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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kollander v. Kollander (4/18/2014) sp-6895

Kollander v. Kollander (4/18/2014) sp-6895

         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  



JEAN R. KOLLANDER,                                     )  

                                                       )        Supreme Court No. S-14904  

                            Appellant,                 )  

                                                       )        Superior Court No. 3AN-90-06548 CI  

         v.                                            )  

                                                       )        O P I N I O N  

DARYL E. KOLLANDER,                                    )  

                                                       )        No. 6895 - April 18, 2014  

                            Appellee.                  )  

                                                       )  



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

                                      

                  Judicial District, Anchorage, Mark Rindner, Judge.  



                  Appearances:    Stephen  Merrill,  Anchorage,  for  Appellant.  

                  David   W.   Baranow,   Law   Offices   of   David   Baranow,  

                  Anchorage, for Appellee.  



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

                                                                                    

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  Jean Kollander seeks to modify the pension division in a qualified domestic  

                                                                                          



relations order originally entered by the superior court in 1992.  The federal pension  



administrator paid Jean's share of her former spouse's pension in accelerated lump sum  



payments from 2007 to 2008.  In 2012 Jean brought a claim that she was instead entitled  

                                           



to lifetime monthly payments. After an evidentiary hearing, the superior court found that  

                                                                                  


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

her claim was barred by laches and awarded full attorney's fees and costs to her former  



                                                                                                   

spouse.  Jean appeals the application of laches and the award of attorney's fees.  We  



                                         

conclude that the superior court's findings of unreasonable delay and prejudice are not  



clearly erroneous and that the superior court did not abuse its discretion in applying  



                                                          

laches.  But because the superior court failed to apply Alaska Rule of Civil Procedure 82  



in the award of attorney's fees, we reverse that award and remand for a determination of  



attorney's fees in accordance with this decision.  



II.       FACTS AND PROCEEDINGS  



                              

                    Daryl and Jean Kollander married in 1969 and separated in 1990.  Both  



Daryl  and  Jean  were  represented  by  counsel  in  their  divorce  proceedings,  and  they  



reached  a  settlement  regarding  property  division,  child  support,  and  custody.    The  



                                                

superior court issued a divorce decree in September 1991 that accorded with the terms  



of the parties' settlement.  



                                      

                    During the course of their marriage, Daryl and Jean contributed to their  



                                                                    

employers' respective retirement programs.  At the time of divorce, Jean was vested in  



                                                                                                                

the Alaska Teamsters-Employers Pension Plan, and Daryl was vested in the federal Civil  



                                                                                                           

Service Retirement System through his employment with the Alaska Railroad.   The  



divorce settlement provided that "each party will be awarded one-half interest in the  



other part[y's] pension benefit earned to date" and "[a]ppropriately worded qualified  



                                                                                                  

domestic  relations  orders  will  be  drafted  and  submitted  to  the  court  for  signature."  



                                                                                                          1  

Pursuant  to  the  settlement,  Jean's  former  counsel,  Terry  C.  Aglietti,   prepared  two  



                                                        

qualified  domestic  relations  orders,  which  were  subscribed  as  approved  by  Daryl's  



counsel and entered by the court on May 7, 1992.   



          1  

                                                                                                 

                    Jean claims that Daryl's counsel drafted his order.  However, the superior  

                                                        

court specifically found that Aglietti prepared both orders, and this finding is supported  

by the fact that both orders were drafted on Aglietti's pleading paper.  



                                                              -2-                                                            6895  


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

                   The order entered on behalf of Jean reads, in relevant part:  



                   6.        Alternate payee, Jean R. Kollander, is entitled to one- 

                                                                         

                   half the sum of participant, Daryl E. Kollander's benefits as  

                   of April 1, 1990, payable from the contributions to the plan  

                   made by or on behalf of participant.  



                   7.        Distribution and calculation of these benefits pursuant  

                   to this order shall be pursuant to guidelines accepted by the  

                                                                    

                   Internal Revenue Service.  



(Emphasis in original.)  



                   The other order contains similar language naming Daryl as an alternate  

                                                                                   



payee under Jean's plan:  



                                                                                      

                   4.        The  Plaintiff  [Daryl  Kollander]  shall  be  entitled  to  

                   receive one-half the sum of Defendant's [Jean Kollander's]  

                   benefits as of April 1990, payable from the contributions to  

                   the  Plan  made  by  or  on  behalf  of  the  Defendant  [Jean  

                   Kollander].  



(Emphasis in original.)  



                   Neither party had retired or begun receiving benefits at the time of divorce  

                                                                                    



or at the entry of the qualified domestic relations orders.  In 1996 Daryl received a letter  

                                                                                   



from the Teamster Pension Trust informing him that the qualified domestic relations  

                                          



order that he had submitted needed to be amended in order to receive his share of Jean's  

                



benefits once she retired or reached age 50.  Jean retired in 1999 although Daryl was  

                                                                                         



unaware  of  her  retirement.    She  then  turned  50  years  old  in  January  2001,  and  an  

                                                                                             



amended qualified domestic relations order was prepared by Daryl and entered by the  



court in February 2001.  



                                                                               

                   Jean denies receiving notice of Daryl's amendment although the record  



                                                                                                                

includes the notice and affidavits of mailing to her last known addresses as well as to  



Aglietti's law office.  In any event, Jean's position is that she would not have objected  



                                                  

to the amendment.  The Teamster Pension Trust informed Daryl of his option to receive  



                                                             -3-                                                      6895
  


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

approximately $283.53 per month for his lifetime or to receive a lump sum payment of  

                                                                                                 



$23,766.81.  Daryl chose the lifetime benefit and since 2001 has received a periodic  



monthly annuity payment from Jean's Teamster pension.    



                    Daryl was employed by the Alaska Railroad from 1969 until June  2007.  



                                                                                                      

According to his affidavit, Daryl was classified as a career employee beginning in 1976  



                                                                             

and had contributed $46,663.35 to the Civil Service Retirement System at the time of his  



                                                                                                                  

separation  from  Jean.              Daryl's  benefits  are  administered  by  the  federal  Office  of  



Personnel Management, and distribution began when he retired in 2007.  



                                                                          

                    In 2007 Jean received a letter from the Office of Personnel Management  



                                            

informing her that the Office had "received and approved your application for a portion  



                                                                                       

of your former spouse's civil service retirement benefit."  The letter referenced federal  

regulations2 and went on to state that  



                    [b]y court order we are to pay you a lump sum of $22,459.81  

                                                                          

                    from your former spouse's retirement benefit.  By regulation  

                                                                                         

                    we must pay this lump sum to you in installments equal to  

                                  

                    one half of your former spouse's gross monthly annuity until  

                    the lump sum is paid in full.  Currently you are to receive  

                          

                    $ 1,796.50 per month.  



Jean received subsequent monthly payments of $1,796.50 directly deposited into her  

                                                                                         



checking account for approximately twelve and a half months.  The last payment was  

               



received by Jean in 2008.   She acknowledges that she received the $22,459.81 in full,  



spent some of the funds, and still retains a portion in her account.  



                    In April 2012 Jean filed motions to reopen the pension division order for  

                                                                                          



entry of a detailed pension division order and to hold Daryl in contempt for failing to pay  

                                                                   



          2          5 U.S.C.  8345 (2012) concerns the commencement, termination, and  



waiver of benefits paid by the Office of Personnel Management.  5 C.F.R.  838 (2014)  

                                                                                                

concerns court orders affecting retirement benefits.  



                                                              -4-                                                           6895  


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

                                                  

the marital share of his pension benefits.  In August 2012 the superior court held an  



evidentiary hearing during which both Jean and Daryl offered testimony on the division  



of his pension.  When questioned by the court at the hearing, Jean did not dispute that  



                                                                

the $22,459.81 figure used by the Office of Personnel Management accurately stated her  



                                                                                            

portion of Daryl's pension that had accrued through the date of the divorce settlement.  



She testified that she "was expecting $22,000 but not at $1700 a month."  She also  



                                                                                                             

testified, "I would have been satisfied with that . . . if Mr. Kollander hadn't received mine  



                                             

for life. . . . [Y]ou look at the monies he's already received from mine . . . [and] he got  



                                                                                                                   

$38,000.  That is a little bit more than $22,000 and he continues to receive that for - for  



his lifetime, which will clearly exceed $22,000."   



                                                                                                                 

                    Jean repeatedly attempted to use calculations prepared by her counsel to  



                                                                                                        

show how much money she would have received if she had received monthly lifetime  



                                                                     

benefits instead of the accelerated payments.  Jean claims that these calculations show  



                                                           

Daryl to be in arrears.  The accuracy of Jean's calculations was not established because  



                                                                                                     

the superior court found that her proffered exhibit failed to comply with the applicable  



                                                                                                   

evidentiary rules, and the superior court did not admit the exhibit into evidence.  Jean  



continues to rely on these calculations on appeal.  



                    There is some question whether Jean properly submitted her order to the  



                                                                                      

Office  of  Personnel  Management  and  how  the  Office  obtained  her  direct  deposit  



                                                                             

information.  Jean denies submitting anything to the Office and disclaims any knowledge  



about her former counsel submitting the order or anything else to the  Office on her  



behalf.  In particular, she denies submitting an application for benefits to the Office or  



a request for a lump sum payment as opposed to lifelong benefits from Daryl's pension.  



                                                                                                                   

When questioned about the direct deposit of the payments, Jean testified that "they just  



magically appeared in my account . . . . I had not given a route number, checking number  



for Wells Fargo because I'd not had that account open very long."  



                                                              -5-                                                        6895
  


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

                                                                                                                                         

                         The record shows that Aglietti sent the order to the Alaska Railroad, and  



they  returned  it  with  instructions  to  file  the  order  with  the  Office  of  Personnel  



                                                                                                                                            

Management.  The response also indicated that "[t]he Alaska Railroad will retain a copy  



                                                                   

of the [qualified domestic relations order] in Mr. Kollander's personnel file, and send it  



                                                                                    

along with his retirement application when he files for benefits; however [the federal  



                                                                                                                                         

Civil Service Retirement System] will execute the order."  Jean's current counsel stated  



that he contacted Aglietti and was informed that he has no file, no documents, and no  



memory of the case.  



                                                                                      

                         Daryl   also   denies   submitting   anything   to   the   Office   of   Personnel  



Management  relating  to  the  division  of  his  pension  plan.    The  superior  court  made  



                                                                                                                            

specific  findings  of  Daryl's  credibility  in  regard  to  this  denial  and  the  lack  of  any  



                                                                                     3  

evidence of wrongdoing on the part of Daryl.   



                         Jean testified that after she received the letter from the Office of Personnel  



                                                                                         

Management in 2007, she called the Office on a regular basis and wrote several letters  



                                                                                                                                        

to find out why the Office paid her share as a lump sum and to retrieve any records in  



                                                                                                                                

their possession. She testified that she received no response from the Office until shortly  



                                                                                                                                        

before the evidentiary hearing in 2012.  The record does not contain any letters or other  



communication from Jean to the Office prior to 2012.   



             3            A significant portion of Jean's argument at trial was devoted to an attempt                       



to establish a pattern of fraudulent conduct by Daryl.                                              In a similar vein, Jean includes in          

her appellant brief numerous factual details relating to points not on appeal.  At the   

evidentiary  hearing,  Jean  was  unable  to    produce  documentary  evidence  of  any  

wrongdoing by Daryl or third parties, and Jean's testimony contradicted the documentary  

evidence that was available as well as the relevant third-party testimony.  The superior  

                                                                                                

court found no evidence of a pattern of fraudulent conduct.  These facts do not otherwise  

                                                                                                              

have legal significance in regard to the division of Daryl's pension.  



                                                                               -6-                                                                       6895
  


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

                                                                               

                     While Jean was living in Colorado,  she consulted with Colonel Edwin  



                                                                                                           

Schilling, who was assisted by another Alaska attorney, regarding her qualified domestic  



relations order.  Jean indicated that at some point Col. Schilling and the Alaska attorney  



                                                            

advised her that they were unable to help her and that she should hire an attorney in  



                                                                                                    

Alaska.  She testified that when she returned to Anchorage, she hired another attorney.  



The  record  contains  no  evidence  of  any  contact  with  the  Office  of  Personnel  



                                                                                                                 

Management or any legal action taken on Jean's behalf by any of the attorneys she  



                                                         

contacted.  She later hired attorney Stephen Merrill, who initiated motion practice in  



                                                                 

April 2012 to reopen the pension division order and find Daryl in contempt.  When asked  



                                                                                        

on cross-examination, Jean acknowledged that she knew of no filings made on her behalf  



between the filing of the final orders in 1992 and her 2012 motions.  



                                                                                          

                     Merrill wrote a letter of inquiry to the Office of Personnel Management on  



                                                                                    

April 1, 2012, requesting all records concerning the division of Daryl's pension.  On  



                                                                

May 30, 2012, the Office responded in a letter to Jean informing her, "[y]ou did not  



                                                                                                                  

complete an actual application for a portion of your ex-spouse's annuity.  When a court  



                                                                                                              

order is submitted to our office we must process it according to the law.  That is how you  



                                           

received  the  monies  from  your  ex-spouse's  annuity.    A  copy  of  the  court  order  is  



                                                               

enclosed."    Enclosed  with  the  letter  were  Jean's  divorce  decree,  the  separation  



                   

agreement, and the qualified domestic relations order originally prepared for her in 1992.  



                                            

It  seems  likely  that  these  documents  were  forwarded  to  the  Office  of  Personnel  



Management by the Alaska Railroad when Daryl retired and filed for benefits.  



                     The  superior  court  found  that  Jean's  own  counsel  prepared  a  qualified  



                                            

domestic relations order in conformity with the divorce settlement, that the order was  



                                                                                                                           

submitted and accepted, and that the Office of Personnel Management applied its own  



                                                                                                              

published regulations in establishing the mechanism of payment.  The court went on to  



                                       

find that the "[Office of Personnel Management] did exactly that which was requested  



                                                                 -7-                                                          6895
  


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

and required of it as the federal pension administrator, and that Jean received the benefit  

                                     



of her bargain" when she accepted the payments from the Office.  The court specified  



that it "makes no finding whether there were alternative ways in which these benefits  



could have been distributed had [Jean] or her attorney made such a request."  



                    The superior court also found that Jean's "present filings are made more  



                                    

than twenty years after the entry of all relevant orders, the Findings/Conclusions and the  



                                                                              

parties' Decree of Divorce."  The court found that Jean "failed to object to the form of  



                                                             

the orders her own counsel drafted over that extended period of time, and that she failed  



                                         

to  make  any  subsequent  effort  to  open,  correct  or  otherwise  seek  relief  from  the  



                                                                                           

judgments she benefitted from for more than two decades."  In applying the doctrine of  



                                                                                                                

laches, the court found that Daryl "has been irrevocably prejudiced in this instance and  



                                           

motion practice by [Jean's] unexplained and unjustified delay given the dissipation and  



reasonably expected loss of evidentiary materials over ensuing years."  



                                                                                                      

                    At the close of testimony, the superior court discussed attorney's fees with  



                                                           

counsel:  "I indicated earlier that I was likely to award attorney[']s fees in this case to the  



prevailing party."  Addressing Jean's counsel, the superior court "suggest[ed] strongly  



                           

you discuss that with [Jean] as to whether you want to take the risk of me making a  



ruling  on  this  case  or  whether  you  want  to  work  out  something  in  that  regard  with  



               

 [Daryl's counsel]."  No settlement was reached, and the superior court subsequently  



concluded  that  "[g]iven  the  lack  of  admissible  evidence  adduced  after  a  protracted  



hearing on the merits . . . [Daryl] is entitled to recover his actual attorney['s] fees and  



                                                                                       

costs from [Jean] incurred in the defense of her motion."  The court awarded $8,190.01  



in fees and costs to Daryl.  



                                                                                                    

                    Jean now appeals the superior court's application of laches and the award  



of attorney's fees.  



                                                               -8-                                                         6895
  


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

III.        STANDARDS OF REVIEW  



                                                                                                                                   4  

                                                                                                                                       "The first  

                       "The application of laches may raise three issues for review." 



issue is whether the doctrine of laches, as an equitable defense, may apply to the claim           



                               5                                                                                                           6  

                                   "This raises a question of law, which we review de novo."   "The  

before the court."                                                                                                              



second issue is whether the facts demonstrate an unreasonable delay and a resulting  

                                                   



                                                                                                                                7  

prejudice.  This raises questions of fact, which we review for clear error."   "Clear error  

exists when we have a firm and definite conviction that a mistake has been committed."8  

                                                                                         



"The third issue is whether, based on the facts, it was appropriate for the trial court to  

                     

                                         9   "We review that determination for abuse of discretion"1   and  

permit or deny laches."  

                                                                                                           



have explained that the exercise of discretion will not be overturned without "a definite  

                                                                                                                        



                                                                                                       11  

and firm conviction that a  mistake has been committed."                                                   We have clarified that a  

                                                 



"more precise" formulation may be to ask " 'whether the reasons for the exercise of  

discretion are clearly untenable or unreasonable.' "12  



            4          Burke v. Maka , 296 P.3d 976, 979 (Alaska 2013).
  



            5          Id. (citing Gudenau v. Bang, 781 P.2d 1357, 1363 (Alaska 1989)). 
 



            6          Id. (citing Benson v. Benson , 977 P.2d 88, 93 n.2 (Alaska 1999)).
  



            7          Id. (citing Foster v. State , 752 P.2d 459, 465 (Alaska 1988)).
  



            8          Id. (internal citation omitted).
  



            9          Id.
  



            10
        Id. (citing  Whittle v. Weber, 243 P.3d 208, 211-12 (Alaska 2010)).  



            11         Id. (internal citation and quotation mark omitted).  



            12         Id. at 980 (quoting Lewis v. State , 469 P.2d 689, 695 (Alaska 1970)).  



                                                                         -9-                                                                   6895
  


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

                    "Whether the court applied the proper legal analysis to calculate attorney's  

                                                                                   

                                                                      13   When  the correct legal analysis  is  

fees  is a question  of law  we review  de novo."  

                                                                                                               

applied, we review the subsequent award of attorney's fees for abuse of discretion.14  



IV.	      DISCUSSION  



          A.	       The Superior Court Did Not Err In Its Application Of The Doctrine  

                    Of Laches.  



                    "Laches is an equitable defense available 'when a party delays asserting a  

                                     



claim for an unconscionable period.  To bar a claim under laches, a court must find both  

                                                                                     

an unreasonable delay in seeking relief and resulting prejudice to the defendant.' "15  

                                                                                 



When motions following a divorce decree are brought under the same caption, laches  

                                         16   "Having raised the affirmative defense of laches," Daryl  

                                                                          

may apply to bar the claims.  

"bore the burden of demonstrating . . . both elements of the defense."17  



                                                              

                   Jean does not contest laches being an appropriate defense to her claim, but  



she challenges the factual underpinnings of the superior court's application of laches,  



                                                                                                                   

arguing that she was reasonably diligent in pursuing a remedy and that Daryl failed to  



                                   

show  prejudice.    She  also  argues  that  the  superior  court  abused  its  discretion  in  



                                                 

permitting the laches defense to Jean's claim when Daryl was permitted to amend his  



qualified  domestic  relations  order  in  2001.    The  superior  court  made  findings  of  



          13        Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)                    



(citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).  



          14	      Id.  



          15       Burke , 296 P.3d at 979 (quoting Whittle, 243 P.3d at 217).  



          16       See Schaub v. Schaub, 305 P.3d 337, 343-44 (Alaska 2013).  



          17  

                                                                                         

                   See Laverty v. Alaska R.R. Corp., 13 P.3d 725, 731 (Alaska 2000) (citing  

Winn v. Mannhalter, 708 P.2d 444, 450 (Alaska 1985)).  



                                                            -10-	                                                      6895
  


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

unreasonable delay and prejudice, which we review for clear error.  If we do not find  

                                                                  



clear error in the factual findings, then we review the application of laches for abuse of  

                                       

discretion.18  

                      



                     1.	       The  superior  court's  finding  of  unreasonable  delay  was  not  

                                                                                                              

                               clearly erroneous.  



                     "The essence of laches is not merely the lapse of time, but also a lack of  

                                                



diligence in seeking a remedy, or acquiescence in the alleged wrong and prejudice to the  

                                                                                   



                  19  

defendant."           Jean and Daryl disagree over the point in time when Jean should have  

                                                



sought a remedy for the pension division and thus how reasonable Jean's delay was.  



Daryl asserts that Jean failed to object to the accelerated payments for at least six years  

                                                             



after she received them.  Jean argues, without citing legal support, that the controlling  

                                                



event for applying laches is the date when Daryl first accrued an arrearage in pension  

                                                                                                                      



payments  to  Jean.    Jean  then  relies  on  the  unadmitted  calculations  prepared  by  her  

                                                 



counsel to argue that the first arrearage accrued in April 2009, which would make for a  

                                                                                                  



delay of 36 months before she filed her complaint.    



                                                            

                     To support its finding of unreasonable delay, the superior court found that  



Jean  did  not  object  to  the  accelerated  payment  schedule  when  she  received  the  



explanatory letter from the Office of Personnel Management, while she was receiving  



                                                                                                 

the payments, or when the payments were completed in 2008.  In addition to the finding  



                                                              

that Jean failed to take any legal action between the receipt of the letter from the Office  



                                                                                                               

and the filing of her 2012 motions, the superior court also found that Jean received a  



                                                                                                 

permissible division of Daryl's pension based on the language of the qualified domestic  



                                                                                      

relations order so there was no arrearage.  We note that the language in Jean's qualified  



          18         Burke , 296 P.3d at 979.  



          19         Schaub, 305 P.3d at 343 (quoting                    Wolff v. Arctic Bowl, Inc., 560 P.2d 758,  



767 (Alaska 1977)).  



                                                                -11-                                                              6895  


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

domestic relations order does not mandate accelerated payments instead of a lifetime  



                                                                                                  

monthly benefit.  But we conclude that the superior court did not clearly err in finding  



that the accelerated payments that Jean received constituted an acceptable division of  



Daryl's pension.   



                                                                                  

                    Both the superior court and Daryl cite to a case where we held that "[a]n  



                                                                       

aggrieved party must file suit promptly once it is clear the transgressor has committed  



to an irrevocable course of conduct. . . . The ultimate questions are whether and when a  



                                                                                               20  

                                                                                                    Jean argues that she  

reasonable person would have been galvanized into legal action." 



                                                                                                  

was "as diligent in pursuing a remedy as a reasonable soul could be, especially one so  



                                                                                      

rattled by the prospect of litigation."  However, for almost five years after the 2007 letter  



                              

informed her of the Office of Personnel Management's understanding of her order, she  



took no action other than attempted communication with the Office and consultation with  



several attorneys, none of whom took any action on her behalf.  



                    The clearly erroneous and abuse of discretion standards of review employed  

in this case are deferential to the superior court's findings and exercise of discretion.21  



                                                                                                   

In  Burke  v.  Maka ,  a  case  concerning  a  real  property  covenant,  we  upheld  a  laches  



                                                                         

defense based on the superior court's findings of unreasonable delay and prejudice after  



                                 22  

a  delay  of  five  years.             We  have  also  upheld  application  of  laches  when  a  litigant  



          20        Kohl v. Legoullon , 936 P.2d 514, 517 (Alaska 1997) (citing City & Borough  



of Juneau v. Breck, 706 P.2d 313, 316 (Alaska 1985)).  



          21        See, e.g., Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities                                ,  



282 P.3d 348, 354 (Alaska 2012) (noting the superior court's "broad discretion to sustain                           

or  deny  a  defense  based  on  laches"  (quoting Keener  v.  State ,  889  P.2d  1063,  1066  

(Alaska 1995))); Cowan v. Yeisley, 255 P.3d 966, 977 (Alaska 2011); Foster v. State ,  

752 P.2d 459, 465-66 (Alaska 1988).  



          22        Burke , 296 P.3d at 980.  



                                                             -12-                                                        6895
  


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

                                                                                      

delayed for only 13 months after learning of his cause of action before seeking to enjoin  



                                                       23  

the performance of a contract.                              In the two cases cited by Jean, we also affirmed the  

superior courts' factual findings and exercise of discretion.24  



                        Jean compares her delay to the amount of time between the 1996 letter that  



Daryl received regarding Jean's Teamster pension and the entry of his amended order  



in  2001.    Jean  argues  that  this  period  of  53  months  between  receiving  notice  of  a  



deficient qualified domestic relations order and amendment of the order constitutes the  



                                                                                                                                            

"law of the case," which must also apply to Jean's attempt to amend her order. Jean cites  



                           25 

                                                                                                                         

to Beal v. Beal               for the proposition that it is a violation of the law of the case doctrine  



                                                                                                                                           

to take opposite actions in the same case.  However, Beal  does not support her broad  



formulation of the doctrine; Beal  dealt with reconsideration of issues adjudicated in a  



                               26  

previous  appeal.                    In  Jean's  case,  there  has  been  no  previous  appeal,  only  the  



uncontested amendment of Daryl's order to comply with the Teamster Pension Trust's  



                                                                                                                                       

formal requirements, which did not involve a legal ruling on unreasonable delay or the  



                                           

applicability of laches.  The law of the case doctrine articulated in Beal does not support  



                                                                                                                                   

Jean's contention that an excused delay of up to 53 months is the binding law of the case  



                                                   

such that we must conclude that the superior court clearly erred or abused its discretion  



in this case.  



            23          Laverty v. Alaska R.R. Corp. , 13 P.3d 725, 729 (Alaska 2000).  



            24          Cowan, 255 P.3d at 977; Foster , 752 P.2d at 466.  



            25          209 P.3d 1012 (Alaska 2009).  



            26          Id.  at 1016-17 ("The law of the case doctrine . . . generally prohibits the   



reconsideration of issues which have been adjudicated in a previous appeal in the same                                                  

case." (internal citations and quotation marks omitted)).  



                                                                          -13-                                                                     6895
  


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

                                                                                                         

                    On the issue of disparate treatment by the superior court, Daryl argues that  



                                                                                                                 

he was not required to amend his order until Jean retired and he became eligible for  



benefits.  He asserts that when she did retire, he acted immediately, had an amended  



order approved and entered by the court, and served the amended order on Jean before  



                                                                                             

he received any benefits.  He contrasts this with Jean's delay in bringing suit after she  



had already accepted and had use of the accelerated lump sum payments.  



                                                                  

                    Jean acknowledged receiving the 2007 letter from the Office of Personnel  



                                                                                      

Management that clearly stated that she would receive a lump sum of $22,459.81 from  



Daryl's retirement benefit in monthly payments of $1,796.50 until the lump sum was  



                          

paid in full.  She also acknowledged that she consulted with counsel beginning in 2007  



                                                                                             

and took no legal action until 2012. Based on Jean's receipt of the explanatory letter, her  



acceptance of the accelerated payments, and her lack of action for years after the final  



                                                                          

payment, we conclude that the superior court did not clearly err in finding unreasonable  



delay and did not abuse its discretion in its treatment of Jean and Daryl.  



                    2.	       The  superior  court's  finding  of  prejudice  was  not  clearly  

                              erroneous.  



                                                           

                    The superior court found that Daryl had been "irrevocably prejudiced . . .  



                                                               

by  [Jean's]  unexplained  and  unjustified  delay  given  the  dissipation  and  reasonably  



                          

expected loss of evidentiary materials over ensuing years."  Many of the superior court's  



                                                                                                                       

findings of prejudice relate to Jean's claim that she did not receive proceeds from the sale  



                                                                                                    27  

                                                                                                          The  findings  of  

of  the  marital  home,  a  claim  which  she  has  dropped  on  appeal. 



prejudice  that  relate to Jean's pension claim include the specific finding that Jean's  



          27  

                                                                                                           

                    The superior court references "the demise of the actual escrow closing  

                                                                                         

company involved, the assimilation of mortgage companies and the expected passage of  

time [which] have resulted in a pervasive inability to produce closing records, check  

stubs, files and file notes or statements and the like."  



                                                             -14-	                                                           6895  


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

former attorney, Aglietti, no longer has any files or memory of the transactions at issue,  

                                                                        



as well as the more general finding of "profound difficulties engendered in obtaining  



decades-old banking, retirement and correspondence records experienced by both parties  



in prosecuting and defending the present motion practice."   



                              

                    Daryl  adds  that  Jean's  briefing  includes  suggestions  of  "corrupt  title  



companies,  complicit  pension  administrators  and  attorneys  committing  wholesale  



malpractice," and discovery or proof of these matters would be "incredibly difficult, if  



                                                                                                           

not impossible" given the passage of time and unavailability of records.  Jean counters  



that Daryl suffered no prejudice since the "entire [Office of Personnel Management] file  



                                                                                     

was produced for the hearing," and "[l]ike a real estate title, the [qualified domestic  



relations orders] and [Office] documents of official record told the full tale."  



                                                                           

                    We note that a portion of Jean's case turns on what, if anything, she or her  



                                                                                              

prior counsel submitted to the Office of Personnel Management, specifically whether she  



                                                                                   

requested or approved accelerated lump sum payments instead of lifetime benefits and  



                                                                                    

how the Office obtained her direct deposit information if she did not.  The superior court  



found that Jean "denied ever receiving any correspondence or application/option election  



                                                                                               

documentation from [the Office] as Plan Administrator."  In her testimony, Jean details  



                    

her own and her counsel's difficulties in obtaining records from the Office as well as her  



             

lack of knowledge about what exactly her various counsel did in filing her order or  



pursuing her claim.  Given that there is an evidentiary issue about Jean's submissions  



                                              

and communications with the Office and that the lack of any retained attorney's files  



could potentially prejudice Daryl's defense, we conclude that the superior court did not  



clearly err in finding prejudice.   



                                                             -15-                                                       6895
  


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

                    3.	       The superior court did not impermissibly delegate its authority  

                              to the Office of Personnel Management and did not abuse its  

                              discretion in applying laches.  



                                                                                            

                    Jean points to the superior court's findings of fact and comments at the  



                                                                                                   

evidentiary hearing to argue that the superior court impermissibly delegated its authority  



                                                                                                        

to  interpret  the  pension  division  order  to  the  Office  of  Personnel  Management  and  



                                                                       

thereby abused its discretion.  Jean claims that the superior court gave substantial legal  



                                                                                                                        

weight to the Office's 2007 letter and that the court even stated that the IRS has the  



authority to interpret divorce decrees.  



                                                                                   

                    Jean's qualified domestic relations order provided that she "is entitled to  



one-half  the  sum  of  participant,  Daryl  E.  Kollander's  benefits  as  of  April  1,  1990,  



payable  from  the  contributions  to  the  plan  made  by  or  on  behalf  of  participant."  



                                                  

(Emphasis in original.)  We note that the language in Jean's qualified domestic relations  



                                                                      

order does not mandate accelerated payments instead of a lifetime monthly benefit.  But  



                                

while the Office  of Personnel Management may have been mistaken in interpreting  



Jean's  order  to  direct  a  lump  sum  payment  (presuming  that  Jean  did  not  request  or  



                                                                                                            

approve the lump sum payment when her direct deposit information was conveyed to the  



Office), the question before this court is not whether the Office correctly interpreted  



                                                                                                   

Jean's order. The question is whether the superior court abused its discretion in applying  



                       

laches when it found that Jean knew of the Office's interpretation in 2007, received the  



         

final payment in 2008, and did not seek to correct that interpretation until 2012.  We  



conclude that the superior court did not abuse its discretion in applying laches.  



                                                              -16-	                                                        6895
  


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

         B.	       The Superior Court Erred In Awarding Daryl Full Attorney's Fees.  



                                                                                          

                   As noted above, the question "[w]hether the court applied the proper legal  



                                                                                                            28  

                                                                                                                Under  

analysis to calculate attorney's fees is a question of law we review de novo." 



                                                                     

Civil Rule 82, a prevailing party in a civil case is normally entitled to an award of a  

percentage of reasonable attorney's fees.29  



                                              

                   The superior court awarded Daryl full attorney's fees and costs after noting  



"the lack of admissible evidence [presented by Jean] after a protracted hearing on the  



                                                                                                               

merits."  The superior court did not state its framework for awarding attorney's fees and  



did not discuss Rule 82 or its exceptions in its findings of fact and conclusions of law on  



attorney's fees.  



                   1.	      The divorce exception to Rule 82 does not apply to a pension  

                            order modification case brought after the entry of the divorce  

                            decree.  



                                                                    

                   Jean argues that the superior court was required to apply Rule 82.  Relying  



                                                      30 

                                                         Daryl responds that Rule 82 does not apply in  

on the "divorce exception" to Rule 82, 



         28        Weimer  v.  Cont'l  Car  &    Truck,  LLC,  237  P.3d  610,  613  (Alaska  



2010) (citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).  



         29        Rule 82(a) provides:  "Except as otherwise provided by law or agreed to  



by  the  parties,  the  prevailing  party  in  a  civil  case  shall  be  awarded  attorney's  fees  

calculated under this rule."  Alaska R. Civ. P. 82(a).  



         30        We have summarized the law governing attorney's fees in divorce cases as  



follows:  



                            A prevailing party in a civil case is normally entitled  

                   to an award of attorney's fees, per Rule 82.  Divorce cases are  

                                                                               

                   usually  excepted  from  this  general  rule;  fees  awards  in  

                                                            

                   divorce  cases  are  typically  based  on  the  parties'  relative  

                   economic        situations      and     earning      powers,       rather     than  

                                                                                     

                   prevailing party status.  This "divorce exception" to Rule 82  

                                                                                         

                                                                                                      (continued...)  



                                                          -17-	                                                   6895
  


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

                                   

divorce cases, with the limited exception of child support modifications.  But we held in  



                                                            

Hopper v. Hopper that "Rule 82 can be used to award attorney's fees to the prevailing  



party  in  a  Rule  60(b)(6)  motion  to  modify  a  divorce  decree  and  that  the  divorce  



exception to Rule 82 is inapplicable to post-judgment modification and enforcement  



              31 

                                                       

motions."          While Jean did not frame her pension division claim in the context of Alaska  



                         32  

                                                                 

Civil Rule 60(b),           the superior court stated at the hearing that the pension issue would  



                                                                    

be analyzed under Rule 60(b).  Based on the superior court's own stated framework,  



Rule 82 was the appropriate rule to govern the award of attorney's fees.  



                                                                                33 

                                                                                   involved a post-divorce decree  

                    Like the present case, Worland v. Worland 



pension modification and the awarding of attorney's fees.  We quoted Hopper  for the  



proposition  that  "the  divorce  exception  to  Rule  82  is  inapplicable  to  post-judgment  



                                                           34  

modification and enforcement motions."                         But in  Worland, neither party argued that it  



was error for the superior court to award attorney's fees under the divorce exception to  



          30(...continued)  



                    is based on a broad reading of AS 25.24.140(a)(1), and on the  

                                       

                    reality that there is usually no prevailing party in a divorce  

                    case.   



Johnson v. Johnson , 239 P.3d 393, 399 (Alaska 2010) (internal citations omitted).  



          31        171 P.3d 124, 133 (Alaska 2007).  



          32        At the end of the evidentiary hearing, the superior court sua sponte invited  

                                        

Jean to address Rule 60(b) as a possible basis for her claim.  Although Jean chose not to  

                                                                                                                       

brief Rule 60(b) in her proposed findings of fact and conclusions of law, the superior  

                          

court  addressed  Rule  60(b)  in  its  decision  and  found  no  grounds  for  relief.    In  her  

                          

appellant brief, Jean affirmatively disavows the applicability of Rule 60(b).  



          33        240 P.3d 825, 833 (Alaska 2010).  



          34       Id. at 832 n.38 (quoting Hopper , 171 P.3d at 133).  



                                                            -18-                                                       6895
  


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

                                                            35  

                                                                 

Rule 82 instead of under Rule 82 itself.                        Because neither party objected, we followed  



                                                   

the superior court and the parties in analyzing the attorney's fee award under the divorce  



                36  

exception.          In this case, by contrast, Jean immediately objected and argued that Rule  



82  should  have  been  used.    We  agree  that  "Rule  82  applies  to  post-judgment  



                                                                                                            

modification and enforcement matters in domestic relations disputes and that fees are  



                                                                                                                        

appropriately  awarded  under  the  prevailing-party  standard  of  Rule  82  as  to  post- 

judgment money and property disputes." 37  



                                                                                          

                     We therefore remand the issue of attorney's fees to the superior court for  



application of Rule 82.  



                                                                                   

                     2.	       In  remanding  for  application  of  Rule  82,  we  note  that  the  

                                                                                                                   

                               superior court did not make sufficient findings to  award full  

                                                                                                  

                               attorney's fees on the basis of "vexatious or bad faith conduct."  



                     Rule  82(b)(2)  provides  for  partial  fee  awards  "[i]n  cases  in  which  the  



                                                                                                                38 

                                                                                                       

prevailing party recovers no money judgment."  Rule 82(b)(3) lists factors                                          that permit  



                                                                      

a court to depart from Rule 82(b)(2)'s default fee award and "to award enhanced or even  



                                  39  

                                        "We  have  held  that  '[i]n  general,  a  trial  court  has  broad  

full  reasonable  fees."                                                          



discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed by the  

                                                           



          35	       Id. at 833.  



          36	       Id.  



          37        Johnson  v.  Johnson ,  239  P.3d  393,  399-400  (Alaska  2010)  (internal  



citations omitted).  



          38         Among the factors listed under Rule 82(b)(3) that allow a court to vary an                       



attorney's fees award is "vexatious or bad faith conduct."  Alaska R. Civ. P. 82(b)(3)(G).  



          39        Johnson , 239 P.3d at 400.  



                                                               -19-	                                                        6895
  


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

schedule of the rule, so long as the court specifies in the record its reasons for departing  



                              40  

from the schedule.' "               



                   But  we  have  also  held  that  "full  fees  may  not  be  awarded  under  



                                                                  41  

                                                                      "A Rule 82(b)(3) award of full fees is  

Rule 82(b)(3) except under Rule 82(b)(3)(G)." 

'manifestly  unreasonable'  absent  a  finding  of  bad  faith  or  vexatious  conduct."42  



                                                             

Therefore, an award of full attorney's fees is appropriate only if the superior court made  



valid findings of vexatious or bad faith litigation or if its findings "reasonably permit an  

inference of vexatious or bad faith litigation conduct satisfying Rule 82(b)(3)(G)."43  



                   While the superior court mentioned during the course of the hearing that  



                                                                                                 

Jean failed to meet her burden of proof, and it ultimately found that Jean failed to offer  



                                                                                                         

adequate admissible evidence to support her positions, the superior court did not make  



                                                                                                       

specific findings of vexatious or bad faith litigation. And we note that the findings made  



           

by the superior court do not "reasonably permit an inference of vexatious or bad faith  

litigation conduct satisfying Rule 82(b)(3)(G)."44  



V.        CONCLUSION  



                                                                                       

                   We AFFIRM the superior court's application of laches.  We REVERSE the  



superior  court's  award  of  full  attorney's  fees  and  REMAND  for  consideration  of  



attorney's fees in accordance with this opinion.   



         40        Id. (alteration in original) (quoting United Servs. Auto. Ass'n v. Pruitt ex  



rel. Pruitt, 38 P.3d 528, 535 (Alaska 2001)).  



         41        Id. at 403.  



         42        Id. at 400 (citation omitted).  



         43        Id. at 403.  



         44        Id.    



                                                          -20-                                                        6895  

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