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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shumway v. Betty Black Living Trust (3/28/2014) sp-6882

Shumway v. Betty Black Living Trust (3/28/2014) sp-6882

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

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TODD SHUMWAY,                                        )  

                                                     )        Supreme Court No. S-14818  

                           Appellant,                )  

                                                     )        Superior Court No. 1JU-09-00823 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

BETTY BLACK LIVING TRUST,                            )  

DALE LOCKWOOD and                                    )        No. 6882 - March 28, 2014  

JOAN SHUMWAY,                                        )  


                           Appellees.                )  


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


                  Judicial District, Juneau, Philip M. Pallenberg, Judge.  

                  Appearances:  Todd  Shumway,  pro  se,  San  Luis,  Arizona,  

                  Appellant.    Robert  S.  Spitzfaden,  Gruening  &  Spitzfaden,  

                  APC, Juneau, for Appellee Betty Black Living Trust.  Vance  


                  A. Sanders, Law Office of Vance A. Sanders, LLC, Douglas,  


                  for Appellee Dale Lockwood.  No appearance by Appellee  


                  Joan Shumway.  

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


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  This case arises from a dispute between property owners on a small island  


in  Southeast  Alaska.    After  moving  to  the  island  with  his  family,  Todd  Shumway  


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

engaged in activities that Betty Black, the largest landowner, claimed were in violation  

of the island's protective covenants.  The superior court found in favor of Black and  


awarded injunctive and monetary relief to her and another landowner, Dale Lockwood.  


When Black attempted to collect on her judgment by executing on Shumway's island  

property, Shumway, who was incarcerated in Arizona on charges unrelated to this case,  

claimed a homestead exemption.  The superior court denied the exemption.  Shumway  


appeals the denial; we affirm.  


          A.       Factual Background  

                   Colt Island is a small island near Juneau, accessible only by water and air.  


It  was  originally  developed  in  1975  by  William  Black;  protective  covenants  were  


recorded in 1977, regulating activities on the island.  Among other things, the covenants  


govern community use of the tidelands, trails, and spring; limit tree removal; and restrict  

waste disposal.  During the times relevant here, most of the island tracts, including the  


portions under the common-use trails and the easements for common access, were owned  

by Betty Black, and the remaining lots were mostly owned by seasonal vacationers.  In  

2004, Todd Shumway and his then-wife Joan bought a lot with a cabin on the island's  


western shore.  

                   Shumway was raised in Arizona.  Shumway and his family first vacationed  


on the island in the summer of 2005, then returned for about a month in 2006 and again  


in 2007.  The Shumways moved to Colt Island full-time in June 2008 and were soon in  


disputes  with  other  island  residents.    They  widened  common-use  trails,  felled  trees  


outside their property, damaged the island's communal spring, removed gravel from  

Black's property and state-owned tidelands, buried garbage and other debris on the  

beach, and damaged trails by their recreational use of all-terrain vehicles.  

                                                           - 2 -                                                     6882

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

          B.        Procedural Background  

                            1                                                    2 

                    Black  brought suit against the Shumways  for trespass and violation of the 

island's protective covenants, seeking damages and declaratory and injunctive relief.  


The Shumways counterclaimed against Black and brought a third-party claim against  

another property owner, Dale Lockwood, on grounds that both Black and Lockwood  


were interfering with the Shumways' rightful use of the island's easements and common  



                      The  superior  court  granted  partial  summary  judgment  to  Black  and  

Lockwood,  finding  that  the  Shumways'  activities  exceeded  their  rights  under  the  


covenants;  then,  following  trial  in  November  2010,  it  granted  Black  a  permanent  


injunction as to the remaining issues, prohibiting the Shumways from continuing to cross  

her land unlawfully.  The judgment also included awards of damages, attorney's fees,  


costs, and interest:  (1) in favor of Black, for $206,973.79 against Todd Shumway and  


$8,987.97 against Joan Shumway; and (2) in favor of Lockwood, for $7,391.40 against  

the Shumways jointly and severally.  The final judgment, signed and then amended in  

2011, was not appealed.  



                    Black secured a writ of execution on Shumway's Colt Island property  in 

December  2011.    At  the  time,  Shumway  was  incarcerated  in  Tucson,  Arizona,  

          1         Betty Black died while this appeal was pending, and the Betty Black Living        

Trust succeeded to her interest and was substituted as a party.  

          2         Joan Shumway participated in the trial court proceeding, but she filed for  


divorce following the superior court's judgment on the merits.  She does not participate  


in the appeal and is identified in the caption as an appellee pursuant to Alaska Appellate  


Rule 204(g).  



                    Shumway had become sole owner of the lot following his divorce from  


                                                             - 3 -                                                       6882

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


commencing an eight-year prison sentence for Arizona offenses; the other members of  


his family had returned to Arizona in 2010 following the Shumways' divorce.  When  


Shumway  received  notice  of  the  writ  in  January  2012,  he  asserted  his  right  to  a  


homestead exemption, contending that the island property was his primary residence and  


therefore exempt from execution by state law.   The superior court held an evidentiary  

hearing and, by written order dated May 29, 2012, found that Shumway was not eligible         

for the exemption because he was not an Alaska resident at the time of the levy.  


                     Shumway filed this appeal pro se, stating as his only point on appeal that  


he  was  in  fact  a  lawful  resident  of  Colt  Island  and  was  entitled  to  the  homestead  


                    Shumway's appellate briefs, however, raise a number of other issues that  


were litigated and decided in the superior court but not formally appealed.  


                     We review findings of fact for clear error, reversing only if we are left with  


a  definite  and  firm  conviction  on  the  entire  record  that  a  mistake  has  been  made.6  

Questions of law are subject to de novo review in which we adopt "the rule of law most  


persuasive in light of precedent, reason, and policy."7  

          4         See AS 09.38.010(a).  

          5         An order denying the homestead exemption is an appealable final order.   

See Denali Fed. Credit Union v. Lange, 924 P.2d 429, 431 (Alaska 1996) (holding that  

an order denying a motion for a writ of execution is tantamount to a final judgment for  


purposes of appeal).  

          6          Crowley v. State, Dep't Of Health & Soc. Servs., 253 P.3d 1226, 1229  


(Alaska 2011).  

          7          Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 622  

(Alaska 2012) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275  


(Alaska 2004)).  

                                                               - 4 -                                                         6882

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


          A.	      Shumway  Failed  To  Timely  Appeal,  But  We  Relax  The  Rules  For  


                   Purposes Of His Claim To A Homestead Exemption.  

                   Final judgment was signed on July 1, 2011, and distributed a week later.  

An amended judgment was distributed on November 9, 2011.8  Under Alaska Appellate  


Rule 204(a)(1), Shumway had 30 days to file a timely appeal, but he did not do so.  

                   It was over six months later, on May 29, 2012, that the  superior court  


denied Shumway's claim to the homestead exemption.  Shumway filed a notice of appeal  

from this order on July 18, 2012.   


                                                                                                            With regard  

                   We may relax the 30-day appeal deadline to avoid injustice. 

to the order denying the homestead exemption, Shumway's appeal was several weeks  


late.   But since he not only represents himself but does so while incarcerated in another  

state, we afford him some procedural leeway and entertain his appeal on this issue.  

                   Shumway's merits appeal is another matter.  He filed his notice of appeal  

over seven months after the superior court distributed the amended judgment.  The notice  


of appeal addressed only the order denying the homestead exemption; thus, the first  

notice the other parties had that Shumway intended to appeal the merits of the suit as  


well was when he filed his appellant's brief in June 2013, over a year and a half after any  

appeal from the underlying judgment was due.  Shumway does not explain the serious  


delay.  We therefore limit our consideration of his appeal to the issue of the homestead  


          8        It appears that the amendment did nothing but correct a misidentification   

of Dale Lockwood in the judgment's first line.  

          9        Richard v. Boggs , 162 P.3d 629, 633 (Alaska 2007).  



                   Black argues that Shumway waived this issue because he "failed to provide  


                                                            - 5 -	                                                    6882

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


          B.	      The Court Did Not Clearly Err In Finding That Shumway Was Not  

                   An Alaska Resident For Purposes Of The Homestead Exemption.  


                   When Black attempted to execute on Shumway's Colt Island property,  


Shumway invoked the protection of AS 09.38.010, which exempts from execution "the  

individual's  interest  in  property  in  this  state  used  as  the  principal  residence  of  the  


individual  or  the  dependents  of  the  individual,"  up  to  $72,900.                            The  exemption  is  

limited to "homesteads," that is, real property used as the debtor's principal residence.12  

"Principal  residence"  is  defined  by  statute  as  "the  actual  dwelling  place  of  an  

individual."13  The exemption is available to "[r]esidents of this state"; residents of other  


states "are entitled to the exemptions provided by the law of the jurisdiction of their  



residence."         A "resident" of Alaska is "an individual who is physically present in the  


                                                                                                           Residency  is  

state  and  who  intends  to  maintain  a  permanent  home  in  Alaska." 


legal authorities or a legal theory to support his claim."  Shumway's briefing is indeed  

cursory,  but  his  identification  of  the  issue  is  adequate  for  purposes  of  our  review.  


Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004) (holding that a pro se litigant's  


claims were not waived because the legal arguments were clearly discernible from the  

briefing despite lack of citations).  



                   The statute lists the exemption amount as $54,000, but it is now $72,900,  

as  set  by  8  Alaska  Administrative  Code  (AAC)  95.030  (2014),  and  based  on  the  

operation of AS 09.38.115.  

          12       AS 09.38.010(a).  

          13       AS 09.38.500(12).  

          14       AS 09.38.120(a).  

          15       AS 09.38.120(b).  

                                                            - 6 -	                                                    6882

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

determined  as  of  "the  time  of  the  levy"  against  the  property.16  Continuous  physical  

presence   is   not   necessarily   required,   but   courts   should   examine   the   facts   and  


circumstances of any absences.                      Conduct is weighted more heavily than declarations  

of intent.18  


                    Black's writ of execution was issued on December 19, 2011, and served on  


Shumway on January 6, 2012.  The superior court assumed the later date to be the date  


of levy for purposes of its analysis.                   Shumway's burden was therefore to show that he  

was an Alaska resident on January 6, 2012, and that the Colt Island property was his  

principal residence.  


                    The superior court began its review of the facts by noting that on the date  


of levy, Shumway "was incarcerated in Arizona," where "he will be incarcerated for the  


remainder of an original 8 year sentence, though he may be released early depending on  


programming."               But since "[r]esidence in this context does not require continuous  

physical presence,"21 the superior court properly went on to consider other facts and  

          16        Ilardi v. Parker ,  914 P.2d 888, 892 (Alaska 1996).  

          17        Id. at 891-92.  

          18        Kjarstad v. State , 703 P.2d 1167, 1171 (Alaska 1985).  



                    The choice of dates for "the time of the levy" is immaterial in this case, as  


Shumway does not contend that his circumstances were any different on the two dates.  

          20        Shumway was sentenced in Arizona superior court to eight years in prison  


commencing August 24, 2011 (with credit for 162 days already served), to be followed  


by a term of "community supervision" for one year and one month.  He was sentenced  


for violating the terms of his probation; the underlying offenses were forgery and theft  

committed in Arizona in 2005 and 2011.   



                    Ilardi , 914 P.2d at 891 (citing Unification Church v. Attorney General for  

U.S., 581 F.2d 870, 875 n.11 (D.C.Cir. 1978)).  

                                                              - 7 -                                                        6882

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


circumstances relevant to Shumway's absence from the state.  We have not previously  

addressed  the  effect  of  incarceration  on  residency  for  purposes  of  the  homestead  


exemption, but other courts have.  The differences among them appear to be mainly  


differences of emphasis.  Some courts hold that once residency is established, the debtor  

will  not  lose  the  protection  of  the  homestead  exemption  solely  through  involuntary  

                        22                                                                                                                           23  


incarceration.              Another approach is to focus primarily on the length of the prison term. 


To  other  courts,  incarceration  is  considered  in  the  context  of  all  other  facts  and  

circumstances;  to  these  courts,  incarceration  will  constitute  abandonment  of  one's  

            22         See Roemelmeyer v. Godinez (In re Godinez)                                     , 10 B.R. 70, 71 (Bankr. S.D.  

Fla. 1981) ("Imprisonment, which involves a forced absence from the home, does not   

effect an abandonment of homestead rights.");                                    Roberts v. Grisham , 493 So. 2d 940, 942  

(Miss. 1986) ("Under the law as it presently stands, absence occasioned by imprisonment  

- even a life sentence - does not defeat the claim of homestead."); Schaf v. Corey, 196  


N.W. 502, 503 (N.D. 1923) ("Manifestly the enforced absence of the defendant for the  


purpose of serving a prison sentence was no evidence of abandonment of the homestead,  


even on his part; and it is undisputed that the premises continued to be the home of the  


family during the time he was incarcerated in the penitentiary."); Holden v. Cribb , 561  


S.E.2d 634, 639 (S.C. App. 2002) ("We daresay [the debtor] has no intent to make the  


detention  center  his  permanent  residence.    To  hold  otherwise  would  thwart  the  

underlying policy of the homestead exemption."); Driver v. Conley, 320 S.W.3d 516,  

519 (Tex. App. 2010) ("A homestead is not abandoned merely because a person does not  


occupy the home during a prison sentence.").  

            23         See Main v. Cnty. of Anoka, No. C4-98-2560, 1999 WL 137841, at *1  


(Minn. Tax Mar. 10, 1999) (holding that a debtor incarcerated for seven years, who "has  


not occupied the subject property as his homestead during that time," was not entitled to  

the homestead exemption); Blaisdel v. Cnty. of Hennepin, No. TC-12226, 1991 WL  


200902, at *2 (Minn. Tax Sept. 23, 1991) (holding that a debtor incarcerated less than  


one year was entitled to the homestead exemption); Dill v. Cnty. of Hennepin , No. TC- 

3431 84-431, 1985 WL 3173 (Minn. Tax Mar. 6, 1985),  aff'd without opinion, 381  


N.W.2d 443 (Minn. 1986) (holding that a debtor incarcerated for nine years was not  

entitled to the homestead exemption).  

                                                                        - 8 -                                                                  6882

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residence only if other  facts and circumstances support that conclusion.                                         This approach  


is consistent with our own case law.                          

                     Here, in considering the facts and circumstances of Shumway's absence  

besides his incarceration, the superior court made note of his "long ties to the State of  



Arizona."           It noted that when he first came to Alaska, "he was on felony probation for  


crimes committed in Arizona"; that he had been "permitted to transfer his probation to  

Alaska pursuant to the Interstate Compact for Adult Offender Supervision"; and that  


"[h]is ability to remain in Alaska, therefore, was subject to his compliance with his terms  

           24        See In Re Chase, No. 03-11851-JMD, 2003 WL 22454876, at *2 (Bankr.                                 

D. N.H. Oct. 14, 2003) (holding that incarcerated debtor's absence was not temporary  

but  indefinite,  resulting  in  loss  of  the  homestead  exemption,  where  she  lacked  the  

financial ability to return to the home and made no "offer of proof that she had any  


prospect of a change in her financial condition"); Morrisey v. Ferguson , 753 P.2d 1192,  


 1194 (Ariz. App. 1988) (noting that the fact the defendant voluntarily killed the victim  


weighed  against his claim  that he was involuntarily  removed  from  his property  for  


incarceration); Polk v. Polk, A122311, 2009 WL 2613930, at *5 (Cal. App. Aug. 26,  

2009) (holding that a two-year absence, followed by a prison sentence of 16 years to life,  


was not a temporary absence and resulted in loss of the homestead exemption);  Old  


Republic  Nat'l  Title  Ins.  Co.  v.  Kornegay ,  292  P.3d  1111,  1119  (Colo.  App.  2012)  


(holding that incarcerated debtor who had never resided at property and stated only a  

"vague intention to return" was not entitled to the homestead exemption).   



                     See  Ilardi,  914  P.2d  at  891-92  ("The  facts  and  circumstances  of  the  

absences should be considered in determining whether the exemption is lost.").  

           26        Although  the  superior  court  did  not  elaborate  on  Shumway's  ties  to  


Arizona,  there  is  support  in  the  record  for  the  finding  that  they  were  substantial.  


Shumway was born in Arizona and lived there for 38 years, operating several businesses  


there before moving to Alaska.  His family's contacts with this state were limited to  

summer vacations until they relocated to Colt Island in June 2008; their Alaska residence  


then lasted only two years.  In September 2010, Shumway and his wife were divorced;  

she  and  the  children  returned  to  Arizona,  where  they  remain.    Joan  Shumway  was  


granted physical and legal custody of the three minor children.  Shumway's adult son is  

disabled and also lives in Arizona.   

                                                                 - 9 -                                                          6882

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

of  supervision."    Regardless  of  whether  Shumway  intended  to  remain  in  Alaska  

permanently, the court observed, "that intention had to be subject to the knowledge that          

he  could  only   remain  in  Alaska  while  on  good  behavior."    In  fact,  Shumway  was  

ultimately  "returned  to  Arizona  because  he  committed  a  new  crime  in  Alaska  and  

violated his supervision."  


                    Despite  Shumway's  ties  to  Arizona,  the  superior  court  credited  his  


testimony that he intended to return to Alaska once he was released from prison.  It  


noted, however, that Shumway's "ability to carry out that intention - at least for many  


years - is subject to events outside his control."  Also accepting Shumway's argument  


that his absence from Alaska was "involuntary," the court found that the absence was not  

temporary; rather, the court found, it was Shumway's residence in the state that was  


temporary, ended by the behavior that violated his felony probation and prompted his  


incarceration  in  Arizona.               The  court  concluded  that  despite  Shumway's  long-term  


intentions, it could not "find that he is currently - or was in January of 2012 - a  

resident of Alaska," and it denied the exemption.  

                    We conclude that the superior court appropriately weighed the statutory  

factors relevant to a determination of Alaska residency for purposes of the homestead  


exemption -  physical presence in the state and an intent to maintain a permanent home  

       27  - and did not clearly err in finding that Shumway was not a resident of Alaska  


at the time of levy.  

                    In his statement of points on appeal, Shumway asserts that the superior  


court erred in denying the exemption because he has resided nowhere but Alaska for the  


past five years, owns no other residence, and is in Arizona only temporarily and against  


          27        AS 09.38.120(b).  

                                                             -  10 -                                                         6882  

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


his  will.       But he does not dispute that he is currently incarcerated in Arizona; the  

superior  court  did  not  clearly  err  in  that  finding.  Shumway's  lack  of  a  residence  


elsewhere (outside of prison) does not necessarily mean that the Colt Island property is  


his "principal residence" or "actual dwelling place" for purposes of Alaska law, as it  



must  be  in  order  to  qualify  for  the  exemption.                               And  the  superior  court  properly  

considered Shumway's involuntary incarceration in the context of the other facts and  


circumstances of the case, including the weight that can be given to his declared intent  

to return to Colt Island once he is released from prison.  


                      Shumway's opening brief, though unclear, appears to add that the superior  


court erroneously relied on investigations from several years earlier that determined he  


was a non-resident for purposes of the permanent fund dividend and hunting and fishing  



licenses.         But the superior court made no reference to those facts in its order denying  


the homestead exemption, and, if it had, we cannot see how they would have benefitted  

Shumway's position.31  

           28         Shumway does not elaborate on these arguments in his brief; we consider                           

them here because he is a pro se litigant.                          Toliver v. Alaska State Comm'n for Human  

Rights , 279 P.3d 619, 622 (Alaska 2012) ("We consider pro se pleadings liberally in an   

effort to determine what legal claims have been raised.").   

           29        AS 09.38.500(12).  



                      Shumway  pleaded  guilty  in  2008  in  Alaska  to  a  charge  of  unsworn  


falsification  based  on  his  2006  application  for  a  resident  sport  fishing  and  hunting  

license, when he had not yet satisfied the requirements for Alaska residency.  

           31         Shumway also asks that we consider that he suffers from a mental disorder  

and  has  diminished  capacity  due  to  medications.    He  did  not  raise  this  issue  in  the  

superior court in support of his claim to the homestead exemption, and he does not  

suggest why the result in this case should be different if we were to consider it now.  

                                                                 -  11 -                                                          6882

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

           V.         CONCLUSION  

                      We AFFIRM the order of the superior court denying Shumway's claim to       

the homestead exemption.  

                                                                      -  12 -                                                           6882

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