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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Erwin v. Mendenhall (10/19/2018) sp-7309

Erwin v. Mendenhall (10/19/2018) sp-7309

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

SHEILA  LYNN  ERWIN,                                                 )  

                                                                     )      Supreme  Court  Nos.  S-16487/16517  

                                Appellant  and                       )  

                                Cross-Appellee,                      )     Superior  Court  No.  3AN-10-09931  CI  


           v.                                                        )  


                                                                     )     O P I N I O N  


WILLIAM H. MENDENHALL,                                               )              



                                Appellee and                                                                        

                                                                     )     No. 7309 - October 19, 2018  

                                Cross-Appellant.                     )  



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


                      Judicial District, Anchorage, Herman G. Walker, Jr., Judge.  


                      Appearances:              Robert  C.  Erwin,  Robert  C.  Erwin  LLC,  


                      Anchorage, for Appellant and Cross-Appellee.  Douglas C.  


                      Perkins, Hartig Rhodes LLC, Anchorage, for Appellee and  



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


                      and Carney, Justices.  


                      CARNEY, Justice.  



                      The superior court awarded one of the husband's investment accounts to  


the wife in a divorce. Before transferring the account to the wife, the husband transferred  


shares of three mutual funds from that account to a separate investment account.  The  


wife asked the court to order him to account for the missing shares. The court ultimately  

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ordered the husband to pay the wife the value of the shares on the date of the transfer and  


he did so.   The parties contested the value of the income earned by the improperly  


transferred shares.  Following lengthy litigation of this issue the court awarded the wife  


enhanced attorney's fees.  


                    The wife appeals the valuation of the earned income of the shares.  The  


husband cross-appeals the valuation of the earned income on the shares and the award  


of attorney's fees.            We find that the superior court appropriately awarded the wife  


prejudgment interest instead of damages as well as enhanced attorney's fees.  




          A.        Facts  


                    Sheila Erwin and WilliamMendenhall married in Anchorage in June 1994.  


Erwin moved out of the marital home in February 2005 and filed for divorce in August  


2010.  Trial was held in December 2012.  


                    In its June 2013 findings of fact and conclusions of law the superior court  


found that a 50/50 split of property would be equitable.  The court awarded Erwin the  


entirety of a UnionBanc retirement account in Mendenhall's name (Account) with any  


gains or losses before distribution.  The Account consisted of shares of seven mutual  


funds.  On February 11, 2014 Mendenhall transferred the shares for three of the mutual  


funds from the Account to one of his other accounts.  At the time of this transfer the  


value of these shares was $164,757.43.  On February 13, 2014 the superior court issued  


a final judgment and decree of divorce.  


                    In  April  2014  Mendenhall  prepared  a  letter  of  authorization  asking  


UnionBanc to liquidate the assets in the Account and to transfer the value to Erwin.  He  


instructed UnionBanc not to allow Erwin access to any information about the Account.  

                                                               -2-                                                        7309

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Erwin  sent  a  copy  of  the  divorce  order  to  UnionBanc  to  effectuate  the  transfer;  


UnionBanc transferred the balance of the Account to her without liquidating the shares.  


Erwin received shares of four mutual funds.  

          B.        Proceedings  


                    In May 2014 Erwin filed a motion asking the court to order Mendenhall to  


account  for  the  missing  mutual  fund  shares.                         On  September  23  the  court  ordered  


Mendenhall  to  provide  an  accounting  for  the  missing  shares  within  ten  days.                                        On  


September 30 Mendenhall's attorney asked for an extension from Erwin's attorney until  


October 31, although he apparently never formally filed for an extension from the court,  


nor did the court grant one. On October 31 Mendenhall emailed Erwin's attorney stating  


that he had not had time to look for any alleged missing funds but that he would transfer  


"the share amount" to Erwin if she gave him an account number.  


                    In December 2014 Erwin filed a notice to the court that Mendenhall had  


failed  to  comply  with  the  court's  order  to  account  for  the  missing  investments.  


Mendenhall responded that he had mistakenly transferred the shares to his children's  


college account but was willing to transfer the shares to Erwin.   Erwin argued that  


Mendenhall's offer was unsatisfactory because he had never provided an accounting of  


the shares and did not guarantee that the transfer would protect the tax-deferred status  


of the funds.  


                    In   February   2015   Mendenhall's   attorney   suggested   a   settlement:  


Mendenhall would pay Erwin $158,000 if Erwin would withdraw her May 2014 motion.  


Mendenhall offered to transfer the money to Erwin's UnionBanc account. Erwin did not  


accept this offer.  


                    In June 2015 Erwin filed a motion to enforce the final judgment and decree  


of divorce.  She asked the court to award her the value of the shares of the three mutual  


funds at the time of transfer plus any earnings and distributions on the shares since the  

                                                               -3-                                                         7309

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transfer. Mendenhall                                                    filed a partial opposition, claiming that he had attempted to transfer  

Erwin the shares but that she had not provided him with her account number.                                                                                                                                                                                             

                                             The court held a hearing on these motions in December 2015.                                                                                                                                                         It ordered   

Mendenhall to determine the value of the three mutual funds on the date of the transfer                                                                                                                                                                                    

and to transfer that amount to Erwin.                                                                                            The court held that Erwin was "entitled to any                                                                                                         

earnings that she would have been entitled to on those mutual funds" and instructed the                                                                                                                                                                                                   

parties   to   file   briefs   calculating   the   value   of   those   earnings   and   providing  a   clear  

methodology   for   their   calculations   and   authority   for   adopting   the   methodology.   

Mendenhall transferred Erwin $164,757.43 in cash, which she received on January 5,                                                                                                                                                                                                            

2016.   In an order clarifying scheduling, the court stated that it was satisfied with the                                                                                                                                                                                                

$164,757.43 value at the time of the transfer and considered the issue resolved.                                                                                                                                                                                                

                                             Erwin then filed a brief on the lost investment earnings from the mutual                                                                                                                                                        

fund shares. She proposed calculating the earnings by multiplying total distributions per                                                                                                                                                                                                 

share by the number of shares in the account at the time of the transfer.  She based the                                                                                                                                                                                                  

total distributions per share on information from websites of the mutual funds and from                                                                                                                                                                                             

                                             1     Erwin calculated that Mendenhall had received a total of $41,920.88 in  


investment earnings on these three funds over the relevant time period.  


                                             Mendenhall disputed Erwin's calculations and argued that the mutual fund  


shares had actually lost value during this time period. He argued that, because the funds  


had lost value, Erwin should reimburse him $17,616.61.  Mendenhall argued that the  


value  of  the  shares  of  each  of  the  mutual  funds  at  the  date  of  transfer  should  be  


multiplied by the change in value during the relevant time period to adjust the value of  


                       1                     Morningstar   is   a   company   that   provides   investment   information   to  


individual investors.                                                 AboutUs                         , M                                                       

us (last visited July 29, 2018).  


                                                                                                                                              -4-                                                                                                                                   7309

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the shares.                  Erwin filed a reply, arguing for the first time that Mendenhall tortiously                                                                                  

converted the shares of the mutual funds.                                                            

                                The superior court held oral argument in July 2016. Erwin and Mendenhall                                                                            

presented the same proposed methodologies and values that they had argued in their                                                                                                                   

briefs.   The court found that neither proposed method of calculating the earnings was                                                                                                                 

reliable because they were not based on any authority.                                                                               It awarded Erwin prejudgment                 

interest on the principal from the date of the transfer (February 11, 2014) until the date                                                                                                            

                                                                                                                                                         2     It accepted  Erwin's  

Erwin   received   the money (January                                                       5,   2016)   as a substitute.                                                                   

calculation  of  the  interest  and  ordered  Mendenhall  to  pay  Erwin  $11,730.47  in  


prejudgment interest.  


                                Erwin moved  for  reconsideration,  arguing  that she was entitled  to  the  


earnings under the judgment of divorce, that prejudgment interest was not an adequate  


substitute for the shares that would have been purchased with the earned income on the  


shares,  and  that  the  court  had  not  indicated  that  it  wanted  expert  testimony  or  an  


evidentiary hearing.  Because the court did not rule on the motion within 30 days it was  


deemed denied.3                            Erwin appeals.  


                                In September 2016 Erwin moved for actual and full attorney's fees and  


costs:  $41,956.87 in attorney's fees and $812.70 in costs.  She argued that she should  


be awarded full fees and costs because Mendenhall had acted in bad faith, and because  


attorney's fees were required to make her whole.  Mendenhall opposed, arguing that  


Erwin's fees were avoidable and had not been reasonably incurred.  Erwin later filed a  


supplemental  statement  of  fees  and  costs,  requesting  an  additional  $3,786.35  in  


attorney's fees and $1,195.00 in costs.  


                2               See  AS  09.30.070.  

                3               See  Alaska  R.  Civ.  P.  77(k)(4).  

                                                                                                     -5-                                                                                                     7309  

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                                                        In   December   2016   the   court   issued   an   order   that   it   was  considering  

awarding Erwin full or enhanced attorney's fees, but only those fees relating specifically                                                                                                                                                                                                                                 

to the UnionBanc account.                                                                                        The court ordered Erwin to resubmit a cost and fee affidavit                                                                                                                                                           

that included only those costs and fees.                                                                                                                                    Erwin filed a supplement to her motion for                                                                                                                                        

actual and full attorney's fees, stating that the total fees that directly related to the                                                                                                                                                                                                                                                                    

UnionBanc account was $41,017.93. She also filed for supplemental costs of $1,750.00.                                                                                                                                                                                                                                          

                                                        The court applied Alaska Civil Rule 82 to award attorney's fees.                                                                                                                                                                                                               It found   

that Erwin was the prevailing party and entitled to fees pursuant to Rule 82(b)(1).                                                                                                                                                                                                                                                                              It  

further found that Mendenhall had acted in bad faith and been vexatious and enhanced                                                                                                                                                                                                                                               

the fee award under Rule 82(b)(3)(G).                                                                                                                                        The court awarded Erwin $35,000 in fees,                                                                                                                                 

inclusive of costs.                                                           

                                                        Mendenhallchallenges                                                                             thevaluationoftheearned incomeon theshares and                                                                                                                                                      

the attorney's fee award in his cross-appeal.                                                                                    

III.                         STANDARD OF REVIEW                                                           

                                                        We "review de novo whether the trial court correctly applied legal rules                                                                                                                                                                                              

                                                                                                                                                                                                                     4         "A trial court's determination of  

pertaining to damages and prejudgment interest."                                                                                                                                                                                                                                                                                                                 

damages is a finding of fact which we affirm unless it is clearly erroneous."5  


                                                        "Awards of attorney's fees are reviewed for an abuse of discretion."6   "An  


award  of  attorney's  fees  'will  not  be  disturbed  on  appeal  unless  it  is  "arbitrary,  


capricious, or manifestly unreasonable." ' "7  


                            4                            City of Seward v. Afognak Logging                                                                                                                   , 31 P.3d 780, 783 (Alaska 2001).                                                                                 

                            5                           Beaux v. Jacob                                                   , 30 P.3d 90, 97 (Alaska 2001).                                                                        

                            6                           Hopper v. Hopper, 171 P.3d 124, 129 (Alaska 2007).  


                            7                           Limeres v. Limeres                                                               , 320 P.3d 291, 296 (Alaska 2014) (quoting                                                                                                                                              Ferguson  


                                                                                                                                                                                -6-                                                                                                                                                                    7309

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IV.	         DISCUSSION  


             A.	          Earnings On The Mutual Funds  


                          Both  Mendenhall  and  Erwin  appeal the court's award  of prejudgment  


interest in lieu of the value of the earned income on the shares of the mutual funds.  


Mendenhall argues that the court should have considered the decrease in value of the  


shares between the initial improper transfer and the transfer to Erwin and should order  


Erwin  to  reimburse  him  for  the  decreased  value.                                                      Erwin  argues  that  the  court  


inappropriately rejected her methodology for calculating the income on the shares of the  


mutual funds and substituted prejudgment interest.  We disagree with both arguments  


and affirm the court's decision.  


                          1.	         The court appropriately applied the principles of compensatory  


                                       damages to effectuate the property division.  


                          Erwin  argues  that  the  court  should  have  applied  the  principles  of  



compensatory damages in tort to calculate her award.                                                    She claims, as she did in her brief  


to  the  superior  court,  that  Mendenhall  should  pay  her  the  amount  of  earnings  she  


calculates he received before he transferred the three mutual funds to her.  Mendenhall  


objects to the application of the principles of compensatory damages for conversion,  


arguing  that  Erwin  never  argued  that  Mendenhall  converted  the  mutual  funds.  


Mendenhall argues that Erwin was only entitled to the value of the funds on January 5,  


2016, the date she received the transfer.  

             7	           (...continued)  


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

             8            See Beaux          , 30 P.3d at 97 ("The general principle underlying the assessment                                    

of compensatory damages in tort cases is that 'an injured person is entitled to be replaced                                                            

as nearly as possible in the position he [or she] would have occupied had it not been for  


the defendant's tort.' " (alteration in original) (quoting                                              Beaulieu v. Elliot                , 434 P.2d 665,       

670-71 (Alaska 1967))).  


                                                                                 -7-	                                                                        7309

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                                         WhileErwin                              never filed                       a conversion action, the                                                superior court did                                    find that  

Mendenhall took property that had been awarded to Erwin and prevented her from using                                                                                                                                                                      

that property for nearly two years. To effectuate the property division the superior court                                                                                                                                                                 

 apparently applied the principles of compensatory damages from conversion actions -                                                                                                                                                                               

                                                                                                                                                                                                                                                9      Under  

it awarded Erwin the value at the time of the improper transfer plus interest.                                                                                                                                                                       

these circumstances it was appropriate for the superior court to apply the principles of  


 compensatory damages.10  


                                         2.	                  Erwindidnot                                  presentadequateevidenceof                                                                    theshares'                          earnings,  

                                                              and the court appropriately awarded prejudgment interest as                                                                                                                                          

                                                              a substitute.   

                                         Erwin   argues   that   the   superior   court   erred   by   not   awarding   her  


 compensation for lost profits on the shares of the mutual funds. But the court found that                                                                                                                                                                     

Erwin had not met her burden of demonstrating the value of the income the mutual fund                                                                                                                                                                        

 shares had earned.                                          Such an award would likely have been available since "[l]oss of                                                                                                                                       


profits damages have been awarded in a variety of civil contexts, including tort actions  


 (both personal and business), breach of contract actions, antitrust suits, and suits for  

                     9                   See Rollins v. Leibold                                             , 512 P.2d 937, 944 (Alaska 1973) ("Damages in an                                                                                                      

 action of conversion generally are measured by the value of the item at the time it was                                                                                                                              

 converted plus interest.").                                                      

                     10                  See  Farmer  v.  Farmer,  259  P.3d  256,  262  (Wash.  2011)  (en  banc)  


 (approving use of tort law conversion measure of damages to grant wife equitable relief);  


In re Marriage of Langham & Kolde, 106 P.3d 212, 215-16 (Wash. 2005) (en banc)  


 (analogizing to tort conversion for family law issue was proper). Mendenhall argues that  


Erwin  was  unjustly  enriched  by  receiving  the  value  of  the  shares  on  the  date  that  


Mendenhall transferred the shares to his other account.   Unjust enrichment is not a  


 freestanding claim and is a prerequisite for restitution.  Alaska Sales & Serv., Inc. v.  


Millet, 735 P.2d 743, 746 (Alaska 1987).  The court found that Mendenhall took these  


 shares in violation of a court order; he has no claim for restitution.  


                                                                                                                                 -8-	                                                                                                                      7309

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infringement of a patent or trademark."                               But we require that loss of profits damages "be                          

'reasonably certain': the trier of fact must be able to determine the amount of lost profits                                             

from   evidence   on   the   record   and   reasonable   inferences   therefrom,   not  from   mere  

                                                           12  For example, to recover lost profits in a breach of  

speculation and wishful thinking."                                                                                                               

contract  action  "[t]he  party  seeking  damages  must  provide  a  reasonable  basis  for  


computing the award."13                     Erwin did not do so.  


                       The superior court explicitly instructed the parties to provide authority to  


support their method of calculating the income earned by the shares.14                                                   Erwin provided  


only general distribution statements for the three mutual funds and a memorandum  


explaining  her  approach.                      The  distribution  statements  and  explanation  that  Erwin  


provided do not appear to provide a reasonably certain basis for computing the loss of  


profits:  The distributions include long-term capital gains, short-term capital gains, and  


ordinary income.  No explanation was provided of the meaning of the different terms or  


            11         State  v.  Hammer,  550  P.2d  820,  824  (Alaska   1976).   

            12         Id.  at  824-25.   

            13         Power   Constructors,  Inc.   v.   Taylor   &  Hintze,   960   P.2d   20,   41   (Alaska  

 1998);  see City of Seward v. Afognak Logging, 31 P.3d 780, 787  (Alaska  2001) ("The   

plaintiff  bears  the  burden  of  proving  damages,  but  once  the  existence  of  damage  has  been  

established,   the   amount   of   loss   need   not   be   proved   with   mathematical   precision.");   

Hammer,  550  P.2d  at  827  (holding  that  in  eminent  domain  cases  "the  condemnee  has  the  

burden  of  proving  by  a  preponderance  of  the  evidence  the  amount  of  profits  lost  as  a  

direct result  of  the  state's  taking;  such  proof  must  meet t  he  requirement  of  reasonable  

certainty  as  indicated").  

            14         Cf. Oberhansly v. Oberhansly, 798 P.2d 883, 888 (Alaska 1990) ("[T]he  


proper course would have been for the court to . . . order the parties to present points and  


authorities or introduce expert testimony to support their positions about the tax effects  


of distributing the retirement account.").  


                                                                        -9-                                                                7309

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

what was actually paid out to shareholders.                                                                                                                                  The court did not err by finding that Erwin                                                                                                        

did not provide a reasonable basis to compute the actual value of earned income.                                                                                                                                                                                                                  

                                                     Erwin also argues that the superior court denied her claim without an                                                                                                                                                                                                                    

explanation. But the court explained its decision: The parties presented wildly different                                                                                                                                                                                                                              

accounts of the shares' earnings over the relevant period, neither party provided an                                                                                                                                                                                                                                                          

expert to explain the proper methodology, and the court did not find either party's                                                                                                                                                                                                                                        

method reliable.                                                    

                                                     Erwin also argues that the superior court should have notified the parties                                                                                                                         

that it required expert testimony or an evidentiary hearing if it was unsatisfied with the                                                                                                                                                                                                                                                  

methodologies they presented.                                                                                                But it is the responsibility of the parties to prove their                                                                                                                                               

case and to request an evidentiary hearing; Erwin waived her right to an evidentiary                                                                                                                                                                                                                       


hearing by not requesting one before the court ruled.                                                                                                                                                                      

                                                     In light of this evidentiary vacuum, it was appropriate for the superior court  


to award Erwin prejudgment interest. Prejudgment interest is meant to "compensate the  


 successful claimant for losing the use of the money between the date he or she was  


entitled to it and the date of judgment."16  Erwin argues that interest is not a substitute for  


loss of profits or loss of use, but we have recognized that "[i]n no event should both  


                           15                        See Corbin v. Corbin                                                                   , 68 P.3d 1269, 1274 (Alaska 2003) ("Both parties                                                                                                                                

were represented by counsel and nothing indicates that they were misled in any respect                                                                                                                                                                                                                                      

concerning how the court would proceed.                                                                                                                                 Therefore [appellant] waived his right to an                                                                                                                           

evidentiary hearing on disputed material questions of fact by his failure to request one                                                                            

before the court ruled.");                                                                            John's Heating Serv. v. Lamb                                                                                                , 46 P.3d 1024, 1036 (Alaska                                                           


                           16                        Bevins v. Peoples Bank & Tr. Co., 671 P.2d 875, 881 (Alaska 1983); see  


also Davis v. Chism,  513 P.2d 475, 481 (Alaska 1973) ("[P]re-judgment interest is  


necessary to compensate the plaintiff, not only for the amount by which he has suffered  


damages in the usual sense but also for the loss of use of the money to which he has been  



                                                                                                                                                                     -10-                                                                                                                                                             7309

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

interest and damages for loss of use be allowed, since loss of use damages generally are                                                             


considered to be in lieu of interest, and to grant both would allow a double recovery."                                                                     

The superior court appropriately applied prejudgment interest to compensate Erwin for  



her loss of use of the shares.                           


                        3.	         Erwin's argument about the motion for reconsideration has no  



                        Erwin argues that it was error for the superior court not to rule on her  


motion  for  reconsideration.                         We  disagree.              Alaska  Civil  Rule  77(k)(4)  specifically  


provides that if the court does not rule on a motion to reconsider, it is "taken as denied."  


Erwin's argument has no merit.  


                        Even assuming that Erwin intended to argue that the superior court abused  


its discretion by denying her motion for reconsideration, we find no abuse of discretion.  


 "[A]buse of discretion exists when a party has been deprived of a substantial right or  


seriously  prejudiced  by  the  lower  court's  ruling."19  


                                                                                                     Erwin  argued  that  the  court  


overlooked the following: that Mendenhall did not follow the court's direction to submit  

            17	         Rollins v. Leibold             , 512 P.2d 937, 946 (Alaska 1973).                  

            18          Erwin further argues that allowing Mendenhall to keep the dividends that  


the shares earned while wrongfully in his possession would unjustly enrich him.  But  


"unjust enrichment is not in and of itself a theory of recovery."  Alaska Sales & Serv.,  


Inc. v. Millet, 735 P.2d 743, 746 (Alaska 1987). Unjust enrichment "is a prerequisite for  


the enforcement of the doctrine of restitution" because "if there is no unjust enrichment,  


there is no basis for restitution."  Id.   "Restitution, an equitable remedy based on the  


concept of quasi-contract, is only available when there is no adequate remedy at law."  


Haines v. Comfort Keepers, Inc., 393 P.3d 422, 428 (Alaska 2017) (footnote omitted).  


As we have noted, Erwin appears to argue that Mendenhall converted her property  


although she did not file a conversion claim.  Even if she had, conversion has adequate  


remedies at law, and unjust enrichment is not generally available.  See id.  


            19          Wagner v. Wagner, 299 P.3d 170, 173 (Alaska 2013).  


                                                                         -11-	                                                                   7309

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

an earnings calculation, that an award of interest to her did not adequately effectuate the                                                                                                                                   

property division, that interest is not a substitute for earnings, that Mendenhall continued                                                                                                                

to violate the property division, and that the parties had not been informed by the court                                                                                                                                

that they should present expert testimony.                                                                      In light of the whole record, these arguments                                              

do not show that the court's denial was "so unreasonable or so prejudicial as to amount                                                                                                                           

to an abuse of discretion" in denying her motion for reconsideration.                                                                                                                  20  

                  B.               Attorney's Fees  


                                   Alaska Civil Rule 82 governs the award of attorney's fees in civil cases.  


"Rule 82 applies to post-judgment modification and enforcement matters in domestic  


relations  disputes"  and  "fees  are  appropriately  awarded  under  the  prevailing-party  




standard of Rule 82 as to post-judgment money and property disputes."                                                                                                                               The superior  



court  appropriately  applied  Rule  82  and  calculated  attorney's  fees.                                                                                                                           Mendenhall  


challenges the superior court's award.  


                                    This court reviews underlying fact findings in an attorney's fee award for  


clear error.                       A factual finding is clearly erroneous if "our review of the record leaves  



us with the definite and firm conviction that the superior court has made a mistake." 

The court found that Mendenhall affirmatively tried to conceal his attempts to violate the  


property  division  by  failing  to  disclose  the  transfer  and  failing  to  answer  Erwin's  


requests for information.  The record demonstrates that Mendenhall never provided an  


accounting of the missing shares despite the court's September 2014 order to do so. The  


                  20               Id.  at   175.  

                  21               Johnson  v.  Johnson,  239  P.3d  393,  399-400  (Alaska  2010).  

                  22               See  id.  at  399.  

                  23               Ranes  &  Shine,  LLC  v.  MacDonald  Miller  Alaska,  Inc.,  355  P.3d  503,  508  

(Alaska  2015)  (quoting  Gilbert  M.  v.  State,   139  P.3d  581,  586  (Alaska  2006)).  

                                                                                                              -12-                                                                                                       7309

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

 court also found that Mendenhall's statements to the court that he had inadvertently                                                                                                                               

 transferred the funds to his children's college funds and that he had been unable to                                                                                                                                                               

 transfer the funds without Erwin's account number were disingenuous.                                                                                                                                                   The record   

 supports this finding:                                         Mendenhall transferred the funds to a different personal account                                                                                                    

 between the date that the court issued its conclusions of law and the date of its final                                                                                                                                                     

judgment; the letter of authorization he provided to UnionBanc instructed UnionBanc                                                                                                                                       

 to sell the assets before transferring them to Erwin and to provide Erwin no information                                                                                                                                


 about the account.                                         

                                       Under Rule 82(b)(3) the superior court can vary an attorney's fee award  


 based on a number of factors, one of which is "vexatious or bad faith conduct."  The  


 court  found  that  Mendenhall's  conduct  was  both  vexatious  and  in  bad  faith  and  


 warranted an enhanced fee award.  The court's findings about Mendenhall's behavior  


 were not clearly erroneous, and it was not an abuse of discretion to enhance fees based  



 on his conduct.                                   


                    24                 Mendenhall   argues   that   his   offers   to   pay   Erwin   the   amount   of   the  

 transferred shares demonstrate that his litigation conduct was not vexatious or in bad                                                                                                                                        

 faith.     But   regardless   of   any   statements   of   his   willingness   to   transfer   the   funds,  

 Mendenhall never provided an accounting of the missing funds and did not initiate a                                                                                                                                                                   

 transfer   of   the   funds   until   December   2015.     In   light   of   the   record   as   a   whole,  

 Mendenhall's statements that he was willing to transfer the funds do not demonstrate that                                                                                                                                                       

 the court's findings about Mendenhall's conduct were clearly erroneous.                                                                                                                                             

                    25                 Mendenhall argues that  Richmond v. Richmond,  779  P.2d  1211,  1217  


 (Alaska 1989), overruled on other grounds by Hansen v. Hansen, 119 P.3d 1005, 1010  


 & n.16 (Alaska 2005), and Jones v. Jones, 666 P.2d 1031, 1035 (Alaska 1983), require  


 the superior court to award attorney's fees to compensate Erwin only for any increase in  


 fees caused by Mendenhall's conduct.  But those cases concern attorney's fees in the  


 initial divorce action which is generally exempt from Rule 82, and not the post-divorce  


 enforcement action at issue here. Johnson, 239 P.3d at 399-400.  Attorney's fees in this  


 case were appropriately calculated under Rule 82, under which fees can be enhanced for  



                                                                                                                        -13-                                                                                                                 7309

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


                  The superior court's decision is AFFIRMED.  


         25       (...continued)  


vexatious or bad faith conduct without evidence of causation.  See id.; Alaska R. Civ.  


P. 82(b)(3)(G).  

                                                          -14-                                                 7309

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