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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.                        )  

                                                                 )  



                                                                                                              

                      A            

                        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  

                      Appellee.  



                                                                                                           

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

                                           

                      and Carney, Justices.  



                                         

                      BOLGER, Justice.  



I.         INTRODUCTION  



                                                                                                

                      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.  



                                 

II.       FACTS AND PROCEEDINGS  



          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.  



                                                               -2-                                                        7247
  


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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  



                                                                                                                                                                     1  

                                                                                                                                                                        

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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                                   2  

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                                                                                                                                                                                                                                                                                                                               



                                  2  

                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                   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  


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

                                                                                                                                 

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  

                                                                                                                         



                                                               -5-                                                         7247
  


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

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                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                                3  

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



                                                                                                                                                                                                                                                                                                                                                                                4  

                                                                                                                                                                                                                                                                                                                                                                                       

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  


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

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



                  5  

property."                                                                                                                                    

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



                                                                                              6  

                                                                                                  

                                                                             

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  

income."                                                                                                                                     



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
  


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

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                                                                                                                 



                                                                             8  

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  

                                                                                                                                                                                                                                    

                                                                                                                                                                                                         (continued...)  



                                                                                                                   -8-	                                                                                                         7247
  


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

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



                      11  

Rule 60(b).                                                                                                                                                      

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



                                                                   12  

                                                                

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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