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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fletcher v. Fletcher (11/30/2018) sp-7318

Fletcher v. Fletcher (11/30/2018) sp-7318

         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  



DAVID B. FLETCHER,                                    )  

                                                      )   Supreme Court No. S-16508  

                           Appellant,                 )  

                                                      )   Superior Court No. 3AN-14-05223 CI  

         v.                                           )  

                                                      )   O P I N I O N  

LINDA FLETCHER, n/k/a Linda                           )  

Occhipinti,                                           )   No. 7318 - November 30, 2018  


                           Appellee.                  )  


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


                  Judicial District, Anchorage, Gregory Miller, Judge.

                  Appearances:    Mario  L.  Bird,  Ross,  Miner  &  Bird,  PC,

                  Anchorage, for Appellant.  David  S. Houston, Houston &


                  Houston, PC, Anchorage, for Appellee.

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

                  and Carney, Justices.

                  WINFREE, Justice.

                  STOWERS, Chief Justice, dissenting in part.


                  The  primary  issues  in  this  divorce  case  are  whether  the  superior  court  

abused its discretion by determining the parties' separation date and erred by dividing  

the marital estate 50/50.  For the reasons that follow, we answer "no" to the former and  


"yes" to the latter.  

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


          A.        Facts  


                    Linda and David Fletcher were married in 1990. They have three children,  


one of whom was a minor at the time of their 2015 divorce trial. The parties dispute their  


separation date:  Linda argues it was in 2010, when David physically moved out of the  


house and began living in his truck; David argues it was in 2014, when Linda filed for  


                    1.       Domestic violence; David moves out of the house  

                    Linda  twice  petitioned  for  domestic  violence  protective  orders  against  

David during the marriage, first in 2001 and again in 2010.  Both petitions were granted.  


David moved out of the marital home and into his truck around the time Linda filed the  


second petition in February 2010. Although David came to the house to pick up his mail,  


see the children, and do repair and improvement projects (some of which Linda testified  

she did not request), he did not live or sleep in the house again.  

                    2.       Linda's and David's employment and finances  


                    During the marriage Linda worked in the legal administrative field, and  

David worked through the International Brotherhood of Electrical Workers (IBEW) local  

union hall as an electrical contractor and an electrician.   Linda handled the parties'  


finances.    They  ceased  maintaining  a  joint  bank  account  a  couple  of  years  into  the  

marriage, and in 2001 separately filed bankruptcy declarations "due to debts arising from  


David's business."  Linda paid the family's monthly expenses and invoiced David each  


month for his share of the costs to feed, clothe, and house the family.  She also paid and  


invoiced David for his expenses, including car insurance.  Linda testified that in 2010,  


after David moved out of the marital home, they agreed he would pay $1,200 per month  


for his share of the family expenses.  David made these payments sporadically and in  

                                                             -2-                                                        7318

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

installments until 2012, when he instead "made multiple direct and indirect payments to  

Linda and/or to/for the children."  


                   The parties obtained the marital home in 2002 through a foreclosure sale;  


it was purchased in Linda's name only, and the loan was in her name only.  David made  

major improvements to the home.  Linda refinanced the property in 2012; David testified  

that he had to sign documents "even though [he] wasn't living in the house."  The parties  

agreed the home was marital property.  

                   3.        David's health; insurance  


                   David was diagnosed with type II diabetes in 1992.  He has since suffered  


two heart attacks and a stroke; he had surgery related to the first heart attack.  David  

takes between 17 and 20 medications daily.   


                   Until  2007  the  family  had  health  insurance  through  Linda's  employer.  

Linda then switched the children's healthcare to Alaska Native Tribal Health Consortium  

(ANTHC) and dropped David from her employer's insurance plan.  David had access  


to health insurance through IBEW, but he could not rely on coverage because he was not  


always able to maintain the required minimum number of hours worked each week.  


According to one of David's attorneys, David would qualify for Medicare in January  

2017, two years after trial.  

          B.       Proceedings  

                   Linda  filed  for  divorce  in  February  2014,  alleging  a  February  2010  


separation date.  David admitted to the February 2010 separation date when he filed his  

answer, but he later argued in his pretrial brief and at trial that the February 2014 divorce  

filing should be the separation date.  


                   Trial was held over five days in the summer of 2015, and it was continued  


for a month due to David's medical issues.  When requesting the continuance, David's  

counsel also began arguing that the February 2010 separation date admission in David's  

                                                            -3-                                                      7318

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

answer had been amended to conform to the evidence presented at trial.  The superior  


court did not hear complete argument on this issue and did not expressly rule on this  


issue at that time or later in its findings; the issue was not addressed again by either party  

during trial.   

                    In  December  2015  the  superior  court  issued  a  divorce  decree  and  

supplemental  findings  of  fact  and  conclusions  of  law.    The  court  determined  that,  

"[a]lthough a close call," the separation date was February 2010, finding "[a]s of that  


date, the parties moved away from being an 'economic unit' or in any other sense a  

married couple, and . . . they have never reversed that course."    

                    The  superior  court  also  considered  the  AS  25.24.160(a)(4)  property  



division factors (the Merrill  factors)  and made relevant findings.  At the time of trial  


Linda was 52 and David was 62; Linda was in "better health," and "David's health [was]  


quite poor."  Linda was employed as a billing manager in a local law firm, and her future  


income was secure; she had about $6,000 in savings; she had two retirement accounts,  

one a marital IRA valued at about $87,000 and the other a non-marital 401(K) valued  

around $178,000; and she had health insurance through her employer and ANTHC.  


David was medically retired and receiving Social Security disability; he had two pension  


accounts, both marital; he had about $1,200 in savings; and he would have to pay for  

healthcare until 2017, when he would become eligible for Medicare.  The court also  


found that Linda cared for the couple's minor daughter in the family home and received  


child support from David's Social Security disability benefits; and that David lived in his  


truck, but would soon have an opportunity to live in a friend's house for 18 months at  

$600  per  month.    Determining  there  was  "no  reason  to  depart  from  the  50[/]50  

          1        Merrill v. Merrill , 368 P.2d 546, 547 n.4 (Alaska 1962).  

                                                             -4-                                                           7318  

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


presumption" property division, the court awarded Linda the marital home and ordered  

her to make an equalization payment of about $72,000 to David.  

                   After both parties timely moved for reconsideration, the superior court  


issued amended supplemental findings of fact and conclusions of law in May 2016.  The  

court once again considered the Merrill factors and determined that, although a "close  

call," it would not depart from the presumptively 50/50 property division.  


                    The parties appeared before the superior court in June to argue whether  


David should retain Linda's half of his monthly pension payments until the equalization  

payment she owed him was extinguished or whether David's pension should be split  

50/50 via Qualified Domestic  Relations Order (QDRO).  The court issued an order  


immediately entitling David to half of Linda's marital IRA and directed the parties to  

determine whether Linda's equalization payment to David would be made in a lump  

sum,  with  his  pension  payments  then  split  equally,  or  whether  he  would  retain  his  


pension payments in full until Linda's equalization payment was offset. The court "again  


considered the Merrill  factors" and found that, but for the changes regarding Linda's  

marital IRA, "th[e] court's Merrill findings remain[ed] unchanged."  


                   Linda then moved for reconsideration or clarification, and David filed a  


cross-motion for relief from judgment.  David argued that his medical condition had  

worsened due to kidney disease, constituting newly discovered evidence sufficient to  

merit reconsideration of the 50/50 property division.  The superior court ordered half of  


Linda's marital IRA transferred to David within ten days, executed QDROs dividing his  


pension payments, and ordered her to pay the balance of the equalization payment in full  


by refinancing the marital home.  The court denied David's cross-motion, reasoning that  


it had known of his extensive health issues and had properly balanced the parties' health  

when weighing the Merrill factors and allocating the marital estate 50/50.  

                                                             -5-                                                       7318

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

                   David  appeals,  arguing  that  the  superior  court  erred  by  determining  a  


February 2010 separation date and by dividing the marital estate 50/50.  


                   "Determining 'the separation date is a fact-specific inquiry' "2 reviewed for  


                             3  "There are three basic steps in the equitable division of marital  

abuse of discretion.  


assets:  (1) deciding what specific property is available for distribution, (2) finding the  



value of the property, and (3) dividing the property equitably."   "A property division is  

an abuse of discretion if it is clearly unjust; it will also be set aside if it is based on a  

clearly erroneous factual finding or mistake of law."5  


          A.	      The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Determining  

                   February 2010 Was The Separation Date.  

                   David  contends  the  superior  court  erred  by  determining  the  parties'  

separation date was February 2010, when Linda filed for a domestic violence protective  


order and he moved out of the marital home, rather than February 2014, when she filed  


for divorce.  David admitted in his answer the complaint's allegation that the separation  


date was February 2010, but at trial he testified that the parties separated when Linda  


filed for divorce in 2014.  Generally "admissions made in the pleadings are conclusively  

          2        Dundas v. Dundas , 362 P.3d 468, 472 (Alaska 2015) (quoting  Tybus v.  

Holland , 989 P.2d 1281, 1285 (Alaska 1999)).  

          3         Tybus, 989 P.2d at 1285.  

          4        Engstrom v. Engstrom , 350 P.3d 766, 769 (Alaska 2015) (quoting                                Beals v.  

Beals , 303 P.3d 453, 458 (Alaska 2013)).  

          5        Dunmore  v.  Dunmore ,  420  P.3d  1187,  1190  (Alaska  2018)  (quoting  


 Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)).  

                                                             -6-	                                                     7318

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


established."     But  Linda  has  not  argued  on   appeal   that  the  answer  conclusively  

established the separation date.  Moreover, this issue was actively litigated, and the court   


ruled on its merits.            We therefore review whether the court abused its discretion by  

determining February 2010 was the separation date.  


                    "Alaska law has defined [the separation date] as the point at which 'the  


marriage has terminated as a joint enterprise' or when a couple is no longer 'functioning  


economically as a single unit.' "   "Determining 'the separation date is a fact-specific  

               9 involving analysis of the parties' objective and subjective intent to terminate  

inquiry,' "                                                                     

the marital relationship.10  The superior court "has considerable discretion in this area";11  


separation date determinations have been affirmed based upon various factors such as  


sexual relations, economic support, commingled assets, joint tax returns, joint liability,  


a manifested desire to continue the marriage, and one party's physical act of re-keying  

          6         Darnall  Kemna   &  Co.  v.  Heppinstall ,  851  P.2d  73,  76  (Alaska  1993)  

(holding admissions in answer conclusive of liability and affirming partial summary  

judgment) (citing 9  J 

                                OHN  HENRY  WIGMORE ,   WIGMORE  ON   EVIDENCE   2590, at 822  

(James H. Chadborn rev. ed. 1981)).  

          7         Cf. Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 394 (Alaska 2017)   

("We  have  recognized  trial  by  consent  when  the  new  issue  was  identified  at  the  

beginning of trial and litigated by both sides . . . .").  

          8         Tybus, 989 P.2d at 1285 (quoting Hanlon v. Hanlon , 871 P.2d 229, 231  

(Alaska 1994)).  



                    Dundas v. Dundas , 362 P.3d 468, 472 (Alaska 2015) (quoting Tybus, 989  

P.2d at 1285).  

          10        Id. at 472 n.2 (quoting 1 BRETT R.  TURNER ,  EQUITABLE  DISTRIBUTION OF  

PROPERTY  5.28, at 435-36 (3d ed. 2005)).  

          11        Id. at 472 (citing Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986)).  

                                                              -7-                                                       7318

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


locks.       We review whether the determination has sufficient evidentiary support in the         


                    1.        Objective separation intent  

                    The objective element of separation is that "the parties must separate - live  

physically apart from one another."14  Linda testified that the parties physically separated  


in February of 2010.  The superior court found that in February 2010 Linda filed for and  


obtained a long-term domestic violence protective order against David; he moved into  

his truck, and he never again lived in the marital home.  


                    David nonetheless argues the date of separation should be February 2014  


because his "presence at [the] marital home was unrestricted from the time of the 2010  

[domestic violence] order until 2014," when one of his daughters informed him that the  

"locks were changed."  David cites Linda's testimony that from 2010 until 2014 "[he]  


would just come into the house whenever he wanted."  But her statement was in response  


to questions about his contact with their youngest child, not whether he still lived in the  

marital home.  


                    Linda testified that David frequently came to the house to fix things he  


observed to be broken, although she did not want him to do so.  There is conflicting  


testimony about whether Linda asked David to come to the house to fix certain things;  

he concedes that at least some work was done without her knowledge or consent.  For  


example, David was installing a barbeque in the backyard as a "surprise" for Linda and  

          12        Id.  at 473 (first citing       Inman v. Inman , 67 P.3d 655, 659-60 (Alaska 2003);  

then citing Tybus, 989 P.2d at 1285).  

          13        See Hanlon, 871 P.2d at 231.  

          14        Dundas , 362 P.3d at 472-73 & n.2 (quoting 1 TURNER ,  supra note 10,   

5.28, at 435-36).  

                                                               -8-                                                         7318

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

admits that he did not discuss it with her.  He also testified that he moved out of the  

marital home in 2010 and that he never actually lived there again.  Even if David did  


freely come and go from the house, the record supports the superior court's finding that  

                                                                                                       15 in February 2010.  


David and Linda began "liv[ing] physically apart from one another" 

                     2.        Subjective separation intent  

                     "The subjective element is that at least one party must intend to terminate  



the  marriage."              David  contends  both  parties  intended  to  continue  working  on  the  


marriage  from  2010  through  2014.    For  example,  he  notes  they  attended  church  


counseling gatherings with other couples on Fridays; he alleges Linda commented at the  


2010 domestic violence hearing that she wanted to continue working on the marriage;  


he points to his continued financial support, child care, and home improvements; and he  


cites his participation in refinancing the marital home.  David argues that he did not  


subjectively intend to terminate the marriage in 2010.  At trial he testified that he did not  


want a divorce and that the impending divorce was causing him to "fear for [his] eternal  



                     Linda testified at trial that she wanted to be separated in February 2010 and  


that in her mind there was no indication the parties were continuing to work on the  


marriage.   Linda also testified that she made no effort to reconcile the marriage after  

David  moved  out  in  2010.    She  informed  him  during  the  2010  domestic  violence  

proceedings of her desire to obtain a divorce, which he acknowledged; and she continued  


to attend Friday evening gatherings through their church only to maintain normalcy for  


their children.  Linda testified that, even though David continued to make repairs and  

          15        See id. at 472 n.2 (quoting 1 TURNER ,  supra note 10,  5.28, at 435-36).  



                    Id. (quoting 1 TURNER , supra note 10,  5.28, at 435-36).  

                                                                -9-                                                              7318  

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


improvements on the house, she did not want him there.  Thus, evidence supports the  


superior court's finding that Linda's subjective intent was to end the marriage in 2010.  

                    3.	      Joint economic enterprise  


                    The superior court's findings also discussed the economic facets of the  


parties' marriage.  The court found February 2010 to be the separation date because "[a]s  


of that date, the parties moved away from being an 'economic unit' or in any other sense  


a married couple."  The court noted that the February 2010 separation date was a "close  

call due to the unique way the parties handled their finances long before 2010," but  

ultimately found that despite their "exceptionally dysfunctional marriage, . . .  after 2010  

the parties grew even further apart, including economically, such that in th[e] court's  


estimation   they   were   no   longer   an   'economic   unit.'      They   still   had   financial  

entanglements, but they did not act as a unit, no matter how that might be defined."  


                    The superior court's assessment is supported by the evidence in the record.  

A few years into the marriage they ceased maintaining a joint bank account.  Linda  

instead  invoiced  David  each  month  for  his  share  of  the  household  expenses.    This  


continued until February 2010, when David ceased making regular contributions.  This  

shift in the parties' economic enterprise supports the February 2010 separation date.  

                    4.	      Conclusion  


                    Because the record, including the shift in finances, supports the parties'  


objective and subjective intentions to separate in February 2010, the superior court did  

not abuse its discretion by determining February 2010 was the separation date.  


          B.	       Based On The Findings Made, It Was An  Abuse Of Discretion To  


                    Divide The Marital Estate 50/50.  

                    When addressing the marital estate division, the superior court repeatedly  


found "no reason to depart from the 50[/]50 presumption."  David argues "[the court]  

committed  clear  error  by  accurately  describing  David's  reduced  circumstances,  yet  

                                                             -10-	                                                      7318

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

neglecting to award him a commensurately larger portion of the marital estate."17                                                    "A  


property division is an abuse of discretion if it is clearly unjust; it will also be set aside  


if it is based on a clearly erroneous factual finding or mistake of law."                                            

                     "In  determining  the  most  equitable  division,  the  'starting  point  is  the  


                                                                                         "The superior court may divide  

presumption that an equal division is the most just.' " 

the [estate] unequally if it finds that such a division is just after considering" "the Merrill  

                                                                                              20                       21 

v.  Merrill  factors  now  codified  in  AS  25.24.160(a)(4)."                                      The  factors           "are  'not  

           17        David also argues that we should reverse and direct that a 70/30 property                     

division be entered for him.                  But this would be procedurally improper.                           If we determine  

the "findings and evidence in the record do not justify" the superior court's marital estate                          

division,  we  "vacate  the  property  division  and  remand  for  an  equitable  division."  

McDougall v. Lumpkin , 11 P.3d 990, 993-94 (Alaska 2000).  

           18        Dunmore  v.  Dunmore ,  420  P.3d  1187,  1190  (Alaska  2018)  (quoting  

 Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)).  

           19        Hooper v. Hooper , 188 P.3d 681, 685 (Alaska 2008) (quoting Burcell v.  

Burcell , 713 P.2d 802, 805 (Alaska 1986)).  



                     Id. at 686 (footnote omitted); see Tollefsen v. Tollefsen , 981 P.2d 568, 570  

(Alaska 1999) ("[I]n making an equitable division of the property, the superior court  


must state the facts forming the basis of the division and address the relevant statutory  




                     AS 25.24.160(a)(4) provides that "division of property must fairly allocate  

the economic effect of divorce . . . based on consideration of the following factors":  

                                (A) the length of the marriage and station in life of the  


                     parties during the marriage;  

                                (B) the age and health of the parties;  

                                (C) the earning capacity of the parties, including their  


                     educational backgrounds, training, employment skills, work  


                     experiences,  length  of  absence  from  the  job  market,  and  



                                                                  -11-                                                            7318

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


exhaustive, and the trial court need not make findings pertaining to each factor, but its  

findings must be sufficient to indicate the factual basis for the conclusion reached.' "22  

                    In Day v. Williams we vacated and remanded a property division because  

we were "unable to determine how the superior court reached its conclusion that an equal  


division was just and equitable given the facts and circumstances of the case and the  



court's rather cursory explanation."                     We noted the court's failure to make a specific  


finding regarding the parties' health insurance although "it was apparent that [the wife]  

                                                                                                                      24  We  

had incurred and would likely continue to incur significant health care expenses." 

also noted that, despite acknowledging the wife's income would be dramatically reduced  

          21	       (...continued)

                    custodial responsibilities for children during the marriage;

                             (D) the financial condition of the parties, including the  


                    availability and cost of health insurance;  

                             (E) the conduct of the parties, including whether there  


                    has been unreasonable depletion of marital assets;  

                             (F) the desirability of awarding the family home, or the  


                    right to live in it for a reasonable period of time, to the party  


                    who has primary physical custody of children;  

                             (G) the circumstances and necessities of each party;  

                             (H) the time and manner of acquisition of the property  


                    in question; and  

                             (I) the income-producing capacity of the property and  


                    the value of the property at the time of division.  



                    Young v. Lowery, 221 P.3d 1006, 1014 (Alaska 2009) (quoting Nicholson  

v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)).  

          23        285 P.3d 256, 262 (Alaska 2012).  

          24	      Id.  

                                                             -12-	                                                      7318

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



and the economic downturn had negatively impacted the parties' assets, the court "did  

not  make  any  finding"  how  this  "affected  the  equitable  distribution  of  the  marital  


property."         Ultimately, we held:  


                   When even a superficial examination and balancing of the  


                    statutory factors appear to weigh in favor of the spouse who  

                    earns substantially less than the other spouse, a conclusory  

                    statement that "a 50[/]50 distribution of the marital estate is  


                    fair   given   all   of   the   circumstances"   does   not   provide  


                    sufficient information to permit meaningful review.  

                    Similar to the wife in Day , David's income  was substantially less than  



Linda's.  At trial his income was about one-third less;                            following trial his retirement  

income was halved by QDRO, leaving his income nearly two-thirds less than hers.28  


Also similar to the wife in Day , the superior court's examination and balancing of the  


relevant statutory factors weigh heavily in David's favor. The court found Linda was ten  

                                             29                                        30 

years younger, in better health,                had better earning capacity,              and had better health and  

          25       Id. at 263.  

          26       Id.  

          27       David's  monthly  income  consisted  of  $1,450  from    Social  Security  

disability,  $1,866  from   his  IBEW  pension,  and  a  potential  benefit  from  National  

Electrical  Benefit  Fund   of   $352,  totaling   $3,668  per  month.   Linda   earned   $65,000 a  

year, or $5,417 per month.  

          28       Linda  receives  half  of  David's  monthly  IBEW  pension  and  National  


Electrical Benefit Fund payments ($1,109) via QDRO, reducing his monthly income to  


$2,559 and increasing her monthly income to $6,526.  David became eligible for Social  

Security in January 2018; this provides an additional income source, but it may also  

decrease his current pension payments.  

          29       See AS 25.24.160(a)(4)(B).  

          30       See AS 25.24.160(a)(4)(C).  

                                                            - 13-                                                      7318

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


retirement benefits.                      The court also awarded Linda the marital home, the only real  


property in the marital estate, and designated one of her retirement accounts, a 401(K)  

valued at $178,000, as non-marital property.32  


                         The superior court's justification for "find[ing] no reason to depart from the  


50[/]50 presumption" rested primarily on the requisite equalization payment of $72,020  


to David from a "small" estate that had "virtually no truly liquid assets."  The court also  


noted David would have access to a furnished rental for 18 months at $600 per month  


and would have to pay for health insurance only until he qualified for Medicare in 2017,  


about 18 months after trial.  The court reconsidered its presumptively even distribution  

three  times  after  its  initial  supplemental  findings,  each  time  finding  no  reason  to  



unevenly distribute the marital estate.                                    But - in light of the factors weighing heavily  

            31           See AS 25.24.160(a)(4)(D).  

             32          The superior court also was entitled to, but apparently did not, consider   

Linda's substantial separate assets when equitably dividing the marital property.                                                                          See  

Cartee v. Cartee, 239 P.3d 707, 715 (Alaska 2010) (holding court's unequal marital                                                  

property award to wife was not abuse of discretion because husband's " 'significant non-          

marital assets' would cushion him from the 'effects of an unequal property division' ");   

see also  AS 25.24.160(a)(4)(D) (directing court to consider "the financial condition of   

the parties").  

             33          In May 2016 the court amended its supplemental findings to add that "any  


equalization  payment  [David]  is  to  receive  from  Linda  will  likely  not  be  paid  .  .  .  


immediately."  Despite finding it "a close call," the court was "not inclined to say that  

the marital estate should be unevenly divided."  

                         In August the court ordered distribution of David's half of Linda's IRA,  


about  $43,500,  but  it  left  her  the  option  whether  he  kept  his  full  monthly  pension  

payments until her nearly $70,000 equalization payment was satisfied or she paid it in  

full.  The court noted that "[it] ha[d] again considered the Merrill factors.  With the  


exception of the IRA funds now available to [David], this court's Merrill findings remain  



                                                                             -14-                                                                       7318

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


in David's favor, particularly the substantial age, health, and income disparity, which the  


dissent does not discuss - we conclude that a post-division equalization payment cannot  


justify an equal division of this marital estate.  Based on the findings the superior court  

made, the property division was clearly unjust.  


                   We therefore vacate the superior court's property distribution and remand  

for further consideration.  

V.        CONCLUSION  

                   The  superior  court's  separation  date  finding  is  AFFIRMED,  but  its  


presumptive 50/50 property distribution is VACATED and REMANDED for renewed  


          33       (...continued)  

                   In October the court denied David's Rule 60(b) motion despite all factors  

appearing to weigh more heavily in his favor; although he had received the equalization  


payment, he was even less healthy due to kidney problems and was still living in his  

truck.  But the court found that David had presented no "new evidence that would result  


in a different result" because it had already "specifically addressed his health issues in  


the context of the Merrill factors and allocation of the estate."  

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STOWERS, Chief Justice, dissenting in part.  


                    I disagree with that part of the court's opinion that holds the superior court  

failed to sufficiently explain its 50/50 equitable distribution.  I cannot conclude that the  


superior court failed to do so or that it abused its discretion in making a 50/50 equitable  

distribution.    In  its  discretion,  the  court  permissibly  could  have  made  an  unequal  


distribution, but the abuse of discretion standard gives a trial court broad discretion, and  


on the facts and circumstances of this case, I do not think the court's decision violates  

any of the principles we have articulated in applying the abuse of discretion standard.  


Specifically, I do not think the court's decision grossly misweighed the statutory factors  

or was clearly unjust.  

                     The court's opinion concludes that the superior court failed to sufficiently  


explain its 50/50 distribution of the marital estate given the findings it made.  Unlike the  

Day  v.  Williams1  case  which  the  court  cites,  where  the  superior  court  made  only  a  



conclusory statement that a 50/50 distribution was fair,  the superior court here reviewed 


each relevant statutory factor four times  and the husband concedes the court "thoroughly  

analyzed each factor."  


                    We have held that "the trial court need not make findings pertaining to each  


factor, but its findings must be sufficient to indicate the factual basis for the conclusion  



reached."   We have stated that it is not the role of our court to reweigh the factors in our  


                                             We have also explained that "when a couple has sufficient  

abuse of discretion analysis. 

          1         285 P.3d 256 (Alaska 2012).  

          2         Id . at 263.  

          3          Young v. Lowery, 221 P.3d 1006, 1014 (Alaska 2009).  

          4          Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007) ("[I]t is not our role as an        


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assets, the spouse with the smaller earning capacity can and should receive a larger share     

                                            5  A necessary corollary follows:  when a couple does not  

in the property distribution."                                     

have sufficient assets, it may not be possible or fair to both parties that the trial court  

depart from the presumptively fair 50/50 distribution of the property.   

                    Applying these principles to the case at hand, there is no question that the  


parties'  marital  estate  was  modest  and  the  trial  court  took  this  important  fact  into  


consideration.  The superior court's justification for "find[ing] no reason to depart from  


the 50[/]50 presumption" rested, in part, on the division of the wife's marital pension via  


QDRO and the requisite equalization payment by the wife to the husband of $69,204  

from  a  "small"  estate  that  had  "virtually  no  truly  liquid  assets."    Also,  the  court  


considered that the husband was receiving some retirement benefits and would have  


access to Medicare beginning in 2017.  When the court learned that the husband's share  


of the wife's marital retirement account could be withdrawn without penalty, it ordered  


that $43,534.50 be immediately paid to the husband plus any appreciation accrued since  


the date of separation.  The immediate economic effect for the husband was a sizable  


lump sum payment from the wife's IRA, low or no health care costs under Medicare, and  


a nearly $70,000 equalization payment to supplement his own pension.  Given the small  

size and illiquid nature of the estate, in my view it was within the range of acceptable  

discretion to divide the estate 50/50 and require the wife to pay the husband almost  

$70,000,  and  I  think  the  court  did  an  adequate  job  of  explaining  why  it  made  this  

decision.  I would affirm the superior court's 50/50 equitable distribution and I therefore  

          4         (...continued)  

appellate court to reweigh the evidence . . . .").  

          5         Odom v. Odom, 141 P.3d 324, 340 n.75 (Alaska 2006).  

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dissent from this portion of the court's opinion.                          I agree with this court's conclusion that   

the superior court did not abuse its discretion in selecting the date of separation.  

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