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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Glover v. Ranney (12/13/2013) sp-6854

Glover v. Ranney (12/13/2013) sp-6854

         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  



JASON R. GLOVER,                                            )  

                                                            )    Supreme Court No. S-14610  

                            Appellant,                      )  

                                                            )    Superior Court No. 3AN-10-08789 CI  

         v.	                                                )  

                                                            )    O P I N I O N  

BEVERLY E. RANNEY,                                          )  

                                                            )    No. 6854 - December 13, 2013  

                            Appellee.	                      )
  

                                                            )
  



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

                                                                    

                   Judicial District, Anchorage, Mark Rindner, Judge.  



                   Appearances:   Jason   R.   Glover,                pro    se,   Los     Angeles  

                   California,  Appellant.    Maryann  E.  Foley,  Law  Office  of  

                                                                        

                   Maryann E. Foley, Anchorage,  for Appellee.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                

                   Bolger, Justices.  



                   WINFREE, Justice.  



I.       INTRODUCTION  



                   A  husband  and  wife  divorced  in  2011.    They  entered  into  a  property  

                                                                                                           



settlement agreement, providing that the wife would receive 55% of the marital estate  

                                                           



and  50%  of  the  marital  share  of  the  husband's  military  pension.    The  parties  then  



disputed how to properly effectuate the settlement agreement - disagreeing over what  

                     



portion  of  the  husband's  pension  was  divisible,  whether  the  division  could  require  



indemnification for reductions in disposable retirement pay, and whether the division  

                                                                                       


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

                                                                                          

could include a survivor benefit plan annuity not mentioned in the settlement agreement.  



They submitted competing orders to effectuate the military pension division, and the  



superior court accepted the wife's order.  The husband appeals the military pension  



division, arguing that: (1) he was denied the opportunity to present evidence; (2) the  



                                                                                                          

superior court violated federal law by dividing gross pay, disability pay, and more than  



                                                                                                    

50% of disposable retirement pay; (3) the superior court's final order awarding survivor  



                                           

benefits did not comply with the parties' settlement agreement and ignored the parties'  



                                                                                                    

stipulated length of marriage; (4) the superior court erred by awarding the wife additional  



compensation without explanation; and (5) the superior court incorrectly barred the  



parties' children from survivor benefit coverage.  



                   Because the superior court ignored the stipulated length of marriage and  



awarded  the  wife  a  survivor  benefit  exceeding  her  share  of  the  husband's  military  



pension, we reverse and remand on those two issues.  We otherwise affirm the superior  



court's decision.  



II.       FACTS AND PROCEEDINGS  



                                                

                   Jason  Glover  and  Beverly  Ranney  married  on  December  30,  1999  in  



                                                                    

Fairbanks. Beverly filed for divorce on July 6, 2010.  Jason was employed by the United  



States Air Force during the entire marriage.  



                   Jason and Beverly entered mediation and reached a property settlement  



                                      

agreement in May 2011, dividing the marital property 55% to 45% in Beverly's favor  



                                                    

and dividing the marital portion of Jason's military pension 50% each.  The agreement  



                                                                                          

awarded Beverly "a percentage of Jason Glover's disposable military retired pay, to be  



                                                          

computed by multiplying 50% times a fraction, the numerator of which is 122 months  



     

of  marriage  during  .  .  .  Jason  Glover's  creditable  military  service,  divided  by  the  



member's total number of months of creditable military service."  



                                                             -2-                                                      6854
  


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

                                                                                                          

                    The superior court held hearings and issued oral orders and findings in July  



2011.  Beverly and Jason then disputed proposed written findings and disagreed about  



                                                                                                                      

how the superior court should effectuate the military pension division.   Jason filed a  



                               

proposed order and Beverly objected, arguing that it did "not contain all the language  



necessary to protect [her] rights." Beverly then filed a competing proposed order and  



Jason objected, arguing that:  



                    Ms.  Glover's  order  ignores  federal  law  by  attempting  to  

                    compute Ms. Glover's interest from a gross sum, rather than  

                    the disposable amount, and then subsequently attempting to  

                                              

                    force Mr. Glover to indemnify Ms. Glover for any mandatory  

                    offsets     used      to    calculate      disposable         income,       thereby  

                                                              

                    attempting  again  to  adopt  a  gross  income  approach  to  

                    calculating her distribution.  



                                                                            

Jason further argued that Beverly's proposed order incorrectly computed the amount of  



              

time the parties were married.  Finally, Jason argued that Beverly's order incorrectly  



                                                                                                                

included a Survivor Benefit Plan because survivor benefits were not part of the parties'  



                                                                                

settlement agreement, there cannot be implied consent to survivor benefits, and "[i]f Ms.  



Glover wanted to have [survivor benefits] she should have submitted in writing the  



                                                                                                             

percentage amount commensurate with what she would have receive [sic] if Mr. Glover  



were alive, not asking for an increased benefit due to his death."  



                    The superior court scheduled a hearing for October 14, explaining that  



                                                                                                     

Jason's and Beverly's counsel were to confer before the hearing and if they "are able to  



                                   

agree on the pleadings and resolve their differences, they shall notify the court and file  



                                                                                 

the pleadings to which they both agree prior to the date of the hearing.  If that occurs the  



                                        

hearing will be vacated."  Before the hearing Jason emailed Beverly, her attorney, and  



      

his own attorney, requesting that all correspondence in the case be sent directly to him  



and  not  his  attorney.    Jason's  email  suggested  a  change  to  his  proposed  military  



retirement order to provide Beverly with survivor benefits coverage.  He explained that  



                                                             -3-                                                        6854
  


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

                                                                      

"[i]f this meets the as of yet unknown goals of Ms. Glover then it can be submitted to the  



court in order to prevent the need of an additional court date."  



                    The  next  day  Jason's  attorney  notified  the  superior  court  that:    (1)  the  



            

parties had agreed to amended findings of fact; (2) the only issues remaining before the  



court related to the military qualifying domestic relations order (QDRO); and (3) the  



parties agreed that the court could sign either QDRO that it received from the parties.  



Jason's attorney also explained that Jason still would "like the opportunity to address the  



                                                                                                                

Court on October 14, and to have his QDRO expert . . . available by phone to answer any  



of the Court's questions or concerns regarding the dueling QDRO's."  Three days later  



                                                     

Beverly notified the superior court that "[c]ounsel for the parties have communicated and  



                                                                                                                   

in light of the recent filing of the Amended Findings of Fact and Conclusions of Law, the  



parties are uncertain if the court finds it necessary to conduct the . . . hearing."  



                                                                                       

                    The superior court vacated the hearing "due to the fact that the parties have  



                                                      

filed an Amended Findings of Fact and Conclusion of Law, which has been approved as  



                                                                              

to form and contents therein." The court explained that it would sign one of the QDROs  



                                                                                         

submitted by the parties.  That same day the superior court entered amended findings of  



                                                                          

fact and conclusions of law, a decree of divorce, and Beverly's proposed order dividing  



Jason's military pension.  



                                                               

                    Jason then moved to vacate the pension division, arguing that it incorrectly  



                                             

divided gross income instead of disposable retirement pay.  He further argued that in his  



                                                                                                                      

email he had advised his counsel and Beverly's counsel that he "did not want the order  



                                                                                                                  

signed until corrections were made" and that counsel should not "proceed with invalid  



                                                                                                            

orders."  Beverly opposed the motion, arguing that the order divided only disposable  



                         

retired pay and that Jason's email did not direct counsel not to proceed - it simply  



suggested an amendment to a proposed order.  



                                                               -4-                                                         6854
  


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

                   The superior court denied Jason's motion to vacate.  Jason appealed and  



                                      

appears before us pro se. He raises the following points on appeal regarding the division  



                                                                                   

of his military pension:  (1) the superior court erred by not allowing Jason to present  



evidence;  (2)  the  superior  court  violated  the  Uniformed  Services  Former  Spouses'  



Protection  Act  (the  Act)  by  dividing  gross  pay,  by  dividing  disability  pay,  and  by  



              

dividing  over  50%  of  retired  pay;  (3)  the  superior  court  erred  by  disregarding  the  



                                                             

stipulated property settlement agreement and accepting a military retirement order that  



violated  federal  law;  (4)  the  superior  court  erred  by  awarding  Beverly  additional  



compensation, outside the scope of the settlement agreement, without explanation; and  



                                                        

(5) the superior court erred by barring the parties' children from coverage under Jason's  



retirement plan.  



III.      STANDARD OF REVIEW  



                   "We  construe  property  settlement  agreements  in  divorce  actions  in  



                                                                                          

accordance with basic principles of contract law.  Questions of contract interpretation are  



                            1  

                               "We review the equitable division of marital property for abuse of  

reviewed de novo."                                                   



                        2  

discretion . . . ."   We review factual findings supporting a property division for clear  

                                                                                                                  



        3                                                                                                                   4  

error.   We review de novo whether the superior court applied the correct legal rule.  



          1        Hartley v. Hartley , 205 P.3d 342, 346 (Alaska 2009) (citing Zito v. Zito,  



969 P.2d 1144, 1147 (Alaska 1998)).  



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



Alcina , 105 P.3d 117, 120 (Alaska 2005)).  



          3        Id. (citing Hooper v. Hooper , 188 P.3d 681, 687 (Alaska 2008)).  



          4        Id. (quoting Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)).  



                                                             -5-                                                      6854
  


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

                                                            

Whether the superior court's "division of a military pension is consistent with federal law  



                                                            5  

is a question of law we review de novo."   



                    "A superior court's decision to deny a motion requesting an evidentiary  

                          



hearing is subject to our independent review. A hearing is not necessary if 'there is no  

                                                                                                                        

genuine issue of material fact before the court.' "6  



IV.       DISCUSSION  



          A.        Military Pension Divisions And Survivor Benefits  



                    The Act authorizes state courts to "treat disposable retired pay payable to  

                                                         



a [service] member . . . either as property solely of the member or as property of the  



                                                                                                                             7  

                          

member and his spouse in accordance with the law of the jurisdiction of such court." 



"The total amount of the disposable retired pay of a [service] member payable under all  



                                                                                                              8  

court orders . . . may not exceed 50 percent of such disposable retired pay."    

                    We have accepted the time rule method for dividing military pensions.9  

                                   



Under this method, "[t]he marital share of a pension is typically determined by  the  

                                                                                                                     



coverture fraction, whose numerator is the number of months of employment during  



                                                        

coverture, and whose denominator is the total number of months of employment at the  



          5        Id. (citing Clauson v. Clauson, 831 P.2d 1257, 1261-62 (Alaska 1992)).  



          6        Hartley , 205 P.3d at 346-47 (quoting Routh v. Andreassen , 19 P.3d 593,                      



596 (Alaska 2001)) (footnotes omitted).  



          7         10 U.S.C.  1408(c)(1) (2012).  



          8        Id.   1408(e)(1).  



          9         Tillmon  v.  Tillmon,  189  P.3d  1022,  1031  n.32  (Alaska  2008)  (citing  



Faulkner v. Goldfuss , 46 P.3d 993, 1003 (Alaska 2002)).  



                                                             -6-                                                       6854
  


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

                          10  

                                                                                        

time of vesting."             The fraction is then multiplied by the percentage of the retirement  

awarded.11  



                    Disposable retired pay does not include retired pay already waived for  



                                          12                                                                                    13  

                                                             

receipt of disability benefits,              or retired pay spent on the purchase of survivor benefits. 



We have recognized that despite the bar on dividing retirement pay already waived to  



pay for disability benefits a "trial court may expressly order [a service member] not to  



reduce  his  disposable  retired  pay  and  require  [the  service  member]  to  indemnify  [a  



                                                                                           

former spouse] for any amounts by which her payments are reduced below the amount  



                                                                                   14  

set on the date [an] amended qualified order is entered."                              We also have recognized that  



courts may determine that divorce agreements equitably dividing retirement benefits  



                                                      15  

                                                                            

implicitly include survivor benefits.                    Finally, we have explained that because survivor  



                          

benefits  are  not  disposable  retired  pay,  "the  cost  of  purchasing  survivor  benefits  is  



          10        Faulkner , 46 P.3d at 1003 (citing Wainwright v. Wainwright                             , 888 P.2d 762,  



763 (Alaska 1995)).  



          11        See Tillmon, 189 P.3d at 1031 (dividing a military pension 50%-50% and  

                                                                                    

providing that the spouse "shall be entitled to a percentage of [the servicemember's]  

                                                                                            

disposable military retired pay defined as [the number of months of marriage] divided  

by the number of months of [the servicemember's] military service times 50%").  



          12  

                                                         

                    Mansell v. Mansell , 490 U.S. 581, 594-95 (1989); Clauson v. Clauson, 831  

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



          13         10 U.S.C.  1408(a)(4)(D).  



          14  

                                                        

                    Young v. Lowery, 221  P.3d 1006, 1012-13 (Alaska 2009) (citing In re  

Marriage of Strassner , 895 S.W.2d 614, 618 (Mo. App. 1995)).  



          15  

                                                                        

                    Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (addressing non-military  

pension and concluding that "[i]t was within the superior court's inherent power . . . to  

award . . . a survivor annuity" (quoting  Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska  

                                                                                            

 1997) (alterations in original))).  



                                                               -7-                                                         6854
  


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

automatically  allocated  between  the  parties  in  the  same  proportion  as  their  share  of  

disposable retired pay."16  



                                                    

          B.	       The Superior Court Did Not Erroneously Deny Jason An Opportunity  

                    To Present Evidence.  



                                                                         

                    Jason argues that the superior court did not allow him to present evidence,  



                                              

leading the superior court to:  (1) incorrectly award Beverly non-marital property; and  



                                                                                     

(2) divide the couple's marital property inequitably.  But Jason and Beverly agreed to a  



                                                                                              

property settlement, and Jason never explicitly moved for an  evidentiary hearing to  



                                                                                        

interpret that property settlement agreement.  His request to address the court so that his  



                                                                             

expert could answer the court's questions regarding the competing proposed orders was  



not a request for an evidentiary hearing.  



                    In Hartley v. Hartley we explained that "[a]n evidentiary hearing is not  



                                                                                                         

necessary if there is no genuine issue of material fact. . . . [Here] there was no genuine  



factual  dispute,  only  a  legal  dispute  over  the  proper  interpretation  of  the  property  



                                   17  

                                         Similarly,  in  this  case  the  dispute  was  over  the  equal  

settlement  agreement."                                                                                 



distribution of Jason's military pension under the property settlement agreement.  Jason  

                                  



and Beverly already had agreed to the court's findings of fact.  When issuing its final  

                                                                                                                    



order  the  superior  court  had  Jason's  objection  to  Beverly's  proposed  order  and  the  

                                                         



proposed order Jason's expert prepared.  



                    Because the parties agreed to the facts and the superior court was presented  



with  a  purely  legal  question,  the  superior  court  did  not  erroneously  deny  Jason's  



purported request for an evidentiary hearing.  



          16        Young, 221 P.3d at 1013.  



          17        205 P.3d 342, 350 (Alaska 2009) (citing                   Routh v. Andreassen , 19 P.3d 593,  



596 (Alaska 2001)).  



                                                             -8-                                                           6854  


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

          C.	       The Superior Court Did Not Erroneously Fail To Make Findings To  

                    Justify Its Division Of Marital Property.  



                    Jason argues that the superior court failed to analyze mandatory statutory  

                                                                         



factors applicable to marital property division and failed to articulate findings when  



                                                         18  

dividing the couple's marital property.                      He explains:  



                    In  this  case  the  court  awarded  55%  of  the  non-retirement  

                    portion of the marital estate to Beverly and 45% to Jason. The  

                                                             

                    court did not address the unequal division from the property  

                                                          

                    settlement agreement.  The court also did not address how by  

                                                             

                    drastically  adding  value  to  only  Beverly's  portion  of  the  

                    agreement it would unbalance the percentages of the division  

                                                                                            

                    of assets.  



                    In its amended finding of facts and conclusions of law the superior court  

                                                       



accepted  the  "division  of  property  and  debts  provided  in  the  stipulated  property  



agreement [as] fair and equitable under the circumstances."  The parties agreed to the  

                                    



amended findings of fact and conclusions of law.  



                                                                                                

                    Jason does not argue that the settlement was invalid.  He instead focuses on  



                                  

factors  that  normally  would  justify  an  equal  property  division.    But  before  their  



                 

settlement Jason and Beverly both participated in mediation with counsel present, and  



they freely accepted the agreement.  



                                           

                    In its amended findings of fact and conclusions of law the superior court  



accepted  the  "division  of  property  and  debts  provided  in  the  stipulated  property  



agreement [as] fair and equitable under the circumstances."  The parties agreed to the  



                                                                                                                   

amended findings of fact and conclusions of law. "[A] court may accept as just a divorce  



          18        See AS 25.24.160(a)(4)(A)-(I) (listing relevant factors for courts to analyze  



when dividing marital property).  



                                                             -9-	                                                          6854  


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

                                                                                                        19  

property  settlement  entered  into  by  parties  represented  by  counsel."                                  Because  the  



                                                                            

superior court found that the settlement agreement entered into freely and with counsel  



                                                         

was fair and equitable, the decision to accept the settlement agreement without explicit  



findings on statutory factors was not an abuse of discretion.  



                                                                          

          D.	       The Superior Court Did Not Err By Crediting Beverly For Jason's  

                    Future Pay Increases.  



                                                            

                    The superior court's order explained that Jason's and Beverly's shares of  



the military pension would be determined by designating:  



                                                              

                    [T]he number of months of service during the marriage as a  

                    numerator   (137.462),   and   the   total   months   of   service  

                    accomplished  by  Mr.  Jason  Glover  as  the  denominator  

                                                 

                    (unknown  at  this  time).    This  fraction  and  equivalent  

                    percentage  establishes  the  community  share  of  the  total  

                    benefit.    The  resulting  community  share  is  then  divided  

                    equally  between  the  parties,  and  multiplied  by  the  benefit  

                    payable.  



Jason argues that the superior court's order "allowed Beverly to receive the benefits of  

                                                                                                           



Jason's future years of service, even though it is separate and non marital property."  

                                                         



Jason asserts that "Beverly's marital portion should have been capped to the time in  

                                                                                                                



service  and  pay  grade  from  the  agreed  upon  date  of  separation."    Although  Jason  



correctly states that the superior court's order allowed Beverly's share of the retirement  

                                                                                                

to  increase  in  value  as  a  result  of  his  promotions  and  pay  raises,20  the  formula  the  

                                                      



          19        Notkin v. Notkin       , 921 P.2d 1109, 1111 (Alaska 1996) (quoting Kerslake v.  



Kerslake , 609 P.2d 559, 560 (Alaska 1980)) (quotation marks omitted).  



          20        See   Tillmon  v.  Tillmon,  189  P.3d  1022,  1032  n.35  (Alaska  2008)  

                                                                                      

(explaining  that  "proposed  method  of  division  allows  her  share  of  his  retirement  to  

                          

increase in value as a result of later promotions and pay raises" when superior court used  

time rule method).  



                                                             -10-	                                                      6854
  


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

superior  court  used  was  explicitly  agreed  upon  in  the  parties'  property  settlement  



                21  

agreement. 



                   The  parties  agreed  to  the  time  rule  formula  and  we  have  approved  the  



                                                                 

formula.    The  superior  court  therefore  did  not  err  by  allowing  Beverly  to  receive  



compensation for Jason's future promotions and pay-grade increases.  



                                                                                                    

         E.	       The  Superior  Court  Did  Not  Erroneously  Divide  Gross  Pay  Or  

                   Allocate Over 50% Of Disposable Retired Pay To Beverly.  

                   The Act authorizes state courts to distribute disposable retired pay,22 but  



state courts may not award a single former spouse more than 50% of a service member's  



                                23  

                                                              

disposable retired pay.             Jason argues that the superior court erred and violated federal  



law because it:  (1) required him to pay Beverly a sum certain equal to 28.6% from a  



                                               

gross amount of his retirement; and (2) required him to pay Beverly the sum certain  



                                           

amount even if it exceeds the federally mandated cap of 50% of disposable retired pay.  



                                                                          

                   Jason's arguments are unpersuasive.   The superior court did not award  



                                                    

Beverly a sum certain. Beverly was awarded neither an exact dollar amount nor an exact  



percentage of Jason's pension.  Instead the order made explicit that the exact amount of  



Beverly's  benefit  was  hypothetical,  explaining  that  "as  Mr.  Jason  Glover's  service  



continues, Ms. Beverly Glover's percentage of the benefits decreases, while the total  



                                                                                               

benefit in which she has an interest increases."  The superior court applied the couple's  



settlement and determined that Beverly was entitled to 50% of the marital portion of  



Jason's pension.  



         21        The  superior  court  did  change  the  number  of  months  in  the  fraction's  



numerator.  This was clearly erroneous and is addressed in Section J.  



         22        10 U.S.C.  1408(c)(1).  



         23        Id.   1408(e)(1).  



                                                          -11-	                                                    6854
  


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

                                                                                                                                

                     Jason also incorrectly asserts that Beverly's hypothetical percentage of his  



                                                                                                  

retirement pay violates federal law because it equals 57.2% of his disposable retired pay  



                                                                                                       

as of October 2012.  He argues that if only 50% of his retirement pay is disposable then  



Beverly will receive 57.2% of his disposable retirement pay.  



                                                       

                     The superior court's order did not award Beverly a specific percentage of  



                                                                

Jason's  gross  or  disposable  retirement  pay.    The  order  awards  Beverly  a  time  rule  



percentage of Jason's military retirement benefits.  Beverly was awarded 50% of the  



marital  portion  of  Jason's  retirement  benefits.    Thus,  even  if  Jason's  entire  military  



                                                                                                                

pension were marital Beverly could not possibly collect more than 50% of his retirement  



       24  

                                                                                                      

pay.       The order directs that these payments come from Jason's disposable pay "to the  



                                              

extent that is so restricted by law" and directs Jason to indemnify Beverly to ensure that  



none of his post-divorce actions cause a reduction in her share.  The superior court also  



                                                                                       

retained jurisdiction to issue a clarifying order if the original order did not correctly  



establish Beverly's percentage.  



           24        The superior court chose the "[n]umber of months of the marriage during   



creditable military service (137.462)" as the numerator and chose the "[t]otal number of     

months of creditable military service for retirement" as the denominator.  Because the  

superior court determined that Jason completed 137.462 months of creditable military  

                                           

service during the marriage, the denominator - Jason's total creditable military service  

                                                                             

- could not be less than 137.462.  If Jason were able to retire after 137.462 months of  

                                 

creditable service, Jason's entire retirement would be considered marital and this number  

                                                                                                                 

would then be divided in half to determine the spousal benefit.  It is not possible that  

Beverly's spousal benefit could exceed 28.6% of Jason's total retirement pay because  

Jason is ineligible to receive retirement benefits unless he is employed by the air force  

                                                                                                                      

for 20 years. 10 U.S.C.  8911(a).  Applying the time rule formula, if Jason worked for  

                                                                              

20 years the denominator would be 240 (12 months per year * 20 years) and Beverly  

would receive 28.6% of Jason's retirement ((137.462/240)/2 = .286).  



                                                                 -12-                                                           6854
  


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

                                                                                               

                    Because the superior court's order explicitly bars Beverly from receiving  



more  of  Jason's  disposable  pay  than  allowed  by  law,  the  superior  court  did  not  



incorrectly allocate more than 50% of Jason's disposable retired pay to Beverly.  



                                                      

          F.	       The Superior Court Did Not Erroneously Award Jason's Disability  

                    Benefits To Beverly.  



                                                                         

                    Jason argues that the superior court improperly awarded Beverly a portion  



                                                                                                   

of his disability benefits.  In Mansell v. Mansell , the United States Supreme Court held  



                                            

that the Act "does not grant state courts the power to treat as property divisible upon  



                                                                                                    

divorce  military  retirement  pay  that  has  been  waived  to  receive  veterans'  disability  



              25  

benefits."         In  Clauson v. Clauson we explained that "[t]he Mansell holding clearly  



prohibits state courts from treating veterans' disability pay as divisible property upon  

                                                                                              

divorce."26  But we held that "federal law does not preclude our courts from considering,  



when  equitably  allocating  property  upon  divorce,  the  economic  consequences  of  a  

                                                                              

decision to waive military retirement pay in order to receive disability pay."27  



                    The superior court did not erroneously award Jason's disability benefits to  

                                        



Beverly.  There is no evidence that Jason received disability benefits at the time of the  

                                                                                                                         



divorce,  and  Jason  does  not  argue  that  he  ever  applied  for  disability  benefits.    The  



                                                                                                            

indemnification clause in the superior court's order requires damages if Jason reduces  



          25        490 U.S. 581, 594-95 (1989).  See 10 U.S.C.  1408(a)(4)(B) (providing  



that retired pay waived to receive disability benefits is not considered disposable retired  

                                                                                      

pay).  



          26        831 P.2d 1257, 1259 (Alaska 1992).  



          27        Id. at 1264.  



                                                             -13-	                                                       6854
  


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

Beverly's share of retirement benefits.                   This clause does exactly what we envisioned in  



                          28  

Young v. Lowery.  



                                                                                      

                    In Young we reiterated that "a court may not equitably divide total retired  



pay; it may equitably divide only the amount of retired pay remaining after the court  



                                           29  

                                                                                                  

deducts waived retired pay."                   However, we also explained that "the trial court may  



                                                           

expressly order [a service member] not to reduce his disposable retired pay and require  



                                                          

[the service member] to indemnify [the spouse] for any amounts by which her payments  



                                                                                                                             30  

                                                       

are reduced below the amount set on the date the amended qualified order is entered." 



                    Rather than improperly dividing waived benefits, the order awards Beverly  

                                                                    



her time rule percentage of disposable retirement pay while requiring Jason to indemnify  



Beverly  for  any  subsequent  unilateral  actions  to  decrease  the  total  monthly  pension  



                                                                                          

payout amounts.  The superior court did not err - the order complies with the Act and  



our precedent.  



          G.	       The Superior Court Did Not Erroneously Disregard The Stipulated  

                    Property Settlement Agreement When It Accepted Beverly's Proposed  

                    Military Pension Division That Included Survivor Benefits.  



                                              

                    Jason argues that the superior court erred and ignored the parties' stipulated  



property settlement agreement when it included survivor benefits in its order incident to  



                                                                                             

divorce because: (1) the parties' mediation mandated the use of federal law; (2) survivor  



benefits are not required under federal law; (3) Jason's attorney was not authorized to  



          28        221 P.3d 1006 (Alaska 2009).  



          29       Id . at 1011.  



          30       Id. at 1012-13.  



                                                            -14-                                                           6854  


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

change  the  proposed  military  retirement  order;  and  (4)  the  superior  court  "grossly  

overcompensated Beverly unconscionably changing the balance of the settlement."31  



                    1.	      The mediation did not mandate the use of federal law.  



                                                                                                        

                   Jason argues that the mediation and settlement agreement directed the use  



of federal law as opposed to state law when considering retirement.  Jason provides no  



support for this assertion.  The stipulated property settlement agreement mentions federal  



                                      

law  and  states  that  "[a]  QDRO  for  Beverly's  portion  of  Jason's  military  pension,  



                                                                                                               

consistent with federal law, will be executed."  This brief statement does not support the  



                                                                                                          

conclusion that the parties agreed to divide the military pension under federal law as  



                                                                     

opposed to state law.  As discussed above, the Act authorizes state courts to apply state  



                                                                                      32  

law  when  dividing  military  pensions  in  divorce  actions.                              The  Act  imposes  some  



limitations on state courts' authority when dividing military pensions, but there is no  



uniform "federal law" for state courts to apply.  



                   2.	       Federal law does not bar state courts from compelling election  

                                                                      

                             of survivor benefits.  



                    Jason correctly asserts that federal law does not require election of survivor  

                                                                      

benefits, but federal law authorizes state courts to compel survivor benefits election.33  

                                                                                                    



We  have  explained  that  "[b]arring  an  express  understanding  to  the  contrary,  an  



agreement  for  equitable  division  of  retirement  benefits  earned  during  a  marriage  

                                                         



          31       Jason also argues that the superior court erred by changing the property  



agreement and adding numerous financial benefits for Beverly, but he fails to list the  

                                                                                                     

purported additional benefits.  



          32       See 10 U.S.C.  1408(a)(2), (c).  



          33        10 U.S.C.  1448(f)(3); 10 U.S.C.  1450(f)(3).  



                                                            -15-	                                                      6854
  


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

                                                                          34  

presumptively encompasses survivor benefits."                                 The superior court did not err - the         



order incident to divorce followed this presumption when it included survivor benefits           



in the military pension division, and there was no express agreement barring survivor  



benefits.  



                     3.        Jason's attorney did not change the proposed military QDRO.                   



                     Jason  argues  that  the  superior  court  erred  when  executing  the  QDRO  



                                                                        

because Jason's attorney was not authorized to change his proposed order.  First, the  



record does not support Jason's assertion that his attorney was not authorized to make  



changes to the proposed QDRO.  Jason refers to an email that he sent to his attorney,  



Beverly, and her attorney, but that email did not bar his attorney from changing the  



                                                                                                       

QDRO.  Second, there is no evidence in the record that Jason's attorney changed the  



QDRO.  



                                                                            

                     Five days before the superior court issued its final orders, Jason's attorney  



                                                                                                                  

explained that "[c]ounsel for both Plaintiff and Defendant agree that the court can sign  



                                                                           

either QDRO that are currently lodged with the Court, however, Mr. Glover would like  



                                                                                                                     

the opportunity to address the Court . . . and to have his QDRO expert . . . available by  



phone  to  answer  any  of  the  Court's  questions  or  concerns  regarding  the  dueling  



QDRO's."  Jason's attorney did not change the proposed QDRO; rather, he continued  



presenting the QDRO to the superior court until it issued final judgment.  



                     4.        Including survivor benefits did not overcompensate Beverly.  



                     Jason argues that including survivor benefits overcompensated Beverly and  



                                                                      

changed the balance of the settlement.  The settlement awarded Beverly "a percentage  



                                               

of Jason Glover's disposable military retired pay, to be computed by multiplying 50%  



times a fraction, the numerator of which is 122 months of marriage during . . . Jason  



          34         Zito v. Zito, 969 P.2d 1144, 1148 (Alaska 1998).  



                                                                -16-                                                               6854  


----------------------- Page 17-----------------------

Glover's creditable military service, divided by the member's total number of months of                          



creditable military service."  We have explained that "[t]he superior court has inherent       

                                                                        35  Superior courts may award survivor  

power, and also the duty, to enforce its decrees."                                         



annuities  "to  ensure  that  [a  survivor]  would  receive  the  full  benefit  of  her  property  

                                                                      



                                                                                36  

interest should [her former spouse] predecease her."                                Jason fails to explain how the  



superior court's decision to protect Beverly's interest in retirement benefits ignored the  

                                                                                                                  



parties' settlement agreement.  



          H.	       The  Superior  Court  Did  Not  Err  By  Failing  To  Account  For  The  

                    Unequal Division Of Survivor Benefits Cost.  



                    Jason argues that the superior court abused its discretion because it did not  



explain its allocation of survivor benefits cost.  The superior court's order explicitly  



                                                                                                      

divided  survivor  benefits  cost  pro  rata.    In  Young  v.  Lowery  we  explained  that  



                                                              

"[a]lthough it may have been permissible to re-allocate that cost some other way, perhaps  



                                                                                                                

by requiring Lowery to reimburse Young, the trial court did not abuse its discretion by  



                             37  

                                  Jason provides no argument to distinguish our holding in Young.  

declining to do so."                                                                                    



                    Additionally,          when   a   property           settlement         agreement's          "terms   are  



                                                                     

ambiguous, the superior court 'must attempt to resolve [the ambiguity] by determining  



                                                                                                       

the reasonable expectation of the contracting parties.'  If the division of marital property  



                             

is not determined by an agreement between the parties, the superior court has 'wide  



                                                                                         38  

latitude in fashioning an appropriate property division.' "                                  Once the superior court  



          35        Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997).
  



          36        Id.
  



          37
       221 P.3d 1006, 1013 (Alaska 2009) (footnotes omitted).  



          38        Hartley v. Hartley , 205 P.3d 342, 346 (Alaska 2009) (quoting Zito , 969  



P.2d at 1147 n.4; Tillmon v. Tillmon, 189 P.3d 1022, 1031-32 (Alaska 2008)).  



                                                              -17-	                                                        6854
  


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

decided  to  order  survivor  benefits,  the  court  implicitly  determined  that  a  pro  rata  



distribution satisfied Jason's and Beverly's reasonable expectations.  



                                          

                   Relying on the federal default and dividing survivor benefits costs pro rata  



was not an abuse of discretion.  



                                                                           

          I.	      The Superior Court Did Not Err By Not Allowing Jason And Beverly's  

                   Children To Be Covered Under The Survivor Benefits.  



                                                                                                            

                   Jason argues that the survivor benefits award ignored the best interest of the  



couple's children and that "[t]he court abused its power by dictating the terms of an  



                          

insurance policy without taking any evidence, abiding by any of the stipulated property  



                                                                 

settlement, and ignoring the parties['] stated desire, to ensure the economic future of their  



children."     Beverly   responds   that   Jason   waived   this   argument   because   it   was  



                                                                                                       

inadequately briefed.  Jason's brief cites no legal authority in support of his two-sentence  



                                                                                                      

argument that the court should have awarded survivor benefits to the parties' children.  



                                                                           

This argument is waived because "where a point is given only a cursory statement in the  

argument portion of a brief, the point will not be considered on appeal."39  



          J.	      It Was Error To Change The Calculation Of The Months That The  

                   Parties Were Married During Creditable Military Service.  



                   The  parties'  settlement  agreement  stated  that  the  coverture  fraction  



numerator for the time rule formula was 122 months of marriage during Jason's military  



service - the parties stipulated that Beverly was entitled to 50% of Jason's retirement  

                                                                         



for 122 months of service.  The superior court's order incident to divorce used 137.462  

                                               



as the numerator in its coverture fraction for the time rule formula.  Jason argues that he  

                                                                                                   



is entitled to at least 74.6% of his retirement "while the court only awarded him 71.4%  

                                                  



of his USAF retirement pay."  



          39       Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991).  



                                                            -18-                                                          6854  


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

                                                                                               

                      The superior court provided no explanation for changing the numerator in  



                                                                                         

the coverture fraction.  Beverly agrees with Jason that 137.462 "is the wrong numerator.  



                                                                                                                     

The parties agreed to 122 months as the numerator."  Beverly requests that we "remand  



the matter to the trial court for the correction to the numerator [to] be made."  



                      We reverse and remand the superior court's decision to use 137.462 months  



as the numerator in the coverture fraction because the superior court clearly erred when  



changing the agreed-upon length of marriage without explanation.  



           K.	        It Was Error To Require Jason To Pay For Excess Survivor Benefits  

                      Coverage.  



                                                                                                  

                      Jason argues that the superior court erred by requiring "Jason to pay for  



                                                                                       

100% [survivor benefits] coverage while he is alive even though Beverly, if entitled to  



                                                                  

any [survivor benefits], should only get the amount of retirement upon his death she was  



                                                   

getting while he was alive."   The superior court ordered that Jason purchase a 55%  



                            40  

survivor benefit.               As explained above, the maximum percent of Jason's disposable  



                                                                                                                                41  

retired pay Beverly could receive under the superior court's order is 28.6%.                                                         Thus,  

                                             



Jason is correct that under the superior court's order Beverly could receive 55% of his  

                                             



retired pay as a survivor benefit upon his death, while she would receive no more than  



28.6% of his retired pay while he is living.  



                      We have never decided whether it is an abuse of discretion for a trial court  



                 

to  award  survivor  benefits  exceeding  what  a  former  spouse  was  entitled  to  under  a  



                                  

property settlement agreement.  In  Young v. Lowery, Lowery was awarded 25.34% of  



           40         Survivor benefits coverage cannot exceed 55% of total monthly retired pay.  



10 U.S.C.  1451(a)(1)(A).  



           41         If Jason retired after reaching the minimum 240 months necessary for his     



retirement eligibility, Beverly would receive 28.6%.  Supra note 24.  



                                                                    -19-	                                                                  6854  


----------------------- Page 20-----------------------

                                              42  

Young's disposable retired pay.    The superior court also ordered Young to purchase a  



                                43  

55% survivor benefit.               Thus, Lowery received a potential survivor benefit that was  



                                                                                           

almost double her retired pay award. We affirmed the survivor benefits, but the specific  

issue in that case was the allocation of the cost and not the excess benefits.44  



                                      

                   Compelling a survivor annuity award is fair because "[s]uch an award [is]  



                                 

appropriate to ensure that [the survivor] would receive the full benefit of her property  



                                                                45  

interest should [her spouse] predecease her."    It is equitable to "award the nonowning  



spouse survivor benefits equal to the amount of retirement benefits which the nonowning  



                                                                                      46  

spouse was receiving before the employee spouse's death."                                 



                                                        

                   Here  the  superior  court  did  not  explain  how  awarding  a  55%  survivor  



benefit would impact the parties' settlement agreement.  We therefore remand to the  



                                                          

superior court for further consideration of an award guaranteeing Beverly benefits after  



Jason's death equal to the retirement benefits she receives while he lives.  



V.        CONCLUSION  



                                                                

                   We REMAND to the superior court for further proceedings on the survivor  



             

benefits percentage and to correct the length of marriage determination for the QDRO.  



We AFFIRM in all other respects.  



          42       221 P.3d at 1010.
  



          43       Id. at 1009.
  



          44       Id. at 1013.
  



          45        Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997).
  



          46       2 BRETT R.  TURNER ,  EQUITABLE  DISTRIBUTION OF PROPERTY  6:45, 281  



(3d ed. 2005).  



                                                            -20-                                                         6854  

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