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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tomal v. Anderson (8/31/2018) sp-7282

Tomal v. Anderson (8/31/2018) sp-7282

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

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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


                      THE SUPREME COURT OF THE STATE OF ALASKA                                   

DEWAYNE  TOMAL,                                               )  


                                                                   Supreme Court Nos. S-16720/16760  


                               Appellant and                  )  


                                                              )    Superior Court No.  1WR-16-00034 CI  



                                                              )    O P I N I O N  



JEANNETTE ANDERSON,                                                                                     

                                                              )    No. 7282 - August 31, 2018  



                               Appellee and                   )  

                               Cross-Appellant.               )  




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


                     Judicial District, Wrangell, Kevin G. Miller, Judge pro tem.  


                    Appearances: Robert S. Spitzfaden, Gruening & Spitzfaden,  


                    APC,  Juneau,  for  Appellant/Cross-Appellee.                              Michael  P.  


                    Nash, Law Offices of Michael P. Nash, P.C., Wrangell, for  



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


                     and Carney, Justices.  


                     WINFREE, Justice.  



                    Alaska has long recognized unique legal standards for property disputes  


between two people ending a domestic partnership.  Our case law has treated the end of  


a domestic partnership as coextensive with both the end of a marriage-like relationship  


and the end of the partners' cohabitation, as has generally been the case in the appeals  

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


we have decided.  But this appeal presents the novel factual circumstance of a couple  


who continued living together after their marriage-like relationship ended.  We must  


therefore clarify several aspects of our domestic partnership case law to decide this  


appeal,  including  when  and  how  a  domestic  partnership  terminates,  when  post- 


partnership  payments  must  be  reimbursed,  and  how  the  trial  court  should  award  


attorney's fees.  Applying these clarified standards, we conclude that most of the trial  


court's property distribution was correct but that some minor aspects were in error.  We  


therefore remand for the trial court to revise its property division.  




                    DeWayne Tomal and Jeanette Anderson began living together in Wrangell  


in 1998.  The following year Tomal bought beachfront land off the Zimovia highway  


(the Zimovia property); they began working to make it their permanent home. Anderson  


initially  worked  full time making  the property  habitable but later was sporadically  


employed, whileTomal sometimes workedon theproperty and sometimes earned money  


from other employment. The couple eventually restored a cabin on the property to serve  


as their primary home; they also docked Anderson's float house at the beach.  


                    Tomal  began  experiencing  financial  difficulties  shortly  after  he  and  


Anderson began living at the Zimovia property.  They took out a loan secured by the  


property to pay  some  of his debts, and Tomal granted the property to himself and  


Anderson as tenants-in-commonto securefinancing. Andersonthentook over managing  


the couple's finances; her practice was to transfer money from the couple's joint bank  


account into her personal savings account, where the funds earned interest, then back  


into the joint account to pay bills.  Tomal and Anderson each deposited their earnings  


into the joint account and Anderson used the commingled funds to pay joint expenses  


like the mortgage, credit cards, and utilities.  


                    Tomal  took  a  salaried  construction  job  in  2005;  he  began  accruing  a  

                                                               -2-                                                         7282

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pension and continued contributing his earnings to the joint account. His work required  


himto live away fromthe Zimovia property during the construction season, usually from  


March to November.  Anderson continued living and working at the property.  


                    In July 2011 Tomal returned to the property during the construction season  


and discovered Anderson's money transfers from their joint account to her personal  


account.   Tomal confronted Anderson and asked her not to transfer money into her  


personal account.  Tomal then opened a separate bank account and began transferring  


money from the joint account into his separate account. Tomal also began depositing his  


earnings into and paying bills from the separate account.  By the end of 2011 there was  


little money left in the joint account.  


                    Early in 2012 Anderson told Tomal that she would no longer sleep in the  


same house as him.  When Tomal returned from his seasonal construction work in the  


following winters, Anderson slept in the float house while he was home.   Anderson  


remained in the cabin in 2015, after living in the float house in the winter became too  


difficult to manage.  The parties cooked their own meals, did their own laundry, and  


engaged in separate employment while living in the same home.  


                    Anderson obtained counsel in 2015 and proposed partitioning the Zimovia  


property.  Tomal did not agree to the partition.  Tomal filed suit against Anderson in  


2016; he claimed that she was liable for her share of the Zimovia property expenses he  


had been paying and for unauthorized expenditures she had made with his earnings and  


credit card.   Anderson denied making any unauthorized expenditures with Tomal's  


money and counterclaimed for a domestic partnership property division.  


                    The superior court held a three-day bench trial in February and March  


2017.  Tomal and Anderson both testified about their relationship, living arrangements,  


finances, and property. Tomal also presented testimony froma pension-valuation expert  


setting three different values for his pension based on when the relationship might have  

                                                               -3-                                                         7282

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

terminated, an accounting expert who analyzed the couple's financial transactions, and                                                                                                                                                                                                                                                                                                  

a real estate appraisal expert who valued the Zimovia property.                                                                                                                                                                                      

                                                             The court issued a written decision in April dividing the property.                                                                                                                                                                                                                                                  The  

court found that Tomal had not proved his misappropriation claims and that the parties                                                                                                                                                                                                                                                                                    

were in a domestic partnership requiring equal division of property. The court found that                                                                                                                                                                                                                                                                                               

the domestic partnership terminated in 2012, when Anderson told Tomal she no longer                                                                                                                                                                                                                                                                                        

would   sleep   in   the same                                                                                         house as                                      him.     The court also                                                                                resolved   various valuation   

disputes and included about $50,000 of Tomal's pension as partnership property.                                                                                                                                                                                                                                                                                                     The  

court awarded Tomal the Zimovia property, valued at $275,000, and ordered him to                                                                                                                                                                                                                                                                                                              

make Anderson                                                               an equalization                                                            payment of a little less than $100,000.                                                                                                                                                        The court   

declined to credit Tomal for post-separation property expense payments, reasoning that                                                                                                                                                                                                                                                                                                 

"as cotenants, [the                                                               parties]continued tobothcontributeto thehousehold                                                                                                                                                                                             inroughly equal                                 

fashion with . . . Tomal making the necessary payments to maintain the household and                                                                                                                                                                                                                                                                                                    

 . . . Anderson doing other regular maintenance and upkeep."                                                                                                                                                                                                                         

                                                             Tomalsoughtreconsideration ofthedenial ofpost-separationexpenses,and                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                   1         Anderson asked that the court  

he sought prevailing party attorney's fees and costs.                                                                                                                                                                                                                                                                                                                           

amend its judgment to grant her the Zimovia property, and she sought to enjoin Tomal  


from entering the property, citing a fear of domestic violence.   Anderson attached a  


police report to support the reasonableness of her fear, which Tomal moved to strike as  


hearsay.  Anderson also sought attorney's fees and litigation costs.  


                                                             The court denied Tomal's reconsideration motion and Anderson's motions  


to amend the judgment and for a preliminary injunction.  The court admitted the police  


report as evidence but excluded the hearsay statements it contained, except for one  


                               1                             See   Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or                                                                                                                                                                                                                                                          

agreed by the parties, the prevailing party in a civil case shall be awarded attorney's fees                                                                                                                                                                                                                                                                                          

calculated under this rule.").                                                                  

                                                                                                                                                                                               -4-                                                                                                                                                                                 7282

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statement by a police officer.                                                           The court declined to award Tomal prevailing party                                                                                         


attorney's fees, reasoning that the "divorce exception" applied.                                                                                                                                                               

                                                                                                                                                                                                 The court instead  


awarded Anderson just over $500 in litigation costs in light of her "relative economic  


disadvantage" and nothing in attorney's fees because she did not provide sufficient  


factual support for an award.  


                                      Both parties appeal.  

III.               DISCUSSION  


                                      This appeal presents several novel issues of domestic partnership law.  


Anderson  appeals  the  trial  court's  finding  that  the  parties'  domestic  partnership  


terminated in 2012, requiring us to clarify when a domestic partnership terminates.  


Tomal appeals several of the court's rulings, requiring us to clarify when credit for post- 


separation property expense payments is appropriate and when the divorce exception to  


prevailing party attorney's fees applies to domestic partners.   Both parties challenge  


aspects of the court's property distribution, requiring us to clarify both the appropriate  


legalstandards for domesticpartnership propertydistributionand thestandardsofreview  


we will apply on appeal in such cases.  We therefore begin by explaining the standards  


courts must use to divide property acquired during a domestic partnership, and how we  

                   2                  See Sanders v. Barth                                        , 12 P.3d 766, 768 (Alaska 2000) ("[Alaska] Civil                                                                                   

Rule 82 authorizes awards of partial attorney's fees to prevailing parties in most civil                                                                                                                                               

litigation. . . . However, divorce cases represent a well-established exception to this                                                                                                                                                  

general rule.                          Attorney's fees in divorce cases are 'based on the relative economic                                                                                                             

situations and earning powers of the parties,' rather than prevailing party status.                                                                                                                                                  This  

rule ensures that 'both spouses have the proper means to litigate the divorce action on                                                                                                                                   

a fairly equal plane.' " (footnote omitted) (first quoting                                                                                                Kowalski v. Kowalski                                          , 806 P.2d     

 1368, 1372 (Alaska 1991); then quoting                                                                           Lone Wolf v. Lone Wolf                                              , 741 P.2d 1187, 1192                           

(Alaska 1987))).   

                                                                                                                      -5-                                                                                                             7282

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will review that decision-making on appeal, before addressing the parties' arguments.                                                                                             3  



              A.            Legal Standards For Domestic Partnership Property Distribution 

              3             Tomal also argues that it was error to admit the police officer's statement                                                          

in Anderson's proffered police report.  But the police report was offered by Anderson   

to support            her  claim for post-decision relief, and the trial court denied that relief. Tomal                                                               

has offered no reason that the police report has, or possibly could have, prejudiced him,                                                                                  

so we do not reach this argument.                                       See Janes v. Alaska Railbelt Marine, LLC                                               , 309 P.3d     

 867,   875   (Alaska   2013)   ("We   will   only   reverse   evidentiary   rulings   that   are   both  

erroneous  and prejudicial.                             " (emphasis added)).      

              4             We note that this analysis is applicable only to domestic partners, i.e.,  


unmarried cohabitants living in a marriage-like relationship.  See Boulds v. Nielsen, 323  


P.3d 58, 60 (Alaska 2014) (parties were unmarried cohabitants); Reed v. Parrish, 286  


P.3d 1054, 1057 (Alaska 2012) (same); Jaymot v. Skillings-Donat, 216 P.3d 534, 544  


(Alaska 2009) (same); Bishop v. Clark, 54 P.3d 804, 807 (Alaska 2002) (same); Tolan  


v. Kimball, 33 P.3d 1152, 1153 (Alaska 2001) (same); D.M. v. D.A., 885 P.2d 94, 95, 97  


(Alaska 1994) (same);  Wood v. Collins, 812 P.2d 951, 953 (Alaska 1991) (same); see  


also AS 24.60.990(a)(5) ("In this chapter [regarding the legislature and lobbying] . . .  


 'domestic  partner'  means  a  person  who  is  cohabiting  with  another  person  in  a  


relationship  that  is  like  a  marriage  but  that  is  not  a  legal  marriage  .  .  .  .");  


AS 39.50.200(a)(4) ("In this chapter [regarding public officers and employees] . . .  


 'domestic  partner'  means  a  person  who  is  cohabiting  with  another  person  in  a  


relationship that is like a marriage but that is not a legal marriage . . . ."); cf. Timothy W.  


v. Julia  M.,  403  P.3d  1095,  1114  (Alaska  2017)  (explaining  that  "domestic  living  


partner"             as       used          in      Alaska             Statutes             Title         25,       including                AS        25.20.095(g),  


AS 25.20.110(g), and AS25.24.150(g), encompasses individuals in "a shared, marriage- 


like,   domestic   environment").                                         Domestic   partnership   property   division   law   is  


inapplicable to the equitable division of marital assets, which is governed by statute. See  


Murray v. Murray, 788 P.2d 41, 42 n.6 (Alaska 1990); see also AS 25.24.160(a)(4).  


Domestic partnership property division law is also inapplicable to property disputes  


between unmarried parties not in a domestic partnership, which is governed by the  


ordinary rules of property law.  See D.M., 885 P.2d at 97.  If the parties dispute whether  


a domestic partnership exists, or when their partnership began, the trial court must  


examine if or when the parties cohabited in a marriage-like relationship before applying  


these standards. The eight factors we articulated in Bishop may help informthis analysis,  


54 P.3d at 811, but they are not exclusive, Reed, 286 P.3d at 1058.  


                                                                                       -6-                                                                                7282

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                         Property   acquired   by   domestic   partners   during   a   domestic   partnership  


should be distributed according to the partners' intent.                                                                                                    

                                                                                                        But property acquired after the  

                                                                                                                                                      6   The  



partnership terminates is governed by the ordinary rules of Alaska property law. 

first step in distributing domestic partnership property therefore is to assess when the  


partnership began and ended. Relevant to this appeal, when a domestic partnership ends  


is a question of fact; the trial court must assess when the partners stopped cohabiting in  


a marriage-like relationship.7  We will review the trial court's finding of when a domestic  


partnership ended for clear error.8  


                         The second step is to classify each item of property held by the parties as  


partnership property or separate property based on applicable law.  A statute or a valid  


contract between the parties - express or implied - will control the classification in the  


             5           Boulds, 323 P.3d at 63.               

             6           See Wood           , 812 P.2d at 958 ("We hold that the rules of cotenancy apply                          

after separation when the parties no longer were maintaining a domestic relationship.").  


In   Wood  and  D.M.  we grounded the intent analysis in cotenancy.                                                       D.M., 885 P.2d at 97               

& n.7;        Wood, 812 P.2d at 958.                       But we clarified in                Tolan  that domestic partnerships do                           

not require cotenant property interests. 33 P.3d at 1155-56. It is therefore more accurate  


to say that the ordinary property rules as a whole apply after separation, rather than only  


"the rules of cotenancy."  See Wood, 812 P.2d at 958.  


             7           See supra  note 4 (clarifying that a domestic partnership in Alaska for  


property   division   purposes   is   a   marriage-like   relationship   between   unmarried  


cohabitants).  A legal question may arise, however, if, as in this case, the parties dispute  


what a domestic partnership is.  See discussion infra at p. 12.  


             8           We  will  find  clear  error  only  if  "we  are  left  with  a  definite  and  firm  


conviction on the entire record that a mistake has been made."  Wood, 812 P.2d at 954  


n.2 (quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)).  


                                                                              -7-                                                                       7282

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first instance.   But absent a controlling statute or a valid contract between the parties,   


property must be classified strictly according to the parties' intent.                                                                                                                                         

                                                                                                                                                                        "In some cases, the  


parties' intent with respect to all or broad classes of property will be easy to infer based  


on evidence that 'the parties formed a domestic partnership and intended to share in the  


fruits  of  their  relationship  as  though  married  justifying  an  equal  division  of  their  

                             11   But not all property acquired during a partnership necessarily is intended  


property.' " 

to be partnership property:  "We emphasize that simply living together is not sufficient  


to demonstrate intent to share property as though married, and, moreover, that parties  


who intend to share some property do not presumptively intend to share all property  


. . . ."12   And parties may not intend to share property equally; for instance, a couple who  


purchase real property together may intend to share it according to their respective  


                               13   The trial court must be attentive to ensure that it properly determines the  


parties' intent for each disputed property item.  The trial court's underlying findings as  


                 9               See Boulds                   , 323 P.3d at 61-63 (applying federal Employee Retirement                                                                   

Income Security Actto                                    domesticpartnershipproperty distribution before applying intent                                                                                 

analysis);  Bishop, 54 P.3d at 808-10 (applying parties' property settlement agreements                                                                                                   

before applying intent analysis);                                                 see also Marvin v. Marvin                                           , 557 P.2d 106, 113 (Cal.       

 1976) ("The fact that a man and woman live together without marriage, and engage in                            

a sexual relationship, does not in itself invalidate agreements between them relating to                                                                                                                          

their earnings, property, or expenses.").                            

                 10              See Boulds, 323 P.3d at 63 ("[I]f an intent can be found, it should control  


that property distribution." (quoting Bishop, 54 P.3d at 811)).  


                 11              Id. at 64 (quoting Reed v. Parrish, 286 P.3d 1054, 1057 (Alaska 2012)).  


                 12              Id.  

                 13              See D.M. v. D.A., 885 P.2d 94, 97 (Alaska 1994) ("If an intent to hold the  


property in a particular proportion or to determine the proportion by a particular method  


can be discovered, this intent controls . . . .").  


                                                                                                        -8-                                                                                               7282

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to the parties' intent are factual findings reviewed for clear error.                                                                                           The trial court's      

classification decisions based on statute, contract, or intent are applications of law to fact                                                                                                 

reviewed de novo.                          15  


                               The third step is to value the property. The trial court's property valuations  



are factual findings reviewed for clear error. 

                               The final step is to distribute the property.   Unlike in a divorce, where  


equitable considerations dictate the final distribution, the trial court must distribute the  


property strictly according to the property's character as determined by statute, contract,  


                14             See Wood v. Collins                           , 812 P.2d 951, 957 (Alaska 1991) ("[W]e accept the                                                                

superior court's                    finding           that [the partner] 'was to pay the vast majority of the upkeep, the                                                                       

mortgage, and other payments.' " (emphasis added));                                                                      cf. Abood v. Abood                          , 119 P.3d 980,         

984 (Alaska 2005) ("[A] finding that the parties intended to treat property as marital will                                                                                                    

be disturbed only if it is clearly erroneous." (citing                                                                      Cox v. Cox                 , 882 P.2d 909, 913                    

(Alaska 1994))).   

                15             See Wood, 812 P.2d at 955 n.4 ("Applying the law to a given set of facts  


is a question of law subject to de novo review.").   We note that we have previously  


framed  this  analysis  as  a  de  novo  review  without  specifying  that  the  underlying  


determination of the parties' intent is a factual question, which could be interpreted as  


reviewing what the parties intended de novo as a question of law.  See Boulds, 323 P.3d  


at  61  n.3  ("We  determine  the  parties'  intent  by  applying  law  to  facts,  a  de  novo  


review."); Bishop, 54 P.3d at 810-11 ("We treat the court's decision as finding that these  


cohabiting parties impliedly agreed to the distribution of property accumulated during  


cohabitation.  . . .  We review [this finding] de novo.").  That is incorrect; as we explain  


today, the correct rule is that what the parties intended is a question of fact, and the legal  


significance of that intent is a question of law.  To the extent Bishop and cases citing it  


have reviewed parties' intent de novo, those cases are disavowed.  


                16             See D.M., 885 P.2d at 98 n.8 ("The value of the horses [belonging to the  


partnership] is a factual finding which may be reversed only if clearly erroneous." (citing  


Alaska  R.  Civ.  P.  52(a)));  cf.  Beals  v.  Beals,  303  P.3d  453,  459  (Alaska  2013)  


(explaining in the analogous divorce context that "valuation of assets . . . is a factual  


determination that we review for clear error").  


                                                                                                -9-                                                                                        7282

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


or the parties' intent.                     Partnership property generally must be distributed equally (or                                                  

unequally   if   the   parties   intended  unequal   shares),   while   separate   property   must   be  

                                                            18     But  the  trial  court  may  assign  different  items  of  

distributed  solely   to   its   owner.                                                                                                                       

partnership property to the parties and order an equalization payment to ensure that each  


party receives the correct total share of partnership property.19                                                    There may be a number  


of reasonable ways to fairly allocate property in this process; we will review the trial  


court's allocation decisions, and its decision to order an equalization payment, for abuse  


of discretion.20  


             17          See Boulds           , 323 P.3d at 63;              see also Bishop              , 54 P.3d at 812 ("It was error                

to apply divorce law to divide the parties' property. . . . [T]he property the couple                                                                

accumulated must be divided in accordance with their intentions.").                                    

             18          See  Boulds,  323  P.3d  at  63-64  (affirming  equal  property  distribution  


because parties intended property to be partnership asset). We note that in the analogous  


divorce context the trial court may  "invade" separate property to ensure   equitable  


division.  See Odom v. Odom, 141 P.3d 324, 340 (Alaska 2006).  This procedure may  


be improper for domestic partners because the parties' intent, rather than equity, controls  


the property distribution. But the trial court here did not distribute any separate property  


from one party to another, so we do not yet have to decide whether such invasion ever  


could be appropriate.  


             19          See Boulds, 323 P.3d at 65 n.37 ("[T]he court may require an equalization  


payment . . . ."); Bishop, 54 P.3d at 811 ("[I]t was not error to award [a partner] a one- 


half interest in the disputed property not allocated by the 1996 settlement agreement -  


i.e., the furniture and appliances in the East Hill Road cabin and the proceeds from the  


sale of the Mountain View lot.").  


             20          Cf. Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) ("[T]he 'abuse  


of discretion' standard of review applies to situations where the law allows or requires  


the judge to exercise discretion - to reach a decision by considering and weighing  


various factors, and then doing what seems most fair under the circumstances."); Simone  


H. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs., 320 P.3d 284, 287  


n.8 (Alaska 2014) (quoting Booth approvingly).  


                                                                             -10-                                                                       7282

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                      B.	                  The Trial Court's Property Distribution                                                         

                                           Having clarified the standards the trial court should use when distributing                                                                                                                          

property   acquired   during   a domestic partnership,                                                                                                               we now evaluate the trial court's                                                        

property distribution in light of these standards. We conclude that, although most of the                                                                                                                                                                                   

distribution is proper, certain aspects are in error.                                                                                        

                                           1.	                  The trial court did not clearly err by finding that the domestic                                                     

                                                                partnership ended in 2012.                                                

                                           The first step is to determine when the partnership began and ended.                                                                                                                                                        The   

trial court found that "the parties intended to and engaged in an equal partnership that                                                                                                                                                                                 

they expected to continue indefinitely" and that "the domestic partnership did not end                                                                                                                                                                                   

until 2012 when . . . Anderson told . . . Tomal that she would no longer sleep under the                                                                                                                                                                                   


same roof."                                                                                                                                                                                                                                                    

                                                The court also found that "[s]ince then, the parties became and remain  


reluctant co-tenants."  This was not clearly erroneous.  


                                           We  have  emphasized  that  "simply  living  together  is  not  sufficient  to  



demonstrate intent to share property as though married."                                                                                                                                  By early 2012 the parties had  


separate finances and filed separate tax returns; they had not filed a joint tax return at  



least since 2005.                                             They lived separately, whether in different places or different parts  


of the same property. Although sometimes living together at the Zimovia property, each  


cooked their own meals, did their own laundry, and engaged in separate employment.  

                     21                    The trial court found that the partnership began in 1998, and the parties                                                                                                                                            

have not asked us to review that finding; we thus accept for purposes of this appeal that                                                                                                                                                                                

the domestic partnership began in 1998.                                                                       

                     22                    Boulds, 323 P.3d at 64.  


                     23                    See Bishop, 54 P.3d at 811 (factors 1 ("made joint financial arrangements  


such as joint savings or checking accounts, or jointly titled property") and 2 ("filed joint  


tax returns")).  


                                                                                                                                    -11-	                                                                                                                             7282

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

And, although after 2012 the parties continued to live at, maintain, improve, and hold the                                                               


debt on the Zimovia property together,                                                                                           

                                                                           this behavior is as consistent with a domestic  


partnership as with the trial court's conclusion that "[s]ince then, the parties became and  


remain reluctant co-tenants."  We therefore cannot say the court clearly erred in finding  


the domestic partnership terminated in 2012; we have no definite and firm conviction  



that a mistake has been made. 

                        Andersoncounters that domesticpartnershipsareatypeofcontract and that  


she and Tomal did not intend for their contract to terminate when their relationship did.  


But Anderson confuses thelegal basis for distributingdomesticpartnership property with  


the domestic partnership itself.   A domestic partnership in Alaska is a marriage-like  


relationship between unmarried cohabitants, not a contract.  We explained in Tolan v.  


Kimball that domestic partnership property distribution applies even if "the essential  


elements  of  a  contract  were  not  present."26                                       And,  although  Anderson  and  Tomal  


undoubtedly could have made a contract to control their property distribution over any  


                      27  Anderson did not claim in the trial court that such a contract existed.  It  

other intent,                                                                                                                                              

was therefore appropriate for the court to divide Anderson and Tomal's property based  


on the date it found the partnership terminated, and we affirm the court's selected date  


as not clearly erroneous.  


            24          See   id.   (factors    1   ("jointly   titled   property"),  5  ("contributed   to   the  

improvement  and  maintenance  of  the  disputed  property")  and  8  ("incurred  joint  debts")).  

            25          See  supra  note  8.  

            26           33  P.3d   1152,   1154  n.4  (Alaska  2001).  

            27          See  supra  note  9  and  accompanying  text.  

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

                                           2.	                   It    was    error    to    classify   certain    property    as    partnership  


                                           The   second   step   in   distributing   property   acquired   during   a   domestic  

partnership is to classify the property based on statute, contract, or the parties' intent.                                                                                                                                                                                               

Tomal argues that the trial court erred by allocating a portion of his pension to the                                                                                                                                                                              

partnership because there was no evidence that the parties intended to share the pension.                                                                                                                                                                                                 

Anderson argues that the trial court erred by classifying Tomal's boat as his separate                                                                                                                                                                      

property and by classifying her truck as partnership property.                                                                                                                                          

                                           Tomal is correct that the trial court did not make specific findings on the                                                                                                                                                       

parties' intent for the pension.  But "[i]n some cases, the parties' intent with respect to                                                                                                                                                                                      

all or broad classes of property will be easy to infer based on evidence that 'the parties                                                                                                                                                                        

formed a domestic partnership and intended to share in the fruits of their relationship as                                                                                                                                                                                       

                                                            28       "[W]hen the parties have demonstrated through their actions that  

though married.' "                                                                                                                                                                                                                                

they intend to share their property in a marriage-like relationship, a court does not need  


to find specific intent by each cohabitant as to each piece of property."29                                                                                                                                                                                 Tomal's  


argument that there was no specific evidence of intent to share the pension is therefore  


misplaced.  The trial court found that the parties "intended to and engaged in an equal  


partnership that they expected to continue indefinitely."  The court also found that an  


"equal division of the assets [was] appropriate."   The court made these findings in  


conformity with our case law and the evidence at trial.  The court did not clearly err by  


finding that the parties intended to share the pension as part of their broad intent to share  


property acquired during the partnership, and it thus did not err by classifying only the  


portion of the pension accumulated during the partnership as partnership property.  


                      28                   Boulds v. Nielsen                                      , 323 P.3d 58, 64 (Alaska 2014) (quoting                                                                                         Reed v. Parrish                                   ,  

286 P.3d 1054, 1057 (Alaska 2012)).                                                              

                      29	                  Id.  

                                                                                                                                     -13-	                                                                                                                             7282

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                    As to Tomal's boat, he consistently testified that he bought the boat in  


2012, and the court could have reasonably credited that testimony.  The court did not  


clearly err by implicitly finding that Tomal acquired the boat after the parties' separation.  


Anderson challenges this conclusion by arguing that "the record clearly evinces that . . .  


Tomal used [partnership] funds" to buy the boat and that therefore either the funds he  


withdrew  from  the  partnership  must  be  restored  or  the  boat  must  be  classified  as  


partnership property. But the record does not require such an inference. Tomal testified  


that he paid for the boat from his personal bank account after the parties' finances were  


separated, and, contrary to Anderson's argument, his accounting expert reported that the  


pension funds he withdrew before the separation were used to pay partnership expenses.  


The court could have reasonably credited this evidence to find that Tomal bought the  


boat with his own funds, and the court therefore did not err by classifying the boat as  


separate property.  


                    We take a different view of Anderson's truck.  The only evidence on this  


issue presented at trial reflects that Anderson acquired her truck after the domestic  


partnership had terminated.  It was clearly erroneous to implicitly find that Anderson  


acquired the truck before the separation, as nothing in the record supports that finding.  


It was therefore error to classify the truck as partnership property.  


                    3.	       It was clear error to value the excavator at less than fair market  



                    The third step is to value the property. Anderson argues that the trial court  


clearly erred by valuing an excavator at $1,000 when Tomal testified that a neighbor  


offered to pay $6,000 for it.  


                    We agree with Anderson that it was clear error to value the excavator at  


$1,000 given this record. We have explained in the analogous divorce context that "[i]n  

                                                               -14-	                                                        7282

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


valuing a marital asset, the court should look to the asset's fair market value."                                                                                                                             The  

same rule applies here.                                    Tomal testified that he paid $1,000 for the excavator and that it                                                                                           

had several problems needing repair before it could be sold.                                                                                            But he also testified that a                                    

neighbor offered to pay him $6,000 for the excavator without any further repairs. Given                                                                                                                    

the lack of any other testimony about what a willing buyer would pay, $6,000 was the                                                                                                                               

                                                                                                                    31     It was clear error for the trial court to  

best fair market value evidence in the record.                                                                                                                                                                       

value the excavator at $1,000.  


                                  4.	              The  trial  court  did  not  abuse  its  discretion  by  requiring  an  


                                                   equalization payment.  


                                  The final step is to distribute the property by allocating the assets and, if  


necessary, requiring an equalization payment.  Tomal argues that the trial court erred in  


this process because it ordered an equalization payment and thus effectively ordered him  


to cash out his pension.  Tomal argues that the parties did not intend for him to cash out  


his pension and that such intent was necessary before the trial court could order him to  


do so.  


                                  We reject Tomal's argument because he misunderstands the basis for the  


trial court's order.  The court did not require Tomal to cash out his pension; instead the  


court  explicitly  wrote:                                           "Tomal  can  certainly  use  his  retirement  funds  to  pay  


                 30              Doyle v. Doyle                         , 815 P.2d 366, 369 (Alaska 1991) (alteration in original)                                                                   

(quoting  Nelson v. Jones                                      , 781 P.2d 964, 970 (Alaska 1989)).                                     

                 31               Cf. id. at 370 n.6 ("[F]air market value is a single, unitary figure, commonly  


defined as '[t]he amount at which property would change hands, between a willing buyer  


and a willing seller, neither being under compulsion to buy or sell and both having  


reasonable knowledge of the relevant facts.' " (quoting Fair Market Value, BLACK 'S  


LAW  DICTIONARY  (6th ed. 1990)));  see also Value,  Fair Market Value, BLACK 'S  LAW  

DICTIONARY  (10th ed. 2014) ("The price that a seller is willing to accept and a buyer is                                                                                                                             

willing to pay on the open market and in an arm's-length transaction; the point at which                                                                                                                   

supply and demand intersect.").                    

                                                                                                        -15-	                                                                                                 7282

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

. . . Anderson, but I leave it to him to determine whether to use those funds, take out                                                                                                                    

another loan or find some other source of funds."                                                                            This was an appropriate course of                                               

action.     As   we   noted   in   Boulds   v.   Nielsen,   "the   court   may   require   an   equalization  

payment from [the pension-holding partner] to [the other partner] reflecting the present                                                                                                         

                                                                                               32      The court did not lack authority to order an  

value of her share of the . . . pension."                                                                                                                                                                    

equalization payment as part of its property division, and Tomal has not argued on  


appeal that the equalization payment amount will cause him undue hardship.33                                                                                                                              We  


therefore must conclude that the trial court did not abuse its discretion by ordering the  


equalization payment.  


                C.               Post-Separation Property Expenses  


                                We  held  in  Wood  v.  Collins that  "the  rules  of  cotenancy  apply  after  


                                                                                                                                                                                                    34    We  

separation when the parties [are] no longer maintaining a domestic relationship."                                                                                                                         


applied this rule in Wood to hold that a domestic partner who paid all of the property- 


related expenses for property held by both partners could receive reimbursement for half  


of those payments post-separation.35  


                                                                                           Tomal argues that under this rule he is entitled to  


credit for half of the Zimovia property payments he made post-separation.  

                32               323 P.3d at 65 n.37.                 

                33               Cf. Fortson v. Fortson                               , 131 P.3d 451, 459 (Alaska 2006) (stating in divorce                                                      

context that "[c]ash awards are a permissible means of dividing illiquid marital assets                                                                                                             

where they would not impose a hardship on the paying party" (emphasis added)).  


                34               812 P.2d 951, 958 (Alaska 1991).  


                35              Id.  

                                                                                                    -16-                                                                                              7282

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

                      We    take    this    opportunity    to    clarify    the    legal    standard   for    such  


reimbursement, known as "contribution."                                                                                           

                                                                         "As a general rule, each tenant in common  


is responsible and ultimately liable for his or her share of all the necessary expenses  


incurred maintaining and preserving the common property in proportion to his or her  

                                  37   When one tenant pays all of the property expenses, that tenant  


ownership interest." 

may receive contribution from the other tenants proportionate to the tenants' shares in  


the home.38  


                      A tenant's right to contribution, however, is not unlimited. "The situations  


in which contribution for upkeep or repairs is not allowed are generally ouster, the  


existence of an agreement to the contrary, a property division in a marital dissolution  


                                                                                   39   Though we have never explicitly  

case, and where the result would be inequitable." 


stated that contribution is an equitable right, our past cases on this issue have intimated  


as much.  In Wood we affirmed the trial court's decision to award contribution based on  


                                          40  And in Reed v. Parrish we held that the superior court did  

"fairness" - i.e., equity.                                                                                         

not  abuse  its  discretion  by  declining  to  credit  a  paying  partner  with  half  the  post- 


           36         See  86 C.J.S.         Tenancy in Common                   90 (2018).     



                      Id. (footnotes omitted); see also Wood, 812 P.2d at 958 ("Here, [the paying  

partner] has made all the payments on the condominium from the time of separation.                                                                


Hence, [the nonpaying partner] must reimburse [the paying partner] for [the nonpaying  


partner's] share of the post-separation payments.").  

           38         See  Wood, 812 P.2d at 958.  


           39         86 C.J.S.  90 supra note 36 (emphasis added).  


           40         812  P.2d  at  957-58.                 We  also  explicitly  stated  in  Wood,  referring  to  


renovations, not necessary upkeep, that the "right to reimbursement" - a comparable  


right to  contribution, see  86 C.J.S.   92 supra note  36 - is "an equitable right and  


recovery should be just  and equitable under all the circumstances."  812 P.2d at 959.  


                                                                     -17-                                                              7282

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


separation payments.                                    We predominantly analyzed the post-separation payments in                                                                                     

Reed -               ordered by the court as part of a domestic violence protective order - as                                                                                                        

necessary relief to protect the domestic violence victim, but we then explained:                                                                                                           

                               Further, the post-separation mortgage payments maintained  

                               the   status   quo,   ensuring   that   the   children's   stability   was  


                               maximized  while  the  parties  litigated  their  dispute.                                                                         The  

                               parties had long structured their relationship with [the non-                                                                     

                               paying partner] staying home to raise the children. To disrupt                                                               

                               that arrangement during the pendency of the court hearing                                                                  

                               would have been unfair to the children and was contrary to                                                         



                               the intent of the parties. 

 Such language reflects that whether to award contribution to a paying partner is within  


the discretion of the trial court and can largely depend on equitable factors, rather than  


rigid legal obligations. We therefore conclude that a tenant-in-common who pays more  


than  a  proportionate  share  of  property  expenses  may  be  denied  contribution  if  


contribution would be inequitable.43                                                    We will review the trial court's decision to deny  


contribution on equitable grounds for abuse of discretion.44  


                41             286  P.3d   1054,   1058  (Alaska  2012).  

                42             Id.  at   1058-59.  

                43             We   note   that  other  jurisdictions   have   long   treated   contribution   as   an  

equitable,  rather  than  legal,  right.   See,  e.g.,  Palanza  v.  Lufkin,  804  A.2d  1141,  1145  (Me.  

2002)  (describing  contribution  as  equitable),  abrogated on other  grounds  by   Wicks  v.  

 Conroy,  77  A.3d  479,  484  (Me.  2013);  Caccamise  v.  Caccamise,  747  A.2d  221,  231-32  

(Md.  Spec.  App.  2000)  (same);  Strohm  v.  Koepke,  90  N.W.2d  495,  497  (Mich. 1958)  

(same);  Cleys  v.  Cleys,  363  N.W.2d  65,  71  (Minn.  App.   1985)  (same);  Capital  Fin.  Co.  

of  Del.  Valley  v.  Asterbadi ,  942  A.2d  21,  28  (N.J.  App.  Div.  2008)  (same);  Clute  v.  Clute,  

90  N.E.   988, 990   (N.Y.   1910)   (same);   Tisdale   v.   Tisdale,   34   Tenn.   596,   599   (1855)  


                44              Cf. Cook v. Cook, 249 P.3d 1070, 1082-83 (Alaska 2011) ("[W]e review  



                                                                                                 -18-                                                                                          7282

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

                                                                     After hearingall                                                                    theevidenceandfashioning apropertydistribution in light                                                                                                                                                                                                                          

of our domestic partnership case law, the trial court in this case determined that an award                                                                                                                                                                                                                                                                                                                                      

of post-separation property expense payments would not be appropriate.                                                                                                                                                                                                                                                                                                                                 The court   

 found that "as cotenants, [the parties] continued to both contribute to the household in   

roughly equal fashion with . . . Tomal making the necessary payments to maintain the                                                                                                                                                                                                                                                                                                                                                            

household and . . . Anderson doing other regular maintenance and upkeep."                                                                                                                                                                                                                                                                                                                              Tomal has   

not challenged this finding on appeal, instead arguing that the trial court impermissibly                                                                                                                                                                                                                                                                                             

offset his payments against Anderson's labor. But the issue is not "offsetting"; the issue                                                                                                                                                                                                                                                                                                                                             

is whether ordering Anderson to pay Tomal contribution would have been equitable                                                                                                                                                                                                                                                                                                                               

under the circumstances.                                                                                                           The trial court concluded that it would not have been, and its                                                                                                                                                                                                                                                   

 findings reflect that Anderson reasonably could have believed that Tomal did not expect                                                                                                                                                                                                                                                                                                                                       

her   to   pay   for   half   of   the   property   expenses   while   she   continued  maintaining   the  

property. We cannot say that it was an abuse of discretion to decline to credit Tomal for                                                                                                                                                                                                                                                                                                                                                        

post-separation property expense payments.                                                                                                                                                                                             

                                   D.                                Attorney's Fees And Costs                                                                                            

                                                                      Tomal argues that the trial court erred by declining to award him prevailing                                                                                                                                                                                                                                                          

party attorney's fees under Alaska Civil Rule 82.                                                                                                                                                                                                               Tomal argues that the court erred by                                                                                                                                               

 applying the divorce exception to this case to award Anderson minimal costs in lieu of                                                                                                                                                                                                                                                                                                                                                              

 awarding either party prevailing party attorney's fees. Tomal also argues that he should                                                                                                                                                                                                                                                                                                                                     

have been awarded fees even if the divorce exception were applied.                                                                                                                                                                                                                                                                                                

                                                                      "Attorney's fees in                                                                                     divorce cases are 'based                                                                                                                 on   the   relative economic   

                                                                                                                                                                                                                                                                                                                                                                                                                              45   This  

 situations and earning powers of the parties,' rather than prevailing party status."                                                                                                                                                                                                                                                                                                                                                   

                                   44                                 (...continued)  


 a trial court's decision on equitable relief for abuse of discretion.").  

                                   45                                Sanders v. Barth                                                                          , 12 P.3d 766, 768 (Alaska 2000) (quoting                                                                                                                                                                                         Kowalski v.  


                                                                                                                                                                                                                      -19-                                                                                                                                                                                                              7282

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

divorce exception also extends to actions between domestic partners, but it "is not                                                                   

intended to apply to every child support [or property division] case between unmarried                                                    



couples."             Instead the divorce exception is "reserved for cases that closely resemble  


divorce actions and for cases that involve disputes - such as disputes about custody or  


the initial division of property - for which it is of paramount importance that the parties  



be able to litigate on a 'fairly equal plane.' "                                    We have previously applied the divorce  



exception to cases involving unmarried parents litigating child custody and support. 


But we have not applied the divorce exception to a case between unmarried couples  



deciding only property issues.                              We must therefore decide whether this case "closely  



resemble[s]" a divorce action such that the divorce exception to Rule 82 applies;                                                                    this  


is a "determination of which statute or rule applies to an award of attorney's fees . . . that  



we review de novo." 

            45          (...continued)


Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)).

            46          Id.  at  769.  

            47          Id.  (quoting  Lone  Wolf  v.  Lone  Wolf,  741  P.2d  1187,  1192  (Alaska  1987)).  

            48          See,   e.g.,  Koller v. Reft,   71   P.3d   800,   809   (Alaska   2003);  Bergstrom   v.  

Lindback,  779  P.2d   1235,   1238  (Alaska   1989).  

            49          Previous appeals  between  domestic  partners  have had Rule 82  attorney's  

fees  at  issue,  but,  apparently,  no  party  raised  the  divorce  exception's  applicability.   See,  

e.g.,   Wood  v.  Collins,  812  P.2d  951,  957  (Alaska   1991);  Levar  v.  Elkins,  604  P.2d  602,  

604  (Alaska   1980).   We  once  upheld  Rule  82  attorney's  fees  in  a  domestic  partnership  

property  division  over  an  argument  that  the  divorce  exception  should  apply,  but  we  did  

so  without  any  detailed  analysis.   Bishop  v.  Clark,  54  P.3d  804,  814  (Alaska  2002).  

            50          See Sanders, 12 P.3d at 769.  


            51          Koller, 71 P.3d at 808.  


                                                                          -20-                                                                     7282

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

                        "The purpose of [the divorce exception] is to ensure the parties can litigate                                          


on a 'fairly equal plane.' "                                                                                                                

                                                       This rationale applies to domestic partnership property  


division immediately after a break-up as much as it does to child support in the same  


time period. If one person has relied on a partner to provide income for the couple's way  


of life, that person's inability to "litigate on a fairly equal plane" could result in severe  


hardship during litigation; such hardship could potentially extend indefinitely if the  


property division does not adequately protect the economically disadvantaged partner.  


We cannot rationally conclude that the absence of a child support or child custody  


dispute makes the divorce exception per se inapplicable. We therefore hold that the trial  


court may appropriately apply the divorce exception to cases involving "the initial  



division of property" after "the break-up of the long-term relationship." 

                        Tomal argues that this case is not an "initial division of property" because  


the parties separated in 2012 and litigation did not begin until 2016.54                                                           But this case  


differs from past domestic partnership disputes we have resolved because in most cases  


the partners stopped living together after the domestic partnership terminated.   Here  


Tomal  and  Anderson  continued  living  together  on  the  Zimovia  property  after  the  


partnership terminated, sharing land and personal property, thus making the trial court's  


property division the "initial division of property" of the partnership assets within the  


            52          Osterkamp v. Stiles,                235 P.3d 178, 192 (Alaska 2010) (quoting                                  Sanders, 12   

P.3d at 769).     

            53          See Sanders, 12 P.3d at 769.  We therefore disavow our approval of using  


Rule 82 in this context in Bishop, 54 P.3d at 814.  See supra note 49.  


            54          Cf.  id.  (explaining  that  most  "quasi-divorce  cases  between  unmarried  


couples occur almost immediately after the break-up of the long-term relationship" and  


concluding  that  the  divorce  exception  should  not  apply  to  a  child  support  dispute  


occurring more than ten years after the break-up).  


                                                                          -21-                                                                    7282

----------------------- Page 22-----------------------

 scope of the divorce exception.                                               Though some years elapsed between the partnership's                                                   

end and litigation beginning, it was no less important that the parties "litigate on a fairly                                                                                                           

equal plane" in 2016 than it would have been in 2012.                                                                                   We therefore conclude that the                                        

trial court did not err by applying the divorce exception.                                                        

                                 We   last   consider   Tomal's   argument   that,   even   applying   the   divorce  

exception, he should have been awarded attorney's fees.                                                                                     "The award of attorney's fees                                   

in a divorce action . . . rests within the broad discretion of the trial court and will not be                                                                                                                  


disturbed on appeal unless it is 'arbitrary, capricious, or manifestly unreasonable.' "                                                                                                                                 

The trial court found that Anderson was the economically disadvantaged party and that  


 she should receive "her fixed and reasonable" costs of just over $500.  This award was  


not "manifestly unreasonable."56   Though Tomal is older than Anderson and is taking on  


a larger share of the partnership's debt, he also is retaining the Zimovia property, can rely  


on his pension in the future, and earns substantially more income than Anderson. In light  


of these factors the court did not abuse its discretion by granting Anderson the relatively  


modest award of $500 in costs, especially considering she received nothing in attorney's  




                 55              Ferguson  v.  Ferguson,  195  P.3d  127,  130  (Alaska  2008)  (quoting  Hopper  

v.  Hopper,   171  P.3d   124,   129  (Alaska  2007)).   The  parties  in  Ferguson  were  divorced,  

but  the  relevant  standard  of  review  does  not  change  between  divorce  cases  applying  the  

divorce  exception  and  domestic  partnership  cases  applying  the  divorce  exception.   See  

Koller,  71  P.3d  at  808  (reviewing  final  attorney's  fees  award  under  divorce  exception  for  

abuse   of   discretion);   Osterkamp,   235   P.3d   at   192   (reviewing   interim   attorney's   fees  

award   under   divorce   exception   for   abuse   of   discretion);   Bishop,   54   P.3d   at   814  

(reviewing   interim   attorney's   fees   award   under   divorce   exception   for   abuse   of  


                 56              See Ferguson, 195 P.3d at 130 (quoting Hopper, 171 P.3d at 129).  


                 57              Cf. Osterkamp, 235 P.3d at  192 (concluding trial court did not abuse its  



                                                                                                      -22-                                                                                               7282

----------------------- Page 23-----------------------


                   Except as otherwise noted, we AFFIRM the trial court's rulings.   We  


REMAND for the trial court to recalculate the equalization payment in light of our  


opinion.  We do not retain jurisdiction.  


          57       (...continued)  


discretion when it awarded $5,000 in interim attorney's fees, after "consider[ing] the  


parties' respective incomes and other sources of equity, including [the non-awarded  


partner's] continued possession of the house, the parties' sole significant asset").  

                                                           -23-                                                      7282

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