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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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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

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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  

                                                                 )  

                                 Appellee.                                                                      

                                                                 )          No. 7246 -  May 11, 2018  

                                                                 )  



                                   

                      A                                                                                        

                         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.  



I.         INTRODUCTION  



                                                                                                                                  

                      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                                                                                                  



property.  



                                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                                                                                                 



              1  

2007.                                                                                                                                                                                                   

                   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  



                            2  

                                                                                                                                                                                            

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                                                                                                                                                                 



                                                                                                                               3  

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-----------------------

                                                                                                                                            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  

                           Condition.  



                                                                                                                                                                        

                           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.  

                                                                                                                                                                                                     

Cox.11  

                 



                               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  

property).  



                14               Cox, 882 P.2d at 920.  

                                                                           



                15              Id.  



                16              Id.  



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                                          17  

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



                                                                                                                                                           18  

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  



              

them.  



                                                                                                                                                                 

                           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  

assets."                                                                                                                                                                 



              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                                                                   

division).  



              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
  


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

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



                                                                           20  

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  

                                                                                                                                                                                              

 1962).  



                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             



                                     25  

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.     



            26  

                                   

                        Id. at 549.  



            27          Id.  



            28          Id.  



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



                                                                          -10-                                                                    7246
  


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

                                                            30  

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  

                                                                                                                                                                    



                                                                                                                          34  

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  

                                                                                                                                                                   

                                                                                                                                               (continued...)  



                                                                                 -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                                                                                         



                                                                                                                                                                                39  

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  

                                                                                                                                                                    



to.  

       



                            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  

                                                                                                                                                      

                            Separation.  



                            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                                                                         

factor).  



              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                                                                                                                                                                               

waived.42  



                                          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.  



                                                                                                                                   -14-                                                                                                                                        7246  


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

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  

                                                                                                                                                                                                            

                                                                                                                                                                                (continued...)  



                                                                                                   -15-                                                                                             7246
  


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

                                                           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                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                                                                                                 46  

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
  


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

                        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                                                                                                                                                                                                           



                                                                                                                                                                                                     47  

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.").  



                                                                                                                                                   -17-	                                                                                                                                          7246
  

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