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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burns-Marshall v. Krogman (11/9/2018) sp-7314

Burns-Marshall v. Krogman (11/9/2018) sp-7314

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

SKYLAR  J.  BURNS-MARSHALL,                                          )  

                                                                     )      Supreme  Court  No.  S-16808  

                                Appellant,                           )  


                                                                     )      Superior Court No. 3AN-16-10010 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


VICTORIA A. KROGMAN,                                                 )  


                                                                     )     No. 7314 - November 9, 2018  

                                Appellee.                            )  



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


                      Judicial District, Anchorage, Frank A. Pfiffner, Judge.  


                      Appearances: Allison Mendel and John J. Sherman, Mendel  


                      Colbert  &  Associates,  Inc.,  Anchorage,  for  Appellant.  


                      Douglas  C.  Perkins,  Hartig  Rhodes  LLC,  Anchorage,  for  



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


                      and Carney, Justices.  


                      CARNEY, Justice.  



                      A divorcing couple disputed custody of their child and division of their  


marital property.  The wife alleged for the first time during trial that the husband had  


engaged in a pattern of domestic violence.   The court found her testimony credible,  


applied the statutory domestic violence presumption, and awarded her primary physical  


and sole legal custody of the child.  The husband filed a motion to reopen the evidence  

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


regarding domesticviolence and substance abuse morethanamonth after thecourt's oral  


decision.  The court denied his motion.  The court divided the marital property 60/40 in  


favor of the wife, awarded all of the real property to the husband, and ordered him to  


make an equalization payment.  


                    The husband appeals the denial of his motion to reopen the evidence and  


the property division.  Because the husband waived any argument that he should be  


allowed to present additional evidence and the court did not abuse its discretion in its  


property division, we affirm.  



          A.        Facts  


                    Skylar Burns-Marshall and Victoria Krogman married in Anchorage in  


June  2007.         Their  only  child  was  born  in  2011.                  They  owned  a  condominium  in  


Anchorage and a vacant lot in Homer.   They separated in October 2016 and shared  


custody of the child.  


                    Burns-Marshall  worked  seasonally  as  a  pipe  layer  and  found  other  


temporary employment or collected unemployment compensation during the winter.  


Krogman worked at various jobs during the marriage. After her separation from Burns- 


Marshall, Krogman moved to Arizona. At the time of trial she was enrolled in a nursing  


program at an Arizona university.  

          B.        Proceedings  

                    1.       Pre-trial  


                    Burns-Marshall filed for divorce in November 2016 and sought joint legal  


and shared physical custody of their child.  In her answer Krogman denied that Burns- 


Marshall was fit to have joint legal and shared physical custody and asked for sole  


custody, with reasonable visitation for Burns-Marshall.  

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                    The  parties  filed  a  number  of  pretrial  motions.                         In  her  pleadings  and  


motions  Krogman  made  seemingly  inconsistent  statements  about  the  trial  and  her  


marriage with Burns-Marshall. In a November motion she referred to Burns-Marshall's  


"harsh  and  controlling  behavior  throughout  the  marriage,"  and  alleged  that  Burns- 


Marshall had previously been convicted of minor consuming alcohol and that he "still  


drinks to excess." But in January 2017 Krogman opposed Burns-Marshall's motion for  


the appointment of a child custody investigator because their child was too young for an  


interview to be helpful and because there were no "bad facts" or anything "so unusual  


or troubling about this case" that would require a child custody investigation.   In a  


February motion to set a trial date Krogman characterized the divorce as "a routine  


relocation custody case . . . and a simple property case"; she stated both issues would be  


"very straightforward and . . . easy to prepare for and address at trial."  


                    The  superior  court  scheduled  a  3-day  trial  in  April  and  ordered  that  


discovery be completed 14 days before the start of the trial.  Burns-Marshall conducted  


no discovery; he did not depose Krogman or send her interrogatories.  


                     Shortly before trial both parties filed trial briefs. Burns-Marshall requested  


primary physical custody and shared legal custody.  Krogman argued that she should  


have sole legal and exclusive physical custody, and alleged that Burns-Marshall did not  


care for the child's basic needs.  


                    2.         Trial  


                    The trial took place over 4 days in April 2017.  


                    Burns-Marshall testified that he and Krogman were both great parents and  


that neither of them had substance abuse problems or had committed domestic violence.  


Krogman's counsel did not question him about domestic violence or substance abuse.  


Burns-Marshall also called several witnesses including one who mentioned an incident  


during which Krogman threw a picture frame at Burns-Marshall.  

                                                                -3-                                                         7314

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                               In her testimony Krogman criticized Burns-Marshall's parenting, alleging                                                                              

that he did not take care of their child's hygiene or safety, made homophobic and racist                                                                                                   

comments in front of the child, and did not support her relationship with the child.                                                                                                          She  

also    testified    that    Burns-Marshall    had    substance    abuse    issues    throughout    their  

relationship.   Krogman testified that there had been incidents of domestic violence both                                                                                                    

before and during their marriage.                                             Krogman testified that Burns-Marshall had sexually                                                    

assaulted her                    on   a number                    of occasions and                          asked   the court to                          apply   the statutory   


presumption regarding domestic violence in its custody determination.                                                                                                  

                               Burns-Marshall  objected  to  Krogman's  request  to  apply  the  domestic  


violence presumption, arguing that it was inappropriate toinvokewithout raising it in her  


original answer as a counterclaim.  The court overruled his objection, holding that the  


presumption could be raised at any point.  


                               The court scheduled an additional day of trial to allow Burns-Marshall to  


rebut Krogman'sevidence. Burns-Marshall assertedthattwohours on the additional day  


of trial would be sufficient to present his rebuttal.  Burns-Marshall called five rebuttal  


witnesses  who  testified  that  Krogman  had  never  told  them  that  Burns-Marshall  


committed  domestic  violence  or  had  a  substance  abuse  problem.                                                                                              Burns-Marshall  


testified that he had never sexually assaulted Krogman or been physically violent against  


her.  Krogman then called three surrebuttal witnesses.  And the court permitted Burns- 


Marshall to briefly testify again to address the surrebuttal evidence.  


                               The superior court made oral findings on April 27. It found Krogman more  


crediblethan Burns-Marshall and found by apreponderanceoftheevidencethat multiple  


acts of domestic violence, including several incidents of sexual assault, had occurred.  




                               See AS 25.24.150(g) (creating rebuttable presumption against awarding  


sole or joint custody to parent with history of perpetrating domestic violence).  

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The court also found the incident where Krogman threw a picture frame at Burns- 


Marshall to be an incident of domestic violence but did not find that Krogman had  


committed any other domestic violence.   Because it found that Burns-Marshall had  


engaged in a pattern of domestic violence but that Krogman had not, the court applied  


the  domestic  violence  presumption  and  awarded  Krogman  sole  legal  and  primary  


physical custody.  The court also found in the alternative that it would have awarded  


Krogman sole legal and primary physical custody based upon its consideration of the  


child's best interests.  The court applied the factors listed in AS 25.24.150(c), finding  


that Krogman was better able to meet the child's needs, that the parties would not be able  


to cooperate, that Burns-Marshall had committed domestic violence, and that Burns- 


Marshall abused alcohol.  


                    Thecourt ordered that Burns-Marshallhavecontact with thechild by Skype  


or  Facetime twice a week.                   It ordered  Burns-Marshall to  obtain  a substance abuse  


assessment and comply with its recommendations, as well as to complete a domestic  


violenceinterventionprogram. Thecourt ordered that Burns-Marshall would beallowed  


to have unsupervised visits over Thanksgiving, Christmas, and spring vacation after he  


completed any recommended treatment.  


                    Turning to the property division, the superior court determined that a 60/40  


split of the marital assets in Krogman's favor was fair and equitable. The court observed  


that Krogman would no longer have health insurance and that the disparity in the parties'  


income required it to deviate from a 50/50 split.  The court found that Burns-Marshall  


had an earning capacity of more than $100,000 per year, while Krogman's current  


earning capacity was around $15,000 per year and would likely be $50,000 to $55,000  


per year after she obtained her nursing degree.  


                    The court accepted the parties' stipulated values for their real property  


($130,000 for the Anchorage condo and $120,000 for the Homer lot) and awarded both  

                                                               -5-                                                         7314

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

of the properties to Burns-Marshall. It awarded Burns-Marshall the $112,334.26 in debt                                                                                                                   

on the Anchorage property and $57,008.39 in debt on the Homer property, and stated                                                                                                                   


that Burns-Marshall could choose to keep or sell both properties.                                                                                                 


                                 The court ordered Burns-Marshall to make an equalization payment to  


Krogman. It recognized that there "may be a problemfunding the equalization payment"  


and that Burns-Marshall would have "to deal with that either by selling assets or by  


taking money, if he can, out of his pension retirement."  The court also ordered Burns- 


Marshall to pay rehabilitative alimony of $1,000 per month for two years, and it awarded  


Krogman $7,500 in attorney's fees due to the economic disparity between the parties.  


                                 3.              Post-trial motions  


                                 In June Burns-Marshall filed a motion to reopen the trial record under  


Alaska Civil Rule 59 "on the grounds that [he] had no notice of the issues to be tried and  


was unable to present relevant evidence as a result."  He argued that he would have  


presented different evidence at trial if he had notice that Krogman would allege domestic  


violence  and  substance  abuse.                                                  Burns-Marshall  alleged  that  Krogman  deliberately  


concealed her intended arguments before trial.  Krogman opposed, arguing that Burns- 


Marshall  had  waived  any  right  to  reopen  discovery  and  that  he  had  actual  and  


constructive notice of the allegations of substance abuse and domestic violence.  The  


superior court found no good cause to reopen the trial record and denied the motion.  


                                 In July the court issued its decree of divorce and its written findings of fact  


and conclusions of law.   The written findings of fact and conclusions of law recited  


almost verbatim its oral decision except that the court had calculated the precise amount  

                2                The Anchorage property was solely in Burns-Marshall's name.                                                                                              The court   

also ordered that, if Krogman was still on the title for the Homer property, Burns-                                                                                                              

Marshall had to remove her from the title within a year or sell the property.                                                                                                            

                                                                                                      -6-                                                                                             7314

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of the equalization payment to $73,266.29.                                      


                        Burns-Marshall filed a motion for reconsideration of the superior court's  


property division, asking the court to consider the costs and risks involved in selling the  


property and to modify the property division by awarding Krogman the Homer lot or,  


alternatively, calculating the equalization payment based on the actual sale price.  He  


argued that he would receive significantly less than 40% of the marital estate once the  


cost of selling the property was taken into account.  Krogman opposed, arguing that  


Burns-Marshall was not required to sell either property. The court denied the motion for  




                        In November the court entered a partial final judgment against Burns- 


Marshall in the principal amount of $73,266.29 and attorney's fees in the amount of  


$7,500 plus statutory interest.  


                        Burns-Marshall appeals the superior court's denial of the motion to reopen  


and its property division.  




                        "We  review  a  superior  court's  ruling  on  a  party's  request  to  reopen  



evidence for abuse of discretion." 

                        "The valuation of property is a question of fact and is reviewed for clear  


error."5        "The superior court's ultimate distribution of assets is reviewed for abuse of  


            3           The   court   also   changed   the   day   of   one   of   the   scheduled   weekly   calls  

between Burns-Marshall and the child.                                   

            4           Snider v. Snider, 357 P.3d 1180, 1184 (Alaska 2015).  


            5           Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006).  


                                                                           -7-                                                                    7314

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discretion, and will be reversed only if the distribution is clearly unjust."                                        6  



           A.	        The Trial Court Did Not Abuse Its Discretion When It Declined To  


                     Reopen The Trial Record.  


                     Burns-Marshall argues that the superior court abused its discretion by  


denying his motion to reopen the trial record 47 days after its oral decision. We disagree.  


                     During the trial Burns-Marshall did not object to evidence of substance  


abuse or domestic violence; he only objected to the application of the domestic violence  


presumption. Burns-Marshall affirmatively stated that two hours of additional trial time  

                                                                                                                            7   Burns- 


for rebuttal "should be more than enough" to present his rebuttal witnesses. 

Marshall did nothing to suggest that he wished to present additional evidence after  


presenting his rebuttal andsur-surrebuttal. Thetrialcourt could reasonably concludethat  


filing a motion to reopen the trial record 47 days after the court's oral decision was  


insufficient to preserve Burns-Marshall's opportunity to present additional evidence.8  


Accordingly it was not an abuse of discretion to find "no good cause" to reopen the trial  




           6	        Id.   



                      Cf. Wright v. Black, 856 P.2d 477, 480 (Alaska 1993) (concluding that  


appellant had waived right to object to his lack of notice that paternity would be at issue  


at  child  support  modification  hearing  because  he  failed  to  object  when  the  master  


"announced at the beginning of the hearing that he would resolve the paternity issue, . . .  


asked if anyone had a problem with his taking testimony on both issues, . . . [and]  


directed his questions to the paternity issue"), overruled on other grounds by B.E.B. v.  


R.L.B., 979 P.2d 514 (Alaska 1999).  

           8          Cf. Jaymot v. Skillings-Donat, 216 P.3d 534, 544 (Alaska 2009) ("An issue  


raised [for the first time in a motion for reconsideration] is untimely and is not properly  


before the court on appeal.").  


                                                                   -8-	                                                            7314

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                       The superior court is required to consider evidence of domestic violence in                                                   


a   child   custody   determination.                                                                                                    

                                                             The  "primary  purpose"  of  the  statutory  domestic  


violence presumption in child custody cases is "to protect children from potentially  


adverse custody determinations in response to growing evidence that domestic violence  


has severe and long-lasting effects on children . . . by ensuring that domestic violence [is]  



adequately and specifically included when courts analyzed a child's best interests." 

Krogman alleged a pattern of domestic violence by Burns-Marshall; it was appropriate  


and necessary for the court to consider it.  


                       Burns-Marshall   objected   to   application   of   the   domestic   violence  


presumption  because  he  was  surprised  by  Krogman's  request.                                                    But  he  could  have  


avoided such a surprise: he could have conducted discovery before trial. Even if he had  


not done so, he could have asked for a continuance of the trial to conduct discovery when  


Krogman raised the issue, or he could have filed a timely motion to reopen the evidence  


following the court's application of the presumption against him. Burns-Marshall failed  


to do any of these things; it was reasonable to find he was not entitled to introduce new  


evidence over a month after the court's decision.11  


            B.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Failing  To  


                       Address The Costs And Risks Of Sale Of The Property.  


                       Burns-Marshall argues that the court abused its discretion by failing to take  


            9          Sarah  D.  v.   John   D.,    352    P.3d   419,    430    (Alaska   2015)    ("Under  

AS    25.24.150(g)   superior   courts    must    'consider    alleged    incidents    of    domestic  

violence.' " (quoting                Parks v. Parks             , 214 P.3d 295, 302 (Alaska 2009) (per curiam))).                     

            10          Williams v. Barbee, 243 P.3d 995, 1001 (Alaska 2010).  


            11         Because we find that the court did not abuse its discretion in denying  


Burns-Marshall's motion to present additional evidence we do not reach his due process  




                                                                         -9-	                                                                  7314

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into account the costs and risks associated with selling the real property it awarded to                                                                                                         

him and that it therefore clearly erred in its valuation of the property.                                                                                      We disagree.   

                              "[T]he superior court must consider sales costs when its property division                                                                           

                                                                                                                                                                                       12  But  

is premised on an economically disadvantaged party being forced to sell a house."                                                                                                            

that was not the case here:  the court found that Burns-Marshall was the economically  


advantaged party and allowed him to decide whether to sell the property awarded to  




                              The court divided the property 60/40 in Krogman's favor because of the  


disparity in the parties' earning capacity and because she would no longer have health  


insurancethrough Burns-Marshall'sjob. ItfoundthatBurns-Marshall'searning capacity  


of more than $100,000 per year was much greater than Krogman's $15,000, or even the  


$50,000 or $55,000 she could earn after completing her nursing degree.  Because the  


court recognized that it was unrealistic to expect the parties to cooperate to sell the  


properties, it awarded them to Burns-Marshall.  Sale of either property and payment of  


costs associated with the sale would not defeat the court's intent to award Krogman a  


greater portion of the marital estate because of her significantly smaller earning capacity.  


                              Furthermore, the superior court is only required to consider the cost of sale  


of awarded property in a property division when the sale is certain and the direct result  


               12             Beal v. Beal                , 88 P.3d 104, 117 (Alaska 2004);                                           see Fortson v. Fortson                              , 131   

P.3d 451, 461 (Alaska 2006);                                            Tollefsen v. Tollefsen                            , 981 P.2d 568, 571-72 (Alaska                           


               13             Fortson, 131 P.3d at 461 ("Where a court order or external conditions force  


a party to sell, the court must grant the party necessary costs because 'the court's failure  


to   make   provision   for   the   costs   of   repairs   and   sale   of   the   real   property  


awarded . . . defeat[s] its stated goal of awarding [an economically disadvantaged party]  


the greater share of the marital estate.' " (alterations in original) (quoting Tollefsen, 981  


P.2d at 572)); see also Beal, 88 P.3d at 117.  


                                                                                              -10-                                                                                       7314

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


of the property division.                                                      Here the court acknowledged that Burns-Marshall could                                                                                                    

decide whether to sell or keep the properties, even though it recognized that Burns-                                                                                                                                                

Marshall would likely have to sell or liquidate some assets to make the equalization                                                                                                                                 

payment.   While the court's property division made it likely that Burns-Marshall would                                                                                                                                                

have to sell or liquidate some property to make the equalization payment to Krogman,                                                                                                      

the sale of the real property was not so certain as to require the court to consider the                                                                                                                                                        

                                                                      15   Under these circumstances, it was not an abuse of discretion  

consequences of its sale.                                                                                                                                                                                                    

to award Burns-Marshall the property without considering the costs of sale.16  


V.                 CONCLUSION  

                                      We AFFIRM the superior court's orders.  


                   14                  Tollefsen, 981 P.2d at 572;                                                    cf. Dundas v. Dundas                                            , 362 P.3d 468, 477-78                        

(Alaska 2015) (holding that tax consequences of sale must be considered when court                                                                                                                                                        

"orders that property be distributed in a way that creates an immediate and specific tax                                                                                                                                                        

liability" (quoting                                  Oberhansly v. Oberhansly                                                     , 798 P.2d 883, 887 (Alaska 1990))).                                                                       We  

have only                      required the court to                                             consider  the sales costs when                                                              sale of the awarded               

property is "inevitable."                                              Fortson, 131 P.3d at 461.                                      

                   15                  Cf. Dundas, 362 P.3d at 478-80 (finding that tax consequences had to be  


considered for equipment sold before property division, property already in process of  


being sold at time of trial, and property that court approved sale of before trial).  


                   16                 Burns-Marshall also argues that the court did not provide a reasonable  


period for Burns-Marshall to sell the property before issuing a judgment and imposing  


interest.  But Burns-Marshall does not provide any citations or legal arguments for why  


that was error and the issue is waived.  See Kollander v. Kollander, 400 P.3d 91, 94 n.3  


(Alaska 2017) ("Because [appellant] addresses these issues only cursorily and does not  


cite to authority for either argument, we consider them waived.").  


                                                                                                                       -11-                                                                                                                7314

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