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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dunmore v. Dunmore (5/11/2018) sp-7246

Dunmore v. Dunmore (5/11/2018) sp-7246

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

GLORIA  DUNMORE,                                                 )  

                                                                 )          Supreme  Court  Nos.  S-16433/16523  

                                 Appellant,                      )          (Consolidated)  



                      v.                                         )          Superior Court No. 3AN-15-08222 CI  



RICHARD DUNMORE,                                                                                 

                                                                 )          O P I N I O N  



                                                                 )          No. 7246 -  May 11, 2018  




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


                      Judicial District, Anchorage, Mark Rindner, Judge.  


                      Appearances:              Gloria  Dunmore,  pro  se,  Manning,  South  


                      Carolina,  Appellant.                  Kenneth  P.  Jacobus,  Kenneth  P.  


                      Jacobus, P.C., Anchorage, for Appellee.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  



                      A husband and wife divorced after 40 years of marriage. The wife appeals  


the superior court's decision to equally divide their marital property, which consisted  


primarily of retirement benefits and debt.  The superior court declined to consider how  


the couple's Social Security benefits affected a fair distribution, believing that our case  


law precluded it from doing so.  But we hold that although federal law prohibited any  


allocation of the parties' Social Security benefits, the court could consider them as  

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

evidence of the parties' financial condition in crafting an equitable division of the marital                                                                                                  


                                The wife raises a number of other challenges to the property division, but                                                                                              

we conclude they lack merit.                                             We vacate the order dividing the marital property and                                                  

remand for further consideration in light of the parties' Social Security benefits.                                                                                         

II.             FACTS AND PROCEEDINGS               

                                Gloria and Richard Dunmore were married in 1975 and separated in July                                                                                                 



                   It was eight years later - in July 2015 - that Richard filed a complaint for  


divorce.  Trial on the division of their property took place in April 2016, when Gloria  


was 61 years old and Richard was about to turn 64.  Following trial the superior court  


issued written findings of fact and conclusions of law, entered the divorce decree, and  


issued orders dividing the parties' pensions.  


                                During the marriageRichard had spent threeyears working for the military,  


 16 years working for what his testimony describes as the "State of Alaska Housing  



Authority,"                    and 13 years in the federal civil service.  He retired in 2012.  He received  


Veterans Administration (VA) disability benefits of $133 per month, Social Security  


disability benefits of $2,081 per month, and a Federal Employees Retirement System  


(FERS) pension benefit of approximately $360 per month.  


                                Gloria had worked for the State of Alaska for approximately 35 years  


before retiring in 2009.  She received a monthly benefit from the Public Employees  


Retirement System (PERS) in the gross amount of $5,762.  She testified that she would  

                1               Between 2000 and 2007 the parties lived in different parts of the house as                                                                                                 

"roommates" but continued to share responsibility for household bills.                                                                                        

                2               The record does not explain this employment any further.  Neither party  


asserts that at the time of retirement Richard was entitled to any benefits as a result of  


this employment.  


                                                                                                     -2-                                                                                            7246

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


become eligible for Social Security when she turned 62 the next year, though her benefits  


would be higher if she waited until she was 66 to receive them. She could only estimate  


how much she would eventually receive from Social Security; her eligibility was based  


on a low-paying job she had held many years before. She had no plans to seek eligibility  


based on her marriage to Richard.  


                    Duringtheparties' separation,Richardhad cashed out aThrift Savings Plan  


totaling $4,471 and accepted a voluntary separation incentive payout from the military  


in the amount of $25,000.  He did not share any of these funds, or the money from his  


FERS pension, with Gloria. Nor did Gloria share her pension benefits with Richard. But  


at trial Richard expressly disavowed any claim to the PERS benefits Gloria received  


during the separation, even though they amounted to several hundred thousand dollars.  


                    Gloria and Richard had two significant marital debts.  One, to the IRS,  

stemmed from their 2006 federal taxes.  The superior court found that the outstanding  


balance at the time of trial was $13,172.30.  Gloria testified that she was unaware of this  


debt and admitted that she had made no payments on it.  


                    The other debt involved a "parent-student loan" in the amount of $32,000  


taken out in 1999 for the benefit of the parties' daughter.   Richard testified he was  


unaware of this debt.  Neither party had made any payments on it, and it appeared to  


have grown over the years to nearly $70,000.  


                    In its written findings and conclusions, the superior court stated that it had  


considered all relevant factors and determined "that an equal distribution of property  


[wa]s appropriate."   It therefore divided the parties' pensions equally, and it issued  


orders that equally divided Gloria's PERS and Richard's FERS benefits attributable to  


the period between the date of their marriage in September 1975 and the date of their  


separation in July 2007. The court also equally divided the liability for the marital debt,  

                                                               -3-                                                         7246

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

though it observed that the parent-student loan should be their child's responsibility "in                                                                                                                                                                                                                 

the first instance."          

                                                The court observed that its division of the marital property did not take into                                                                                                                                                                          

account the parties' Social Security benefits and that this result was unfair.                                                                                                                                                                                                        Gloria's  

"relatively large retirement" was shared equally with Richard, Richard's "small civil                                                                                                                                                                                                                

service retirement" was shared equally with Gloria, and Richard's concurrent receipt of                                                                                                                                                                                                                       

 Social Security and VA benefits - which the court by law could not divide - meant                                                                                                                                                                                                             

that Richard was receiving significantly more each month than Gloria despite the 50/50                                                                                                                                                                                                           

split, at least until Gloria began receiving Social Security benefits. But                                                                                                                                                                             the court believed  

this result was mandated by our case law, and in a later order it encouraged Gloria to                                                                                                                                                                                                                        

appeal the issue and seek a change in the law.                                                                                                                        

                                                Gloria appeals, raising the Social Security issue and several others related                                                                                                                                                                 


to the division of the marital estate.                                                                                              

III.                    STANDARDS OF REVIEW  


                                                "A trial court's 'equitable division of marital assets  involves three steps:  


(1) determining what property is available for distribution, (2) finding the value of the  


property, and (3) dividing the property equitably.' "4  "We review the first and second  


steps, which involve factual findings 'as to the parties' intent, actions, and contributions  


                        3                       Gloria filed a subsequent appeal challenging the denial of her request for                                                                                                                             

a stay of enforcement of the Qualified Domestic Relations Order governing her PERS  


benefits; the two appeals were consolidated.  Gloria does not expand on this argument  


in her briefs, however, and we do not consider it.  See Brady v. State, 965 P.2d 1, 20  


(Alaska 1998) ("Despite our solicitude for pro se litigants, we must conclude that he has  


waived the claim by failing to brief it adequately.").  

                        4                        Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017) (quoting Limeres  


v. Limeres, 320 P.3d 291, 296 (Alaska 2014)).  


                                                                                                                                                      -4-                                                                                                                                           7246

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


to the marital estate' and the 'valuation of property,' for clear error."                                                                      We find clear       

error "if, upon review of the entire record, we are left with a firm and definite conviction                                                            

                                                              6  "We review the third step, 'the equitable allocation of  

that a mistake has been made."                                                                                                                                           

                                                                     7   "A property division is an abuse of discretion if it  

property,' for abuse of discretion."                                                                                                                                      


is clearly unjust; it will also be set aside if it is based on a clearly erroneous factual  


finding or mistake of law."8                              "[W]hether the trial court applied the correct legal rule in  


exercising  its  discretion  is  a  question  of  law  that  we  review  de  novo  using  our  


independent judgment."9  


IV.	         DISCUSSION  


             A.	           The  Parties'  Social  Security  Benefits  May  Be  Considered  In  The  


                           Division Of Their Marital Property As Evidence Of Their Financial  



                           As the superior court summarized its property  division, Gloria had "a  


relatively large retirement which was equally divided" (her PERS pension); Richard had  


"a small civil service retirement which was equally divided" (his FERS pension); and  


Richard also received "[S]ocial [S]ecurity and VA disability payments which by law the  


court cannot divide." Because the court believed it could not even consider the existence  


of the parties' Social Security benefits, the effect of its property division was that -  


despite the 50/50 split - Richard received a considerably greater monthly income than  

             5	           Id.  (quoting  Limeres, 320 P.3d at 296).                            

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

Schmitz, 88 P.3d 1116, 1121 (Alaska 2004)).                                 

             7             Wagner,  386  P.3d  at   1251  (quoting  Limeres,  320  P.3d  at  296).  

             8            Id.  (citing  Jones  v.  Jones,  942  P.2d   1133,   1136  (Alaska   1997)).  

             9            Richter  v.  Richter,  330  P.3d  934,  937  (Alaska  2014)  (alteration  in  original)  

(quoting  Stanhope  v.  Stanhope,  306  P.3d   1282,   1286  (Alaska  2013)).  

                                                                                   -5-	                                                                           7246

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Gloria, at least until she began receiving Social Security herself.                                                                                      Gloria argues that it                        

was error not to consider the effect of Social Security benefits in the property division.                                                                                                           10  

                               It was undisputed that at the time of trial Richard was already receiving  


Social Security disability benefits, which would convert to retirement benefits when he  


reached full retirement age, and that Gloria anticipated receiving Social Security benefits  


a few years later.  The superior court expressly stated that it would have liked to factor  


these  benefits  into  its  property  distribution  but  believed  it  was  constrained  from  


considering even "the existence of such benefits" because of our decision in  Cox v.  




                               The superior court was correct that it could not lawfully divide the Social  


Security benefits of either party.12   And courts may not evade the federal prohibition by  


offsetting the Social Security benefits with a larger award of marital property to the other  


                10             Gloria asserts that the superior court considered her anticipated Social                                                                                   

Security benefits but not Richard's, noting the court's finding that she would "receive                                                                     

Social Security in the amount of $2,470" if "she retire[d] at age 66."                                                                                          Gloria appears to                   

misunderstand the court's order; it did not include either party's Social Security benefits,                                                                                          

received or anticipated, in its allocation of marital property.                                                                             

                11             882 P.2d 909 (Alaska 1994).  


                12             Hopper v. Hopper, 171 P.3d 124, 133 (Alaska2007) ("Wehave recognized  


that '[t]he doctrine of federal preemption prevents state courts from dividing [S]ocial  


[S]ecurity benefits.' " (alterations in original) (quoting Mann v. Mann, 778 P.2d 590, 591  


(Alaska 1989))).  


                                                                                                 -6-                                                                                         7246

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

spouse.13  But it is a separate question whether the court may consider Social Security                                                                                                      

benefits as one of the factors relevant to a fair allocation of the marital estate.                                                                                         

                                To answer this question we first address our opinion in                                                                                   Cox.    In  Cox  we  

affirmed a superior court's decision not to consider a divorcing couple's future Social                                                                                                            

                                                                                                                                  14  We noted that "[t]he employee  

Security benefits when dividing their marital property.                                                                                                                                    

has no contractual right to [Social Security] benefits" and that "[t]he sum of the Social  


Security taxes paid from an employee's earnings are not a measure of any potential  


Social Security benefits that the employee might receive upon retirement."15                                                                                                                      While  


acknowledging that some states "have held that Social Security benefits are but one  


factor to be considered in the disposition of the marital property, and that there is no  


federal prohibition excluding their consideration in the divorce context," we rejected this  


approach as unwise "[g]iven the speculative nature of future Social Security benefits."16  


                                We recognize that Cox can be read as holding that Social Security benefits  


will always be too speculative to be considered because of their gratuitous and non- 


contractual nature.  We reject that implication, however; that a retiree will receive some  


amount in Social Security benefits is at least as predictable as the retiree's receipt of  


other pension and retiree medical benefits that our courts are routinely called upon to  


                13              See, e.g.            ,  Howell v. Howell, 137 S. Ct. 1400, 1405-06 (2017) (reversing                                                                     

statetrialcourt'sdecision to offset husband's VA                                                                     disability benefits,                         which under federal             

law are not divisible marital property, by awarding wife a pro-rata increase in husband's                                                                                                

other   retirement benefits);                                      Hisquierdo   v.   Hisquierdo,   439   U.S.  572, 588-90                                                                       (1979)  

(finding that state court could not offset husband's Railroad Retirement Act benefits,                                                                                                       

analogous to Social  S                                                                                                                                                                           

                                                      ecurity  benefits,  by  awarding wife a pro rata increase in marital  


                14               Cox, 882 P.2d at 920.  


                15              Id.  

                16              Id.  

                                                                                                      -7-                                                                                             7246

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prospectively divide.                          But the Social Security benefits at issue in                                        Cox  were speculative   


in amount            because the parties' entitlement to them was still years in the future.                                                                             

                                                                                                                                                                We do  


not read Cox as precluding the consideration of Social Security benefits when they can  


be valued more readily and accurately - as here, where a party is already receiving  




                           We turn to the question of how a trial court goes about considering Social  


Security benefits in this context while still respecting the bounds of federal preemption.  


A minority of jurisdictions hold that Social Security benefits may not be considered at  


all  in  marital  property  divisions;  these  courts  "generally  have  concluded  that  no  


principled line can be drawn between considering the existence or absence of anticipated  


Social Security benefits as factors in effecting an equitable division of marital property  


and making a prohibited offset of the value of such benefits against the value of other  

               19     A majority of jurisdictions, however, allow Social Security benefits to be  


              17           See,   e.g.,   Hansen   v.  Hansen,   119   P.3d   1005,   1016   (Alaska   2005)  

(acknowledging "inherent difficulties in attempting to calculate the value of" future                                                                            

retiree health               benefits but requiring                         trial court to              value the benefits on remand                                   for  

purposes of "fashioning an equitable division");                                                 Mann, 778 P.2d at 591-92 (discussing                  

types of retirement benefits that constitute marital assets and are subject to equitable                                                                   


              18           The opinion does not state the parties' ages, but it does observe that the  


husband was "eight years older than [the wife] and [was] scheduled to retire in seven  


years."  Cox, 822 P.2d at 919.  


              19           In re Marriage of Herald & Steadman, 322 P.3d 546, 556 (Or. 2014); see  


In re Marriage of Crook, 813 N.E.2d 198, 205 (Ill. 2004).  The Oregon Supreme Court  


cited our opinion in  Cox in support of this flat prohibition.   Marriage of Herald &  


Steadman, 322 P.3d at 556.  


                                                                                    -8-                                                                            7246

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considered as one of many factors necessary to ensuring a "just division that takes into                                                                                                               


account all 'relevant factors.' "                                                 

                                We conclude that the latter approach is more consistent with the theory of  


                                                                                                                                                                              21     Among the  

equitable division on which Alaska's law of property division is based.                                                                                                                                  


Merrill factors a court must consider, as stated in the governing statute, is "the financial  


condition of the parties."22   As a general matter, "[t]he size of each spouse's nonmarital  


estate is clearly relevant to division of property," as "[a] spouse with more nonmarital  


property is in better financial condition" than the other.23   And few couples are likely to  


plan financially for their retirement without taking Social Security into account; courts  


 should  not  be  expected  to  equitably  divide  the  parties'  marital  property  without  


considering the factors that the parties themselves deem important to the exercise.24  


                20              Depot v. Depot                      , 893 A.2d 995, 1002 (Me. 2006) (quotingMe.                                                                  Stat. tit. 19-A     

  953(1) 2005));                        see also In re Marriage of Boyer                                               , 538 N.W.2d 293, 296 (Iowa 1995);                                       

Biondo v. Biondo                           , 809 N.W.2d 397, 403 (Mich. 2011);                                                         Neville v. Neville                         , 791 N.E.2d     

434, 437 (Ohio 2003);                                 Marriage of Herald &Steadman                                                  , 322 P.3d at 557;                       In re Marriage     

of Zahm              , 978 P.2d 498, 502-03 (Wash. 1999).                                       

                21              See Burts v. Burts, 266  P.3d  337, 342 (Alaska 2011) ("Alaska uses a  


 statutory scheme of equitable division codified in AS 25.24.160(a)(4).").  


                22              AS 25.24.160(a)(4)(D); Merrill v. Merrill, 368 P.2d 546, 547 n.4 (Alaska  



                23              2 BRETT R.T                   URNER,E               QUITABLE  DISTRIBUTION OF                                          PROPERTY   8:18, at 875                         


(3d ed. 2005).  Turner warns, however, against either "award[ing] one spouse most of   

the   marital   assets   only   because   the   other   owns   substantial   nonmarital   property"   or  

"divid[ing]   the   marital   property   so   that   each   spouse's   total   marital   and   nonmarital  

property is equal"; "[b]oth of these option[s] are uncomfortably close to a division of                                                                                                                    

nonmarital property."                                 Id.  at 876.                 

                24              See Marriage of Herald & Steadman, 322 P.3d at 557.  


                                                                                                     -9-                                                                                             7246

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

                        The Oregon Supreme Court addressed this issue in                                                 In re Marriage of             


Herald & Steadman                   .                                                                                                       

                                         The parties' employment history made it likely that the husband  

                                                                                                                           26    The trial court  



would receive Social Security benefits, whereas the wife would not. 

concluded that it would be unjust for the husband to receive half the value of the wife's  


public retirement pension as well as his own Social Security benefits in full.27                                                                    The  


Oregon Court of Appeals affirmed this conclusion, as did the Oregon Supreme Court,28  


which explained:  


                        [I]n light of the prohibition against assignment or transfer of  


                        Social  Security  benefits  .  .  .  three  considerations  merit  


                        particular emphasis.  The first is whether it is probable that  


                        one or both spouses will receive Social Security retirement  


                        benefits in the foreseeable future.  The second is whether the  


                        anticipated benefits are a substantial financial consideration  


                        when viewed in relation to the retirement assets and other  


                        financial resources that likely will be available to each spouse  


                        after the dissolution of their marriage. And, third and last, we  


                        reiterate that Social Security benefits are not marital assets,  


                        and their anticipated existence or absence therefore should be  


                        considered - if at all - only in achieving an overall just and  


                        proper division of the parties' property.[29]  


                        This approach is in line with the way we view other retirement assets that  


by federal law cannot be divided. For example, "state courts have no power to equitably  


            25          Id . at 556-57.     



                        Id. at 549.  

            27          Id.  

            28          Id.  

            29          Id.  at 557-58 (footnotes omitted).         

                                                                          -10-                                                                    7246

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


divide VA disability benefits,"                                and we have therefore held that courts cannot treat VA                                              

disability   benefits   as   marital   property   subject   to   division,   "either   in   form   or  [in]  

substance" - for example, by simply "shift[ing] an [equivalent] amount of property . . .                                                                                

                                                                                                                                            31   But we have  

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

nevertheless concluded "that federal law does not preclude our courts from considering,  


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


party's  decision  to  receive  nondivisible  disability  pay  rather  than  a  divisible  VA  


pension.32               The  statutory  admonition  that  courts  consider  the  parties'  "financial  


condition"33   when deciding issues such as spousal maintenance and the division of  


marital property allows consideration of even nondivisible assets.  Thus in Guerrero v.  


Guerrero, while reiterating our admonition against shifting property to the non-military  


spouse's side of the ledger in order to directly offset nondivisible disability pay, we  


noted that the parties' "financial conditions, including [the husband's] receipt of his  


military disability retirement benefits, must be considered when equitably dividing the  



marital estate and when deciding whether to require alimony."                                                                  


                          We follow the same course here.   We hold that the superior court has  


discretion to weigh the parties' current and reasonably anticipated35   Social Security  


             30           Guerrero v. Guerrero                       , 362 P.3d 432, 441 (Alaska 2015) (citing                                          Clauson  

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

             31           Clauson, 831 P.2d at 1264.  


             32           Id.  

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


             34           Guerrero, 362 P.3d at 445 (citing AS 25.24.160(a)(2)(D), (a)(4)(D)).  


             35           SeeBradburyv. Bradbury, 893 A.2d 607, 609(Me. 2006) (holding thattrial  



                                                                                 -11-                                                                           7246

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

benefits when considering their respective financial positions and deciding how to fairly                                                                            

allocate the economic effect of divorce.                        

              B.	          Challenges To The Property Division Based On The                                                                   Merrill  Factors  

                           Were Not Litigated At Trial And Are Waived.                                        

                           Gloria raises several other challenges to the superior court's decision to                                                                      

divide the marital property equally.  The starting presumption is that an equal division                                                           

                                           36    But the court must also "consider the Merrill v. Merrill factors  

is the most equitable.                                                                                                                                            

now codified in AS 25.24.160(a)(4)"; these may justify something other than a 50/50  


split.37        In this case the court stated that it had considered the relevant Merrill factors  


"and conclude[d] that an equal distribution of property [was] appropriate."  


                           Though  not  citing Merrill,  Gloria  alleges  that  the  court  failed  to  give  


appropriate weight to a number of circumstances that may be relevant to a Merrill  


analysis. She asserts that Richard's age and health are such that he could still work if he  


chose to, whereas her age, the time she has spent out of the work force, and her physical  


condition  keep  her  from  working.38                                               She  claims  that  Richard  was  voluntarily  


underemployed  during  their  marriage;  that  he  cashed  in  savings  bonds  she  had  


purchased, resulting in a tax penalty that she had to pay; that he took out a personal loan  


              35           (...continued)  


court  did  not  abuse  its  discretion  in  determining  that  husband's  anticipated  Social  


Security benefits were too speculative to be considered, given that husband was ten years  


from retirement and "[b]oth parties' experts expressed the difficulty of calculating the  


value of his benefits ten years from now").  

              36           Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008) (quoting Burcell v.  


Burcell, 713 P.2d 802, 805 (Alaska 1986)).  


              37           Id. at 686 (citing Merrill v. Merrill, 368 P.2d 546, 547 n.4 (Alaska 1962)).  


              38           See AS 25.24.160(a)(4)(B) and (C) (identifying "the age and health" and  


"the earning capacity of the parties" as relevant factors).  


                                                                                    -12-	                                                                            7246

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

during the marriage that she had to repay; that he withdrew funds from their marital bank                                                                                 

account and sold household items without her knowledge; that he "did not participate in                                                                                         

any family activities"; and that he spent much of their marriage abusing drugs and                                                                                         


alcohol rather                  than  contributing   to   the family's well-being and                                                     financial security.                        

Gloria also argues that Richard further harmed the marital estate after separation by  


retiring early, resulting in a smaller pension than he would otherwise have been entitled  




                            But none of these issues was raised in more than a cursory way at trial,  


which focused almost exclusively on the parties' pensions and marital debt.40  Nor did  


Gloria make similar arguments in her written objections to the superior court's findings  


of fact and conclusions of law.  We conclude that Gloria waived any challenge to the  


property division to the extent the challenge is based on the court's weighing of the  


Merrill factors.41  


              C.	           The Superior Court Did Not Abuse Its Discretion By Not Crediting  


                            Either Party For Contributions To The Marital Estate During Their  



                            The superior court declined to credit either party for contributions made to  


the marital estate or payments that benefited the other party during their eight-year  


              39            See   AS   25.24.160(a)(4)(E)   (identifying   "the   conduct   of   the   parties,  

including whether there has been unreasonable depletion of marital assets," as a relevant                                                                         


              40            Gloria did assert while questioning Richard that he abused drugs and that  


he failed to participate in raising their children, but she made no property-division  


argument specifically related to those allegations.  


              41            Mullins v. Oates, 179 P.3d 930, 941 n.31 (Alaska 2008) ( "[A] party may  


not raise an issue for the first time on appeal." (quoting Brandon v. Corr. Corp. of Am.,  


28 P.3d 269, 280 (Alaska 2001))).  


                                                                                      -13-	                                                                              7246

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

separation, finding that the equities did not entitle either party to reimbursement. Gloria                                                                                                                                                                  

argues that the court should have given her credit for some of her contributions:                                                                                                                                                                              these  

allegedly included payments toward the IRS debt; payments for "two vehicles and other                                                                                                                                                                            

debts obtained by both parties," including "approximately $50,000 in credit card debt";                                                                                                                                                                       

and payments for Richard's health insurance premiums in the monthly amount of $129.                                                                                                                                                                                                  

But we see no abuse of discretion.                                                                             

                                          First, Gloria testified at trial that she did not pay any money toward the IRS                                                                                                                                              

debt, in fact claiming to be unaware of it; the superior court did not err by accepting her                                                                                                                                                                            

testimony in the absence of any evidence contradicting it.                                                                                                                               As for the credit card debt,                                            

Gloria admits in her brief that it "was not presented to the [trial] court"; she does not                                                                                                                                                                              

demonstrate that she raised the alleged vehicle payments either. These factual issues are                                                                                                                                                                               


                                          We turn to Gloria's argument that she should have been given credit for the  


amounts  she  paid  during  separation  for  Richard's  medical  insurance.                                                                                                                                                                  The  record  


supports the superior court's decision that an equitable distribution did not require her  


to be credited for these payments.  Gloria retired from the State in 2009, two years after  


the  parties  separated.                                                      The  PERS  benefits  she  received  during  separation  totaled  


approximately $472,000; she did not share these funds with Richard.   The amounts  


Richard received during the same period, and failed to share with Gloria, amounted to  


much less:  $25,000 in voluntary separation incentive pay, $4,471 from cashing out his  


Thrift Savings Plan, and about $17,000 from his FERS pension.   Although Gloria's  


payments toward Richard's health insurance totaled over $10,000 - assuming she paid  


$129 every month from May 2009 until the April 2016 trial - Richard made payments  


toward the IRS debt that totaled approximately $6,000.   On balance, Gloria netted  


                     42                   Id.  

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significantly more in potentially marital assets during the separation period than Richard                                                                                                   

did, but Richard "disavowed any claim" to his share.  The superior court's decision to                                                                                                

consider the books balanced thus benefited Gloria; the reimbursements she seeks would                                                                                                            

not have made the distribution more fair.                                                           We see no abuse of discretion.                                             43  

                                In what appears to be a related argument, Gloria contends that the superior  


court erred by "[e]nding the marriage in 2007," thus denying Gloria "her share of marital  


property received by [Richard] in 2013," presumably the Thrift Savings Plan and the  


military  separation  incentive  payout.                                                          Superior  courts  exercise  their  discretion  in  


choosing the date the marriage functionally ended.44                                                                               The court in this case used July  


2007 as the date the parties' separated, then, as noted above, exercised its discretion to  


offset their respective post-separation payments and contributions between that date and  


trial.  In Gloria's answer she asserted that the parties "actually separated" much earlier,  


in 1997; however, the evidence showed that they continued to share a residence and  


finances, and they filed joint tax returns at least through 2005.  Gloria asserted in her  


answer that she "moved out of the home in July 2007 and rented a condominium."  The  


court did not abuse its discretion by accepting Gloria's own factual assertions on the  


subject of the parties' date of separation.45  


                43              Cf. Dodson v. Dodson                                , 955 P.2d 902, 912 (Alaska 1998) (discussing extent                                                          

of trial court's broad discretion in determining whether to give spouse credit for post-                                                                                                            

separation payments to maintain the marital home).                                                         

                44              See Hanlon v. Hanlon, 871 P.2d 229, 232 (Alaska 1994) (applying abuse  


of discretion standard to "trial court's selection of the cutoff date for segregating marital  


and non-marital property").  


                45              Gloria also appears to argue that the court unfairly determined the marital  


portion of her PERS benefits through the date of divorce in 2016 but calculated the  


marital portion of Richard's FERS benefits only through the date of separation.  She is  



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                                                           Gloria also argues that the court erred by failing to consider as part of                                                                                                                                                                                                                     

Richard's income his Permanent Fund Dividend (PFD) checks and an unidentified $577                                                                                                                                                                                                                                                                                 

in monthly income noted on his financial declaration.                                                                                                                                                                                           But she does not explain what                                                                                      

effect these alleged errors could have had on the superior court's decision.                                                                                                                                                                                                                                                            Again, we  

are not persuaded that the superior court abused its discretion by failing to address these                                                                                                                                                                                                                                                                        

 specific items; it may, of course, address them on remand to the extent they are relevant                                                                                                                                                                                                                                                            

to the parties' respective financial conditions.                                                                                                                                                          

                             D.	                          Any Error In The Superior Court's Treatment Of The Parties' IRS                                                                                                                                                                                                     

                                                          Debt Was Necessarily Harmless                                                                                                                         .  

                                                           Gloria argues that the superior court was mistaken as to the amount of the                                                                                                                                                                                                                                       

IRS debt and that it abused its discretion in holding the parties equally responsible for     

it.   The court found that the debt's "outstanding balance is currently $13,172.30," an                                                                                                                                                                                                                                                                                       

amount supported by an IRS payment notice dated July 15, 2015, and admitted as an                                                                                                                                                                                                                                      

exhibit at trial.                                                    Gloria argued at trial that the number was outdated, and after trial she                                                                                                                                                                                                                             

 submitted a May 2016 payment notice from the IRS that gave the balance as $3,508.64.                                                                                                                                                                                                                                                                                                      

But any error in the court's statement of the amount is harmless, as it had no effect on                                                                                                                                                                                                                                            


the court's decision that the debt, whatever its amount, should be shared equally.                                                                                                                                                                                                                                                                                         

                             45                            (...continued)  


mistaken.  The court used the date of separation in 2007 as the end-date of the accrual  


period for both pensions.  

                             46                           As for the shared liability, Gloria does not explain why this would be an  


abuse of discretion, and the issue is therefore waived.  Brady v. State, 965 P.2d 1, 20  


(Alaska 1998) ("Despite our solicitude for pro se litigants, we must conclude that he has  


waived the claim by failing to brief it adequately."). Gloria may have intended to waive  


the issue; in her reply brief she states that "[n]o ruling is required."  



                                                                                                                                                                                    -16-	                                                                                                                                                                           7246

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                        E.	                     The Superior Court's Statement About Responsibility For A Parent-                                                                                                                                                                      

                                                Student Loan Was Dictum.                                                

                                                Gloria next argues that the superior court erred by stating that the parties'                                                                                                                                                            

daughter bears "responsibility in the first instance" for repaying "a parent-student loan"                                                                                                                                                                                                      

that Gloria and Richard cosigned for her benefit in 1999.                                                                                                                                                        At the time of trial neither                                             

parent had paid anything toward this debt, which in the meantime had more than doubled                                                                                                                                                                                                 

in amount.                              By reference to a page from a student loan handbook, Gloria asserts that the                                                                                                                                                                                     

parents are responsible for the loan and asks that the court "delete all reference to our                                                                                                                                                                                                              

child from the court documents."                                                                                        

                                                The court's challenged statement - "[t]he loan should be [the daughter's]                                                                                                                                                  

responsibility in the first instance" - is subject to several interpretations.                                                                                                                                                                                               The court   

could have been stating what it understood to be the terms of the loan document itself;                                                                                                                                                                                                        

if so, its observation could not create liability for the daughter or expand the rights of the                                                                                                                                                                                                           


lender, as neither was a party to the divorce proceeding.                                                                                                                                                                                                                                  

                                                                                                                                                                                                               The court could have simply  


been voicing its practicalexpectation that thedaughter, nowan adult, would take primary  


responsibility for the loan that helped her through college.  Under either interpretation,  


the court's statement about the daughter's responsibility was dictum with no effect on  


the court's bottom line:  that "[s]hould the parents be required to pay anything towards  


this debt, they shall be equally responsible."  (Emphasis added.)  

V.	                     CONCLUSION  

                                                We VACATE the property division order and REMAND to allow the  


superior court to consider the parties' Social Security benefits in determining a fair  


allocation of the marital estate.  


                        47                     See  RESTATEMENT  (SECOND)  OF  JUDGMENTS   76 cmt. a (A                                                                                                                                                          M. L            AW. I  NST .  


 1982) ("A judgment is of no legal concern to a person who is neither a party to it nor  


otherwise bound by it under the rules of res judicata.").  

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