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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gross v. Wilson (7/27/2018) sp-7262

Gross v. Wilson (7/27/2018) sp-7262

           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                                         

ROBERT  C.O.  GROSS                                                    )  

                                                                       )     Supreme  Court  No.  S-16302  

                                 Appellant,                            )  

                                                                       )     Superior  Court  No.   1JU-12-00783  CI  

           v.                                                          )  

                                                                       )     O P I N I O N  


DAWN ALEXIA WILSON,                                                    )  


                                                                       )     No. 7262 - July 27, 2018  


                                 Appellee.                             )  



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


                      Judicial District, Juneau, Louis J. Menendez, Judge.  


                      Appearances:  Joseph W. Geldhof, Law Office of Joseph W.  


                      Geldhof, Juneau, for Appellant. Dawn Alexia Wilson, pro se,  


                      Juneau, Appellee.  


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


                      and Carney, Justices.  


                      STOWERS, Chief Justice.  


                      Robert Gross and Dawn Wilson married in August 1992, and Gross filed  


for divorce in August 2012.  The parties resolved the issues raised in the divorce action  


in a written settlement agreement incorporated into a divorce decree in March 2014. The  


final agreement provided that Wilson was to receive an amount equal to 50% of the  


military retirement and Veterans Administration (VA) disability pay that Gross received  


for his service in the United States Coast Guard (USCG). A little over a year later Gross  


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

reduced his monthly payment to Wilson by an amount equal to 50% of his disability                                                             

payments, and Wilson filed a motion for enforcement of the terms of the settlement                                                          

agreement.    Gross opposed the motion, arguing that the Uniformed Services Former                                                                

                                                                    1   exempts VA payments from allocation during  

Spouses'  Protection Act (USFSPA)                                                                                                                  

divorce as marital property; he also argued that he had misunderstood the agreement.  


The superior court ordered Gross to resume payments pursuant to the agreement and to  


pay arrearages.  Gross appeals.  We affirm the superior court's order because Gross had  


no procedural basis for bringing a collateral attack on his divorce decree.  




            A.           Facts  

                         Gross enlisted in the USCG in February 1987.  Gross and Wilson married  


in August 1992, and they have four children.  Gross filed for divorce in August 2012.  


In a November 2013 hearing before a magistrate, after a full day of mediation with  


retired Superior Court Judge Patricia A. Collins, the parties and their attorneys reached  


an agreement; both attorneys and Judge Collins described on record how the parties  


planned to address Gross's military retirement benefits.  Both attorneys explained that  


Gross's retirement payments, including disability payments, would be divided 50/50  


between  the  parties.                    Judge  Collins  also  articulated  the  parties'  understanding  and  



                         [T]he  final  language  of  the  agreement  that  the  parties  


                         anticipate submitting to the court will provide that, in the  


                         future, should Mr. Gross elect to take any action that might  


                        reduce  what  would  otherwise  be  retirement  benefits  for  


                        which Ms. Wilson would have a claim, he will be responsible  


                         for reimbursing her.  As Your Honor may know, disability  


                        payments are viewed as separate, not marital property, by the  


            1            10 U.S.C.  1408 (2012).          

                                                                             -2-                                                                    7262  

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


                    federal government; but [the] divorce court, in its equitable  


                    jurisdiction,  can  ensure  that  there's  fairness.                     The  parties  


                    today  tried  to  reach  a  fair  result,  such  that  they  have,  in  


                    essence,  agreed  to  divide  the  retirement,  which  includes  


                    disability,  which  is  received  in  lieu  of  what  would  have  


                    otherwise been retirement, on a 50-50 basis.  


                    At a second hearing, held in December 2013, Gross indicated through his  


attorney that he was prepared to go forward as long as the property settlement agreement  


reached with Judge Collins's assistance in November was not reopened.  When Gross  


was given an opportunity to comment, he responded, "I'm good."  


                    The court issued a Judgment and Decree of Divorce in March 2014.  The  


divorce decree incorporated the parties' Child Custody, Child Support and Property  


Settlement Agreement signed on the same day.  When the settlement agreement was  


placed on the record, both Gross and Wilson testified that they were familiar with the  


terms  of the agreement and  were satisfied  with  it.                             Paragraph 11  of the settlement  


agreement  required  Gross  to  pay  Wilson  $888.22  per  month  based  on  his  USCG  


retirement program:  


                     [Wilson]  shall  receive  50%  of  the  total  USCG  military  


                    retirement  monthly  pay  (sometimes  referred  to  as  the  


                    aggregate of the retirement and disability pay) that [Gross]  


                    receives  from  the  USCG  after  the  SBP  premium  for  the  


                    survivor benefit covering [Wilson] has been paid . . . .  The  


                    parties understand that the USCG will directly pay [Wilson]  


                    50% of what it defines as the "disposable retirement  pay  


                    (DRP)."  However, this DRP figure does not include the VA  


                    compensation/disabilitymoniesreceivedby [Gross]. [Gross]  


                    therefore agrees to pay to [Wilson] on the first day of each  


                    and every month throughout his lifetime an amount, over and  


                    above the 50% portion of the DRP paid to her by the USCG,  


                    sufficient to accomplish [Wilson's] receipt of fifty percent  


                    (50%) of the total USCG monthly military retirement pay  


                    (including the VA Comp. and/ or disability portions) reduced  

                                                                -3-                                                        7262

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

                                    only by payment of the SBP premium. . . .                                                                     If [Gross] or the                        

                                    USCG does anything that results in a reduction of [Wilson's]                                                                       

                                    above-described share of the military retirement, [Gross] will                                                                                       

                                    reimburse [Wilson] for the reduction.                                                               [2]  

                  B.	               Proceedings  

                                    In  May  2015  Wilson,  now  proceeding  pro  se,  filed  a  motion  for  


enforcement of the terms of the March 2014 settlement agreement. She stated that Gross  


had made appropriate retirement payments pursuant to the parties' settlement agreement  


until May 2015, but that he then unilaterally reduced the amount of monthly retirement  


benefits by $170, citing statutes pertaining to the division of disability pay.   Gross  


opposed the motion and filed a cross-motion for an order denying enforcement of the  


"claim" for disability, stating that it would be a violation of the USFSPA because that  


statute "exempts [VA] payments from allocation during divorce as marital property."  


Gross also attached an affidavit declaring that he did not know how paragraph 11 was  


included in the settlement agreement and that he had not understood the settlement  


agreement to divide disability payments.  


                                    The court referred the cross-motions to a superior court special master.  


Neither party requested an evidentiary hearing, and after oral argument themaster issued  


his report and recommendation to the superior court.  The master recommended that  


Wilson's motion be granted and Gross's denied. Gross filed objections to the report, and  


the superior court issued an order granting Wilson's motion to enforce.  


                  2                 The settlement agreement also included a grid outlining the division of                                                                                                                     

marital property.                                In the "Retirements" column, the grid listed "Robert's total USCG                                                                                                  

military retirement pay minus SBP premium for former spouse (as an example, currently                                                                                                                          

$1,900.00/month minus $123.57 equals $1,776.43). See para. 11." In the corresponding                                                                                                             

column for Dawn, the grid states "50% of the total retired pay reduced only by payment                                                                                                                          

of the SBP premium (currently $888.22 per month)."                                                                    

                                                                                                                -4-	                                                                                                 7262

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

                                                First, the superior court found that "[n]owhere in [Wilson's] motion or in                                                                                                                                                                                    

the record of the case is it stated [Gross] was required to make payments from his                                                                                                                                                                                                                       

disability retirement pay to[Wilson]." Thecourtexplainedthat                                                                                                                                                                 what it "understood from  

what is contained                                                    in the record of the hearings . . . is that the parties negotiated a                                                                                                                                                                       

settlement agreement that did not include [Gross's] disability retirement pay as a direct                                                                                                                                                                                                     

source for [Gross's] monthly payments to [Wilson]." The court also found there was no                                                                                                                                                                                                                       

order directing that the USCG pay Wilson from Gross's disability pay, nor was there any                                                                                                                                                                                                                  

statement that Wilson was to receive any portion of Gross's disability pay.                                                                                                                                                                                                    The court   

reasoned that Gross's aggregate disability and retirement pay was but a means through                                                                                                                                                                                                    

which the parties arrived at a fair payment amount as part of what they agreed was a fair                                                                                                                                                                                                             

and equitable allocation of assets and debt.                                                                                           

                                                Second, the superior court found that the United States Supreme Court's                                                                                                                                                                   

                                                                                                              3  regarding the USFSPA and our decision in Clauson v.  

decision in                             Mansell v. Mansell                                                                                                                                                                                                                    

                              4      did  not  preclude  enforcement  of  the  retirement  provision  in  the  parties'  


settlement agreement.  While acknowledging that those cases hold that state courts do  


not have any power to "equitably divide veterans' disability benefits received in place  


of waived retirement pay,"5 the court reasoned that the master's recommendation simply  


enforced a contractual obligation requiring Gross to pay Wilson a specific amount from  


any  of  his  resources.                                                                 Moreover,  the  court  concluded  that,  even  if  the  payments  


originated from Gross's disability pay, nothing in the USFSPA or Mansell prevents a  


veteran from voluntarily contracting to pay a former spouse a sum of money that may  


originate from disability payments.  


                        3                       490 U.S. 581 (1989).                             

                        4                       831 P.2d 1257 (Alaska 1992).                                                        

                        5                       See id.                 at 1262.   

                                                                                                                                                      -5-                                                                                                                                      7262

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                                                Third, the court found Gross's assertions that he was taken by surprise                                                                                                                                                                   

when he learned the contents of paragraph 11 "both hard to accept and inconsistent with                                                                                                                                                                                                                 

thesettlement agreement,"on-record                                                                                                  affirmations bytheparties,                                                                     clear statements byboth                                               

counsel   and   Judge   Collins   at   the   November   2013   hearing,   and   Gross's   attorney's  

reaffirmation of the settlement agreement at the December 2013 hearing. Thus, the court                                                                                                                                                                                                               

concluded that Gross was well aware of the contents of paragraph 11, including its                                                                                                                                                                                                                            

indemnification provision requiring him to reimburse Wilson if he took any action that                                                                                                                                                                                                                    

would reduce payments to Wilson.                                                                 

                                                Finally, the court noted that Gross had offered no basis under Alaska Civil                                                                                                                                                                           

Rule 60(b) for bringing a collateral attack seeking to set aside the property settlement                                                                                                                                                                                           

more than a year after it was filed and after both parties testified affirming the agreement.                                                                                                                                                                                                                               

The superior court ordered Gross to resume monthly payments to Wilson pursuant to the                                                                                                                                                                                                                        

agreement,   and   it   ordered   the   parties   to   submit   further   briefing   on   the   amount   of  

arrearages owed to Wilson.                                                                           Gross appeals.                                           

III.                    STANDARD OF REVIEW                                                 

                                                We review a trial court's response to a motion to enforce a divorce decree,                                                                                                                                                                   

as well as most decisions on a request for relief from final judgments, under the abuse                                                                                      

                                                                                  6        "We will find an abuse of discretion only if the trial court's  

of discretion standard.                                                                                                                                                                                                                                                                       

decision was 'manifestly unreasonable.' "7  However, we review de novowhether a party  


is entitled to relief fromjudgment under Alaska Civil Rule 60(b)(4) "because the validity  


                                                                                                                                                            8      "[T]he intent of the parties when entering  

of a judgment is strictly a question of law."                                                                                                                                                                                                                                             


                        6                       Johnson v. Johnson                                                      , 394 P.3d 598, 600 (Alaska 2017)                                                                      

                        7                       Id. at 601 (quoting In re Jacob S., 384 P.3d 758, 763 (Alaska 2016)).  




                                                Blaufuss v. Ball, 305 P.3d 281, 285 (Alaska 2013) (quoting Leisnoi, Inc.  


                                                                                                                                                       -6-                                                                                                                                       7262

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

a   contract   is  a   question   of   fact   and   is   thus   reviewed   under   the   clearly   erroneous  



                     But  "[w]e  review  a  trial  court's  rulings  on  questions  of  law,  and  the  


application of law to fact, de novo and adopt the rule of law that is most persuasive in  



light of precedent, reason, and policy." 


                     The USFSPA governs how state courts may treat military retirement and  


disability payments received by veterans.11  


                                                                      The statute was passed in response to the  


Supreme Court's decision in McCarty v. McCarty, which held that federal statutes then  


governing militaryretirementpaypreventedstatecourtsfromtreatingmilitary retirement  



pay as community property.                      The USFSPA grants some, but not all, power back to the  


states, and it provides that a state may treat as community property, and divide at divorce,  

                                                                        13   But the act exempts from this grant of  



a military veteran's disposable retirement pay. 

authority any amount the government deducts as a result of a waiver that the veteran  


must make to receive disability benefits.14                            In other words, an eligible veteran can  


voluntarily shift a portion of retirement pay to disability pay, and this portion is not  


           8         (...continued)  


v. Merdes & Merdes, P.C., 307 P.3d 879, 884 (Alaska 2013)).  

           9         Rockstad v. Erikson            , 113 P.3d 1215, 1219 (Alaska 2005) (quoting                             K & K  

Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 712 (Alaska 2003)).  


           10        Id.   

           11        10  U.S.C.     1408(c)(1)  (2012).    

           12        453 U.S. 210, 232-36 (1981);  see Mansell v. Mansell, 490  U.S. 581, 584  

(1989)  (explaining  that  Congress  enacted  USFSPA  in  response  to  McCarty).  

           13        Mansell, 490 U.S. at 589.  


           14        10 U.S.C.  1408(a)(4)(ii).  


                                                                 -7-                                                         7262

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

divisible upon divorce.                              Because disability pay, in contrast to retirement pay, is not                                                            

             15                                                                    16  


                 many veterans choose to do so.                                          Gross was receiving nondivisible disability  


benefits from the VA at the time of his divorce.  


                            In Mansell v. Mansell the Supreme Court held that "the [USFSPA] does not  


grant state courts the power to treat as property divisible upon divorcemilitary retirement  

                                                                                                                                      17  We applied Mansell  


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

in  Clauson  v.  Clauson,  holding  that "state courts  [do  not] have any  power  .  .  .  to  


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


pay."18              But  we  subsequently  held  that  superior  courts  are  permitted  to  order  


indemnification for any reduction caused by a service member in divisible retirement  


payments to a former spouse, such as a reduction due to voluntary waiver of retirement  


pay in exchange for disability pay.19  


                            Gross argues that the superior court's decision ordering him to pay Wilson  


a portion of his disability payments was erroneous for three reasons.  First, he did not  


believe he was agreeing to divide his disability payments or indemnify Wilson for a  


reduction in payments caused by something other than waiving retirement benefits in  


exchange for disability benefits. Second, the USFSPA precluded the court's division of  


disability payments in  his divorce,  and the division  of those payments is therefore  


unenforceable. Andthird,thesuperior courtwas allowed to requireindemnification only  


              15            26 U.S.C.  104(a)(4) (2012).                  

              16            See Howell v. Howell                         , 137 S. Ct. 1400, 1403 (2017).                   

              17            490 U.S. at 594-95.       

              18            831 P.2d 1257, 1262 (Alaska 1992).                             

              19            See Young v. Lowery                         , 221 P.3d 1006, 1012-13 (Alaska 2009).                                 

                                                                                       -8-                                                                              7262

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

for a reduction in Wilson's portion of his retirement pay caused by voluntarily waiving                                                                                                                    

retirement pay in exchange for disability benefits, which he did not do.                                                                                                        

                                   Gross does not address the superior court's conclusion that he had no                                                                                                                 

procedural basis under Rule 60(b) for seeking to set aside the settlement agreement.                                                                                                                                              

Because we find no legal or factual error or abuse of discretion in the superior court's                                                                                                                      

reasoning on this issue, we affirm the court's enforcement order.                                                                                                        

                 A.	               The Superior Court Did Not Abuse Its Discretion By Denying Gross's                                                                                                       

                                   Cross-Motion To Deny Enforcement.                                

                                   In a divorce proceeding where marital property has been divided, a divorce                                                                                              


decree incorporating a property division constitutes a final judgment.                                                                                                                                                       

                                                                                                                                                                                            "Other than a  


Civil Rule 77(k) motion for reconsideration, which must be made within ten days of the  


court's order, an Alaska Civil Rule 60(b) motion provides the only available means for  



seeking relief from a final judgment of property division."                                                                                                     In this case Gross filed a  


"cross-motion for order denying enforcement of claim for disability payments," which  


the superior court treated as a Rule 60(b) motion for relief. Because a Rule 60(b) motion  


was the only available means for seeking relief from the property division, the superior  


court was correct in doing so.  Rule 60(b) permits relief only for specified reasons:  


                                                    (1)              mistake,  inadvertence,  surprise  or  excusable  



                                                    (2)              newly   discovered   evidence   which   by   due  


                                   diligence could not have been discovered in time to move for  


                                   a new trial under Rule 59(b);  


                                                    (3)              fraud (whether heretoforedenominatedintrinsic  


                                   or extrinsic), misrepresentation, or other misconduct of an  


                                   adverse party;  

                 20                Williams  v.   Williams,  252  P.3d  998,   1005  (Alaska  2011).  

                 21               Id.  

                                                                                                             -9-                                                                                                7262  

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

                                            (4)           the judgment is void;              

                                            (5)           the judgment has been                                 satisfied,   released,   or  

                             discharged, or a prior judgment upon which it is based has                                                                 

                             been   reversed   or   otherwise   vacated,   or   it   is   no   longer  

                             equitable               that         the       judgment                 should             have          prospective  

                             application; or   

                                            (6)           any  other   reason   justifying   relief   from   the  

                             operation of the judgment.          

The party seeking relief from the judgment need not specify which of these reasons                                                                                          

                 22 but the burden of establishing a basis for relief nonetheless falls on the party  


seeking it.23                The request for relief from judgment must be made "within a reasonable  


time," and if the request is on the basis of subsections (1), (2), or (3) it must be made not  


more than one year after the date of notice of the judgment.24  


                             Gross has made no claimof newly discovered evidence or fraud that would  


support relief under Rule 60(b)(2) or (3).  And because his cross-motion was filed more  


than a year after the divorce decree and property division, Gross was also time-barred  


from seeking relief under Rule 60(b)(1), (2), and (3).   Furthermore, Gross does not  


indicate  any  change  in  circumstances  that  would  make  continued  enforcement  


inequitable and justify relief under Rule 60(b)(5).  The remaining two subsections are  


discussed in more detail below.  


               22            See Clauson v. Clauson                             , 831 P.2d 1257, 1259-61 (Alaska 1992) (granting                                         

relief to ex-wife under Rule 60(b)(6) though she had cited no statute for her motion to   

modify a final divorce decree).                    

               23            Erica G. v. Taylor Taxi, Inc., 357 P.3d 783, 789 n.19 (Alaska 2015).  


               24            Alaska R. Civ. P. 60(b).  


                                                                                          -10-                                                                                 7262

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

                                    1.               The property division, even if erroneous, was not void.                                                                                     

                                    Gross argues that the superior court's directive that he pay Wilson a portion                                                                                               

 of his disability payment was "based on [the erroneous assumption] that Gross's military                                                                                                                       

 pension and VA disability benefits could be combined and divided."                                                                                                                   He contends that                    

 under our case law "a court may not equitably divide total retired pay; it may equitably                                                                                                                   

 divide only the amount of retired pay remaining after the court deducts waived retired  


 pay and the cost of purchasing survivor benefits."                                                                                                                                                 

                                                                                                                                               And he argues that "[d]isability  


 benefits should not, in either form or substance, be treated as marital property subject to  



 division upon the dissolution of marriage."                                                                               Therefore, he asserts that the settlement  


provision requiring him to pay a portion of his military disability payments to Wilson is  


 unenforceable.  In essence Gross argues that the divorce decree was issued in violation  


 of the USFSPA.  If Gross is correct, and if as a consequence of this the March 2014  


judgment was void, Gross would be entitled to relief under Rule 60(b)(4).  


                                    We clarified in Clauson that "neither theUSFSPAnor prior Supreme Court  


 decisions require [Alaskan] courts to completely ignore the economic consequences of  



 a military retiree's decision to waive retirement pay in order to collect disability pay." 

 Consequently, we held it was proper to consider "the economic consequences of a  


 decision to waive military retirement pay in order to receive disability pay."28  But we  


 cautioned that, when considering these economic consequences, the superior court may  


 not "simply shift an amount of property equivalent to the waived retirement pay fromthe  


                  25                Young v. Lowery                             , 221 P.3d 1006, 1011 (Alaska 2009)                                                               .  

                  26                See Guerrero v. Guerrero                                               , 362 P.3d 432, 440 (Alaska 2015) (quoting                                                        

 Clauson  831 P.2d at, 1264).                             

                  27                831 P.2d at 1263.  


                  28               Id. at 1264; see also Guerrero, 362 P.3d at 445 (reaffirming Clauson).  


                                                                                                             -11-                                                                                                   7262

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

military spouse's side of the ledger to the other spouse's side. . . .                                                                                  Disability benefits   

should not, either in form or substance, be treated as marital property subject to division                                                                                          

                                                                                 29     Unlike this case, the parties in  Clauson did not  

upon the dissolution of marriage."                                                                                                                                                              

agree to divide military disability pay; the "shifting" that we disapproved of in Clauson  


arose entirely from the former spouse filing a motion to amend the decree to include the  


amount of disability benefits and the trial court granting that motion.30   However, we do  


not need to address whether this distinguishes this case from Clauson; even if this case  


falls under our holding in Clauson and the trial court's ruling was erroneous, that does  


not in itself entitle Gross to relief under Rule 60(b)(4).  


                               As we explained in Blaufuss v. Ball, "Rule 60(b)(4) permits relief from a  


void judgment if the issuing court lacked subject matter jurisdiction or violated due  


                                                                                                                             31   But we also noted that the rule  

process. Void judgments may be attacked at any time."                                                                                                                                          


"is not a substitute for a party failing to file a timely appeal; nor does it allow relitigation  


                                                                                                                      32     Simply put, "[a] judgment is not  

of issues that have been resolved by the judgment."                                                                                                                                             


                                                                                     33    Thus, even if the divorce decree was erroneous  

void merely because it is erroneous."                                                                                                                                            


               29              Clauson, 831 P.2d at 1264;                                     see also Dunmore v. Dunmore                                            , ___ P.3d ___,          

Op. No. 7246 at 572, 2018 WL 2173710, at *3-5 (Alaska May 11, 2018) (discussing a                                                                                                                    

similar issue regarding Social Security benefits).                                         

               30              Clauson, 831 P.2d at 1259-60.  


               31              305 P.3d 281, 285 (Alaska 2013) (quoting Ray v. Ray, 115 P.3d 573, 577  


(Alaska 2005)).  


               32             Id. (quoting Cook v. Cook, 249 P.3d 1070, 1083 (Alaska 2011)).  


               33             Id. at 286 (alteration in original) (quoting 11 CHARLES  ALAN  WRIGHT ET   


       ., FEDERAL PRACTICE AND PROCEDURE  2862 (3d ed. 2012));                                                                                       see also Leisnoi, Inc.     


v.  Merdes & Merdes, P.C.                                    , 307 P.3d 879, 892 (Alaska 2013) ("[T]he superior court's                                                                

entry of judgment, while erroneous, did not render the judgment void or divest the court                                                                                                    


                                                                                               -12-                                                                                      7262

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

 as a matter of federal law by including payment to Wilson for the amount of Gross's                                                                       

 disability benefits, the judgment might have been voidable if properly challenged, but                                                                            

 it would not be void absent a lack of subject matter jurisdiction or a violation of due                                                                          

process.     Gross  has   claimed   neither,   and   we   find   no   indication   in   the   record   of  

             34   Accordingly, Gross was not entitled to relief under Civil Rule 60(b)(4).  


             33            (...continued)  


 of jurisdiction.").  

             34            In  Cline  v.  Cline,  we  stated  that  "the  USFSPA bars  state  courts  from  


 exercising  subject  matter  jurisdiction  over  more  than  fifty  percent  of  a  recipient's  


military retirement benefits."  90 P.3d 147, 152 (Alaska 2004).  But in Leisnoi, Inc. v.  


Merdes  &  Merdes,  P.C.,  we  "seriously  question[ed]  whether  Cline  was  correctly  


 decided."  307 P.3d 892.  Because the parties' settlement agreement only gave Wilson  


 fifty percent of Gross's retirement and disability benefits, and no more, Cline does not  


 directly apply here.  Even so, we take this opportunity to address it.  


                           Cline's holding was based on "the same logic" as Clauson, which Cline  


understood as "based on our reading of the federal law as stripping state courts of subject  


matter jurisdiction over those benefits . . . specified in the USFSPA."  Cline, 90 P.3d at  


 152.  But Clauson did not address subject matter jurisdiction; rather, it discussed only  


whether state courts have the "authority" to divide military benefits consistent with  


 substantive federal law.  Clauson, 831 P.2d at 1261-62.  Cline is also inconsistent with  


 our general understanding of subject matter jurisdiction, which we have defined as "the  


 legal authority of a court to hear and decide a particular type of case."  Hawkins v.  


Attatayuk , 322 P.3d 891, 894 (Alaska 2014)  In short, a court either has subject matter  


jurisdiction and can hear the case, or it does not and cannot.   Cline's suggestion that a  


 state court can hear a divorce case but has subject matter jurisdiction over only some of  


the relevant assets is an anomaly in our jurisdiction jurisprudence.  


                          A majority of state courts that have addressed the issue treat the USFSPA  


 and Mansell  as a rule of substantive federal law, and not a jurisdictional matter.  See  


BRETT   TURNER, 2 E                     QUITABLE  DISTRIBUTION OF                              PROPERTY    6:6 & n.21 (3d ed. Nov.                             

2017   update)   (citing   cases   from   California,   North   Carolina,   Pennsylvania,   South  

 Carolina, and Virginia). For the reasons discussed here, we adopt this majority rule, and                                                                         


                                                                                 -13-                                                                        7262

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

                               2.              Gross is not entitled to relief under Rule 60(b)(6).                                                

                               Rule 60(b)(6) allows relief from a final judgment for "any other reason                                                                                  

justifying relief." As we have explained previously, clause (6) of Rule 60(b) "is reserved                                                                                           


 for extraordinary circumstances not covered by the preceding clauses."                                                                                                In the divorce     


 context  we  have  found  four  such  circumstances  which  may  justify  relief:  "(1)  the  


 fundamental, underlying assumption of the dissolution agreement has been destroyed;  

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

reached without the benefit of counsel; and (4) the property in dispute was the parties'                                                                                              



principal asset." 

                               Here, both parties had the assistance of counsel, and the property division  


was developed over the course of a lengthy mediation process with a former judge and  


 three hearings at which attorneys were present. The disability benefits were also not the  


parties' principal assets; they had a home, various other civilian and military retirement  


benefits, and other assets.  


                               However, Gross claims that he "failed to note or apprehend the meaning of  


 the settlement agreement" which required him to pay half of his disability benefits to  


 Wilson and to indemnify her if he took any action to reduce those payments.  He asserts  


 that he believed he agreed to pay Wilson one half of his military pension but none of his  


 disability benefits and that paragraph 11 was mistakenly left in the agreement.   In  


                34             (...continued)  


 disavow  Cline's  holding  that  the  USFSPA  and Mansell  affect  the  subject  matter  


jurisdiction of state courts.  

                35             Johnson v. Johnson, 394 P.3d 598, 602 (Alaska 2017) (quoting O'Link v.  


 O'Link, 632 P.2d 225, 229 (Alaska 1981)).  


                36             Guerrero v. Guerrero, 362 P.3d 432, 444 (Alaska 2015) (quoting Cook,  


 249 P.3d at 1084).  


                                                                                               -14-                                                                                      7262

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addition, Gross argues that he believed he was agreeing to indemnify Wilson only if he                                                                                                                       

unilaterally allocated a portion of his disposable retirement pay to disability benefits and                                                                                                              

                                                                                                                                                                                37     If true, this  

that this understanding was entirely consistent with case law in Alaska.                                                                                                                                 

raises  the  questions  whether  Gross  entered  the  settlement  agreement  based  on  the  


assumption that his disability benefits would not be divided and whether the inclusion  


of paragraph 11 destroyed this fundamental assumption.  


                                But           the         superior                 court            found               that          there            was           no         confusion                    or  


misunderstanding that Gross would pay 50% of his disability benefits - or at least an  


amount equal to 50% of his disability payments - to Wilson.  Our review of the record  


leads us to conclude that the superior court did not clearly err in these findings.  


                                At the first hearing regarding the settlement agreement in November 2013,  


Gross's  attorney  discussed  an  "aggregate  retirement  payment,  which  includes  .  .  .  


disability." At the same hearing Wilson's attorney explained in detail that it was not just  


disposable retirement pay that was to be divided, but rather total retirement pay, which  


would be achieved by having Gross pay directly to Wilson whatever the USCG was  


unwilling to pay pursuant to its rules.  Judge Collins, who had facilitated the parties'  


mediation, explained that the parties had "agreed to divide theretirement,which includes  


disability, which is received in lieu of what would have otherwise been retirement, on  


a 50-50 basis."  In addition, Judge Collins specifically stated that if Gross took "any  


action that might reducewhat would otherwiseberetirement benefits,"(emphasis added)  


he would be responsible for reimbursement to Wilson.  


                37              See id.          (holding that trial courts "may expressly order [a service member]                                                                          

not to reduce his disposable retired pay and require [him] to indemnify [his former                                                                                                              

spouse] for any amounts by which her payments are reduced below the amount set on                                                                                                                           

the date [an] amended qualified order is entered" (quoting   Young v. Lowery, 221 P.3d  

 1006, 1012-13 (Alaska 2009))).                           

                                                                                                    -15-                                                                                           7262

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

                                                                                At the December 2013 hearing, Gross's attorney stated that Gross was                                                                                                                                                                                                                                                                                                                                                        

 "prepared to accept the proposed decree" and that the attorney was "prepared to go                                                                                                                                                                                                                                                                                                                                                                                                                                 

 forward as long as we [the parties] understand that the property settlement, as reached                                                                                                                                                                                                                                                 

 during the mediation - that we're [the parties] not reopening that."                                                                                                                                                                                                                                                                                                                                                Gross was given a                                                                                        

 chance to respond, at which point he signaled his approval:                                                                                                                                                                                                                                                                                                     "I'm good."                                                                    Finally, at the                                                   

March 2014 hearing, Gross affirmed that he had read the settlement agreement carefully,                                                                                                                                                                                                                                                                                                                                                                                     

was satisfied with it, had signed it, and had agreed to it of his own free will.                                                                                                                                                                                                                                                                                                                                                          

                                                                                In these circumstances the superior court did not clearly err in finding that                                                                                                                                                                                                                                                                                                                                                 

 Gross's claims of surprise were "both hard to accept and inconsistent with the settlement                                                                                                                                                                                                                                                                                                                                                                              

 agreement," with affirmations by the parties, and with clear statements by both counsel                                                                                                                                                                                                                                                                                                                                                                                               

 and Judge Collins; and the court's finding that Gross was well aware of the contents of                                                                                                                                                                                                                                                                                                                                                                                                                                

paragraph 11 is well supported by the record.  We conclude the superior court did not                                                                                                                                                                                                                                                                                                             

 clearly err in finding that Gross agreed to and understood the settlement agreement's                                                                                                                                                                                                                                                                                                                                                                    

requirements that he pay                                                                                                                                     a portion                                                     of his disability                                                                                       benefits to                                                            Wilson   and   that he   

indemnify her if he caused her share of his payments from the military to be reduced for                                                                                                                                                                                                                                                                                                                                                                                                                            

 any reason.                                                          The record also clearly shows that, at the time of the divorce proceedings,                                                                                                                                                                                                                                                                                                       

 Gross was already aware that military disability benefits are normally not divisible.                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 Thus, there is no indication that any fundamental assumption underlying the settlement                                                                                                                                                                                                                                                                                                                                                                                

 agreement was destroyed:                                                                                                                                         Gross was aware that he was agreeing to give Wilson an                                                                                                                                                                                                                                                                                             

 amount equal to a portion of his disability benefits and that he was giving up non-                                                                                                                                                                                                                                                                                                                                                                                                                   

 divisible property by doing so.  The broad catch-all provision of Rule 60(b)(6) "is not                                                                                                                                                                                                                               

 for the purpose of relieving a party from free, calculated, and deliberate choices he has                                                                                                                                                                                                                                                                                                                                                                                                                      



                                        38                                     Id.   at   444   (quoting   Sandberg   v.   Sandberg,   322   P.3d   879,   889   (Alaska  


                                                                                                                                                                                                                                                       -16-                                                                                                                                                                                                                                     7262  

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

                                                        In short, Gross has asserted no valid basis under Rule 60(b) for bringing a                                                                                                                                                                                                                              

 collateral attack on the property division more than a year after he voluntarily agreed to                                                                                                                                                                                                                                                                   

 it. In light of the evidence in the record and the superior court's factual findings, we find                                                                                                                                                                                                                                                        

no abuse of discretion in the court's decision to deny Gross's request for relief from the                                                                                                                                                                                                                                                               

property division in the divorce decree.                                                                                             

                            B.	                         TheSuperiorCourt                                                                       DidNot                             ImpermissiblyOrderGrossToIndemnify                                                                                                     


                                                        Gross argues that the superior court erred by requiring him to "indemnify                                                                                                                                                                                      

Wilson by making him pay a portion of his VA disability payments to Wilson."                                                                                                                                                                                                                                                                          He  

 argues that such an indemnification can be ordered only when a service member reduces                                                                                                                                                                                                                                                 

the amount of divisible retirement pay by voluntarily waiving divisible retirement pay  

 in exchange for nondivisible disability pay.                                                                                                                                        He asserts that because he has not done so                                                                                                                              

requiring indemnification payments to Wilson based on his disability pay constitutes an                                                                                                                                                                                                                                                                     

 illegal division of disability benefits.                                                                            

                                                        We   have   previously   held   that   the   superior   court   is   permitted   to   order  

 indemnification when a veteran causes a reduction in a former spouse's share of divisible                                                                                                                                                                                                                                         

                                                                                                                    39  Although our decisions focused on a reduction caused by  

retirement pay after divorce.                                                                                                                                                                                                                                                                                                                               

 a waiver of retirement pay, they authorized indemnification for a reduction caused by  


 any action taken by a veteran spouse. In Young v. Lowery we held that the superior court  


 "may . . . require [a service member] to indemnify [a former spouse] for any amounts by  


which . . . payments are reduced below the amount set on the date [an] amended qualified  


                            39                         See Young v. Lowery                                                                      , 221 P.3d 1006, 1012-13 (Alaska 2009);                                                                                                                                        Glover v.   

Ranney, 314 P.3d 535 (Alaska 2013),                                                                                                                          abrogated by Howell v. Howell                                                                                                       , 137 S. Ct. 1400                               


                                                                                                                                                                           -17-	                                                                                                                                                            7262

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


order is entered."                           In explaining that indemnification would be appropriate in that                                                                       

context, we stated that "[b]ecause [the former spouse] receives a proportional share of     

 [the service member's] disposable retired pay, any reduction in the amount of total                                                                                             

disposable   retired   pay   -   occasioned,  for  example ,   by   an   increase   in  [the   service  

member's] disability pay requiring additional waiver of retired pay - would cause a                                                                                                      

decrease in [the former spouse's] monthly payment."                                                                41  

                             However, during the pendency of this appeal, the Supreme Court in Howell  


v. Howell foreclosed the ability of state courts to order a veteran to indemnify a former  


spouse for a reduction in retirement pay caused by a post-divorce waiver of retirement  



pay in exchange for disability benefits, the specific example we endorsed in Young.                                                                                                    In  


Howell a veteran and his wife divorced while he was serving in the U.S. Air Force.43  


Anticipating  his  eventual  retirement,  and  consistent  with  the  parties'  settlement  


agreement, the divorce decree awarded the wife half of the veteran's future military  


                                 44    The veteran retired a year later, and half of his retirement pay went to  

retirement pay.                                                                                                                                                                         


               40            221 P.3d at 1012-13.       



                             Id.  at 1012 (emphasis  added).   We applied this principle in  Glover v.  


Ranney, where "[t]he indemnification clause in the superior court's order require[d]  


damages if [the service member] reduce[d] [the former spouse's] share of retirement  


benefits."   Glover, 314 P.3d at 543.  We stated that the "clause does exactly what we  


envisioned in Young v. Lowery. . . .  Rather than improperly dividing waived benefits,  


the order . . . require[s] [the service member] to indemnify [the former spouse] for any  


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


Id. (emphasis added).  

               42            Howell, 137 S. Ct. at 1404-06.  


               43            Id. at 1404.  


               44            In re Marriage of Howell, 361 P.3d 936, 937 (Ariz. 2015).  


                                                                                         -18-                                                                                 7262

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


his ex-wife.                 Thirteen years later he qualified for and elected to receive disability                                               

benefits, which required him to waive a portion of the retirement pay he shared with his                                                                        

                                                                                                                                         46    The former  

former spouse, thereby reducing the amount she received each month.                                                                                     

spouse asked the Arizona family court to enforce the original decree and restore the  


value of her share of retirement pay.47                                   The family court did so, and the Supreme Court  


of Arizona affirmed, reasoning that Mansell did not control because the veteran made his  


waiver after, rather than before, the divorce and because the family court simply ordered  


the veteran to "reimburse" his former spouse for the reduction of her share of military  

retirement pay.48  


                         The Supreme Court reversed, reasoning that the reimbursement award at  


issue was still a "portion of military retirement pay that [the service member] waived in  


                                                                  49  and that a state court could not "avoid Mansell by  

order to obtain disability benefits"                                                                                                                            


describing the family court order as an order requiring [the veteran] to 'reimburse' or to  


                                                                                                                                          50  It noted that  

'indemnify' [a former spouse], rather than an order that divides property."                                                                                   


the temporal difference relied on by the Arizona Supreme Court "highlight[ed] only that  


[the veteran's] military retirement pay at the time it came to [his former spouse] was  


subject to later reduction" and that "[t]he state court did not extinguish (and most likely  


             45          Howell, 137 S. Ct. at 1404.

             46          Id.

             47          Id.


             48          Id.


             49          Id.  at 1405-06.              

             50          Id. at 1406.  


                                                                               -19-                                                                      7262

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


would not have had the legal power to extinguish) that future contingency."                                                                The  

Supreme   Court   concluded:     "Regardless   of   their   form,   such   reimbursement   and  

indemnification   orders   displace   the   federal   rule   and   stand   as   an   obstacle   to   the  

accomplishment and execution of the purposes and objectives of Congress.                                                           All such   

                                                52  This holding abrogates our decisions to the extent they  

orders are thus pre-empted."                                                                                              

authorize  indemnification  for  reductions  in  a  former  spouse's  share  of  retirement  


payments caused by a veteran's post-divorce waiver.53  


                       Both Young and Howell involved court orders requiring a service member  


to reimburse a former spouse for actions that reduced the amount of retirement pay the  


former spouse was entitled to; under Howell, such an order violates federal law. But that  


is not what happened in this case. Gross did not make a post-divorce waiver that reduced  


retirement pay to receivedisability pay; hesimply stopped payingWilson the amount she  


was entitled to pursuant to the property division.  As explained above, Gross has not  


asserted any valid basis for relief from the judgment effectuating the parties' property  


division.   Thus, although Gross unilaterally reduced the amount of his payments to  


Wilson, the amount she was entitled to never changed.  And although the superior court  


considered the effect of the indemnity provision in the settlement agreement, it did not  


order Gross to "indemnify" Wilson. Rather, the court ordered Gross to "resume monthly  


payments" to Wilson "as ordered by the court on March 11, 2014, and as agreed by the  


           51         Id.  at   1405.  

           52         Id.  at   1406.  

           53          However,  we   note   that   under   Howell,   "a   family   court,   when   it   first  

determines  the  value  of  a  family's  assets,  remains  free  to  take  account  of  the  contingency  

that  some  military  retirement  pay  might  be  waived,  or  .  .  .  take  account  of  reductions  in  

value  when  it  calculates  or  recalculates  the  need  for  spousal  support."   Id.  

                                                                      -20-                                                              7262

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

parties pursuant to [the] settlement agreement," and it ordered the parties to submit                                                                                                                                                                                                   

pleadings to establish the amount of "arrearages" owed to Wilson.                                                                                                                                             

                                               Under  Howell   a state court may not circumvent                                                                                                                               Mansell   by ordering a                                                       

servicemember to "indemnify" a                                                                                  former spouse for retirement benefitswaived                                                                                                                    to receive  

disability pay.                                     But  Howell  does not hold that a state court cannot enforce a property                                                                                                                                                    

division by ordering a service member who unilaterally stops making payments the                                                                                                                                                                                                                     

service member                                             was   legally   obligated   to   make   to  resume   those   payments   and   pay  


V.                      CONCLUSION  

                                               We    AFFIRM    the    superior    court's    order    enforcing    the    settlement  

agreement's division of Gross's disability benefits.                                                                                                  

                                                                                                                                                  -21-                                                                                                                                     7262

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