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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Guerrero v. Guerrero (9/18/2015) sp-7050

Guerrero v. Guerrero (9/18/2015) sp-7050

         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@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



PAMELA LEA GUERRERO,                                     )  

                                                         )    Supreme Court No. S-15340  

                          Appellant,                     )  

                                                         )    Superior Court No. 3AN-09-05651 CI  

         v.                                              )  

                                                         )    O P I N I O N  

JUAN JOSE GUERRERO,                                      )  

                                                         )   No. 7050 - September 18, 2015  

                          Appellee.                      )  

                                                         )  



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

                  Judicial District, Anchorage, Catherine M. Easter, Judge.  



                  Appearances:  Michael Gershel, Anchorage, for Appellant.  

                                       

                  Guy Gautreau, Anchorage, for Appellee.  



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

                                                        

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  A husband and wife dissolved their marriage, agreeing that the wife would  

                                                                 



receive the marital home and a portion of the husband's military retirement benefits and  

                                                                                                   



that the wife would remove the husband from the marital home mortgage.  Two years  



later the wife sought a qualified retirement order to effectuate the property distribution.  



Following a protracted dispute over the wife's entitlement to the retirement and the  



wife's  failure  to  remove  the  husband's  name  from  the  marital  home  mortgage,  the  

                                                                                                


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

superior court refused to issue a qualified order because the husband's "retirement pay  



consist[ed] entirely of VA disability compensation and retirement [pay] for physical  



disability" and under federal law the disability compensation is not divisible marital  



property.  The superior court also ordered the wife to remove the husband's name from  



                                           

the mortgage within 60 days.  When the wife did not comply the court forced the home's  



         

sale. The superior court then awarded the husband prevailing party attorney's fees under  



Alaska Civil Rule 82.  



                   The  wife  appeals,  primarily  challenging  the  superior  court's  refusal  to  



                                                                   

divide the military retirement and the court's forced home sale.  Although we affirm  



                                               

those decisions, we reverse the accompanying refusal to reopen the marital property  



division and remand for further proceedings.  We therefore also vacate the superior  



court's prevailing party determination and attorney's fees award.  



II.      FACTS AND PROCEEDINGS  



                                                          

                   Juan and Pamela Guerrero married in 1997, divorced in 2005, remarried in  



                                                               

2006, and dissolved their second marriage in 2009.  During the marriages Juan was a  



uniformed  service  member  -  he  served  in  the  Marines  from  August  1988  through  



August 1992 and in the Army between November 1993 and January 2012.  



                                                                      

                   In March 2009 Juan and Pamela - each appearing pro se - petitioned for  



dissolution of their marriage.  The petition included agreements that Juan must "allocate  



                                                                                              

fifty percent (half) of his military retirement benefits to Pamela . . . due to 13 total years  



                                                 

contributed to the marriage" and that Pamela would be awarded their home.  In May  



Pamela and Juan appeared in court before a master.  Pamela agreed to refinance the  



                                                                                                          

marital home within 18 months to remove Juan from the home's mortgage.  They stated  



that they were satisfied with the property distribution and agreed that "50 percent of  



[Juan's]  military  retirement  benefits  during  the  13  total  years  of  marriage  will  be  



awarded to [Pamela]."  The master clarified that even though they had divorced and then  



                                                           -2-                                                     7050
  


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

remarried, they agreed that Pamela would receive half of the marital portion of Juan's  

                                     



military  retirement  over  the  duration  of  both  marriages.                            In  June  the  superior  court  

                                                                                            



granted  the  dissolution,  finding  "[t]he  written  agreements  between  the  petitioners  

                                                                                                             



concerning . . . division of property, including retirement benefits, and allocations of  

                                                                                           



obligations are just."  



                    In July 2011 Pamela, appearing pro se, sought a qualified order to distribute  

                                                                                                                   



Juan's military retirement.  Juan, also appearing pro se, asserted that (1) the parties'  



dissolution agreement failed to take into account that the second marriage was only 41                             



months, and (2) Pamela had failed to refinance the marital home mortgage as required  



                                                                            

by the dissolution agreement.  Pamela responded that she was unable to refinance or sell  



the  marital  home  "due  to  the  housing  market"  and  that  the  master  "did  take  into  



consideration the temporary break in marriage."  



                                                                   

                    In November Juan received a letter notifying him that he was retired from  



                                                                                                         

the Army for permanent physical disability effective January 2012 - Juan had sustained  



serious combat-related injuries in Iraq in 2007, and as a result of those injuries Juan's  



lower right leg had been amputated in September 2010.  In December Juan's lawyer  



                                                                                                                       

entered his appearance.  Shortly thereafter Pamela moved for documentation of Juan's  



military disability rating, explaining:  "[Pamela's] retirement award is contingent on  



                                                                       

[Juan's]  disability  rating.    Paperwork  must  be  sent  to  [the  Defense  Financing  and  



Accounting Service (DFAS)] in order for [Pamela] to receive retirement benefits."  



                                                                                                     

                    In January 2012 Pamela moved for Juan to directly pay her for her share  



                                                                                  

of his military retirement benefits because "DFAS is not required to begin payments to  



the former spouse until ninety (90) days after receipt of an acceptable order or the start  



                          

of retired pay."  Juan opposed, arguing "the remedy which [Pamela] is here requesting,  



is that [Juan] pay [Pamela] her share of the retirement benefits prior  to his receiving  



                                                                      

those benefits.  This is simply without merit. [Juan] cannot split marital proceeds which  



                                                                -3-                                                         7050
  


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

he has not yet received." (Emphasis in original.)  Juan explained that Pamela "doesn't  



                                    

require a court order for any of these issues.  Rather, all she has to do is file a [form] with  



DFAS  once  this  court  issues  its  final  orders  and  she  can  receive  her  ordered  funds  



directly from DFAS."  



                                                                        

                   The master ordered Juan to provide "any documents evidencing the status  



of his disability rating with the United States Military."  Juan's documents included an  



                              

Army order stating "[y]ou are released from assignment and duty because of physical  



disability incurred while entitled to basic pay and under conditions that permit your  



retirement for permanent physical disability."  The Army order characterized Juan's  

disability as 70% and noted that the statute authorizing retirement was "1201."1  



                   Pamela's  lawyer  entered  an  appearance  in  February.    Responding  to  



                              

Pamela's discovery requests, Juan provided his retiree account statement from DFAS.  



The statement noted that Juan's monthly gross pay was $4,449, his monthly Veterans  



                                                                                

Affairs (VA) waiver was $1,424, Juan was exempted from taxes due to his disability  



status, and Juan's monthly concurrent retirement disability pay was $1,789.  



                                                                                                   

                   In April the master held a hearing.  The parties' lawyers explained that they  



                                                                                                

had  been  working  on  dividing  Juan's  military  retirement  using  a  qualified  military  



                                                   

retirement order (QMRO), but that they could not agree on indemnification language that  



arguably "could be interpreted to allow someone to come back and get disability pay  



when someone's retired pay is reduced."  Pamela's lawyer also expressed confusion  



about Juan's retirement, explaining:  



                   [W]e don't know what [Juan] is getting.  We  don't know  

                                                                                        

                   when he's getting it.  We don't know how it's composed.  I  

                                         

                   asked [Juan's lawyer] - and with all due respect to [Juan's  



          1  

                          

                   See  10  U.S.C.    1201  (2012)  (authorizing  the  armed  services  to  retire  

disabled service members).  



                                                            -4-                                                          7050  


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

                                                                                                                         

                         lawyer], it seems it was confusing to him as well.  So I think  

                          [Juan]  on  the  record  can  set  us  straight  as  to  what  he's  

                         getting, what it comprises and, frankly, if he intends to take  

                         any  of  this  disposable  retirement  pay    and  turn  it  into  

                         disability pay . . . .  



                         The parties also stated their positions on the marital home:  Juan's lawyer  



asserted that Pamela "was ordered to sell the home. She had 18 months from May of '09                                                 



and that was never done."  Pamela's lawyer argued that Pamela "was not ordered                                                                           to sell  



the house, she was ordered to refinance the house and there [were] a number of things     



that were preventing the refinance all directly from [Juan].                                                   Specifically, he did not give     



her a quitclaim deed so the house couldn't be refinanced without that."  



                                                                                                  

                         Pamela asserted that when the parties agreed to dissolve the marriage she  



                                                                                                          

understood that Juan's retirement would be split 50/50.  Pamela explained that she had  



                                                                              

a QMRO prepared by an expert and that she hoped the court would sign the order and  



                                                      

submit it to DFAS.  Pamela also noted that at the time of the hearing she did not know  



                                                                                                                

how long Juan had been receiving retirement benefits, how much he was receiving, and  



                                                                                                                                            

from what source.  Finally, Pamela asserted that she was unable to sell or refinance the  



marital home.  



                         Juan responded that Pamela had failed to remove his name from the marital  



                                                                                                       

home mortgage within the 18 months required by the dissolution order.  Juan asserted  



that he received basically nothing in the dissolution agreement.  Juan also explained that  



he  received  a  70%  Army  medical  retirement  ($4,445  monthly)  and  a  100%  VA  



                     

retirement benefit ($3,213 monthly).  Juan stated that approximately $1,450 was waived  



                                                                                                                                      

from his Army medical retirement but that he would eventually receive that money from  



the VA.  Juan's lawyer explained that the VA disability pay was not divisible by a  



                                                                                                  

QMRO but that 100% of the Army retirement was divisible.  And Juan explained that  



                                                                                                             

his 70% Army disability rating entitled him to 70% of his $6,444 base pay but that if he  



                                                                               -5-                                                                        7050
  


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

had retired based on years of service alone and without the disability he would only have  

                                      



been entitled to 50% of his base pay.  Thus Juan asserted that only 50% of his base pay  

                                                                                                      



was divisible under a QMRO.  



                   After the hearing the parties submitted competing QMRO's.  Pamela's  



QMRO included a provision providing:  



                   If  the  Service  Member  takes  actions  that  reduce[]  his  

                   disposable retired pay and thereby reduces payments to the  

                                                    

                   Former   Spouse   by   the   Designated   Agent,   the   Service  

                                                        

                   Member shall make direct payments to the Former Spouse in  

                                                                                           

                   an amount sufficient to compensate the Former Spouse for  

                                                      

                   such reduction immediately upon notice of such reduction,  

                   and shall also make up any arrearages in installments not less  

                                        

                   in amount or longer in term than the period over which the  

                   arrearages accrued.  



Juan's QMRO did not contain this provision, and he argued:  



                            At the time of the dissolution, it was never agreed to  

                   by  Juan  that  any  changes  in  his   disability  pay  would  

                                                                        

                   automatically be translated into additional pay for Pamela.  It  

                   was  never  negotiated,  is  a  new  argument,  and  it  is  not  

                   conceded  to  now.    In  fact,  Pamela  already  will  receive  a  

                                                            

                   greater   percentage   of   Juan's   retirement   pay   since   his  

                                                                                         

                   disability raised his retirement pay amount from the normal  

                   50% of base pay, to 70% of base pay.  



                   In  July  2012  Pamela,  once  again  pro  se,  submitted  notice  to  the  court  



alleging that Juan "unilaterally converted all remaining disposable retirement pay to  

                                                                                                                  



disability following the April 24th hearing."  Pamela supported her assertion with a letter  



from DFAS explaining that "[t]he entire amount of [Juan's] retired/retainer pay is based  

                                                                                     



on disability, thus there are no funds available for payment."  In response Juan claimed  



that he took "no such action to convert or change any portion of his military benefits."  



                   In  November  2012  the  parties  again  appeared  before  the  master.    The  



master explained that he was confused because Juan's retirement order stated that Juan's  



                                                           -6-                                                     7050
  


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

                                             

disability rating was 70% but the letter Pamela received from DFAS explained that Juan  



                                                                                                               

was "a hundred percent disabled."  Juan explained that the Army rated  him at 70%  



                                                                                  

disability and that the VA rated him at 100% disability.  Juan further explained the Army  



                                                                                                      

rating meant that the Army had concluded Juan was entitled to 70% of his "base pay at  



                   

the time of medical retirement" and that the VA rating meant that Juan qualified for  



"whatever the amount is that they give for a hundred percent."  And Juan asserted that  



                                               

all of the money he received, from the Army and from the VA, was disability pay.  



                                                             

Pamela  insisted  that  Juan  had  elected  to  waive  retired  pay  and  that  this  decision  



prevented DFAS from sending her a portion of Juan's retirement.  



                    The master issued a report recommending that the superior court require  



                               

Pamela to refinance the marital home and deny her motion to divide the retirement.  The  



master  explained  that  Juan's  retirement  "is  completely  classified  as  disability  pay.  



Disability pay is not dividable by the court as it is not a marital asset."  



                    Pamela  objected  to  the  master's  report  and  subsequently  moved  for  



                                     

permanent alimony and survivor benefits.  The superior court issued an order treating  



                               

Pamela's motion as "a motion for [Alaska Civil Rule] 60(b)(6) relief from judgment."  



                

The court explained that the parties had intended to split Juan's retirement, but because  



Juan's retirement pay was entirely disability pay it was not subject to division.  The court  



                                                         

found  that  the  retirement  pay  was  a  fundamental  underlying  assumption  of  the  



                                                                                      

dissolution that had been destroyed.  The court also found that the property division was  



poorly thought out, that the dissolution was not reached with the help of counsel, and that  



the retirement was the parties' principal asset.  The court therefore granted Rule 60(b)(6)  



                                    

relief from the original property distribution and ordered the parties to submit briefing  



to help the court equitably divide their marital property.  



                    Pamela  argued  that  Juan  chose  a  disability  retirement  and  unilaterally  



destroyed the portion they had agreed she would receive.  Pamela requested that the  



                                                              -7-                                                        7050
  


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

court consider issuing a qualified order or awarding her permanent alimony.  Pamela also  



                                                                                                           

argued that the dissolution agreement required only that she refinance, it did not require  



                                                                       

that she sell the marital home.  Pamela further asserted she was unable to refinance the  



          

home because she did not receive adequate child support, the home had no equity upon  



                                                                        

dissolution, and selling the home would "force both parties to incur additional financial  



distress at this time."  Pamela finally submitted a list of marital assets and debts at the  



time of the parties' dissolution.  



                    Juan acknowledged that he received disability retirement pay instead of  



                                                               

regular retirement pay.  He argued that he should be required to pay Pamela only a  



portion of the amount of money he would have received if he had retired based on years  



                                                                                                           

of service.   But he asserted that for purposes of the marital property distribution the  



superior court should have recognized the parties' original divorce and calculated the  



                                                                                     

marriage as only 41 months long.  Juan also argued that the 18 months Pamela received  



     

to remove his name from the marital home had expired and that Pamela's inability to  



                                                                                     

refinance the marital home and remove his name had  negative ramifications for his  



             

credit.  Juan also submitted a property spreadsheet, valuing the marital estate at the time  



of the parties' dissolution.  



                    In August 2013 Pamela and Juan appeared before the superior court.  The  



                                   

court explained that if it could determine Pamela's retirement entitlement based on the  



                                          

original agreement then it was inclined to reverse its decision to reopen the property  



                                                  

distribution.  Pamela agreed that she was only asking the court to address Juan's military  



retirement and that she was not asking the court to reopen the property distribution.  



                    Shortly after the hearing the superior court issued an order, concluding that  



                                                         

federal law "expressly excludes from [divisible] disposable retirement pay VA disability  



                              

compensation  and  retirement  for  a  physical  disability"  and  that  Juan's  "military  



retirement  pay  consists  entirely  of  VA  disability  compensation  and  retirement  for  



                                                               -8-                                                         7050
  


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

                                                                 

physical disability, leaving $0 of marital property for a state court to divide."  The court  



                                                                                                 

reversed its Rule 60(b)(6) ruling, finding that no fundamental underlying assumption of  



                                                                                                 

the property division had been destroyed.  The court noted the parties had agreed Pamela  



                                                                                                             

would receive a portion of Juan's retired pay, but due to his injuries his retirement pay  



was all disability pay and not divisible.  The court rejected granting Pamela alimony  



                                                                                                                     

because  "calculating  what  [Juan]  may  have  received  in  retirement  had  he  not  been  



                                                                                                          

disabled and couching it as spousal support is not only speculative but also violates the  



                                                                                               

spirit of federal law."               Finally, the  court gave  Pamela  60  days  after  the  evidentiary  



                                                                                                        

hearing to refinance the marital home "and remove [Juan's] name from the mortgage or  



                                                                                              

list the property for sale with a licensed realtor."  The court ordered Juan to "motion the  



                                         

court for a clerk's deed" conveying the property to him to market and sell if Pamela  



failed to comply.  



                                                     

                     Pamela  moved  for  reconsideration  and  for  a  quitclaim  deed  from  Juan  



                                                                                             

releasing  his  interest  in  the  marital  home.    She  argued  that  "the  only  blockade  to  



removing [Juan's] name is [Juan's] un-cooperation in signing the Quit Claim Deed."  



                                                                                                    

Juan opposed, arguing that "there is no court order in existence requiring Juan to sign a  



quitclaim  deed"  and  that  "signing  a  quitclaim  deed  would  not  improve  the  current  



                             

situation with the . . . property, in fact the result would be to give total autonomy over  



                                                                                                          

the . . . property to Pamela, . . . she has already defied a court order requiring her to sell  



                                                                                               

[the property] for over three years and counting."  Juan then moved for a clerk's deed so  



                                                   

he could sell the property, and the superior court granted his request.  Pamela moved  



again to revisit the military retirement, and the superior court denied this motion.  



                                                                                                 

                     The superior court awarded Juan Alaska Civil Rule 82 prevailing party  



                                                   

attorney's fees.  First, the court awarded Juan 20% of his reasonable attorney's fees for  



                                                                                                                       

litigation through the evidentiary hearing and the court's subsequent order.  Then, after  



                                                                  -9-                                                           7050
  


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

denying Pamela's final motion to revisit the military retirement, the court awarded Juan  



full fees for responding to that motion.  



III.      STANDARD OF REVIEW  



                    "We  construe  property  settlement  agreements  in  divorce  actions  in  



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



                              2  

                                                                

reviewed de novo."   "We review factual findings supporting a property division for  



                                                                                                        

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

rule."3  



                                                                                                                  

                    We review a trial court's decision to divide marital property  through a  



                                                            4  

qualified  order  for  abuse  of  discretion.     But  we  review  a  trial  court's  attempts  to  



                                                                                                    

effectuate a settlement agreement under "the same review principles we apply to contract  



               5 

                                                                                                        

disputes."   We therefore review the superior court's refusal to issue a qualified order de  



         6 

novo. 



          2         Glover v. Ranney, 314 P.3d 535, 539 (Alaska 2013) (quoting Hartley v.  



Hartley , 205 P.3d 342, 346 (Alaska 2009)).  



          3         Id.   (footnote   omitted)  (citing  Young  v.  Lowery,  221  P.3d  1006,  1010  



(Alaska 2009)).  



          4         See Tillmon v. Tillmon, 189 P.3d 1022, 1031-32 (Alaska 2008) ("The trial  

                                                                               

court did not abuse its discretion in entering [the] proposed [qualified order]. . . . The  

                                                       

court did not abuse its discretion by using the [qualified order].").  



          5         Krushensky v. Farinas , 189 P.3d 1056, 1060-61 (Alaska 2008).  



          6  

                                                                                                 

                    See id. ("Likewise, in entering the bench order that approved inclusion of  

                                      

[qualified pre-retirement survivor annuities] in QDROs, it appears the superior court was  

                             

attempting to give effect to the parties' agreement as memorialized in the final property  

order.  We therefore give that bench order de novo rather than deferential review.").  



                                                             -10-                                                        7050
  


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

                                                                                                                             7  

                                                                                                  

                    "We review for abuse of discretion an order denying a Rule 60(b) motion." 



                                                                                                         

And "[w]e review a superior court's issuance of an order permitting the sale of property  

using the . . . abuse of discretion standard."8  



                                                        

                    "An award of attorney's fees, including a superior court's prevailing-party  



                           

determination, is also reviewed for abuse of discretion.  We review de novo whether the  



                                                                                                     9  

superior court applied the law correctly in awarding attorney's fees."                            



IV.       DISCUSSION  



          A.        The Military Retirement Decisions  



                    Military retirement benefits may be available for distribution as marital  



                                                   

property under a complex federal framework.  Because the parties' various arguments  



                                         

to the superior court were not always consistent with the applicable federal law, we  



provide legal background before analyzing their dispute.  



                    1.       Military retirement pay and disability  



                                                                                                      

                    Generally a uniformed service member may request to retire and receive  

longevity retirement benefits after completing 20 years of creditable service.10  Longevity  



          7         Young v. Kelly, 334 P.3d 153,   157 (Alaska 2014) (citing Frost v. Ayojiak ,  



957  P.2d  1353,  1355  (Alaska  1998)).   But  see  Heber  v.  Heber ,   330   P.3d  926,  930  

(Alaska 2014) (explaining denials of Rule 60(b)(4) motions seeking relief from void  

judgments are reviewed de novo because "validity of a judgment is strictly a question of  

                                                                                                  

law"  (quoting  Leisnoi,  Inc.  v.  Merdes  &  Merdes,  P.C. ,  307  P.3d  879,  884  (Alaska  

2013))).  



          8         Watega v. Watega,  143 P.3d 658, 663 (Alaska 2006).  



          9         Lee v. Konrad , 337 P.3d 510, 518 (Alaska 2014) (footnote omitted).  



          10  

                                                                          

                    See 10 U.S.C.  3914 ("[A]n enlisted member of the Army who has at least  

20, but less than 30, years of service . . . may, upon his request, be retired.").  



                                                            -11-                                                       7050
  


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

                                                                                                      11  

                                                                                                                         

retirement  benefits  awards  are  a  function  of  retired  base  pay                                    and  2.5  times  the  



                                                            12  

                                                                But if a member suffers a physical disability  

member's creditable years of service. 



during service and as a result is unfit to perform Army duties, the Army may retire the  



                                                              13  

member with disability retirement pay.                            We refer to this latter form of retirement as  

Chapter 61 disability retirement.14  



                                                              

                     When a member receives a Chapter 61 disability retirement, the disability  



                                                                                 15  

                                                                                                       

rating is stated as a percentage - e.g., 70% disabled.                               A member retired from the Army  



for permanent physical disability may determine monthly retirement as a function of  



                                                   

retired base pay and either the disability rating percentage or the creditable years of  



           11        Retired base pay is the member's average monthly salary earned during the       



member's highest 36 months.   See 10 U.S.C.  1407(b) ("[T]he retired pay base or  

retainer pay base of a person under this section is the person's high-three average.");  

                                                                                                      

10 U.S.C.  1407(c) ("[T]he total amount of monthly basic pay to which the member was  

                                                                     

entitled for the 36 months . . . for which the monthly basic pay to which the member was  

                                              

the highest, divided by . . . 36 . . . .").  



           12  

                                                      

                     The member's high 36 month salary is multiplied by a percentage - 2.5  

                                                                 

times the member's creditable  years  of service stated as a percentage - in order to  

determine monthly retired pay.  See 10 U.S.C.  1401(a);10 U.S.C.  1409(b) ("[T]he  

percentage to be used . . . is the product (stated as a percentage) of . . . [2.5] and . . . the  

                                                                               

member's years of creditable service . . . .").  



           13  

                                                                                                                                

                     See 10 U.S.C.  1201(a) ("Upon a determination . . . that a member . . . is  

unfit to perform the duties of the member's office, grade, rank, or rating because of  

                                                                                            

physical disability incurred while entitled to basic pay . . . , the Secretary may retire the  

member with retired pay computed under [10 U.S.C.  1401] . . . .").  



           14        See  10 U.S.C. ch. 61  1201-1222.  



           15        See 10 U.S.C.  1216a.  



                                                                 -12-                                                           7050
  


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

                             16  

service percentage.              The member "is entitled to be paid under the applicable formula  



                                   17  

that is most favorable."               



                                 

                    Chapter 61 disability retirement is not the only form of disability payment  



                                                          

available to veterans.  Members who are disabled as a result of an injury suffered or  



                      

                                 

aggravated in the line of duty also are entitled to Department of Veteran Affairs disability  



                        18  

(VA  disability).             A  member's  entitlement  to  VA  disability  does  not  depend  on  a  



                                                                                                             19 

                                                                                                                 Unlike the  

Chapter 61 decision to retire the member for permanent physical disability. 



                                                            

member's Chapter 61 disability  rating  - a rating based on the member's ability to  

perform Army duties20 - the member's VA rating covers all disabilities suffered in the  



                                                                                   21  

                                                                                        A member's VA disability  

line of duty and may differ from the Chapter 61 rating. 



          16        10 U.S.C.  1401(a) (   citing 10 U.S.C.  1201, 1204).  When computing  



retirement as a function of the member's disability rating, the disability percentage used  

may not exceed 75%.  Id.  

                                        



          17        10 U.S.C.      1401(b).  For example, a member retiring after 22 years of  



service would be entitled to 55% of the member's retired base pay (22 x 2.5 = 55).  If  

that member had been retired by the Army due to a permanent physical disability and had  

received a 60% disability rating, then the member would be entitled to receive 60% of  

                                                                                           

retired base pay.  See 10 U.S.C.  1401(a) (citing 10 U.S.C.  1201, 1204).  And if that  

                                                

same member were retired by the Army due to a permanent physical disability with a  

                                                                        

40% disability rating, then the member would still be entitled to 55% of retired base pay  

                                                                                                      

because payments are calculated using the formula that is most favorable to the member.  

See 10 U.S.C.  1401(b).  



          18        38 U.S.C.  1110 (2012).  



          19  

                                 

                    See id.  See also 38 U.S.C.  1114 (compensation table).  



          20        10 U.S.C.  1201.  



          21  

                                                  

                    38 U.S.C.  1110.  See also Myers v. United States, 50 Fed. Cl. 674, 690  

n.41 (Fed. Cl. 2001).  



                                                             -13-                                                        7050
  


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

payment is a function of the member's VA disability rating and the member's number  

and type of dependents.22  



                                                                                                             

                    Historically a member's receipt of VA disability payments was contingent  

on the member waiving an equal amount of retired pay.23  But two programs now provide  



                                                                                          24  

for concurrent receipt or repayment of waived retired pay.                                    Combat-related special  



                                                            

compensation (CRSC) allows veterans disabled in combat to receive compensation in  



                                                                                                                                25  

                                                                                

lieu of retirement payments up to the amount waived to receive VA disability benefits. 



                                                                                    

Concurrent  retirement  and  disability  pay  (CRDP)  is  a  phase-in  program  allowing  



                                                            

qualifying disabled veterans to receive VA disability pay while waiving incrementally  



             

smaller amounts of retirement pay and providing for receipt of full retirement for all  



                                                                 26  

qualified  disabled  veterans  pay  by  2014.                          Both  programs  include  exceptions  for  



          22        38 U.S.C.  1114-1115.  



          23        38 U.S.C.  5304-5305.  Members have incentive to waive retired pay for                  



VA  disability  payments  because  VA  disability  payments  are  not  taxed.   26  U.S.C.  

 104(a)(4).  



          24        See 10 U.S.C.  1413a-1414.  



          25        See  10 U.S.C.  1413a(a) ("The Secretary concerned shall pay to each  



eligible combat-related disabled uniformed services retiree who elects benefits under this  

section a monthly amount for the combat-related disability of the retiree determined  

under  subsection  (b).");    1413a(b)  ("[T]he  monthly  amount  to  be  paid  an  eligible  

                                          

combat-related disabled uniformed services retiree under subsection (a) for any month  

                                                                                                                   

is the amount of compensation to which the retiree is entitled under title 38 for that  

                                                                                                 

month, determined without regard to any disability of the retiree that is not a combat- 

related disability. . . . The amount paid to an eligible combat-related disabled uniformed  

                                                    

services retiree for any month . . . may not exceed the amount of the reduction in retired  

                                                                                             

pay that is applicable to the retiree for that month under sections 5304 and 5305 of title  

                                                                                                                         

38.").   



          26  

                                

                    See 10 U.S.C.  1414(a) ("[A] member or former member of the uniformed  

                                                                                                              (continued...)  



                                                              -14-                                                         7050
  


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

members retired by the Army under Chapter 61, limiting CRSC to an amount equal to  



                                                     27  

the  member's  longevity  retirement                     or  requiring  waiver  of  concurrent  retired  pay  

exceeding the amount the member would have received from a longevity retirement.28  



                    2.       Equitably dividing military retirement pay  



                    The  Uniformed  Services  Former  Spouses  Protection  Act  (USFSPA)  



                                                                                                       

provides that state courts "may treat  disposable retired pay payable to a member . . .  



                                                                                          

either as property solely of the member or as property of the member and his spouse in  



                                                                                   29 

                                                                                       USFSPA defines disposable  

accordance with the law of the jurisdiction of such court." 



retired pay:  



          26        (...continued)  



services who is entitled for any month to retired pay and who is also entitled for that  

                                                                                              

month to veterans' disability compensation for a qualifying service-connected disability  

                                                                

. . . is entitled to be paid both for that month without regard to sections 5304 and 5305  

                                                                                                          

of title 38.  During the period beginning January 1, 2004, and ending on December 31,  

                                                                                      

2013, payment of retired pay to such a qualified retiree is subject to [a phase-in schedule]  

                           

. . . .").  



          27  

                                                                                       

                    See 10 U.S.C.  1413a(b)(3)(A) ("In the case of an eligible combat-related  

disabled uniformed services  retiree who is retired under chapter 61 of this title, the  

                                                 

amount of [CRSC] . . . for any month may not, when combined with the amount of  

                                                                                                          

retired pay payable to the retiree after any such reduction under sections 5304 and 5305  

                                                                              

of title 38, cause the total of such combined payment to exceed the amount of retired pay  

to which the member would have been entitled under any other provision of law based  

upon the member's service in the uniformed services if the member had not been retired  

under chapter 61 of this title.").  



          28  

                                                                                                

                    See  10 U.S.C.  1414(b)(1) ("The retired pay of a member retired under  

                                                          

chapter 61 of this title . . . is subject to reduction under sections 5304 and 5305 of title  

                                                                       

38, but only to the extent that the amount of the member's retired pay under chapter 61  

of this title exceeds the amount of retired pay to which the member would have been  

entitled  under  any  other  provision  of  law  based  upon  the  member's  service  in  the  

uniformed services if the member had not been retired under chapter 61 of this title.").  



          29        10 U.S.C.  1408(c)(1) (emphasis added).  



                                                             -15-                                                       7050
  


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

                     [T]he total monthly retired pay to which a member is entitled   

                     less amounts which -  



                                . . . .  



                                (B) are deducted from the retired pay of such member  

                     as a result of forfeitures of retired pay ordered by a court-    

                     martial or as a result of a waiver of retired pay required by  

                     law in order to receive compensation under title 5 or title 38;  

                                                                                                        



                                (C)  in  the  case  of  a  member  entitled  to  retired  pay  

                     under  chapter  61  of  this  title,  are  equal  to  the  amount  of  

                     retired pay of the member under that chapter computed using  

                                                                                            

                     the percentage of the member's disability on the date when  

                                                                  [30] 

                     the member was retired . . . .  



                                                               

                     In Mansell v. Mansell the United States Supreme Court applied USFSPA  



to retired pay waived in order to receive VA disability benefits, holding that USFSPA  



"does not grant state courts the power to treat as property divisible upon divorce military  



                                                                                                                             31  

                                                                                                                                  We  

retirement  pay  that  has  been  waived to receive  veterans'  disability  benefits." 



                                                                                  

applied Mansell in Clauson v. Clauson, noting that state courts do not have any power  



                                                                                                             

to "equitably divide veterans' disability benefits received in place of waived retirement  



        32  

pay."        But we clarified that "neither the USFSPA nor prior Supreme Court decisions  



                                                                                                             

require our courts to completely ignore the economic consequences of a military retiree's  



                                                                                                              33  

                                                                                                                  We therefore  

decision to waive retirement pay in order  to collect disability pay." 



                                                                                      

considered "the economic consequences of a decision to waive military pay in order to  



receive disability pay" - in  Clauson the member's former spouse was barred from  



          30         10 U.S.C.  1408(a)(4) (emphasis added).  



          31         490 U.S. 581, 594-95 (1989).  



          32         831 P.2d 1257, 1262 (Alaska 1992).  



          33         Id. at 1263.  



                                                                 -16-                                                           7050
  


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

receiving an agreed upon share of the military retirement benefits - and affirmed the   



superior  court's  decision  to  grant   the  spouse's  Rule  60(b)(6)  motion  reopening  the  



                                                         34  

                                                              We finally explained that when reopening a  

parties' property settlement agreement.                                                                       



property distribution trial courts may not "simply shift an amount of property equivalent  

                                                                                



to the waived retirement pay from the military spouse's side of the ledger to the other  



                            

spouse's side. . . . Disability benefits should not, in either form or substance, be treated  

as marital property subject to division upon the dissolution of marriage."35  



                   In  Young v. Lowery we affirmed our  Clauson decision and held that "a  

                                                                                                                     



court may not equitably divide total retired pay; it may equitably divide only the amount  



of  retired  pay  remaining  after  the  court  deducts  waived  retired  pay  and  the  cost  of  



                                            36  

                                                                                                  

purchasing survivor benefits."                  We also held that "the trial court may expressly order  



[the  service  member]  not  to  reduce  his  disposable  retired  pay  and  require  [him]  to  



                                                                              

indemnify [the former spouse] for any amounts by which her payments are reduced  



                                                                                                            37  

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



                   3.        Unraveling Juan's retirement pay  



                                                                   

                   In the superior court the parties may have been confused about the nature  



of Juan's retirement benefits and whether they were divisible in whole or in part.  The  



undisputed evidence in the record establishes the following:  Juan was Chapter 61 retired  



for  permanent  physical  disability  under  10  U.S.C.    1201;  the  Army  rated  Juan's  



permanent  disability  at  70%;  because  Juan's  70%  disability  rating  exceeded  his  



          34       Id. at 1261-64.  



          35       Id. at 1264.  



          36       221 P.3d 1006, 1011 (Alaska 2009).  



          37       Id. at 1012-13.  



                                                            -17-                                                       7050
  


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

                                      38  

                                                                                                  

retirement pay multiplier                Juan was entitled to have his Chapter 61 disability retirement  



                                                              39  

                                                                                                     

pay calculated using his disability rating;                      Juan's retirement base pay was  $6,355, and  



                                                                         40  

                                                                                      

his gross Chapter 61 retirement pay was $4,449.                              Juan also received at least $3,213 in  

monthly VA disability payments, and his monthly VA waiver was $1,424.41  



                    4.         The superior court's retirement benefits rulings  



                    The  master's  report  explained  that  Juan's  retirement  "is  completely  



classified as disability pay.  Disability pay is not [divisible] by the court as it is not a  



marital asset."  And the superior court explained that "[b]ecause of [Juan's] disability,  



                                                                           

the government classifies all of his retirement as disability pay, leaving zero disposable  



retirement pay for a state court to distribute in a divorce."  



                    Pamela asserts that the superior court is incorrect because "based on Juan's  



                                                                                   

own pay statement, it appears that at least a portion of Juan's pay was divisible and that  



          38        Juan's exact retirement pay multiplier is not clear from the record, but based  



on 23 years of service it could not have exceeded 57.5%.  And Juan testified that he took  

                                                                                        

a career service bonus in 2004 that paid him $30,000 but decreased his retirement pay  

multiplier by 10% to 47.5%.  



          39  

                                           

                    See 10 U.S.C.  1401(b) ("If a person would otherwise be entitled to retired  

                                                                       

pay computed under more than one formula . . ., the person is entitled to be paid under  

                                                                                    

the applicable formula that is most favorable to him."). Based on approximately 23 years  

                                                                              

of service Juan's longevity-based retirement pay multiplier could not have exceeded  

57.5%, but Juan's 70% disability rating provided for his receipt of 70% of his retired  

base pay.  See 10 U.S.C.  1401(a).    



          40  

                                                                                                                        

                    Juan's Chapter 61 pay was based on his 70% disability rating - $6,355 x  

.70 = $4,449.  



          41  

                                                                                     

                    Juan had to waive a portion of his Chapter 61 disability because Chapter 61  

                                                   

payments may only be received concurrently with VA disability payments up to "the  

amount of retired pay to which the member would have been entitled under any other  

                                                                                       

provision  of  law  based  upon  the  member's  service  in  the  uniformed  services  if  the  

member had not been retired under chapter 61 of this title."  10 U.S.C.  1414(b)(1).  



                                                               -18-                                                         7050
  


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

Pamela would be receiving some of these funds if the trial court had issued a qualifying  



                                                                                            42  

order."    Pamela  specifically  argues  that  Juan  received  CRDP                             and   that   "CRDP  is  



divisible upon divorce."  



                                                                    

                   But CRDP does not change the nature of Juan's Chapter 61 retirement  



                                                                                      

benefit.  Juan's benefits come from two sources - Chapter 61 disability retirement and  



VA disability payments.  Neither source is divisible upon divorce.  USFSPA excludes  



from disposable retired pay all Chapter 61 retirement benefits "equal to the amount of  



                                                                                                          43  

                                                                                                              And as we  

retired pay . . . computed using the percentage of the member's disability."  



held in Clauson v. Clauson, state courts have no power to equitably divide VA disability  



            44  

                                                             

benefits.       VA disability benefits are not retired pay and do not fall within USFSPA's  



                                                   45  

definition of disposable retired pay.                   



                   Juan's Chapter 61 retirement payments were computed using the percentage  



                                                                     

of his disability rating and are not divisible:   Juan was 70% disabled, and his gross  



retired pay was 70% of his retired base pay.  And contrary to Pamela's assertion that  



                                                                                                          

"CRDP is divisible upon divorce" - Juan was receiving $1,789 CRDP - the CRDP  



                                                                                         46  

portions  of  Juan's  Chapter  61  payments  are  not  divisible.                              CRDP  provides  for  



                                                                                                              47  

                                                                                                                    If  the  

concurrent  receipt  of  VA  disability  benefits  and  military  retirement  pay. 



concurrently received retirement payments are disposable retired pay under USFSPA,  



          42       See supra note 26 (explaining CRDP).
  



          43       10 U.S.C.  1408(a)(4)(C). 
 



          44
      831 P.2d 1257, 1264 (Alaska 1992).  



          45       Id.  at 1262-64; 10 U.S.C.  1408(a)(4)(B).  



          46       See 10 U.S.C.  1408(a)(4)(C).  



          47       10 U.S.C.  1414.  



                                                           -19-                                                      7050
  


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

                             

then the retirement payments are divisible.  Chapter 61 disability retirement payments  



computed based on a member's disability percentage are not disposable retired pay under  



                                                                                            48  

                                                                                                DFAS recognized  

USFSPA - even when received concurrently with VA disability.  



                                                                                               

that Juan received no disposable retired pay and notified Pamela that "[t]he entire amount  



of  the  member's  retired/retainer  pay  is  based  on  disability,  thus  there  are  no  funds  



available for payment under the USFSPA."  



                                          

                   Because Juan's military benefits consist entirely of Chapter 61 retirement  



and VA disability, the superior court did not err when concluding that none of Juan's  



military benefits were disposable retired pay.  



                   5.       Pamela's requested presumption  



                   Pamela  argues  that  we  "should  establish  a  presumption  that  military  



                                 

qualifying orders shall contain indemnity provisions, to protect the former spouse from  



a  post-decree  waiver  of  military  retired  pay."    Pamela  correctly  notes  that  we  have  



                                                                     49  

                                                                                                   

approved the use of indemnity clauses in QMROs.                          But we have only approved the use  



of indemnity clauses to reimburse spouses for reductions in disposable retirement pay  



         48        10 U.S.C.  1408(a)(4)(C).  



         49        See Glover v. Ranney, 314 P.3d 535, 543 (Alaska 2013)  ("Rather than  



improperly dividing waived benefits, the order awards [the wife] her time rule percentage  

of disposable retirement pay while requiring [the husband] to indemnify [her] for any  

subsequent unilateral actions to decrease the total monthly pension payout amounts.  The  

                                                                     

superior court did not err - the order complies with [USFSPA] and our precedent.");  

Young  v.  Lowery,  221  P.3d  1006,  1012-13  (Alaska  2009)  ("But  the  trial  court  may  

expressly order [the husband] not to reduce his disposable retired pay and require [him]  

                                                                                  

to indemnify [the wife] for any amounts by which her payments are reduced below the  

                                       

amount set on the date the amended qualified order is entered.").  



                                                          -20-                                                    7050
  


----------------------- Page 21-----------------------

                                                                                                        

due to members' unilateral waiver of disposable retirement benefits in exchange for VA  



                              50  

disability payments.              



                                                                

                    In this case, despite Pamela's contrary assertions, Juan did not unilaterally  



waive any disposable retired pay.  Juan asserted that he took "no such action to convert  



or change any portion of his military benefits."  The record supports Juan's assertion.  



                                                                                                                    

When Juan was Chapter 61 retired by the military, the military had to find that Juan was  



"unfit to perform the duties of [his] office, grade, rank, or rating because of physical  



                51  

                                                               

disability."         Juan was retired with a 70% disability rating and was awarded 70% of his  



retirement base pay despite Juan's years of service otherwise entitling him to no more  



than 57.5% of his base pay.  As explained above, the entirety of Juan's retirement pay  



was  based  on  his  Chapter  61  disability  rating  and  on  his  VA  disability,  and  under  



                                                                                            52  

USFSPA this money is not considered disposable retired pay.                                      Unlike VA disability  



                                        53  

which a member may elect,                  a member does not unilaterally choose to become Chapter  



61  retired.    Rather,  Chapter  61  retirement  for  permanent  disability  is  based  on  the  



Army's  determination  that  the  member's  permanent  injuries  are  so  severe  that  the  



                                                              54  

member is unfit to perform Army duties.                           And when a member waives a portion of  



                                                                                      

Chapter 61 disability pay to receive VA disability, it is not a waiver of disposable retired  



          50        See Glover, 314  P.3d  at 543; Young, 221 P.3d at 1012.  And in Clauson v.  



Clauson, we focused on t  he "military retiree's decision t  o waive retirement pay in order  

to collect disability." 831 P.2d 1257, 1263 (Alaska 1992).  



          51        10 U.S.C.  1201(a).  



          52  

                           

                    See supra Part IV.A.4.  



          53  

                                            

                    See  38  U.S.C.    5100  ("[T]he  term  'claimant'  means  any  individual  

                                                                                       

applying for, or submitting a claim for, any benefit under the laws administered by the  

Secretary.").  



          54        10 U.S.C.  1201(a).  



                                                             -21-                                                        7050
  


----------------------- Page 22-----------------------

                                                                                        

pay.  Rather it is a waiver of one type of payment that is not considered disposable  



retired pay - Chapter 61 disability - in exchange for another - VA disability.  



                                 

                    Pamela fails to recognize the distinction between a member unilaterally  



deciding to waive disposable retired pay in exchange for VA disability benefits, and a  



                                             

member  receiving  only  two  types  of  nondisposable  retired  pay  after  the  member  is  



                               

Chapter 61 retired by the Army.  The majority of cases Pamela cites supporting her  



                          

indemnification argument explicitly address waiver of disposable retired pay for VA  



disability - as opposed to a member receiving and waiving a Chapter 61 disability  



                                                                                                         

retirement - and they assert that indemnification is proper because it would be unfair  

to let the member unilaterally waive disposable retired pay.55  



          55        See,   e.g., Danielson v. Evans , 36 P.3d 749, 751, 755 (Ariz. App. 2001)           



(addressing   "non-disability   retirement"   pay   "waived   in   order   to   receive  disability  

benefits"); Surratt v. Surratt, 148 S.W.3d 761, 767 (Ark. App. 2004) ("[The member]  

could  not,  by  later  waiving  those  benefits  in  order  to  receive  disability  payments,  

unilaterally deprive [his former spouse] of her property."); Blann v. Blann , 971 So. 2d  

                                      

 135, 137 (Fla. App. 2007) ("[T]he trial court erred in concluding  that there was no  

                                                                                                        

authority  to  enforce  the  consent  final  judgment  by  ordering  the  former  husband  to  

                                                                                  

indemnify the former wife after he waived a portion of his military retirement pay so that  

                                                                                   

he might receive veteran's disability benefits."); In re Marriage of Neilsen & Magrini ,  

                           

792 N.E.2d 844, 849 (Ill. App. 2003) ("Based on the foregoing persuasive authority, we  

                                                                                

believe  that  a  party's  vested  interest  in  a  military  pension  cannot  be  unilaterally  

diminished by an act of a military spouse . . . ."); Bandini v. Bandini , 935 N.E.2d 253,  

264 (Ind. App. 2010) ("For the foregoing reasons, we hold that a military spouse may  

not, by a post-decree waiver of retirement pay in favor of disability benefits or CRSC,  

                                                                                     

unilaterally  and  voluntarily  reduce  the  benefits  awarded  a  former  spouse  in  the  

                                                          

dissolution decree."); Dexter v. Dexter , 661 A.2d 171, 175 (Md. Spec. App. 1995) ("We  

                                                             

hold  that  the  voluntary  waiver  of  appellant's  Army  retirement  pension  was  under  

Maryland law a breach of contract, for which the measure of past damages is the amount  

                          

the receiving spouse would have received had the appellant not committed the breach.");  

                                                                                               

Krapf v. Krapf , 786 N.E.2d 318, 325 (Mass. 2003) ("While not dispositive on this matter  

                                                                   

of first impression in Massachusetts, we note that many other State appellate courts have  

                                                             

                                                                                                               (continued...)  



                                                              -22-                                                         7050
  


----------------------- Page 23-----------------------

                                                                                

                     We  do  not  adopt  an  indemnification  presumption  in  this  case  because  



                                                                               

waiver  of  Chapter  61  retirement  benefits  is  not  waiver  of  disposable  retired  pay.  



Requiring  indemnification  when  a  member  is  Chapter  61  retired  is  akin  to  an  



                                                                      

unacceptable division of retirement benefits which are not disposable retired pay - a  



                                                                                      56  

division foreclosed by USFSPA, Mansell , and Clauson.  



                     6.         The superior court's QMRO ruling  



                     Pamela  argues  that  "the  trial  court  erred  when  it  declined  to  enter  a  



qualif[ied]  order  apportioning  Juan's  military  retirement  benefits."    She  notes  that  



granting a QMRO is a ministerial act that gives effect to a court-approved property  



                                                                                                       

settlement.  Pamela also argues that if the court had issued a QMRO then she might have  



received  retirement  payments.    She  finally  argues  that  even  if  the  court  correctly  



           55        (...continued)  



ordered similar relief against military retirees who waive the military retirement benefits  

                                                                                                         

pledged to a former spouse under a separation agreement in order to obtain VA disability  

                                                                      

payments."); Megee v. Carmine , 802 N.W.2d 669, 682 (Mich. App. 2010) ("We hold  

                                                           

that a military spouse remains responsible to compensate [a] former spouse . . . when the  

                                                                                                                       

military spouse makes a unilateral and voluntary postjudgment election to waive the  

retirement  pay  in  favor  of  disability  benefits  contrary  to  the  terms  of  the  divorce  

judgment."); Shelton v. Shelton, 78 P.3d 507, 508 (Nev. 2003) ("Roland elected to waive  

                                                  

all his military retirement benefits for an equivalent amount of tax-exempt disability pay  

                                        

as federal law allows."); Hisgen v. Hisgen , 554 N.W.2d 494, 496 (S.D. 1996) ("We  

     

consider  whether  a  court  may  require  a  former  spouse  to  pay  as  part  of  a  property  

                                                                                                        

division an amount equivalent to one-half of a military retirement entitlement when such  

                               

spouse  has  waived  retirement  benefits  to  receive  a  corresponding  sum  in  veteran's  

disability payments.");  Johnson v. Johnson , 37 S.W.3d 892, 897 (Tenn. 2001) ("We  

                                                                                                                  

hold that when an [agreement] divides military retirement benefits, the non-military  

spouse has a vested interest in his or her portion of those benefits . . . .  That vested  

                                                                                           

interest cannot thereafter be unilaterally diminished by an act of the military spouse.").  

                                                                                     



           56  

                                                                                                              

                     10 U.S.C.  1408(a)(4); Mansell v. Mansell , 490 U.S. 581, 594-95 (1989);  

 Clauson v. Clauson, 831 P.2d 1257, 1264 (Alaska 1992).  



                                                               -23-                                                         7050
  


----------------------- Page 24-----------------------

                       

concluded that she would receive no direct payments from DFAS, the failure to issue a  



QMRO was still reversible error.  



                   We have explained that a qualified order "simply enforces a court order  



                                                             57  

calling for division of retirement benefits."    As Juan notes, the record establishes that  



a  QMRO  would  not  have  resulted  in  any  payments  to  Pamela  directly  from  DFAS  



because Juan's benefits were entirely based on his disability.  And as explained in the  



previous  subsection,  requiring  Juan  to  directly  indemnify  Pamela  because  he  was  



                                                                                                     58 

                                                                                                         

                                                                                                        We therefore  

Chapter 61 retired by the Army violates USFSPA, Mansell , and Clauson.  

conclude that the superior court did not err when refusing to issue an ineffectual order.59  



                   7.       The superior court's Rule 60(b) ruling  



                                                                                                             

                   Pamela argues that the superior court "erred when it declined to provide  



                                                                                  

[her] with any offset for the benefits she lost due to Juan's receipt of disability benefits."  



                                                                             

Although she asserts that this case is not governed by Rule 60(b) because she "was still  



                                          

seeking . . . issuance of the  qualifying military order," she also argues that she was  



                                                                                               

entitled to an "adjustment to the property division, following Juan's waiver of retirement  



pay" and that the "failure to address Pamela's loss of all interest in the retirement benefits  



constituted an abuse of discretion."  At one point Pamela had asked the superior court  



                                 

for a spousal support award in lieu of Juan's military benefits.  Pamela, at the time  



         57        Zito v. Zito, 969 P.2d 1144, 1146 (Alaska 1998).  



         58        10 U.S.C.  1408(a)(4); Mansell , 490 U.S. at 594-95; Clauson, 8                            31 P.2d  



at 1264.  



         59        The provision t  hat  Pamela requested below  required indemnification when  



"the Service M       ember t  akes a   ctions t  hat  reduce[]  his di       sposable r   etired pay and thereby  

reduces payments to the Former Spouse."  But Juan's Chapter 61 retirement is a result  

of the Army's determination regarding his ability to perform his duties, and not based  

on any unilateral waiver of retired pay.  Thus the specific QMRO Pamela sought would  

                                    

not have resulted in her receipt of any of Juan's military retirement benefits.  



                                                          -24-                                                     7050
  


----------------------- Page 25-----------------------

                          

litigating pro se, thus appears to have attempted to request a modification of the parties'  



dissolution  agreement,  and  we  consider  this  a  request  for  Rule  60(b)(6)  relief  from  



               60  

judgment.          



                    Rule  60(b)(6)  is  a  catch-all  provision,  justifying  relief  from  property  

settlement agreements under extraordinary circumstances.61  



                    In the context of a property division pursuant to a divorce,  

                    four "extraordinary circumstances" may justify relief under  

                    Rule 60(b)(6):  (1) the fundamental, underlying assumption  

                    of  the  dissolution  agreement  has  been  destroyed;  (2)  the  

                   parties'  property  division  was  poorly  thought  out;  (3)  the  

                                                                                 

                   property division was reached without the benefit of counsel;  

                                                                           

                    and  (4)  the  property  in  dispute  was  the  parties'  principal  

                            [62] 

                    asset.  



                                                      

The  four  factors  "are  not  strictly  necessary  conditions  but,  rather,  are  particular  



instantiations of the equitable factors required to overcome the principle that, at some  



          60       See O'Link v. O'Link, 632 P.2d 225, 227-28 (Alaska 1981) (treating request  



to modify divorce decree "as requests for relief from judgment under Civil Rule 60").  

We consider Pamela's request for spousal support a Rule 60(b)(6) motion in spite of  

                                               

Pamela's own lawyer's contrary assertions on appeal and Pamela's statements to the  

                                                                                       

superior court.  Pamela was pro se when she requested spousal support, and she was pro  

se when she informed  the superior court that she did not want to "reopen the entire  

                                   

property."  We interpret the pleadings of pro se litigants leniently.  DeNardo v. Calista  

                                                                                                                

Corp.,  111  P.3d  326,  331  (Alaska  2005).    It  is  clear  that  Pamela  requested  spousal  

                          

support in the event she was unable to receive her agreed upon share of Juan's military  

retirement.  It is not clear that Pamela understood her statements to the superior court to  

                                                                                                                   

mean she was relinquishing her request for spousal support in lieu of Juan's military  

retirement.  



          61       Sandberg v. Sandberg, 322 P.3d 879, 888-89 (Alaska 2014).  



          62        Cook v. Cook, 249 P.3d 1070, 1084 (Alaska 2011).  



                                                            -25-                                                      7050
  


----------------------- Page 26-----------------------

                                                                   63  

point, litigation must be brought to an end."                          "Trial courts should use these factors   



when appropriate, but should also bear in mind the flexible nature of Rule 60(b)(6),  



                                                                                             

keeping in mind that '[t]he broad power granted by clause (6) is not for the purpose of  



                                                                                                                              64  

                                                                   

relieving a party from free, calculated, and deliberate choices he has made . . . .' " 



                        The  superior  court  applied  the  Rule  60(b)(6)  factors  and  initially  



concluded that relief was warranted because:  



                                        

                    (1)   [Juan's]   retirement   was   a   fundamental,   underlying  

                                                                 

                    assumption of the Guerreros' dissolution agreement and it is  

                                           

                    destroyed,  (2)  the  parties'  property  division  was  poorly  

                    thought out because it entirely failed to dispose of [Juan's]  

                    retirement,  (3)  neither  party  had  legal  counsel  when  they  

                    entered  into  the  dissolution  agreement,  and  (4)  [Juan's]  

                    retirement was the parties' principal asset.  



But the superior court later reversed its initial Rule 60(b)(6) ruling "because upon further  



review  [the  court]  does  not  find  that  a  fundamental  underlying  assumption  of  the  



dissolution  agreement  is  destroyed."    The  superior  court  noted  "had  the  Court  not  

                                    



reversed  its  [Rule]  60(b)  order,  the  Court  would  have  reconsidered  the  entire  2009  



property distribution."  



                                                                                 

                    The record establishes that both parties believed Pamela was entitled to  



receive some portion of Juan's military benefits.  While Juan disputed the total amount  



                                     

of  his  benefits  Pamela  would  receive,  Juan  consistently  recognized  Pamela  should  



                                                                                                        

receive some portion of his military benefits.   Thus it was error to determine that a  



                                                                                             

fundamental underlying assumption of the parties' agreement had not been destroyed.  



                                                       

Due to Juan's Chapter 61 retirement by the Army he received no disposable retired pay,  



          63        Sandberg, 322 P.3d at 889 (quoting Clauson, 831 P.2d at 1261).  



          64        Id. (alteration in original) (quoting O'Link, 632 P.2d at 229-30).  



                                                             -26-                                                           7050  


----------------------- Page 27-----------------------

                                                 

and this destroyed the parties' expectation that Pamela would receive some portion of  



Juan's military benefits.  



                                                      

                     The superior court's earlier analysis of the other factors also is persuasive.  



                                                     

The property division was poorly thought out.  Despite knowing that Juan was seriously  



                                                                             

injured in 2007, the parties failed to recognize the possibility that Juan would receive no  



                                                                                                            

disposable retired pay, operating under the assumption that Pamela would be able to  



receive Juan's military benefits.  And neither party was represented by counsel when  



they dissolved their marriage and settled their property.  Finally, Juan's retirement was  

the parties' principal asset.65  



                     Juan argues that the superior court concluded "that the property distribution  



               

was still equitable, despite the non-divisibility of retirement pay, considering that the  



                                                                                          

2009 dissolution was exceptionally favorable to Pamela." But as Pamela correctly notes,  



                                        

the superior court "never engaged in an equitable division analysis," and without taking  



additional  testimony  regarding  marital  property  and  property  values  the  court  had  



insufficient evidence to conduct such an analysis.  



                     Because  it  was  an  abuse  of  discretion  to  refuse  to  reopen  the  property  



                                           

settlement  agreement  and  conduct  a  full  equitable  division  analysis,  we  reverse  the  



                                                                                                         

Rule  60(b)(6)  decision  and  remand  for  further  proceedings  and  a  marital  property  



                                                                                                    

distribution.  We reiterate our Clauson holding that on remand the superior court may  



                                                                                                

not "simply shift an amount of property equivalent to the . . . retirement pay from the  

                                                                                               66  But we note that Juan's  

military spouse's side of the ledger to the other spouse's side." 



and Pamela's financial conditions, including Juan's receipt of his military disability  



          65         The parties' 2009 dissolution agreement was not detailed and did not reveal         



the equity, if any, in their real property.                    But in 2009 Juan was very close to 20 years of       

service and a guaranteed Army retirement, a valuable asset.  



          66         Clauson, 831 P.2d at 1264.  



                                                                -27-                                                          7050
  


----------------------- Page 28-----------------------

                                            

retirement benefits, must be considered when equitably dividing the marital estate and  



                                                                 67  

when deciding whether to require alimony.                             



          B.	       The Forced Sale Of The Marital Home  



                    1.	       The superior court's refusal to require Juan to sign a quitclaim  

                                                                                 

                              deed  



                    Under the dissolution agreement Pamela received the jointly owned marital  



home.  At their dissolution hearing Juan and Pamela  agreed that she would refinance the  

                        



home and remove Juan's name from the mortgage.  Pamela asserts that "[a]s part of the  

                                                                               



property division, Juan was to quitclaim the property." She argues that the superior court  

                                                                                   



erred by refusing to force Juan to sign a quitclaim deed.  And she further argues that  

                                                 



Juan's failure to provide her a quitclaim deed made it impossible for her to refinance the  

                                              



home and remove his name from the mortgage.  



                    But  Pamela  fails  to  point  to  any  agreement  or  any  statement  of  law  



                                                                           

supporting her position that a quitclaim deed was a condition precedent to her removing  



                                                                                      

Juan's name from the mortgage.  And Pamela's own trial theory and testimony provided  



                                                                                            

the superior court with extrinsic evidence that the parties did not intend that a quitclaim  



                                                   68  

deed  was  a  condition  precedent.                      Pamela's  lawyer  first  mentioned  the  lack  of  a  



quitclaim deed in April 2012, far past the 18-month deadline that the parties agreed to  

                            



in 2009.  But even then her lawyer did not assert that a quitclaim deed was a condition  

                                                                                     



precedent to her obligation to refinance.  The lawyer instead agreed with the court that  

                                                               



"one way in procedure" is to deliver the quitclaim deed "at closing of the refinance, not  

                                                                                          



          67	       AS 25.24.160(a)(2)(D), (a)(4)(D).  



          68        Hartley v. Hartley , 205 P.3d 342, 347 (Alaska 2009) ("A court must resolve  



any ambiguity in contract language by determining the reasonable expectations of the  

contracting parties in light of 'the language of any disputed provisions, other provisions,  

                   

relevant extrinsic evidence, and case law interpreting similar provisions.' " (quoting  

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



                                                              -28-	                                                        7050
  


----------------------- Page 29-----------------------

before, to protect [Juan's] interest."  And when questioned at that hearing regarding her     



failure to remove Juan's name, Pamela testified that the house would not sell and that she   



could not refinance due to her "debt to income ratio."  



                                                                                                       

                      Because the property settlement did not explicitly require Juan's quitclaim  



                        

as a condition precedent to Pamela's obligation to refinance the house, because extrinsic  



                                                                                           

evidence establishes that Pamela did not consider Juan's quitclaim obligation a condition  



                                                                                                       

precedent, because the quitclaim deed could have been tendered at a closing, and because  



there is evidence that Pamela was simply unable to refinance the home, we conclude the  



                                                                                                                                   

superior  court  did  not  abuse  its  discretion  when  refusing  to  require  Juan  to  sign  a  



quitclaim deed.  



                      2.         The superior court's forced sale of the home  



                                                                                    

                      Pamela argues that the superior court erred when providing for the forced  



home  sale  "because  it  was  Juan  -  and  the  trial  court  itself  -  that  had  created  the  



                                                                             

putative need for the sale."  She asserts that the court's refusal to order a quitclaim deed,  



                                                                                                                       

the  court's  decision  on  Juan's  retirement  benefits,  and  Juan's  alleged  child  support  



arrears prevented her from refinancing the home.  Pamela's assertions do not establish  



that the superior court erred.  



                                                                                                      

                      In her brief Pamela notes that "the forced sale of a home is within the trial  

                                                                                                               69  She nonetheless  

court's power, in order to effectuate the terms of a property division." 



argues  that  such  an  extreme  step  was  not  appropriate  in  this  case.    But  Pamela's  



                                                                                                                  

argument does not address her failure to refinance the home or request any form of relief  



                                                                                                         

within the agreed upon 18 months.  She only sought the court's help in 2011 while the  



parties were litigating the military retirement benefit issue.  



           69         See Worland v. Worland, 240 P.3d 825, 829 (Alaska 2010).  



                                                                   -29-                                                                  7050  


----------------------- Page 30-----------------------

                                                                                                       

                   After more than four years Pamela had failed to refinance the home, and the  



                                                                      

superior court provided her with a final 60 days.  Regardless of Pamela's later-asserted  



                                                                          

reasons for her failure to refinance, Pamela had not fulfilled her contractual obligation  



                                                                                                              

and had not initially justified her failure to perform.  And as explained above, Juan was  



                                                                                      

not obligated to provide a quitclaim deed; nor did the superior court's military retirement  



                                                                                              

decision, after Juan was Chapter 61 retired in 2012, prevent Pamela from refinancing the  



home between 2009 and 2011.  



                                                                                        

                   Because Pamela failed to seek any relief within the 18 months provided  



under the property settlement agreement, we conclude that the superior court did not err  



when ordering the forced sale of the home.  



         C.        The Attorney's Fees Awards  



                                                                                               

                   Because we reverse the superior court's Rule 60(b)(6) decision, we vacate  



the  attorney's  fees  awards.    The  superior  court  may  make  a  new  prevailing  party  



determination and attorney's fees calculation at the conclusion of the proceedings on  



remand.  



V.       CONCLUSION  



                   We AFFIRM the superior court's decision not to divide Juan's military  



disability retirement pay and not to issue a QMRO.  We AFFIRM the superior court's  



decision to force the sale of the marital home.  Because exceptional circumstances justify  



reopening   the   marital   property   agreement,   we   REVERSE   the   superior   court's  



                                                                             

Rule 60(b)(6) decision and REMAND for an equitable marital property distribution; and  



we VACATE the attorney's fees awards.  



                                                          -30-                                                    7050
  

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