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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stanhope v. Stanhope (8/9/2013) sp-6806

Stanhope v. Stanhope (8/9/2013) sp-6806

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  


KENNETH T. STANHOPE                                      )  

                                                         )     Supreme Court No. S-14596  

                           Appellant,                    )  

                                                         )     Superior Court No. 3PA-10-03007 CI  

         v.                                              )  

                                                         )     O P I N I O N  

MARYNA V. STANHOPE                                        )  

                                                          )   No. 6806 - August 9, 2013  

                           Appellee.                      )  


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


                  Judicial District, Palmer, Kari Kristiansen, Judge.  

                  Appearances:   Carl D. Cook, Law Office of Carl D. Cook,  


                  P.C., Anchorage, for Appellant.  Notice of nonparticipation  


                  filed by Appellee.  

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

                  and Maassen, Justices.   

                  MAASSEN, Justice.  


                  Maryna and Kenneth Stanhope married for a second time in 2007.  Kenneth  


filed  for  divorce  in  2010.    The  superior  court  divided  the  marital  property  50/50,  


awarding the marital home to Maryna and ordering her to remove Kenneth from the  

mortgage and make an equalization payment.  Kenneth appeals.  He challenges several  


aspects of the court's findings of fact and disposition of property, but the primary relief  


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

he seeks is the award of the house, either as his separate non-marital property or under   

an unequal division of the marital property.   We affirm the superior court's decision.  



                    Maryna and Kenneth Stanhope married for the first time in 2003.  During  


this marriage they owned a home on Muffin Street in Wasilla.  They divorced in 2006,  

reporting no property subject to division, and sporadically continued their relationship.  


They married again in September 2007.  In 2008 Kenneth and Maryna sold the Muffin  


Street house for less than they still owed on the mortgage.  They bought a new house,  

located on West Sunrise Road in Wasilla, with settlement proceeds Kenneth had received  

in injury claims against former employers.  They took out a mortgage on the new house  

in order to pay off the amount they still owed on the Muffin Street mortgage.   


                    In October 2010 Kenneth filed a complaint for divorce, and a few months  

later  he  ejected  Maryna  from  the  marital  home  on  West  Sunrise  Road.    Maryna  

nonetheless made a $5,000 payment on the mortgage in December.  

                    At  an  April  2011  motion  hearing,  the  superior  court  awarded  interim  


possession of the house to Maryna and gave Kenneth 60 days to vacate.  During this  

grace period Kenneth filed several motions in an attempt to hold on to possession, but  


none of his motions succeeded.  He did not vacate the house when he was supposed to,  


and Maryna obtained a writ of assistance from the court, finally gaining possession in  

June 2011 with the aid of state troopers.  

                    Trial of the couple's property issues occurred in September and December  

2011,  with  both  parties  represented  by  counsel.    Kenneth  and  Maryna  provided  


conflicting testimony as to which party had taken or destroyed various items of personal  


property.  Kenneth also sought repossession of the house, arguing that he needed it more  

than Maryna did because he was mentally disabled due to head traumas from various  


                                                              -2-                                                        6806

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

                    The superior court, in its written findings of fact and conclusions of law,  


found that Kenneth was disabled and that he had been diagnosed with major depressive  

and anxiety disorders.  The court found that Maryna's current earning capacity was low  


but  Kenneth's  was  virtually  nil.                The  court  also  found  that  when  Maryna  regained  


possession  of  the  property  in  June  2011,  the  house  "appeared  to  be  vandalized."  


Weighing the disparity in the parties' earning capacities against a finding that Kenneth  


had wasted marital assets, the court determined that an equal division of property was  

appropriate.  In making this division, the court characterized Kenneth's credit-card debts  

as  non-marital  and  awarded  Maryna  a  half-credit  for  her  post-separation  mortgage  

payment. The court found that Maryna was in a better position than Kenneth to pay off  


the mortgage and make an equalization payment; it therefore awarded her the marital  


residence and ordered her to refinance it, to remove Kenneth from the debt, and to make  


the equalization payment within a year.  The superior court also found that Kenneth had  

taken  some  of  Maryna's  possessions,  and  it  assessed  their  value  against  him  in  the  

property division.  


                    Kenneth appeals the court's final order.  The primary  relief he seeks is  

possession of the house on West Sunrise Road.  He argues first that the superior court  

erred in characterizing the house as marital.  Second, he argues that the superior court  


erred in the legal analysis and factual findings that led to a 50/50 division of marital  


assets.  Third, he argues that the superior court erred in its findings about the parties'  


contributions to the mortgage during the marriage and their respective abilities to pay it  


afterwards.  Finally, he disputes the court's characterization of the credit-card debts as  


non-marital; its treatment of certain items of personal property; its award to Maryna of  


a half-credit for her post-separation mortgage payment; and its grant to Maryna of a year  

in which to make the equalization payment.  

                    Maryna did not participate in the appeal.  

                                                               -3-                                                         6806

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                       "There are three basic steps in the equitable division of marital assets:  (1)  


deciding what specific property is available for distribution, (2) finding the value of the  

property, and (3) dividing the property equitably."1  The first step involves characterizing  

the parties' property as separate or marital, a process that "may involve both legal and  



factual questions."   "Underlying factual findings as to the parties' intent, actions, and  


contributions to the marital estate are factual questions."3  "Findings of fact are reviewed  


for clear error, but whether the trial court applied the correct legal rule in exercising its  


discretion is a question of law that we review de novo using our independent judgment."4  


"The second step, valuation of assets, is a factual determination that we review for clear  


            5  "We review the trial court's third step, the equitable allocation of property, for  


an abuse of discretion."6  

                       We have also held that " 'the trial court must render findings of ultimate  


fact  that  support  any  decreed  property  division;  the  findings  must  be  explicit  and  

sufficiently detailed to give this court a clear understanding of the basis of the trial  

            1          Beals v. Beals           , ___ P.3d ___, Op. No. 6789 at 6, 2013 WL 3242376, at *3   

(Alaska,  June  28,  2013)  (citing  Doyle  v.  Doyle ,  815  P.2d  366,  368  (Alaska  1991);  

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

            2          Id. (citing Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006)).

            3          Id.



                       Hanson v. Hanson , 125 P.3d 299, 304 (Alaska 2005) (quoting Schmitz v.  

Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)).  

            5          Beals , 2013 WL 3242376, at *3.

            6          Id.

                                                                         -4-                                                                   6806

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

court's decision.' "7   "Whether a superior court's findings are sufficiently clear is a legal  


question, which we review de novo."8  


                    "A finding of fact is clearly erroneous if, upon review of the entire record,  



we are left with a firm and definite conviction that a mistake has been made."   "We will  


grant especially great deference when the trial court's factual findings require weighing  



the credibility of witnesses and conflicting oral testimony."                                 "We review for abuse of  


discretion a superior court's decision whether to give a credit to a spouse for payments  


made to maintain marital property, such as the family home."11  


          A.	       The Superior Court Did Not Clearly Err In Characterizing The  

                    West Sunrise Road House As Marital Property.  

                    Kenneth argues that the superior court erred in characterizing the West  


Sunrise Road house as marital property.  He contends that the house is his separate  

property because it was purchased with proceeds from his settlement of personal injury  


claims and it never became transmuted into marital property.  Although the superior  

court agreed that the West Sunrise Road house was purchased with Kenneth's settlement  


proceeds, its other findings amply support its conclusion that the house was marital  


          7	        Id.  

          8	        Id.  

          9         Fortson v. Fortson           , 131 P.3d 451, 456 (Alaska 2006) (citing Schmitz, 88  

P.3d at 1121)).  

          10        Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 178 (Alaska 2009) (citing  


 Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007)).  

          11        Berry  v.  Berry ,  978  P.2d  93,  95  (Alaska  1999)  (citing  Rodriguez  v.  


Rodriguez , 908 P.2d 1007, 1013 (Alaska 1995)).  

                                                               -5-	                                                        6806

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


                     First, "[a]lthough holding joint title is not determinative of intent to treat  


property as marital, it creates rebuttable evidence that the owner intended the property  

                      12  Other factors that bear on the parties' intent with respect to real property  

to be marital."                                                                     

include whether they used the property as their personal residence and whether they both  


contributed to its ongoing maintenance and management.13  

                     Maryna and Kenneth held joint title to the West Sunrise Road house, and  


the presumption that it is marital property therefore applies regardless of the source of  


the funds used to pay for it.  Kenneth argues that the parties demonstrated their intent to  


treat the property as non-marital because Maryna was not allowed to use certain parts of  


the house; she was the one who was ejected when the parties had disagreements; and she  


only made mortgage payments after their separation. Yet the mortgage, like the title, was  


in both parties' names, and the record supports the superior court's findings that Maryna  


"assisted with the mortgage, utilities and upkeep of the residence." Maryna testified that  


she sometimes gave Kenneth money to pay toward the mortgage.  She also testified that  


she worked with Kenneth to improve the property by helping build the greenhouse,  


create a solar energy system, and set up a methane separator.  The fact that Kenneth  

occasionally ejected Maryna and controlled her use of the house does not negate the fact  


that both parties used it as their primary residence.  We conclude that the superior court  

did not err in characterizing the West Sunrise Road house as marital property.     

           12        Johns v. Johns , 945 P.2d 1222, 1225 (Alaska 1997) (quoting                                    Lundquist v.  

Lundquist , 923 P.2d 42, 48 (Alaska 1996)) (internal quotation marks omitted).  

           13        Beals , 2013 WL 3242376, at *4.  

                                                                 -6-                                                               6806  

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

          B.        The Superior Court Did Not Err In Its Merrill Factors Analysis.  


                    Using the balancing test of             Merrill v. Merrill ,   the superior court divided  


the property equally.  Kenneth challenges the court's finding that on one side of the  


balance was his waste of marital assets.  He also argues that the superior court erred by  


not awarding the residence to him in an unequal division because of his disabilities, his  


poor earning capacity relative to Maryna's, and his inability to qualify for a mortgage on  

another residence.  

                    1.	       The finding that Kenneth wasted marital assets was not clearly  



                    The superior court found that when Maryna gained possession of the West  

Sunrise Road property in June 2011, "the house appeared to be vandalized with large  


quantities of trash, including a broken toilet, missing shower head, inoperable methane  


system, broken wood stove, vandalized greenhouse, mold on the bathroom walls, one  

wall missing, and missing generator to the solar system."  The court's findings do not  


explicitly state that all of this damage was Kenneth's fault, but they do find explicitly that  


Kenneth "vandalized the greenhouse and the equipment that he sought to maintain when  


Maryna . . . took over the residence."  In its analysis of the Merrill  factors, the court  

found  that  Kenneth  "wasted  a  number  of  marital  assets  following  his  exit  from  the  


marital home," and the court appeared to weigh this finding heavily in concluding that  

it was appropriate to "divide the marital property evenly."  

                    Kenneth disputes the court's findings of vandalism and waste.  He argues  

that the house was in poor condition even before the parties separated, which Maryna  


acknowledged in her testimony.  She also testified, however, that the condition of the  


house was much worse when she returned after the separation, when she discovered  

          14        368 P.2d 546, 547 n.4 (Alaska 1962).  

                                                              -7-                                                           6806  

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


various fixtures and hardware missing, broken, or destroyed.  She also testified that a  


room had been completely torn out unnecessarily.  Kenneth testified that the room was  


pulling off one side of the house, and that he accomplished part of the demolition work  

before  the  separation.    But  granting  the  required  deference  to  the  superior  court's  

resolution of these conflicting oral accounts of the house's condition both before and  


after the separation,               we cannot conclude that the court clearly erred when it credited  

Maryna's testimony on the subject.   


                     Kenneth  next  argues  that  the  court  clearly  erred  in  implying  that  the  



extensive mold in the house was his fault.   It is true that the record does not appear to  



support such a finding,                 but we do not read the court's inclusion of mold in its long list  


of problems with the house as central to its finding of waste or to its ultimate decision  


to divide the property equally.  Thus, even if the court clearly erred in finding that the  


mold was Kenneth's fault, any such error would be harmless.                                                

           15        Bigley , 208 P.3d at 178 ("We will grant especially great deference when the   

trial court's factual findings require weighing the credibility of witnesses and conflicting     

oral testimony."  (citing  Vezey, 171 P.3d at 1128-29)).  



                     Without specifying a time frame, Kenneth's evidence implies that much of  

the work he did to address the mold problem predated the separation.  One of Maryna's  

friends  testified  that  there  was  black  mold  up  the  walls  of  the  bedroom  when  she  


regained possession of the house; he did not state that this was a recent development,  

though that could be implied from his testimony.  

           17        See Fortson v. Fortson, 131 P.3d 451, 464 (Alaska 2006) (declining to  

reach issue of alleged error in superior court's classification of items as non-marital  


where any error was minor in relation to the entire estate at issue and probably had no  

"appreciable effect on the ultimate determination of equitable distribution"); Vachon v.  


Pugliese , 931 P.2d 371, 376 (Alaska 1996) (holding that although the superior court  


clearly erred in finding certain statements of the wife to be false, there was enough other  


evidence bearing on her credibility that it was "highly improbable" that the superior  


                                                                   -8-                                                             6806

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

                   Kenneth  argues  that  the  superior  court  also  erred  in  listing  "missing  

generator"  among  the  problems  with  the  house  when  Maryna  regained  possession,  


though he makes note of Maryna's testimony that the generator was missing important  


parts such as the statin battery and inverter.  As Kenneth concedes, Maryna's testimony  


does support a finding that the generator was missing enough essential elements as to be  


inoperable upon her return, and again, if the court erred in identifying as "missing" the  


generator itself rather than some of the parts it needed to function, the error is minor and  

can only be viewed as harmless.  

                   Kenneth also disputes the court's implication that he broke the couple's  

system for separating methane; he relies on Maryna's testimony that it was inoperable  


when she moved out in late 2010.  But Maryna testified that the system had been able to  


separate methane during the marriage even though there was no line to the house, and  


when she regained possession it was completely unusable because all the pipes and  

fittings were missing.  Again, resolution of this conflict in the oral testimony was for the  

superior court, and we see no clear error.  

                   2.	       The superior court did not abuse its discretion in considering  

                             the Merrill factors.  

                   Pointing to his disability, his inability to work, and his resulting dependence  


on the marital home, Kenneth argues that the superior court abused its discretion in  

dividing the assets 50/50 and awarding the house to Maryna.  


                   In  dividing  property  the  trial  court  must  consider  the  Merrill  factors,  

                                              18  Relevant factors concern the length of the marriage;  

codified at AS 25.24.160(a)(4).                                 


court would have assessed her credibility more favorably but for the errors).  

          18       Hooper  v.  Hooper ,  188  P.3d  681,  686  (Alaska  2008)  (citing  Tybus  v.  



                                                            -9-	                                                         6806  

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

the health, earning capacity, and financial condition of the parties; the conduct of the  


parties,  including  whether  they  have  unreasonably  depleted  marital  assets;  and  the  


circumstances and necessities of the parties.                            "While the trial court need not make  


findings pertaining to each Merrill  factor, its findings must be sufficient to indicate a  


factual basis for the conclusion reached.  Where the trial court makes these threshold  

findings, we generally will not reevaluate the merits of the property division."20 An equal  


division is presumed to be equitable.                       


                    Here, the superior court in its findings of fact explicitly considered the  

length  of  the  parties'  marriage;  Kenneth's  health,  his  receipt  of  disability  and  other  


benefits, his anticipated inheritance, his lack of any recent work history, and his current  


inability  to  work;  Maryna's  recent  immigration  from  Belarus,  her  employment  as  a  

janitor,  her  modest  earning  capacity,  the  fact  that  she  was  seeking  supplemental  

unemployment insurance and a second job, and her lack of any health problems; the fact  


that Maryna's earning capacity exceeded Kenneth's "at this time"; and Kenneth's waste  

of "a number of marital assets following his exit from the marital home."  As noted  


above, the superior court went on to discuss in greater detail its finding that Kenneth had  


depleted marital assets; it did not, however, explicitly discuss any of the special needs  


that could arise from Kenneth's disability.  It would have been better had the court done  


Holland , 989 P.2d 1281, 1286 (Alaska 1999)).  

          19        AS 25.24.160(a)(4).  

          20         Cartee  v.  Cartee,   239 P.3d 707, 713 (Alaska 2010) (footnote                                  omitted)  

(citing Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)).  

          21        Id.  at  712  (citing  Odom  v.  Odom,  141  P.3d  324,  339  (Alaska  2006);  


 Veselsky v. Veselsky, 113 P.3d 629, 637 (Alaska 2005)).  

                                                               -10-                                                        6806

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



so, given his claims of dependence on the marital home.                                  However, we conclude that  


the superior court made sufficient findings to indicate the factual basis for its decision  


to divide the property 50/50, and that division - a presumptively equitable one - was  

therefore not an abuse of discretion.  

          C.	       The Superior Court Did Not Clearly Err In Its Findings Related To  

                    The Mortgage.  

                    Kenneth alleges two errors in the superior court's findings involving the  


mortgage on the marital home.  He first argues that the court clearly erred in finding that  


he had not been regularly paying the mortgage.  This finding appears to be irrelevant to  


the issues on appeal, as the superior court was simply relating the basis for its earlier  

award to Maryna of interim possession, an issue that was mooted by the final order  


dividing the property.  In any event, the finding is not clearly erroneous, as the conflict  

in oral testimony was for the superior court to resolve.  Kenneth testified that Maryna did  


not  make  any  mortgage  payments  prior  to  separation,  but  Maryna  agreed  only  that  


Kenneth was always the one who physically made the payments; she testified that she  

sometimes gave him the money with which to do it.  


                    Kenneth also argues that the court acted arbitrarily in finding that  Maryna  


was in a better position to pay off the mortgage.  He testified at trial that he could pay off  

the mortgage with money from an inheritance.  But the superior court's other findings  

provide support for its conclusion that Maryna was better equipped to pay it off.  First,  


the court found that Maryna works while Kenneth does not and apparently cannot, and  

she is seeking to increase her income from various sources. Second, the court found  



                    While the court did find that Kenneth was disabled, it did not say how his  


disability affected the Merrill analysis other than that he received social security and had  


no reasonable prospects of employment.  Kenneth testified at trial that his disability also  

made it difficult for him to function outside his home.  

                                                              -11-	                                                            6806  

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

based on Kenneth's credit-card debts that he had probably spent any inheritance money  


he had received.  Based on this evidence, the finding that Maryna was better equipped  

to pay off the mortgage was not clearly erroneous.  


          D.	       The Superior Court Did Not Clearly Err In Its Characterization Of  

                    The Credit-Card Debts.  

                   In Kenneth's asset spreadsheets, which were admitted into evidence, he  

listed  credit-card  debts  to  Chase  and  Wells  Fargo  totaling  approximately  $30,000,  


apparently all in his name alone.  He argues that the superior court erred in declining to  

characterize these debts as marital.  


                    The asset spreadsheets indicated that the credit-card debts were supported  


by certain exhibits, but Kenneth never moved to admit those exhibits into evidence.  In  

testimony, he asserted that "all of the credit card money went into the [marital] home."  


Maryna disputed this:  she testified that she did not know Kenneth had a credit card with  


Chase,  did  not  know  what  he  did  with  it,  and  had  no  control  over  his  credit-card  


spending.  She did, however, admit that Kenneth had paid for some furniture with a  

credit card during the first marriage; that he had a Wells Fargo credit card at the time  


they  took  out  the  mortgage  on  their  first  house,  during  the  first  marriage;  and  that  


(apparently during one of the marriages) there were "multiple debt collectors who called  

on the phone to him, but he never answered."  

                    The superior court found that the credit-card debt was "not proven to the  

court's satisfaction."  The court noted that Kenneth "was unable to provide specifics  


concerning the nature of the debt, the dates the debt occurred, or the dates of payments  


made on the debt," and it also noted Maryna's testimony "that she was not aware of the  

credit cards or any of the charges that were made."  

                                                            -12-	                                                      6806

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


                       As Kenneth correctly points out, there is a presumption that debts incurred  

                                                 23 and the fact that one spouse is unaware of the debts is  

during marriage are marital,                                                        

immaterial.  "Absent any showing that the parties intended a debt to be separate, the trial  


court  must  presume  that  a  debt  incurred  during  the  marriage  is  marital  and  should  


                                                                                 Here, however, the superior court found       

consider it when dividing the marital estate."  

that there was insufficient evidence to prove the debt itself, including the critical question   

of whether it had been "incurred during the  marriage."  Although Kenneth testified  


generally that all the debt related to the marital home, the only evidence of amounts was  


the numbers entered on the asset sheets prepared by his attorney.  Kenneth apparently  


had better evidence - the account statements - that may have supported the claimed  


amounts  and  may  have  also  shown  when  the  debts  were  incurred,  but  he  failed  to  


introduce this evidence at trial.  And while Maryna conceded that some credit-card debt  

was incurred during the first marriage, that marriage had been dissolved over five years  


before trial, and the parties had divorced and spent some time apart before remarrying  


in 2007.  The court was not required to infer, without evidence, that the debts being  


pursued by creditors during the second marriage were marital debts.                                                           The superior  

court's conclusion that there was insufficient evidence to prove a marital debt is not  

clearly erroneous.26  

            23         Coffland  v.  Coffland,   4  P.3d  317,  321  (Alaska  2000)  (citing  McGee  v.  

McGee , 974 P.2d 983, 988-89 (Alaska 1999); Johns v. Johns , 945 P.2d 1222, 1225                                                 

(Alaska 1997); Jones v. Jones , 942 P.2d 1133, 1136 (Alaska 1997)).  

            24         Id. at 321-22.  

            25         The  court  also  noted  that  there  was  apparently  "no  property  subject  to  

division" at the end of the first marriage.  

            26         See Fortson v. Fortson, 131 P.3d 451, 461-62 (Alaska 2006) (affirming  

finding that parental loans were not "bona fide [marital] debts" based on testimony that  



                                                                       -13-                                                                      6806  

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

          E.	       The  Superior  Court  Did  Not  Clearly  Err  In  Its  Valuation  Of  The  

                    Russian Instruments.  


                    The superior court assessed $1,000 against Kenneth for the value of items  

identified in the court's final asset spreadsheet as "Russian instruments," which belonged  


to Maryna but the court found had been taken by Kenneth.  Kenneth contends that this  


valuation was unsupported by the evidence and, though less clearly, that the court erred  

in assessing the value against him.  


                    "In general, the opinion of a lay owner as to the value of his or her property  


is  admissible  evidence."                 Maryna's  asset  spreadsheet  listed  "Russian  Therapeutic  


Instruments" as belonging to her and gave them a value of $1,000.  She did not testify  



about  the  instruments  at  trial,  but  her  spreadsheet  was  admitted  as  Exhibit  K. 

Kenneth's own spreadsheet was introduced as an exhibit at the close of trial, and he  


expressly endorsed it as representing his preferred distribution of the marital estate.  This  

document also included "Russian Therapeutic Instruments," awarded them to Maryna,  

and gave them Maryna's value of $1,000.  


                    We  considered  a  similar  issue  in  Cartee  v.  Cartee.                           During  divorce  

litigation, a husband submitted several inventory lists giving different values for the same  


the husband had not signed promissory notes and did not consider the loans to be legal  


debts, that the parents had never demanded payment, and that the parents never asked for  


interest even though the notes provided for interest).  

          27	      Ethelbah v. Walker , 225 P.3d 1082, 1092 (Alaska 2009) (citing Schymanski  

v. Conventz, 674 P.2d 281, 286 (Alaska 1983)).  



                    An amended spreadsheet was later admitted as Exhibit Q.  The amended  


spreadsheet also listed "Russian Therapeutic Instruments" but gave them no value; the  


item had been moved from the "W[ife] says who gets it" column to the "Disputed Non- 

Marital" column.  

          29        239 P.3d 707, 710 (Alaska 2010).  

                                                             -14-                                                          6806  

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


guns.        He endorsed his most recent list in his trial testimony, but the trial court instead  



selected the highest value on the different lists for each of the guns.                                     We rejected the  


husband's claim that these findings lacked a sufficient evidentiary basis:  "As the court  


explained, it valued the guns by selecting from among the values on the lists submitted  


by Terry himself.  Terry's first three lists, submitted at different phases of discovery, do  


constitute evidence that the court may properly consider."32  


                    The same is true here.  Maryna's property list, admitted as an exhibit, was  


evidence  of  value  that  the  superior  court  was  allowed  to  consider.    There  was  no  

testimony  contradicting  it.    The  fact  that  Kenneth  used  the  same  value  in  his  own  

spreadsheet, which he adopted in his testimony, gave it further credibility.  We cannot  


say  that  the  court  clearly  erred  in  accepting  the  value  of  $1,000  for  the  Russian  


          F.	        The Superior Court Did Not Clearly Err In Its Findings That Kenneth  


                    Removed Personal Property.  

                    Kenneth  argues  that  the  superior  court  erred  in  finding  that  he  took  a  


number of Maryna's personal possessions (including the "Russian instruments") and in  


assessing the value of these missing items against him in its property division.  


                    Kenneth  first  contests  the  superior  court's  determination  that  "Maryna  


Stanhope is more credible as to removal of marital property, because Kenneth Stanhope  


returned to the property after he was no longer permitted access."  Kenneth contends that  

          30        Id.  at 710, 718.  The husband submitted these gun inventories during his  

initial  disclosures,  on  a  handwritten  list  generated  at  an  unknown  time,  and  on  two  

property spreadsheets, the most recent of which was provided with his trial brief.  Id.  

          31	       Id.  

          32        Id. at 719.  See also Helen S.K. v. Samuel M.K., 288 P.3d 463, 471 (Alaska  

2012)  (relying  on  husband's  listed  value  of  exercise  machines  instead  of  wife's  



                                                               -15-	                                                            6806  

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

he had to return to the property because he had left some of his possessions on the  

property's edge, having no other place to leave them.   He also argues that the court  


should have questioned Maryna's credibility because she misled the court about her need  

for interim possession, blamed Kenneth unfairly for the poor condition of the house, and  

treated  his  dogs  inhumanely.    But  "we  will  generally  accept  the  determinations  of  


witnesses' credibility that are made by the court as a trier of fact, since the court heard  

                                                        33  Giving the appropriate deference to the court's  

and observed the witnesses first hand."                                 

determination of this issue, we see no clear error in the finding that Maryna was "more  


credible as to removal of marital property."   

                    Kenneth next argues that, assuming Maryna's possessions were missing,  


there was no evidence that he took them.  He and Maryna gave conflicting testimony at  


trial.  Kenneth testified that he did not have any of her things. Maryna testified that when  


she returned to the house after gaining interim possession, pieces of her luggage that she  


had packed for a planned trip to Belarus were missing, along with a number of her other  


possessions.  While Maryna's accusations against Kenneth were not detailed, she did  


testify that "he took everything."  An appraisal of personal property that Kenneth held  


in a self-storage unit, which the parties commissioned jointly during a long break in the  

evidentiary  proceedings,  failed  to  account  for  some  non-marital  items,  including  


Maryna's Russian instruments. Again giving deference to the superior court's weighing  

                                                                                          34 we conclude that it did  

of credibility and its resolution of conflicts in oral testimony, 

not clearly err in attributing the loss of some of Maryna's personal property to Kenneth  


and assessing its value against him.  

          33       Demoski v. New , 737 P.2d 780, 784 (Alaska 1987) (citing Curry v. Tucker,  

616 P.2d 8, 12 n.3 (Alaska 1980)).  

          34       Bigley v. Alaska Psychiatric Inst.              ,  208 P.3d 168, 178 (Alaska 2009) (citing  

Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007)).  

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             G.	         The Superior Court Did Not Clearly Err In Finding That The Four-  

                         Wheelers Did Not Belong to Kenneth's Son.  

                         Kenneth takes issue with the superior court's characterization of two four- 

wheelers as marital property, arguing that they in fact belonged to his son.  He and   

Maryna gave conflicting testimony at trial about the four-wheelers' ownership.  Kenneth     

and a friend of his both testified that they belonged to Kenneth's son, the friend asserting                                            

that he had seen a bill of sale for the four-wheelers and that the son had simply left them  

with Kenneth for him to use.  Maryna disputed this, testifying that the four-wheelers  


were Kenneth's and that she was with him when he purchased them in 2004, during their  

first  marriage.    She  further  testified  that  the  four-wheelers  had  remained  with  the  


household since their purchase and had never been in the son's possession.  The court's  


classification of the four-wheelers as marital property was based on its acceptance of  


Maryna's testimony over Kenneth's.  Given the great deference we grant to a trial court  


when its "factual findings require weighing the credibility of witnesses and conflicting  

oral testimony,"35 we conclude that the superior court did not clearly err in rejecting  

Kenneth's argument that the four-wheelers belonged to his son.  

                         The court's implicit finding that the four-wheelers were not the son's did  


not, however, resolve the issue of whether they were marital at the time of the second  


divorce.  This presents a more difficult question, given the superior court's finding that  


other property that was Kenneth's following the first divorce remained his at the time of  

the second divorce.  Kenneth does not address the issue in his brief, however.  His  

argument assumes that the four-wheelers, if not the son's, were marital.  Any other  

challenge to the court's resolution of this issue is therefore waived.36  

             35	         Id.  

             36          State,  Dep't  of  Rev.,  Child  Support  Enforcement  Div.  ex  rel.  P.M.  v.  


                                                                              -17-                                                                              6806  

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


          H.	        The Superior Court Did Not Err In Giving Maryna A Half-Credit For  

                    Her Post-Separation Mortgage Payment.  


                    Kenneth disputes the superior court's award of a half-credit to Maryna for  


post-separation mortgage and utility payments made "while she did not have access to  


the property." He asserts that Maryna "did not have access to the property for only a  


small amount of time during this matter" and that any credit should have been limited to  

that brief period.  

                    When one spouse has made payments to maintain marital property after  


separation, a trial court is required to make factual findings as to whether a credit is  


                       The court did so here.  There is no fixed rule, however, as to whether a  


credit should be awarded and if so in what amount.38   "Instead, the fact that one party has  


made  payments  from  non-marital  income  to  preserve  marital  property  should  be  


considered as one of the circumstances to be weighed by the trial court in dividing the  


marital property."               

                     Given the lack of a fixed rule, Kenneth's assertion that the credit must be  


proportional to the time Maryna lacked access to the property is without support.  In any  


event, the record shows that the half-credit was roughly proportional, as Maryna lacked  



Mitchell , 930 P.2d 1284, 1288 n.8 (Alaska 1997) (failure to brief an issue on appeal  


waives the issue).  

          37        Beal v. Beal , 209 P.3d 1012, 1023 (Alaska 2009) (quoting Berry v. Berry ,  


978 P.2d 93, 96 (Alaska 1999)).  

          38	       Id.  



                    Ramsey v. Ramsey , 834 P.2d 807, 809 (Alaska 1992).  

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



access to the property for about half the period of separation.                            The award is not clearly  


unjust and we will not disturb it on appeal.                       


          I.	      It   Was   Not   Error   To   Allow   Maryna   A   Year   To   Make   The  

                   Equalization Payment.  

                   Kenneth  argues  that  the  superior  court's  allowance  of  a  year  in  which  

Maryna  can  make  the  equalization  payment  is  unreasonable  because  of  his  limited  


income  and his inability to work.  We disagree.  Any cash award made as part of a  


                                                                                                                It  was  not  

divorce  settlement  must  "not  impose  a  hardship  on  the  paying  party." 

unreasonable  to  give  Maryna  a  year  to  make  the  equalization  payment,  given  the  

evidence of her earning capacity and the limited assets at her disposal.  

V.	       CONCLUSION  

                   We AFFIRM the superior court's decision.  

          40       Maryna lacked access to the house from the separation on December 14,  

2010, until June 17, 2011, a period of roughly six months.  Kenneth lacked access to the  


house from June 17, 2011 until the divorce decree was entered on December 27, 2011.  




                   See Beal, 209 P.3d at 1016, 1024 (holding that the award of a full, dollar- 

for-dollar credit to husband for reduction of the mortgage principal, when he did not live  

in the marital residence for the duration of the post-separation period, was not clearly  



          42       Fortson v. Fortson , 131 P.3d 451, 459 (Alaska 2006).  

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