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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Villars v. Villars (6/1/2012) sp-6677

Villars v. Villars (6/1/2012) sp-6677

        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 



RICHARD JUDE VILLARS,                         ) 

                                              )       Supreme Court No. S-14094 

               Appellant,                     ) 

                                              )       Superior Court No. 3AN-02-04409 CI 

        v.                                    ) 

                                              )       O P I N I O N 

KATHLEEN ESTELLE VILLARS,                     ) 

                                              )       No. 6677 - June 1, 2012 

               Appellee.                      ) 

                                              ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, Sen K. Tan, Judge. 



               Appearances:      Andrew J. Fierro, Law Office of Andrew J. 

               Fierro, Inc., Anchorage, for Appellant.         Douglas C. Perkins, 

               Hartig,    Rhodes,    Hoge    &   Lekisch,   P.C.,  Anchorage,     for 

               Appellee. 



               Before:      Carpeneti,    Chief    Justice,  Fabe,   Winfree,    and 

                Stowers, Justices. [Christen, Justice, not participating.] 



                STOWERS, Justice. 



I.      INTRODUCTION 



               Richard Villars and Kathleen Villars were married on August 31, 1984. 



They jointly filed a petition for dissolution of marriage on February 4, 2002.             Richard 



served in the military for most of the marriage, first in the United States Air Force and 


----------------------- Page 2-----------------------

later   in   the   Alaska   Air   National   Guard. Prior   to   filing   their   dissolution,   the   parties 



drafted a settlement agreement dividing their property such that each person was to 



receive half of the marital estate. The value of Richard's military retirement benefits was 



not   known   at   the   time   of   dissolution   because   he   had   not   yet   qualified   for   benefits. 



However, Richard and Kathleen agreed to split the marital portion of Richard's military 



retirement benefits 50/50 should Richard receive them.               Richard began collecting his 



military retirement benefits in 2009 at the age of 48, twelve years earlier than he and 



Kathleen had expected at the time of dissolution.  Kathleen asserted she was entitled to 



collect her marital portion of Richard's military retirement benefits when Richard began 



collecting them.  Richard disagreed, arguing that the parties intended Kathleen to collect 



only when Richard turned 60 years old. 



                The     superior    court   determined     that   the   settlement    agreement      was 



unambiguous and the parties intended to divide equally the marital portion of Richard's 



military retirement benefits when he began receiving them, not when he turned 60.  The 



superior court ordered Richard to repay Kathleen 50% of the marital portion of the 



retirement benefits he had received to date.           Richard appeals, arguing that the superior 



court's finding on the parties' intent was erroneous and that the retirement benefits are 



his separate property until he reaches the age of 60.              Richard further argues that the 



superior court impermissibly modified the settlement agreement.  Because the findings 



of the superior court were not clearly erroneous and the superior court did not make an 



impermissible modification to the settlement agreement, we affirm. 



II.     FACTS & PROCEEDINGS 



                Richard Villars and Kathleen Villars were married on August 31, 1984. 



One year prior, on June 1, 1983, Richard began active duty with the United States Air 



Force at the age of 22.   Richard remained on active duty for eight years until July 1991. 



Richard joined the Alaska Air National Guard in May 1992.  At the time of dissolution, 



                                                  -2-                                             6677
 


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

Richard was employed by the Alaska Air National Guard and was also a pilot with 



United Airlines. 



               Richard and Kathleen jointly filed a petition for dissolution of marriage in 



the superior court on February 4, 2002.  They appended to the petition "Attachment A," 



a six-page spreadsheet showing how they agreed to divide their assets and debts.  The 



first page of "Attachment A" showed the total value of their property, which they agreed 



to split 50/50.  The composition of property adding up to fifty percent differed for each 



of them.   Kathleen wanted to keep the entirety of her retirement accounts, which had 



greater value than Richard's accounts.        Richard received cash and personal property to 



equalize the value of the parties' property division. 



               To address the division of Richard's United Airlines and military pensions, 



the parties checked the box on the petition for dissolution stating: 



               Our agreement about the distribution of retirement or military 

               pension benefits is attached. If this agreement is not accepted 

               by the retirement plan administrator as a qualified domestic 

               relations order [QDRO], we agree that the court, upon motion 

               by a party, may make any necessary corrections.           We agree 

               any    such   court-ordered     modifications    will   be  effective 

               retroactive to the date of the original dissolution decree. 



They   handwrote   underneath,   "QDRO's   [sic]   will   be   presented   at   court."   Richard's 



United    Airlines   and   military  pensions    were   included    in  the  asset  breakdown     in 



"Attachment A," but their values were unknown because Richard had not yet retired at 



the time of dissolution. The line item in "Attachment A" pertaining to Richard's military 



retirement contained the description, "Alaska Air National Guard (monthly benefit at age 



60)" and the formula, "1/2 x years of marriage during service/years of service." 



               On March 13, 2002, Richard and Kathleen appeared in person and testified 



at a dissolution hearing before Standing Master Suzanne Cole.             Master Cole reviewed 



                                                -3-                                           6677
 


----------------------- Page 4-----------------------

"Attachment A" with Richard and Kathleen, including the division of the retirement 



benefits. 



                THE COURT:               And     the  way    that   I  understand the 

                division here is the plan is to equalize the retirement benefits
 

                50/50 between the two of you. 
 



                MR. VILLARS:             Yes.  
 



The parties explained that the QDROs were not ready for presentation to the court, and 



Master Cole sought clarification on how the parties were dividing the pensions. 



                THE COURT:               Regarding retirement benefits then, based 

                on your division of other property, there is no intent to claim 

                an interest in the other one's retirement benefits?             You're 

                leaving them as they are? 



                MS. VILLARS:             Other   than   the   pensions.   We   had two 

                QDROs written up. They have not yet been mailed back to us. 



                                                . . . 



                THE COURT:               Okay.    You still have lost me here.  I'm 

                not quite sure what you're doing with the pensions, because 

                at least what's listed here, unless I'm missing something . . . . 



                MR. VILLARS:             The - the present value, we're cashing 

                out 50 - 50 percent on the retirement. 
 



                                                . . .
 



                MR. VILLARS:             And the future value, we are agreeing to,
 

                according to the QDRO . . . .
 



                THE COURT:               Okay. 
 



                MR. VILLARS:             . . . so it's a 50 percent share there. 
 



                Master Cole, seeking to be clear regarding the parties' description of the
 



pension division in "Attachment A" and their testimony, summarized it again in her own 



words. 



                                                  -4-                                             6677
 


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

                THE COURT:              Regarding the retirement benefits earned 

                by Mr. Villars during the marriage, and that is specifically the 

                employment benefits, the plan is that Ms. Villars is to receive 

                50 percent of the retirement benefits through QDRO of the 

                employment benefits earned by Mr. Villars; is that right? 



                MS. VILLARS:            For the air national guard. 



                                               . . . 



                THE COURT:              It's 50 percent of the benefits earned . . . 



                MS. VILLARS:            Of today. 



                THE COURT:              . . . during the marriage. 



                MS. VILLARS:            Yes. 



                MR. VILLARS:            Yes. 



                MS. VILLARS:            Yes. 



                THE COURT:              Okay.  And no other claim is being made 

                on any benefits obtained by Mr. Villars. 
 



                MS. VILLARS:            Exactly. 
 



                Because the QDROs were still being drafted by Colonel Edward Schilling,
 



an attorney retained by Richard, the parties agreed to file the QDROs after the dissolution 



was finalized.    Richard and Kathleen then acknowledged that the divisions in property 



discussed at the hearing were "final decisions" they would not be able "to modify . . . later 



on" absent a showing of fraud or duress.   Master Cole found that the agreement between 



Richard and Kathleen was "fair and just" and recommended approval of the dissolution 



agreement.       On     March     22,   2002,    the   superior    court   accepted     the  master's 



recommendation, issued a dissolution decree, and the marriage was dissolved. 



                Colonel Schilling prepared a QDRO for the military benefits soon after.  The 



document, entitled "Order for the Division of the Marital Interest in Military Retired Pay" 



                                                 -5-                                           6677
 


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

(hereinafter     "2002    QDRO"),1      expressed    Kathleen's     fractional   interest  in  Richard's 



military pension in terms of points rather than years because the Reserve National Guard 



Retirement System accounts for time spent in the military in terms of points.                  Section 5 



of the 2002 QDRO described the formula to calculate Kathleen's share: 



                5.      As    her   property    interest  in  [Richard's]     disposable 

                retired pay,[2] Former Spouse is awarded a portion of said pay 



                calculated as follows: 

                50%     x   (5026   points/points   creditable   for   retirement   upon 

                retirement).[3] 



Section 9 stated, "The appropriate pay center shall pay the sums called for above directly 



to Former Spouse to the extent permitted by the law at the same time the Member receives 



retired pay." (Emphasis added.)          Section 11 read, "With the exception of the amounts 



specifically awarded to Former Spouse, the balance of Member's retired pay is awarded 



        1       A military retirement order, though similar in function, is not technically 



a qualified domestic relations order, but we refer to it as the "2002 QDRO" in keeping 

with   how    the   parties   and   the   trial   court   referred   to   it. See  2   BRETT R.  TURNER , 

EQUITABLE DISTRIBUTION OF PROPERTY  6:2, at 8 (3d ed. 2005) ("[M]any attorneys and 

courts use the term QDRO to refer to any qualified order.               This usage is a mistake, for 

other types of qualified orders are needed to obtain disbursement from other types of 

plans. In particular, a QDRO is not sufficient to authorize payment of military retirement 

benefits . . . [which] requires its own unique type of qualified order."). 



        2       "Disposable retired pay" is defined in 10 U.S.C.  1408(a)(4) (2009) as: 



                the total monthly retired pay to which a member is entitled 

                less amounts which . . . 



                (D) are deducted because of an election under chapter 73 of 

                this title to provide an annuity to a spouse or former spouse 

                to whom payment of a portion of such member's retired pay 

                is being made pursuant to a court order under this section. 



        3       Richard had acquired 5,026 points towards retirement while married to 



Kathleen. 



                                                   -6-                                             6677
 


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

to Member as his sole and separate property."  Richard and Kathleen signed and filed the 



2002 QDRO and on June 19, 2002, the superior court accepted it. 



                After   the dissolution, Richard worked for six more years as a part-time 



National Guard member. A part-time guard member typically accumulates credit towards 



retirement under the reservist system in which a guard member must accrue a minimum 

of 50 points a year for twenty years to qualify for a pension at age 60.4             This means that 



even if the guard member acquires the twenty qualifying years before age 60, the member 



must   wait   until   age   60   to   start   collecting   the   pension. In   contrast,   under   the   active 



retirement system, once a service member accumulates 20 years of service, that service 



member can retire immediately regardless of whether that member has reached age 60. 



Once     a  member     in  the  reservist   system   accumulates      7,300   points,  the   member     is 

transferred from the reservist retirement system to the active duty retirement system.5 



                Even though Richard was a part-time reservist, he acquired far more than 



50 points a year; in fact he averaged over 300 points per year towards retirement during 



the sixteen years he was in the National Guard.              These high point totals while in the 



National Guard combined with his eight years of active service from 1983 - 1991 allowed 



Richard to transfer from the reservist retirement system to the active duty retirement 



system.    Richard   retired   from   the   military   at   age   48   in   July   2009   with   7,919   points 



towards retirement and began immediately collecting his pension from the active duty 



retirement system. 



                When Kathleen learned Richard had retired early, she submitted the 2002 



QDRO to the Defense Finance and Accounting Service ("DFAS"), the agency in charge 



        4       A point is approximately equal to one day of service. 



        5       7,300 points / 365 days = 20 years, or the equivalent of 20 years of active 



service. 



                                                  -7-                                             6677 


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

of   disseminating   military   retirement   benefits.     DFAS   rejected   the   QDRO   because   it 



expressed Kathleen's interest in terms of reserve points, but the active duty retirement 



system had converted Richard's creditable military time from points to years.                    DFAS 



instructed Kathleen to obtain a clarifying court order containing a new formula expressed 



in years within 90 days to obtain benefits. 



                Kathleen contacted Richard and requested that he direct Colonel Schilling 



to draft a clarifying order.      Colonel Schilling drafted a stipulated clarifying order that 



converted the points formula in the 2002 QDRO to a formula using years, making no 



mention of limiting Kathleen's collection to begin when Richard became 60 years old. 



Richard     received    this  document      via  e-mail   on   October     19,  2009,    and   signed   it 



November 10, 2009.          Richard claims he did not agree to modify the age 60 limitation 



because he believed payments received before age 60 were his separate property. Richard 



also asserts he was under significant stress due to work and family problems during this 



time and did not mean for his signature on the stipulated clarifying order to indicate his 



full approval of the form. 



                Richard spoke to Kathleen on December 11, 2009, and expressed his desire 



to have the order include a provision limiting Kathleen's collection of benefits to begin 



when Richard turned 60 years old.          Richard claims he and Kathleen agreed to continue 



to work with Colonel Schilling to compose the order.  However, Kathleen filed a "Notice 



of Lodging Clarifying Order" with the superior court on December 17, 2009, along with 



a   different   clarifying   order   drafted   by   her   own   attorney. The   superior   court   signed 



Kathleen's clarifying order on December 30, 2009, the last day of the 90-day window 



DFAS required. 



                On January 11, 2010, Richard filed an opposition to the notice and requested 



an evidentiary hearing.  Superior Court Judge Sen K. Tan vacated the clarifying order on 



                                                  -8-                                             6677
 


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

January 19, 2010 and held two evidentiary hearings on June 24, 2010, and September 8, 2010. 



                At the first hearing, the superior court was concerned with determining what 



the   trigger   was   that   allowed   Richard   to   retire   early. Richard   provided   testimony   to 



explain his understanding of the two military retirement systems and the property division 



agreement he made with Kathleen.            Richard also testified that had he known at the time 



of the dissolution that Kathleen would get one-half of his active duty retirement benefits 



before    he   turned   60   years   old,  he  would     have   made    property    division    decisions 



differently.  The superior court indicated it thought the 2002 QDRO was "unambiguous 



in [Kathleen's] favor." 



                At the end of the hearing, the superior court made several findings of fact. 



It found: 



                What the record reflects in two places, and is very clear, is . . . 

                on record before Judge Cole, the parties actually state it pretty
 

                clearly, they intended to divide up the marital portion of the
 

                retirement 50/50.      That was the intent then.      
 



                The other thing is, it is also reflected in the 2002 [QDRO]
 

                drafted by Colonel Schilling. . . . I'm going to find that the
 

                document reflects the intent of the parties.
 



                In reading that, this whole notion that regardless of whether
 

                Mr. Villars could retire early, and if he did Ms. Villars would
 

                not get a retirement until age 60 is after-the-fact thinking. Had
 

                nothing to do at the time the contract was formed.             Not at all.
 

                It wasn't even on the horizon.         The intent was to divide up 

                50/50. 



The superior court rejected the notion that there was a "specific understanding" between 



Richard and Kathleen that should Richard retire early, Kathleen would not collect her 



marital portion at that time and instead would wait until Richard reached age 60 before 



she would receive her payments.            The superior court reinstituted the December 2009 



clarifying order. 



                                                   -9-                                             6677
 


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

               On July 13, 2010, Richard filed a motion for reconsideration that the court 



granted for the purpose of hearing from experts on the two military retirement systems. 



               On September 8, 2010, the superior court held a second evidentiary hearing. 



Richard's expert, David Carrad, testified that Kathleen should collect payments when 



Richard     turns   60  years   old,  but  conceded     this  assessment     was   based   upon    his 



understanding   of   the   parties'   intent. Kathleen's   expert,   Marshal   Willick,   criticized 



Richard's interpretation based on its impossibility of being enforceable: 



               Well, in the . . . near 30 years I've been doing [QDROs], I 

               have never seen a military retirement order which had the two 

               parties begin to receive their benefits at different times. . . . 

               Mr. Carrad said that it is very common to have one party start 

               receiving     benefits  one   time  and   another   party  at  another 

                [time].  But . . . [y]ou can't do that in the military.   No way, no 

               how.    It's impossible under the statute.      You can only divide 

               the payment stream. 



The experts agreed that the determination of the parties' intent was a matter for the court 



to decide. 



               On October 11, 2010, the superior court issued an order finding "that it was 



the intent of the parties to divide equally the marital portion of the military retirement." 



The superior court ordered Richard to repay Kathleen 50% of the marital portion of the 



retirement benefits that he had received to date. 



               Richard filed a second motion for reconsideration on October 25, 2010, 



which was denied.      Richard appeals. 



                                                -10-                                          6677
 


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

III.	   DISCUSSION 



        A.	     Standard Of Review 



                Contract     principles    govern    the   interpretation    of   property    settlement 

agreements incorporated in dissolution decrees.6  When interpreting any contract, the goal 



"is   to  give  effect   to  the  reasonable    expectations    of  the  parties."7   We     review   the 



interpretation   of   a   contract   de   novo.8 "Where   the   superior   court   considers   extrinsic 



evidence in interpreting contract terms, however, we will review the superior court's 



factual determinations for clear error and inferences drawn from that extrinsic evidence 

for 'support by substantial evidence.' " 9 



        B.	     The Superior Court Did Not Err In Finding The Settlement Agreement 

                Unambiguous   And   The   Intent   Of   The   Parties   Was   To   Divide   The 

                Marital      Portion     Of   Richard's      Retirement       Benefits    50/50    Upon 

                Richard's Retirement. 



                Based on its review of the parties' settlement agreement and the testimony 



from the first evidentiary hearing, the superior court found that "it was the intent of the 



parties to divide up Mr. Villars' military retirement 50%/50%."  The superior court found 



"no intent that Ms. Villars would not receive the retirement benefits at the same time as 



Mr. Villars" or "that she would only receive the benefits when Mr. Villars turned sixty, 



even   if   he   retired   before   age   60   and   was   drawing   benefits."  Following   the   second 



        6       Zito v. Zito, 969 P.2d 1144,1147 n.4 (Alaska 1998) (citing Keffer v. Keffer , 



852 P.2d 394, 397 (Alaska 1993)). 



        7       Knutson v. Knutson , 973 P.2d 596, 600 (Alaska 1999) (citing Keffer , 852 



P.2d at 397). 



        8       Burns v. Burns , 157 P.3d 1037, 1039 (Alaska 2007). 



        9       Cook v. Cook, 249 P.3d 1070, 1077-78 (Alaska 2011) (quoting Burns , 157 



P.3d at 1039). 



                                                  -11-	                                           6677
 


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

evidentiary hearing, the court confirmed that the parties' intent was to divide the marital 



portion of Richard's military retirement 50/50 upon Richard's retirement. 



                1.      The property settlement agreement is unambiguous. 



                We examine "both the language of the [agreement] and extrinsic evidence 

to determine if the wording of the [agreement] is ambiguous."10               "An ambiguity exists 



only where the disputed terms are reasonably subject to differing interpretation after 



viewing the contract as a whole and the extrinsic evidence surrounding the disputed 

terms."11 



                Judge Tan   appeared to consider the agreement unambiguous at the first 



evidentiary     hearing    when    he   commented,      "[F]rankly,    I  think   [the  agreement     is] 



unambiguous in [Kathleen's] favor.   The way I've read everything was they were going 



to split up the retirement when he retired."        But the court then proceeded to analyze the 



intent of the parties and found the parties intended to divide Richard's military retirement 



50/50 when Richard retired. We agree with the superior court that the property settlement 



agreement is not ambiguous, and that it clearly demonstrated the intent of the parties at 



the time of the dissolution. We also conclude the superior court did not clearly err in its 



findings regarding the parties' intent. 



                Richard's argument that the agreement is not ambiguous is focused almost 



entirely   on   the   line   in   "Attachment   A"   which   contains   the   description,   "Alaska   Air 



National Guard (monthly benefit at age 60)" and the formula, "1/2 x years of marriage 



during service/years of service."         Richard argues that the term "Alaska Air National 



Guard (monthly benefit at age 60)," along with evidence from the dissolution hearing 



        10      N. Pac. Processors, Inc. v. City & Borough of Yakutat, Alaska , 113 P.3d 



575, 579 (Alaska 2005) (quoting Wessells v. State Dep't of Highways, 562 P.2d 1042, 

1046 (Alaska 1977)). 



        11      Id. (quoting Wessells, 562 P.2d at 1046). 



                                                 -12-                                            6677 


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

leads to the conclusion that the parties understood Kathleen would collect benefits once 



Richard reached the age of 60.        We disagree. 



                Rather, the property settlement agreement unambiguously shows that the 



parties intended Kathleen to receive her marital portion of the retirement benefits upon 



Richard's     retirement    regardless   of  age.   The    settlement    agreement    consists   of  the 



dissolution petition, "Attachment A," and the 2002 QDRO accepted by the superior court. 



Language from the 2002 QDRO, which both parties signed, clearly demonstrates that the 



parties intended to divide the marital portion of the military benefits 50/50 beginning 



when Richard began receiving retirement pay. Section 9 of the 2002 QDRO states, "The 



appropriate pay center shall pay the sums called for above directly to Former Spouse to 



the extent permitted by law at the same time the Member receives retired pay." (Emphasis 



added.)   This language directly contravenes Richard's theory of what the parties agreed 



to in 2002.   Further, as the superior court correctly pointed out at the evidentiary hearing, 



there is no mention of an age 60 restriction   on Kathleen's right to receive payments 



anywhere in the 2002 QDRO. 



                The    parties  further   explained    their  intentions   regarding    the  retirement 



benefits at the dissolution hearing.       When Master Cole inquired about "Attachment A," 



Richard   agreed   without   qualification   that   the   parties'   plan   was   to   divide   the   marital 



portion of the retirement benefits 50/50. 



                THE COURT:               And the way that I understand the division 

                here is the plan is to equalize the retirement benefits 50/50 

                between the two of you. 



                MR. VILLARS:             Yes. 



The master then sought to clarify the parties' intent: 



                                                 -13-                                            6677
 


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

                THE COURT:                Regarding retirement benefits then, based 

                on your division of other property, there is no intent to claim 

                an   interest   in   the   other   one's   retirement   benefits? You're 

                leaving them as they are? 



                MS. VILLARS:              Other than the pensions.        We   have two 

                QDROs written up. They have not yet been mailed back to us. 



                                                 . . . 



                THE COURT:                Okay. You still have lost me here. I'm not 

                quite sure what you're doing with the pensions, because at 

                least what's listed here, unless I'm missing something. . . . 



                MR. VILLARS:              The - the present value, we're cashing 

                out 50 - 50 percent on the retirement. 



                                                 . . . 



                MR. VILLARS:              And the future value, we are agreeing to, 

                according to the QDRO. . . . 



                THE COURT:                Okay. 
 



                MR. VILLARS:              . . . so it's a 50 percent share there.
 



                Richard testified at the evidentiary hearing before the superior court that he
 



would have negotiated for a share of Kathleen's retirement accounts had he known in 



2002 that he would get an active duty retirement benefit, arguing that he intended only 



to share a National Guard retirement benefit with her. However, "[d]ifferences of opinion 



among the parties as to their subjective intent, expressed during the litigation, do not 



establish an issue of fact regarding the parties' reasonable expectations at the time they 



entered into the contract, since such self-serving statements are not considered to be 

probative."12 



        12      Peterson v. Wirum , 625 P.2d 866, 870 (Alaska 1981). 



                                                   -14-                                             6677 


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

                The superior court considered the parties' testimony before Master Cole in 



finding that the   intent of the parties was to divide the marital portion of the military 



retirement benefits 50/50.  The dissolution hearing testimony, given contemporaneously 



with the property settlement agreement, is construed to be extrinsic evidence separate 

from the written documents.13         So construed, we review the superior court's inferences 



drawn     from   extrinsic   evidence    for  "support   by    substantial   evidence."14    Richard's 



testimony amply supports the superior court's conclusion that Richard's argument - 



seeking to limit Kathleen's ability to collect retirement benefits until Richard's age 60 - 



is "after-the-fact thinking" which "[h]ad nothing to do" with the contract when it was 



formed and "wasn't even on the horizon [then].             The intent was to divide up 50/50." 



                We agree with the superior court that the language of the property settlement 



agreement and the parties' testimony shows that the agreement is not ambiguous and that 



the parties intended that Kathleen would be entitled to be paid one-half of the marital 



portion of Richard's military retirement benefits at the time that he began receiving his 

retirement payments.15 



        13      See N. Pac. Processors, 113 P.3d at 584. 



        14      Cook, 249 P.3d at 1077-78 (quoting Burns , 157 P.3d at 1039). 



        15      Even if the statement in "Attachment A" - "(monthly benefit at age 60)" 



- rendered the settlement agreement ambiguous, the superior court's findings based on 

the evidence as a whole - that the parties intended that Kathleen would begin receiving 

her share of Richard's retirement benefits at the same time he began receiving them - 

properly resolved the ambiguity. 



                Richard also argues that the superior court's ruling is not an interpretation 

of the contract based on the parties' intent but rather an improper modification of the 

settlement agreement.  Because we hold that the superior court did not err in finding that 

the intent of the parties was to split the marital portion of the retirement benefits 50/50 

upon   Richard's   retirement,   it   follows   that   the   superior   court   did   not   impermissibly 

                                                                                         (continued...) 



                                                  -15-                                            6677
 


----------------------- Page 16-----------------------

              2.	    The benefits received between July 2009 and Richard's 60th 

                     birthday are not solely Richard's separate property. 



              Richard also argues that the benefits accrued from his retirement in July 



2009 to his 60th birthday are his separate property.  Richard's argument is similar to the 

arguments advanced by the appellants in Hartley v. Hartley16	 and Tillmon v. Tillmon.17 



              In Hartley , the former husband argued that the former wife's share of his 



retirement benefits should be calculated based on the average of his highest three salary 



years during marriage rather than at the time of retirement when his average salary was 



higher.   We disagreed, concluding that " 'a post-divorce merit increase is based upon the 



employee's entire history of service to the employer.  In other words, the post[-]divorce 



increases are built upon a foundation of prior marital efforts' and therefore the increases 

are not separate property."18 



              In Tillmon, a former husband and wife agreed on a 50/50 split of the marital 



portion of the former husband's military retirement, but disagreed on how to compute this 

share.19 The former wife proposed a QDRO that would split the marital portion of the 



retirement benefits upon the former husband's future retirement.20     The former husband 



argued that the former wife's share should be limited to his pay grade at the time of 



       15(...continued) 



modify the parties' settlement agreement. 



       16     205 P.3d 342, 347 (Alaska 2009). 



       17     189 P.3d 1022, 1031 (Alaska 2008). 



       18     Hartley , 205 P.3d at 349-50   (quoting 2 BRETT  R. TURNER , EQUITABLE 



DISTRIBUTION OF PROPERTY   6:26, at 171 (3d ed. 2005)). 



       19     189 P.3d at 1031. 



       20     Id. at 1024. 



                                            -16-	                                      6677
 


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divorce so that she would not benefit from his future pay raises.21              The superior court 



agreed with the former wife's calculation and we affirmed.22 



                Here, because Kathleen was married to Richard during seven of his eight 



years of active service in the military and during his first ten years with the National 



Guard, Kathleen helped lay the foundation for Richard's future advancement.                    Richard 



collected a significant amount of credit towards active duty retirement while married to 



Kathleen (5,026 points of 7,300 points required).           Richard's argument that the military 



retirement benefits from his July 2009 retirement to his 60th birthday are his separate 

property is precluded by Hartley and Tillmon.23 



IV.     CONCLUSION 



                We AFFIRM the superior court's October 11, 2010 order in its entirety. 



        21      Id. 



        22      Id. at 1032. 



        23      We note, as we did in Tillmon, that while Kathleen is entitled to half of the 



marital   portion   of   Richard's   retirement   benefits   starting   in   July   2009,   this   share   is 

calculated   over Richard's entire career with the military, 22.833 years.               This equals 

30.57%.  See id. at 1032 n.35. 



                                                 -17-                                              6677 

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