sharon and intended for Sharon's support; in so doing he left her in 

        49(...continued) 

allocation of retirement income and the substantial size of the marital estate.                 Sharon 
received over $390,000 in assets and $1,700 a month in income. Given the sizable assets 
she received, the superior court did not clearly err in finding that 50% of the marital 
estate made Sharon "economically viable and capable of self support" even though she 
was "in poor health and unable to work." 

        50      Even if the superior court abused its discretion by failing to order Ronald 

to pay the $14,230 in cash, Sharon's harm from the error is limited to the tax she would 
pay on withdrawing this sum from the pre-tax TSP retirement fund.  Given the large size 
of the estate, the court's error, if any, was probably de minimis. 

                                                  -20-                                            6608
 

----------------------- Page 21-----------------------

a worsened cash flow position during the interim period while he had the benefit of his 

retirement income.         Had Sharon filed a motion for interim attorney's fees under the 

circumstances, the superior court would have had compelling cause to grant that motion; 

it also would have acted within its discretion to order Ronald to return the appropriated 

funds   to   Sharon,   or   to   require   Ronald   to   show   cause   why   he   should   not   be   held   in 

contempt.     Sharon did not file any such motion, and our resolution of the issue should 

be narrowly understood to mean only that the superior court did not abuse its discretion 

in declining to require Ronald to repay these funds as part of the court's final equitable 

distribution given that Ronald used these funds to pay marital debt. 

                 Ronald argues that the superior court erred in granting Sharon's motion for 

$5,693.91 in credit for missing or damaged items without holding a hearing.                        But the 

record shows that Ronald did not request a hearing.  He therefore waived his right to an 

evidentiary hearing.51       The superior court did not err in granting Sharon's motion for 

credit for damaged or missing property without a hearing. 

        D.	      The     Superior     Court     Did   Not    Err   In   Failing    To   Award      Sharon 
                 Attorney's Fees. 

                 The   superior   court   ordered   each   party   to   bear   its   own   fees   and   costs, 

finding: 

                 Both     parties   were     able   to   retain   and    utilize   counsel 
                 throughout   the   case.     Neither   was   disadvantaged   in   their 
                 ability to litigate this matter on an equal plane. . . . Each will 
                 be   receiving     a  large   sum    of   liquid   funds    through     the 
                 allocation     of  [Ronald's]     Thrift   Savings    Plan   which     will 
                 provide     both   with   the  ability  to  pay   any   remaining     fees 
                 incurred in this matter. 

        51       DeNardo v. Maassen, 200 P.3d 305, 315-16 (Alaska 2009). 

                                                   -21-                                                 6608 

----------------------- Page 22-----------------------

                Sharon argues that the superior court erred in failing to award her attorney's 

fees   because   it   did   not   focus   on   the   parties'   economic   circumstances   and   earning 

capacities.  She argues that attorney's fees were warranted because Ronald has a greater 

earning capacity.      She also argues that it was manifestly unreasonable for the court to 

expect her to liquidate her share of the TSP funds to pay her attorney's fees. 

                The   superior   court   has   broad   discretion   in   awarding   attorney's   fees   in 
divorce cases.52    An award of attorney's fees is meant to ensure that "both spouses have 

the proper means to litigate the divorce action on a fairly equal plane."53              In exercising 

this discretion, the superior court must focus on the parties' relative economic situations 

and earning capacities.54       A party's economic situation includes the divorce property 

division, and a party who receives a property settlement sufficient to cover incurred 

attorney's fees should expect to pay his or her own fees.55 

                The superior court did not abuse its   discretion in not awarding Sharon 

attorney's fees.    Although there is some income disparity between Sharon and Ronald, 

Sharon received more than $100,000 in TSP funds and 50% of the marital property.  The 

superior court explicitly found   that Sharon was able to litigate the case on an equal 

playing   field   and   nothing   in   the   record   indicates   this   finding   is   clearly   erroneous. 

Sharon's share of the TSP funds is sufficient to pay her attorney's fees of approximately 

        52      Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007) (citing               Sloane v. Sloane, 

18 P.3d 60, 64 (Alaska 2001)). 

        53      Fernau v. Rowdon, 42 P.3d 1047, 1059-60 (Alaska 2002) (quoting Sanders 

v. Barth, 12 P.3d 766, 768 (Alaska 2000)). 

        54      Id. at 1059. 

        55      Tybus v. Holland, 989 P.2d 1281, 1289 (Alaska 1999). 

                                                  -22-                                             6608
 

----------------------- Page 23-----------------------

$20,000.  It was not an abuse of discretion for the court to expect Sharon to utilize these 

funds to pay her attorney's fees. 

               Of course, because the case is being remanded for revaluation of property, 

the court will have to reevaluate its attorney's fees determination in light of the new 

property valuation evidence and its equitable distribution reevaluation. 

IV.     CONCLUSION 

               We   REVERSE   the   court's   valuation   of   the   parties'   real   property   and 

vehicles, and REMAND for further proceedings.             We VACATE the court's attorney's 

fees award.    We AFFIRM the court's other orders as explained in our opinion. 

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----------------------- Page 24-----------------------

CHRISTEN, Justice, dissenting in part. 

                I write separately to express my disagreement with the court's conclusion 

that the trial court abused its discretion by using the first trial date to value the parties' 

assets. 

                As    the   court   notes,   we   held   in Ogard      v.  Ogard    that   "the   date  of 

valuation . . . should be as close as practicable to the date of trial."1        In that case, the issue 

was whether to value property as of the parties' date of separation or as of the date of 

trial.   Under the circumstances of this case, however, the principle articulated in Ogard 

simply begs the question of what we should consider the "date of trial":  the first day of 

the initial trial, which was interrupted when the parties thought they had settled their 

case, or the date when the trial resumed, over a year later? 

                In my view, the court's decision to use the later date for valuation injects 

significant   uncertainty   into   the   already-challenging   process   of   valuing   property   for 

distribution following divorce.         Here, the downturn in the housing market took place 

over a period of months.   But other types of significant marital assets, such as stocks or 

retirement plans, can gain or lose value much more quickly.                The value of an asset can 

change by 15 percent - the threshold suggested by the court - in a matter of days.  It 

is   unclear   how   the   superior   court   is   expected   to   account   for   such   rapid   economic 

fluctuations under the court's holding.          The court's opinion could prompt motions for 

revaluation of property in any trial spanning a period that, viewed in hindsight, marked 

the onset of an economic downturn. 

                Using the later of two trial dates to value property also undermines the 

possibility of settlement.      If one party regrets entering into an as-yet-unmemorialized 

        1       808 P.2d 815, 819 (Alaska 1991). 

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----------------------- Page 25-----------------------

settlement agreement and is able to obtain a new appraisal suggesting the market value 

of   an  asset   has   changed   by   15   percent   or   more,   he   or   she   will   be   free   to  allege 

disagreement about the settlement terms, file a motion to have the agreement set aside, 

and force the other party to reappraise the asset in preparation for a new trial.  This will 

require the parties to relitigate at least a part of their original dispute, an expensive and 

time-consuming exercise. 

                 We held in  Ogard that "[a] valuation date should be chosen which will 

provide the most current and accurate information possible and which avoids inequitable 

results."2    The   experienced   trial   judge   in   this   case   was   no   doubt   conscious   of   the 

potentially inequitable results of using a later valuation date; I am not persuaded that it 

was an abuse of discretion to use the first trial date to value the Stevens' marital estate. 

                 For these reasons, I respectfully dissent from the portion of the court's 

decision that concludes the superior court abused its discretion by using the first trial date 

to value the parties' assets. 

        2        Id. (quoting LAWRENCE J. GOLDEN,EQUITABLE DISTRIBUTION OF PROPERTY 

 7.01, at 207 (1983)). 

                                                   -25-                                                 6608 
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