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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maxwell v. Sosnowski (5/18/2018) sp-7247

Maxwell v. Sosnowski (5/18/2018) sp-7247

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

J.  JILL  MAXWELL,                                               )  

                                                                 )    Supreme  Court  No.  S-16502  

                                Appellant,                       )  


                                                                 )    Superior Court No. 3AN-13-07451 CI  

           v.                                                    )  


                                                                 )    O P I N I O N  


WILLIAM J. SOSNOWSKI,                                            )  


                                                                 )    No. 7247 - May 18, 2018  

                                Appellee.                        )  




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


                      Judicial District, Anchorage, Andrew Guidi, Judge.  


                      Appearances: Darryl L. Thompson, Law Office of Darryl L.  


                      Thompson,  P.C.,  Anchorage,  for  Appellant.                                    Jody  W.  


                      Sutherland,           Sutherland           Law       Offices,        Anchorage,             for  



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


                      and Carney, Justices.  


                      BOLGER, Justice.  



                      The superior court divided the property of J. Jill Maxwell and William J.  


Sosnowski during divorce proceedings.   The superior court found that William was  


entitled to credit for post-separation mortgage payments that he made on the marital  


residence, but it did not determine the precise amount of those credits because the sale  

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of the residence was pending. After the residence ultimately sold nearly two years later,  


the superior court issued a disbursement order that granted William credit for mortgage  


payments dating back to October 2011, when he moved out of the marital residence,  


rather than May 31, 2013, which the court had found to be the separation date.   Jill  


appeals  the  effective  date  of  the  credit  for  these  post-separation  payments  in  the  


disbursement order.  She also challenges consideration of the funds she provided to her  


adult son during the marriage in the property division order. We vacate the disbursement  


order becauseWilliamis entitled to credit only for payments he made after the separation  


date.   But we conclude that Jill's argument regarding the funds she gave her son is  


untimely because the property division order became final in December 2014.  



          A.        Facts  


                    J. Jill Maxwell and William J. Sosnowski married in 1992.  At the time of  


the marriage, Jill was widowed and had one child, Anton, from her prior marriage;  


William was divorced and had two children from his prior marriage.  Jill and William  


also had two children during their marriage. Since 2001, William has been employed by  


the Municipality of Anchorage as an electronics foreman.  Jill held a variety of jobs  


during the marriage, among them managing the rental units owned by the couple.  


                    During the marriage, Jill and William purchased a triplex (along with an  


adjacent vacant lot) in Anchorage.  They lived in one of the triplex units and rented the  


other two units to tenants.   In addition to this Anchorage property, Jill and William  


owned a home in Oregon, in which Anton lived. The purchase of the Oregon home was  


funded in part by $50,000 from Anton's savings.   Jill also paid for Anton's living  


expenses after he reached majority, which was apparently a point of contention during  


the marriage.  At the time of the divorce, Anton was 29 years old.  

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             B.           Proceedings  


                          1.           Separation and divorce trial  


                          Jill and William permanently separated on May 31, 2013, and Jill filed a  


complaint for legal separation on June 4.   On June 26 William counterclaimed for  


divorce.  Jill and William reached an agreement on child custody and child support and  


filed a stipulation with the superior court, which it approved.  They also agreed on the  


division of their personal property, that the triplex and lot would be sold when the decree  


of divorce issued, and that the triplex was valued at $950,000 and the lot at $180,000.  


                          The remaining disputed issues proceeded to a one-day divorce trial before  


the superior court on July 10, 2014.   Those issues included whether William should  


receive credit for post-separation mortgage payments made on the triplex, how Jill's  


financial support of Anton should affect the marital estate, and how the overall marital  


estate would be divided.  William requested an overall 55/45 division of the marital  


estate (in Jill's favor), while Jill advocated for a 70/30 division (also in her favor).  Both  


Jill and William testified at the trial.  


                          On July 28, 2014, the superior court issued written findings of fact and  


conclusions of law regarding the estate division.  The superior court found that Jill and  


William permanently separated on May 31, 2013.  It determined that it was equitable to  



divide the estate 55/45 in favor of Jill, after it considered the equitable division factors. 

In making this division, the superior court considered, among the other factors, the large  


sum Jill had spent during the marriage on Anton's living expenses, which it found to be  


without William's consent.   The court found that Jill had spent $173,000 in total on  


             1            See  AS 25.24.160(a)(4) (listing factors court must consider in equitably                                                  

dividing the marital estate, including the parties' length of marriage, age and health,                                                                   

earning capacity, financial condition, conduct, and circumstances and necessities).                                                     

                                                                                -3-                                                                          7247

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Anton,  which it determined was an unreasonable depletion of marital assets and thus                                                                                                                                                                                                                                                                                                                                       

 factored into the share of the estate to which Jill was equitably entitled.                                                                                                                                                                                                                                                                                           

                                                                   After making equitable division findings, the superior court turned to the                                                                                                                                                                                                                                                                                    

proceeds from the future sale of the triplex and lot.                                                                                                                                                                                                                    It found that Jill "had exclusive                                                                                      

possession of the [triplex] during the separation and has earned and retained a substantial                                                                                                                                                                                                                                                                                           

income from the rental income of this asset," totaling over $45,000 annually.                                                                                                                                                                                                                                                                                                                                It also   

 found that William "has been required to make the entirety of the mortgage payments"                                                                                                                                                                                                                                                                                                      

during this same time.                                                                                           Based on these findings, the superior court                                                                                                                                                                                 granted William "a                                                                      

dollar for dollar credit                                                                                     [for] his post separation payments" on the triplex mortgage, which                                                                                                                                                                                                                                   

would be applied to the proceeds after the triplex sold.                                                                                                                                                                                                                               In a handwritten notation, the                                                                                                            

court explained that this credit was warranted because "the parties physically separated                                                                                                                                                                                                                                                                                                         

 (according to [Jill]) in Sept/Oct 2011 and [Jill] has lived in the . . . triplex                                                                                                                                                                                                                                                                                                and  kept the   

income from the rental units [since the] . . . fall of 2011 to the time of trial," even though                                                                                                                                                                                                                                                                                                                

"[William] has paid the mortgage and utilities, and . . . has supported [the couple's                                                                                                                                                                                                                                                                                                                

daughter], while living in a trailer park for $600/mo." (Emphasis in original.)                                                                                                                                                                                                                                                                                                                     Because  

the triplex had not yet sold, the superior court did not include the precise amount of                                                                                                                                                                                                                                                                                                                                               

credit   that   William   was   due.     The   superior   court   issued  a   decree   of   divorce   on  

December 29, 2014, which incorporated the findings of fact and conclusions of law "as                                                                                                                                                                                                                                                                                                                                            

the final order of the court."                                                                                                                 

                                                                   2.                               Disbursement of triplex sale proceeds                                                                                                                    

                                                                   The triplex and adjoining lot ultimately sold in April 2016.                                                                                                                                                                                                                                           The proceeds   

 from the sale totaled $442,260.74.                                                                                                                                           However, Jill and William could not agree on how                                                                                                                                                                                             

the sale proceeds should be divided; a major sticking point was the amount of credit                                                                                                                                                                                                                                                                                                                               



                                                                   The superior court acknowledged that "[p]art of the $173,000 transfer is  


offset" by the parties' use of Anton's savings to fund the purchase of the Oregon home.  

                                                                                                                                                                                                                  -4-                                                                                                                                                                                                    7247  

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William was due for the mortgage payments.  William sought credit for $134,041.02 in  


mortgage payments he made between October 2011 and April 2016.  But Jill argued in  


a pro se motion for final disbursement of the sale proceeds that William should be  


granted credit only for mortgage payments made after 2013. In support of this argument,  


Jill asserted that William had not made the 2011 and 2012 mortgage payments using his  


own funds but had instead made the payments using rental income from the triplex. And  


she further asserted that she had been responsible for paying utilities on the triplex from  


2011 through 2013.  


                    On August 8, 2016, without holding a hearing, the superior court issued an  


order on the disbursement of the triplex sale proceeds.  The superior court agreed with  


William's proposed disbursement figures and credited him $134,041.02 for mortgage  


payments he made fromOctober 2011 until the time of sale. After this credit was applied  


and other adjustments were made, the superior court awarded Jill 55% of the remaining  


proceeds ($180,321.84) and William 45% ($146,082.02).  


                    In addition, in a handwritten notation, the superior court rejected Jill's  


argument regarding the rental income that William allegedly received in 2011 and 2012.  


It deemed this argument "not material because the parties separated May 31, 2013 (as  

                                                                                                          f)."  In addition,  


stated in the court's [property division order] and [Jill's] own trial brie 

the superior court noted that Jill's "own trial testimony . . . establish[ed] that she kept all  


the rental income generated by the triplex after the parties separated, while [William]  


paid the mortgage."  


                    Jill moved for clarification of this order.  She asked the court to clarify  


whether "[t]he date to begin post-separation payments" was October 2011 or the date of  


separation.  The superior court declined to clarify its order, stating simply that the order  


"is clear regarding what is required of the parties" and thus "[n]o further explanation is  


needed."  Jill then moved for reconsideration of the disbursement order.  The motion  


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requested that thesuperior court                                                                                                       hold an evidentiary hearing to "reviewinformation                                                                                                                                                                      prior  

to the date of sep[a]ration of May 31, 2013."                                                                                                                                                         It asserted that evidence from this time                                                                                                                 

period "has not yet been entered into court" because the court had previously found that                                                                                                                                                                                                                                                                           

May 31, 2013, was the date of separation.                                                                                                                                                  The superior court denied the motion for                                                                                                

reconsideration without explanation.                                                                                                                            

                                                         Jill appeals the superior court's disbursement order.                                                                                                                                                                             She also challenges  

the superior court's consideration of the funds she provided to Anton in the property                                                                                                                                                                                                                                                        

division order.                                                  

III.	                        DISCUSSION  

                                                         Jill challenges                                              both thesuperior                                                         court's disbursement order and its property                                                                                                     

division order.                                                  First, she argues that the disbursement order conflicts with the superior                                                                                                                                                                                                     

court's finding that she and Williamseparated                                                                                                                                                      on May 31, 2013. Second,                                                                                         she argues that  

it was error for the superior court to consider the funds she spent on Anton during the                                                                                                                                                                                                                                                                              

marriage in its property division order.                                                                                                                                 We address each argument in turn.                                                                                                                          

                             A.	                         It WasErrorTo                                                            CommenceWilliam's                                                                                   CreditForMortgagePayments                                                                        

                                                         Before The Separation Date.                                                                               

                                                         Jill's first argument centers on the amount of credit owed to William for his                                                                                                                                                                                                                                 

payments on the triplex mortgage.                                                                                                                       If a spouse makes payments during separation to                                                                                                                                                                  

maintain   marital property                                                                                        and uses post-separation                                                                                            income for                                        these payments,                                                            the  

 superior court is required to consider the payments when dividing the marital estate and                                                                                                                                                                                                                                                                          


to make factual findings regarding whether credit for these payments is equitable.                                                                                                                                                                                                                                                                                                     



However,  the  superior  court  is  not  required  to  grant  credit  for  these  payments. 


"Whether to award credit for post-separation mortgage payments is within the discretion  

                             3                           Berry  v.  Berry,  978  P.2d  93,  96  (Alaska   1999).  

                             4                           Id.  

                                                                                                                                                                                    -6-                                                                                                                                                                                          7247  

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of the superior court in carrying out its task of creating an equitable distribution of                                                           



                     We accordingly review the superior court's decision to grant credit for post- 




separation mortgage payments for abuse of discretion. 


                       The superior court's disbursement order grants William a dollar-for-dollar  


credit  for  all  payments  he  made  on  the  triplex  mortgage  from  October  2011  to  


April 2016, when the triplex sold, for a total of $134,041.02 in credit.  But the superior  


court's choice of October 2011 as the date on which credit for mortgage payments should  


commence conflicts with the superior court's finding in the property division order that  


Jill and William "permanently separated on May 31, 2013."  This separation date was  


not contested at any point in the proceedings; both Jill and William agreed that May 31,  


2013, was the separation date. Moreover, our case law permits credit for payments made  


to maintain marital property to begrantedonly for payments made"frompost-separation  

                7  William does not cite any case in which we allowed credit for payments made  


before the legal separation or used another date as the cutoff date for distinguishing  


marital funds from non-marital funds.  


                       Accordingly, any mortgage payments William made before May 31, 2013,  


were paid from marital funds, and he is not entitled to credit for these payments.  We  


            5          Beal  v.  Beal,  209  P.3d   1012,   1023  (Alaska  2009).   

            6          Id.  at   1016.  

            7          Beals  v.  Beals,  303  P.3d  453,  464  (Alaska  2013)  (emphasis  added);  see  also  

Berry,   978   P.2d   at   96   ("Courts   may   give   credit   to  one   spouse   for  post-separation  

payments   made   to   preserve   marital   assets  .  .  .  ."   (emphasis   added));   Brotherton   v.  

Brotherton,   941   P.2d   1241,   1246   (Alaska   1997)   (stating   that   superior   court  must  

consider   whether   spouse   is   entitled   to   "credit   for   the   contributions   he   made  from  

separate  property  in  order  to  preserve  marital  property"  (emphasis  added)).   

                                                                        -7-                                                                  7247

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therefore vacate the disbursement order.                                                                          On remand, the superior court should limit                                                                    

William's credit to the payments he made after the separation date.                                                                                                        

                  B.	                Jill's Argument Regarding The Superior Court's Consideration Of                                                                                                                                 

                                     The Funds She Expended On Her Son Is Untimely.                                                                          

                                     Jill also challenges                                    the superior court's consideration of the funds she                                                                                   

expended on her son, Anton, in its property division order. The order considered, among                                                                                                                                    

other things, "the conduct of the parties, including whether there has been unreasonable                                                                                                                 


depletion of marital assets."                                                                                                                                                                                                      

                                                                                   With regard to this factor, the superior court found that  


"during the marriage" Jill "transferred and diverted over $173,000 in marital funds to  


Anton for his basic living expenses."  It further noted that the testimony at the divorce  


trial indicated that these expenditures on Anton were "an issue of contention between the  


parties and that [William] did not consent to these payments."  Based on these findings,  


the  superior  court  concluded  that  Jill  had  "unreasonably  depleted  marital  assets  


throughout the marriage through these payments to her adult son."   Jill argues that  


because her alleged economic misconduct took place during the marriage, not during the  


pendency of the divorce, it should not have been considered in the marital estate division.  


                                     Jill's challenge is untimely because it relates to the property division order,  


which became final in 2014. The property division order was incorporated in the divorce  


decreeissued on December 30, 2014. "Aproperty division incorporated within adivorce  

                                                                            9  and Jill failed to timely appeal it.10                                                            Moreover, Jill did not  


decree is a final judgment," 

                  8                  AS 25.24.160(a)(4)(E) (directing superior court to consider this factor in                   

dividing marital property).                                                

                  9                  O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981).  


                   10                See  Alaska R. App.  P.  204(a)(1)  (requiring a notice of appeal from a  


superior court judgment to be filed within 30 days with limited exceptions that are  



                                                                                                                   -8-	                                                                                                         7247

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argue   that   the   property   division   order   should   be   set   aside   under   Alaska   Civil  


Rule 60(b).                                                                                                                                                      

                           Therefore her challenge to the superior court's property division order is  



untimely and we do not consider it. 

IV.          CONCLUSION  

                         We VACATE the disbursement order and REMAND so that the superior  


court may conform the order to the date of separation.   We otherwise AFFIRM the  


superior court's judgment.  


             10          (...continued)  


inapplicable here).  

             11          See O'Link            , 632 P.2d at 228 (stating that final property division order "is                                               

modifiable to the same extent as any equitable decree of the court"); Juelfs v. Gough,  


41 P.3d 593, 597 (Alaska 2002) (noting that in order to obtain Rule 60(b)(6) relief, "a                                                                         

motion [must] be made by one of the parties").                          

             12          For this same reason, Jill's argument that, on remand, she is entitled to an  


evidentiary hearing on the date that William's credits should commence also fails.  The  


superior court already conducted an evidentiary hearing (the divorce trial) and issued a  


property division order finding the parties separated on May 31, 2013, and determining  


that William was entitled to a dollar-for-dollar credit on his post-separation mortgage  


payments.  As just noted, Jill did not appeal this final judgment and she asserts no new  


evidentiary basis for revisiting it.  Therefore, on remand, the superior court must simply  


conform its disbursement order with the property division order.  


                                                                               -9-                                                                        7247

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