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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  

                                                                                   

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



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.
  



I.       INTRODUCTION  



                  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-----------------------

II.       FACTS AND PROCEEDINGS  



          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  



divorce.  



                    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  



                                                      1 

              

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.  



III.	     STANDARD OF REVIEW  

                   "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  

                  



                                                                                          4  

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  



IV.	      DISCUSSION  



          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-----------------------

                   6  

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   



                             7  

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  



                                                8  

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)).  



          9  

                                                                       

                    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-----------------------

         12  

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

record.13  



                    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  

                                                                                                 



                       16  

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  



soul."  



                                                                   

                     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).  



          16  

                                                          

                    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  



                                                                                                                18  

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  



                                                                                    19  

                                                                                         "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)).  



           20  

                                                                                                              

                     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  

factors.").  



           21  

                                                                                                             

                     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  

                                                                                                 

                                                                                                                     (continued...)  



                                                                  -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  



                                                     23  

                                                                

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.  



          22  

                                                                      

                    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  



               25  

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  

                                                                                               [26] 

                    sufficient information to permit meaningful review.  



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



                                                                                27 

                                                                                                           

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-----------------------

                                     31  

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  



                                                                      33  

                                                                                               

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  

unchanged."  

                                                                                                                                         (continued...)  



                                                                             -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  



consideration.  



          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."  



                                                           -15-                                                      7318
  


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

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  



                                                                                  2 

                                                                                                                

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  



               3 

                                                                                           

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



                                          4 

                                             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        



                                                                                                                (continued...)  



                                                               -16-                                                         7318
  


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

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).  



                                                              -17-                                                         7318
  


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

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.  



                                                                   -18-                                                         7318
  

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