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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yvonne M. Gambini v Perry W. Hamilton (3/29/2019) sp-7347

Yvonne M. Gambini v Perry W. Hamilton (3/29/2019) sp-7347

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

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

                                                                                                                         

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

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



YVONNE  M.  GAMBINI,                                              )  

                                                                  )    Supreme  Court  No.  S-16945  

                                 Appellant,                       )  

                                                                                                                                  

                                                                  )    Superior Court No. 3PA-16-01858 CI  

           v.                                                     )  

                                                                                            

                                                                  )    O P I N I O N  

                     

PERRY W. HAMILTON,                                                )  

                                                                                                             

                                                                  )    No. 7347 - March 29, 2019  

                                 Appellee.                        )  

                                                                  )  



                                                                                                               

                      A            

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

                                                                                           

                      Judicial District, Palmer, Vanessa White, Judge.  



                                                                                                         

                      Appearances:               Yvonne   M.   Gambini,   pro   se,   Wasilla,  

                                                                                                                     

                      Appellant.   Notice of nonparticipation filed by Kenneth J.  

                                                                                                        

                      Goldman, Kenneth J. Goldman, P.C., Palmer, for Appellee.  



                                                                                                         

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

                                           

                      and Carney, Justices.  



                                                   

                      BOLGER, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                         

                      Yvonne Gambini appeals the superior court's property division order for  



                                                                                                                                       

her divorce from Perry Hamilton.  Gambini argues that she is entitled to more than half  



                                                                                                                                          

of the marital estate and that the superior court erroneously treated a loan she made to  



                                                                                                                                      

Hamilton prior to their marriage as a marital obligation. She also contends that the court  


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

                                                                                                                

incorrectly valued Hamilton's retirement account and that several  of its procedural  



                                                                                                                       

decisions unfairly prejudiced her or violated her rights.   None of Gambini's claims  



                                                                                                                     

amounts to reversible error.  We therefore affirm the superior court's property division  



order.  



                                 

II.       FACTS AND PROCEEDINGS  



                                                                                                                         

                    Sometime in 2006 Gambini and Hamilton rekindled a relationship from  



                                                                                                                            

decades prior.  Hamilton was married to someone else at the time, though he was in the  



                                                                                                                       

process of dissolving that marriage.  As part of this process, he agreed to take on certain  



                                                                                                                          

financial obligations on behalf of his then-wife. Hamilton and Gambini married on May  



                

29, 2007.  



                                                                                                                        

                    About five months before they married, the couple took out a home equity  



                                                                                                              

line of credit (HELOC) for $50,000, secured by a cabin Gambini owned in Washington,  



where they were living at the time.  At trial Gambini asserted that $37,000 of this first  



                                                                                                                           

HELOC was a personal loan to Hamilton; she could not, however, remember "what [the  



                                                                                                                           

$37,000] was actually spent on."  Hamilton testified that Gambini offered to help him  



                                                                                                                             

speed along his divorce proceedings by lending him some money from the HELOC on  



                                                                                                                          

her  cabin;  Hamilton  recalled  using  $14,000  of  the  HELOC  funds  to  pay  off  debt  



                                                                                                                               

associated with his previous marriage, but he was not certain how the rest was spent.  



                                                                                                                          

                    Gambini and Hamilton made interest payments on the HELOC from a joint  



                                                                                                           

bank account, but they never made any payments toward the principal.  Approximately  



                                                                                                                     

one year  after  their  marriage, the couple amended the HELOC,  taking out another  



                                                                                                                            

$42,005.90 on the line of credit.  This second HELOC disbursement helped fund the  



                                                                                                     

couple's move to Alaska and their purchase of two properties in the Matanuska-Susitna  



                                                                                  

Borough:  one on Hewitt Lake and one on Kim Drive.  



                                                                                                                          

                    Eventually the couple sold the KimDrive property to Gambini's son. They  



                                                                                                                             

used the proceeds fromthe sale to purchase two lots adjoining the KimDrive property -  



                                                              -2-                                                        7347
  


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

                                                                                                                  

the Barbi Drive lots - and to develop them for a residence.   A loan on Hamilton's  



                                                                                               

401(k) also partially financed the purchase of the Barbi Drive lots.  



                                                                                                                               

                    Gambini and Hamilton contracted with Selway Corporation to finance the  



                                                                                                                        

construction of a residence on the Barbi lots.  The couple conveyed the lots to Selway,  



                                                                                                                    

which used the property as security for a loan to finance construction of the residence;  



                                                                                                                 

the couple would purchase the residence from Selway upon construction.  Construction  



                                                                                                                             

on the residence was near completion when the couple separated.  At that time they  



                                                                                                  

modified the contract with Selway so Gambini became the sole buyer.  



                                                                                                                            

                    Gambini filed for divorce in August 2016. Her complaint recited the basic  



                                                                                                                               

elements of a claim for divorce and included no specific claims as to the division of the  



                                                                                                                          

marital estate.  After Hamilton served his response, Gambini moved for leave to amend  



                                                                                                                                

her complaint to add specific claims about the division of marital assets as well as  



                                                                                                                               

contract and tort claims.  The superior court denied this motion in December.  In the  



                                                                                                                                

course of discovery, Gambini also filed a "Motion to Determine the Sufficiency of  



                                                                                                                           

Defendant's Objections and Answers to Plaintiff's Request for Admissions and to Deem  



                                                                                                                             

Such Requests Admitted." The superior court did not rule on the motion before the case  



             

went to trial.  



                                                                                                                               

                    The parties filed trial briefs in May 2017, and a bench trial was held the  



                                                                                                                      

next day.  Hamilton appeared with counsel, and Gambini was unrepresented, although  



                                                                                                                               

her brother, sister, and business partner were present.  Gambini and Hamilton were the  



                         

only witnesses.  



                                                                                                                                 

                    The superior court issued its findings of fact and conclusions of law in  



                                                                                                                            

December.  The court divided the marital estate roughly equally.  It granted each party  



                                                                                                                               

a parcel of real property; declared the Washington cabin Gambini's separate property but  



                                                                                                                         

the HELOC taken out on it a marital obligation; and awarded Gambini half of the marital  



                                                                                                                                

portion  of  Hamilton's  401(k),  to  account  for  his  share  of  the  HELOC assigned  to  



                                                               -3-                                                         7347
  


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

Gambini.   The court also noted its decision not to address Gambini's discovery motion                                                                          



prior to trial, declaring the motion now moot.                                               



                           InDecember2017Hamilton                                  filed aproposed                 Qualified DomesticRelations   



Order (QDRO) to govern the transfer of the portion of his 401(k) owed to Gambini.                                                                                               



Gambini   filed   her   appeal   in  January   2018,   and   Hamilton   filed   a   notice   of   non- 



participation later that month.                                   During  the pendency of Gambini's appeal, she and                                                   



Hamilton engaged in litigation over the QDRO.                                    



III.	        DISCUSSION  



                           Onappeal Gambini argues that the superior court improperly classified two  

                                                                                                                                                                       



real-property parcels and the HELOC secured by her Washington cabin as marital.  She  

                                                                                                                                                                       



also contends that the court abused its discretion in dividing the marital estate equally  

                                                                                                                                                               



and that it incorrectly valued Hamilton's retirement account. She challenges the manner  

                                                                                                                                                               



in which the trial court handled her divorce proceedings, arguing that it improperly  

                                                                                                                                                       



prejudiced her in a variety of ways. And she challenges the QDRO issued after she filed  

                                                                                                                                                                     



her notice of appeal.  

                                           



                           Upon reviewing Gambini's claims, we affirm the superior court's property  

                                                                                                                                                             



division order.   Although the court's reasoning with respect to classification of the  

                                                                                                                                                                       



HELOC as a marital investment was partially flawed, its ultimate conclusion was not  

                                                                                                                                                                       



clearly erroneous.  And none of Gambini's other claims amount to reversible error.  

                                                                                                                                                                          



             A.	           The Superior Court's Classification Of Assets And Obligations Was  

                                                                                                                                                                    

                           Not Erroneous.  

                                                              



                           When making an equitable division of marital assets, the superior court  

                                                                                                                                                                   



mustfirst determine"what specificproperty isavailablefor distribution,"whichinvolves  

                                                                                                                                                              

classifying assets as separate or marital.1                                         "The characterization of property as separate  

                                                                                                                                                              



              1            Stanhope  v.  Stanhope,  306  P.3d   1282,   1286  (Alaska  2013).  



                                                                                    -4-                                                                                   7347  


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

                                                                                                          2  

or marital may involve both legal and factual questions."                                                    "Findings of fact are reviewed           



for clear error, but whether the trial court applied the correct legal rule in exercising its                                                                     



                                                                                                                                                                     3  

discretion is a question of law that we review de novo using our independent judgment."                                                                                 



                                                                                                                                                                 

"We will find clear error only if 'we are left with a definite and firm conviction on the  



                                                                                        4  

                                                                                       

entire record that a mistake has been made.' " 



                                                                                                                                                                

                          1.	          Classifying the entire HELOC as a marital obligation was not  

                                                   

                                       clear error.  



                                                                                                                                                                  

                          Gambini  argues  that  a  portion  of  the  HELOC was  a  personal  loan  to  



                                                                                                                                                                 

Hamilton, made prior to the marriage to assist Hamilton with expenses related to his  



                                                                                                                                                           

previous marriage. She contends that the superior court erred by classifying such funds,  



                                                                                                                                                       

used to finance the expenses of another marriage, as a marital obligation.  The superior  



                                                                                                                                                  

court considered Gambini's arguments and observed that she "provided no documents  



                                                                                                                                                                 

memorializing the loan and she did not seek repayment of the loan at any time during the  



parties' nine-year marriage."  The court concluded that the HELOC in its entirety was  



                                                                                                                                                                     

a marital investment because it found that Gambini and Hamilton "intended [it] to be a  



                                                                                                                                                           

means to finalize [Hamilton's] divorce so that they could begin their marriage."  



                                                                                                                                                  

                          The superior court's factual finding that no part of the HELOC constituted  



                                                                                                                                                               

a personal loan to Hamilton was not clearly erroneous.   The court was correct that  



                                                                                                                                                                     

Gambini did not submit any documents identifying a subset of the HELOC funds as a  



                                                                                                                                                                   

loan to Hamilton, nor did she introduce evidence that she had ever sought repayment of  



                                                                                                                                                                  

the alleged loan.  Moreover the evidence indicated that the funds at issue were spent on  



             2            Odom  v.  Odom,   141  P.3d  324,  330  (Alaska  2006).  



             3           Beals  v.  Beals,  303  P.3d  453,  459  (Alaska  2013).  



             4            Tomal  v.  Anderson ,  426 P.3d 915, 923 n.8 (Alaska 2018) (quoting   Wood  



v.  Collins,  812  P.2d  951,  954  n.2  (Alaska   1991)).  



                                                                                 -5-	                                                                        7347
  


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

an indeterminate mix of joint and separate obligations and expenses. On this record, we                                                                                            



are not left "with a definite and firm conviction" that the superior court made a mistake                                                                              

when it determined that no portion of the HELOC was a personal loan to Hamilton.                                                                                                  5  



                                                                                                                                                                           

                             However  whether  the  superior  court  properly  characterized  the  entire  



                                                                                                                                                                    

HELOC as a marital obligation is a separate question.  "As a general rule . . . , property  

                                                                                                                                                         6    But this rule  

                                                                                                                                                                       

is separate property if it was acquired by a spouse before the marriage." 

is subject to some exceptions;7  for instance, a trial court may classify property or debt  

                                                                                                                                                                               



acquired prior to the marriage as marital if it finds that the parties intended it to become  

                                                                                                                                                                        

part of the marital estate.8                            The superior court's "[u]nderlying findings as to the parties'  

                                                                                                                                                                         



              5             Smith v. Weekley                     , 73 P.3d 1219, 1222 (Alaska 2003) (quoting                                                       Duffus v.  



Duffus, 932 P.2d 777, 779 (Alaska 1997)) (describing our standard of review for clear                                                                                         

error).  



              6             Kessler v. Kessler, 411 P.3d 616, 618 (Alaska 2018); see also Wagner v.  

                                                                                                                                                        

 Wagner, 386 P.3d 1249, 1252 (Alaska 2017) ("Generally, a spouse is not liable for the  

                                                                                                                                                                                  

other spouse'spremaritaldebts or liabilities."); AS25.15.050 ("[N]either spouse is liable  

                                                                                                                                                                             

for the debts or liabilities of the other incurred before marriage, and . . . neither is liable  

                                                                                                                                                                             

for the separate debts of the other.").  

                                                                                



              7             See Kessler, 411 P.3d at 618; see also Murray v. Murray, 788 P.2d 41, 42  

                                                                                                                                                                                   

(Alaska 1990) ("We note that property acquired by the Murrays as a couple may be  

                                                                                                                                                                                   

marital property even if the acquisition predates the marriage.").  

                                                                                                                                           



              8              Carlson  v.  Carlson,  722  P.2d  222,  224  (Alaska  1986)  (affirming  the  

                                                                                                                                                                                 

classification of real property acquired "shortly before the parties' marriage" as marital  

                                                                                                                                                                          

because the prospective wife "had power of attorney to sign the purchase papers and title  

                                                                                                                                                                                 

was taken jointly");  cf. Kessler, 411 P.3d at 618-620  (explaining that, for separate  

                                                                                                                                                                      

property to transmute into marital property, "the intent that must be shown is the intent  

                                                                                                                                                                            

of the owning spouse that his or her separate property be treated as marital property for  

                                                                                                                                                                                  

the purpose of dividing property in the event of a divorce" (emphasis in original)).  We  

                                                                                                                                                                                 

generally treat debt similarly to property when categorizing it as marital or nonmarital.  

                                                                                                                                                                

See, e.g., Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000).  

                                                                                                                        



                                                                                         -6-                                                                                 7347
  


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

intent are factual findings reviewed for clear error."                              9  



                                                                                                                               

                      Here the HELOC on Gambini's cabin was issued to Gambini and Hamilton  



                                                                                                                                     

jointly  before  marriage,  and  the  couple  used  the  funds  from the  HELOC  for  joint  



                                                                                                                                        

expenditures, including their move to Alaska. It is thus clear that the initial HELOC was  



                                                                                                                                     

a joint premarital obligation assumed by Gambini and Hamilton.  The superior court  



                                                                                                                                        

found that the couple intended this joint obligation to be marital because part of the  



                                                                                                                                 

initial $50,000 drawn from it paid off a debt Hamilton owed to his then-wife, thereby  



                                                                                                                                          

facilitating the dissolution of his marriage and permitting his subsequent marriage to  



                                                                                                                                 

Gambini.           It  later  found  that  the  "balance  owing"  on  the  HELOC  "was  a  marital  



                                                                                              

obligation because the funds were used by both parties."  



                                                                                                                                

                      The superior court's analysis of this issue is partially flawed. The couple's  



                                                                                                                                          

 shared use of HELOC funds does not, by itself, demonstrate the necessary intent to  



                                                                                                                            

include this joint premarital obligation in the marital estate.   As we have previously  



                                                                                                                                 

noted, the intent to share property is distinct from the intent that that property be marital,  

                                                                      10   Thus it would be incorrect to infer, solely  

                                                                                                                                    

                                                          

 subject to division in the event of a divorce. 



from the couple's use of HELOC funds to support their relationship, that Gambini and  

                                                                                                                                        



Hamilton intended their joint obligation to be part of the marital estate.  However the  

                                                                                                                                         



record provides additional evidence of that intent.  For example, the couple made post- 

                                                                                                                                     



marital payments on the HELOC from a joint account; they failed to document any  

                                                                                                                                       



 separatedebts within theHELOC; and they decided to "roll" the first, premarital HELOC  

                                                                                                                                



withdrawal into a second, post-marital withdrawal.  On this record we cannot conclude  

                                                                                                                               



           9          Tomal,  426  P.3d  at  923;  see  also  Beals  v.  Beals,  303  P.3d  453,  459  (Alaska  



2013).  



           10         See  Kessler,  411  P.3d  at  619  (discussing  transmutation).  



                                                                    -7-                                                                  7347  


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

that the superior court committed clear error when it determined that the couple intended                                                                                                                    



the HELOC to be a marital obligation.                                    



                                   And even if the superior court's classification were erroneous, the error                                                                                                          

                                                   11     Alaska Statute 25.24.160(a)(4) authorizes invasion of premarital  

would be harmless.                                                                                                                                                                                      

holdings "when the balancing of the equities between the parties requires it."12   Having  

                                                                                                                                                                                                                



determined that the Washington cabin was Gambini's separate property, the superior  

                                                                                                                                                                                                             



court recognized that Gambini's possession of this asset would be threatened if Hamilton  

                                                                                                                                                                                                         



failed to pay his share of the joint obligation for which the cabin was security.   The  

                                                                                                                                                                                                                       



court's property division order thus offset an award of the entire HELOC to Gambini by  

                                                                                                                                                                                                                             



awarding her a portion of Hamilton's 401(k) equal to one-half the HELOC's principal  

                                                                                                                                                                                                            



balance.  

                        



                                   The superior court's decision to consider the HELOC with the marital  

                                                                                                                                                                                                                



property  was  clearly  aimed  at  ensuring  an  equitable  division  between  the  parties.  

                                                                                                                                                                                                                                      



Therefore it would have been authorized by AS 25.24.160(a)(4), and not a clear abuse  

                                                                                                                                                                                                    



of discretion, even if the classification of the HELOC as a marital obligation had been  



                            13  

erroneous.                        



                  11               "[N]o error . . . in any ruling or order or in anything done or omitted by the                                                                                                           



court or by any of the parties is ground for granting a new trial or for setting aside a                                                                                                                                        

verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless                                         

refusal to take such action appears . . . inconsistent with substantial justice.                                                                                                                   The court at                

every stage of the proceeding must disregard any error or defect in the proceeding which                                                                                                                            

does not affect the substantial rights of the parties."                                                                                  Alaska R. Civ. P. 61.                            



                  12               Carlson, 722 P.2d at 224 (stating that separate premarital property "should  

                                                                                                                                                                                                               

not have been deemed a marital asset available for division unless the court specifically  

                                                                                                                                                                                                     

found that a 'balancing of the equities between the parties' required invasion of the pre- 

                                                                                                                                                                                                                         

marital holding" (quoting AS 25.24.160(a)(4))).  

                                                                               



                  13               See Bandow v. Bandow, 794 P.2d 1346, 1347 n.3 (Alaska 1990) ("Whether  

                                                                                                                                                                                                        

                                                                                                                                                                                                (continued...)  



                                                                                                              -8-                                                                                                     7347
  


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

                        2.	         The superior court properly classified real property purchased                                       

                                    during the marriage as marital.                



                        Gambini asserts that the superior court erred in failing to classify two real-                                               



property   parcels   purchased  during   the   marriage,   the   Hewitt   Lake   and   Barbi   Drive  



                                                                  14  

properties, as her separate property.                                                                                                                     

                                                                       Gambini did not raise this issue at trial, so it is  



                                                     15  

                                                                                                                                          

waived as an issue for appeal.                           But even if the issue were properly before us, Gambini's  



                                                                                                                                                          

argument could not prevail since it relies on a mistaken understanding of the doctrine of  

tracing.16  



                                                                                                                                                          17  

                                                                                                                                                               

                        Assets  acquired  during  the  marriage  are  presumed  to  be  marital. 



                                                                                                                                                     

However, under the doctrine of tracing, assets acquired through a source other than  



            13          (...continued)  



                                                                                                                                                  

or  not  the  equities  require  invasion  of  premarital  assets  .  .  .  lies  within  the  broad  

                                                                                                                                        

discretion of the trial court and will not be overturned absent a clear abuse of discretion."  

                                                                                                         

(quoting Julsen v. Julsen, 741 P.2d 642, 646 n.4 (Alaska 1987))).  



            14          Gambini extends the same argument to the Kim Drive property and the  

                                                                                                                                                       

proceeds derived from its sale.  But the superior court did not address the Kim Drive  

                                                                                                                                                   

property in its property division order. The couple purchased this property with HELOC  

                                                                                                                                              

funds during their marriage, sold it, and put the proceeds towards the purchase of the  

                                                                                                                                                       

Barbi Drive property.  Our analysis of the Barbi Drive property thus applies equally to  

                                                                                                                                                          

the Kim Drive property.  

                            



            15	          Wells v. Barile, 358 P.3d 583, 589 n.17 (Alaska 2015).  

                                                                                                                



            16          As with Gambini's claimdisputing the superior court's classification of the  

                                                                                                                                                        

HELOC as a marital obligation, the superior court's application of the legal principles  

governing property classification is at issue, so we review its decision de novo.  See  

                                                                                                                                                      

Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013).  

                                                                              



            17          See,  e.g.,  Coffland  v.  Coffland,  4  P.3d  317,  321  (Alaska  2000)  ("We  

                                                                                                                                                   

presume  that  property  acquired  during  the  marriage  is  marital.");  cf.  Stanhope  v.  

                                                                                                                                                         

Stanhope, 306 P.3d 1282, 1290 (Alaska 2013) ("[T]here is a presumption that debts  

                                                                                                                                                   

incurred during [the] marriage are marital.").  

                                                                



                                                                            -9-	                                                                   7347
  


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

marital income may qualify as separate property if their acquisition can be traced through                                                                            



                                                                                                                                                18  

the "exchange, appreciation, or income" of a separate-property asset.                                                                                                      

                                                                                                                                                     There are three  



                                                                                                                                                                  

primary types of separate property:  "property acquired by one spouse before marriage,  



                                                                                                                                        19  

                                                                                                              

property acquired by gift, and property acquired by inheritance." 



                            Both properties in question here were purchased during the marriage and  

                                                                                                                                                                              

are thus presumptively  marital.20                                         Gambini  contends that because the HELOC was  

                                                                                                                                                                             



secured by Gambini's separate property, her Washington cabin, the withdrawals on the  

                                                                                                                                                                               



HELOC are separate funds.  Therefore, she argues, the real properties purchased with  

                                                                                                                                                                            



those funds should be separate as well. However credit obtained in the form of a secured  

                                                                                                                                                                     



transaction is not appreciation or income of the property that serves as collateral; the  

                                                                                                                                                                               



collateral simply facilitates the acquisition of credit. Thus the use of Gambini's separate  

                                                                                                                                                                     



property to secure the purchase loans for the two real-property parcels does not make  

                                                                                                                                                                          



those parcels her separate property.  

                                                        



              B.	           Equitable Distribution Of The Marital Estate Was Not An Abuse Of  

                                                                                                                                                                                       

                            Discretion.  



                            The  "superior  court  has  broad  discretion  when  dividing  property  in  a  

                                                                                                                                                                                  



divorce proceeding and we will not disturb [a] property division unless it is clearly  

                                                                                                                                                                       

unjust."21                                                                                                                                                             22  

                                                                                                                                                                                  

                      In general we presume that an equal division of property is equitable.                                                                                 It is  



              18            Schmitz v. Schmitz                     , 88 P.3d 1116, 1127 (Alaska 2004).
                           



              19            Id .
  



              20
           Coffland, 4 P.3d at 321.  

                                                                     



              21            Elliott v. James                , 977 P.2d 727, 730 (Alaska 1999).                           



              22            Day v. Williams                   , 285 P.3d 256, 261 (Alaska 2012).                          



                                                                                      -10-	                                                                                7347
  


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

the burden of the party seeking a different arrangement to show that an equal division                            

is unjust.              23  



                                   Gambini argues that evidence at trial showed Hamilton had unreasonably  

                                                                                                                                                                                                 



depleted the couple's marital assets through loans on his retirement account, transactions  

                                                                                                                                                                                                     



related to the couple's Kim and Barbi Drive properties, and the sale of a Toyota Tundra.  

                                                                                                                                                                                                                                       



For this reason, she asserts that equal division of the marital estate was an abuse of  

                                                                                                                                                                                                                              

discretion.24  But there was a reasonable explanation for the loans taken out by Hamilton,  

                                                                                                                                                                                                          

as well as the financial dealings surrounding the Kim and Barbi Drive properties.25  

                                                                                                                                                                                                                                       



Evidence supports the conclusion that the loans taken out on Hamilton's 401(k) during  

                                                                                                                                                                                                                   



the marriage were for legitimate marital purposes, and no evidence, only Gambini's  

                                                                                                                                                                                          



allegations, controverts this conclusion.   With respect to the funds derived from the  

                                                                                                                                                                                                                            



couple's sale of their Kim Drive home to Gambini's son, Gambini did not provide  

                                                                                                                                                                                                               



documentary evidenceor testimony to contradictHamilton's testimony that the proceeds  

                                                                                                                                                                                                             



wereused for legitimatemarital purposes. And she neither argued nor provided evidence  

                                                                                                                                                                                                              



supporting the claim that Hamilton had sold the couple's Toyota Tundra.  

                                                                                                                                                                                                   



                  23               Id.  



                  24               See  AS 25.24.160(a)(4)(E) (providing as one factor for a superior court's                                                                                                     



fair allocation of the economic effect of divorce in its property division "the conduct of                                                                                                                                     

the parties, including whether there has been unreasonable depletion of marital assets").                                                                                                                                              

"The   elements   of   unreasonable   depletion   are   '(1)   use   of   personal   property   for  the  

spouse's own benefit, (2) at a time when the marriage is breaking down (either before   

or after separation), (3) with an intent to deprive the other spouse of the other's share of                                                                                                                                   

the marital property.' Not all of the identified elements need to be present in each case."                                                                                                                                            

Elliott, 977 P.2d at 733 (quoting                                                      Jones v. Jones                         , 942 P.2d 1133, 1140 (Alaska 1997)).                                             



                  25               "[F]actual findings of the trial court are reviewed for clear error"; we find  

                                                                                                                                                                                                                          

clear error, where, after a thorough review of the record and viewing the evidence in the  

                                                                                                                                                                                                                             

light most favorable to the trial court's rulings, we reach a definite and firm conviction  

                                                                                                                                                                                                        

that a mistake has been made.  Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).  

                                                                                                                                                                                                         



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

                                The record also supports the superior court's conclusion that Gambini and                                                                                             



Hamilton  reached   a   good   faith   agreement   that   the   Barbi   Drive   property   under  



construction at the time of the couple's divorce, along with the associated mortgage,                                                                                                 



would beGambini's"separatepost-separation                                                                    assetand              liability." The                    financial burdens  



incidental to Gambini's acquisition of the Barbi residence as her separate property are                                                                                                                



a   logical  consequence   of   this   decision,   not   evidence   of   unreasonable   marital   asset  



depletion.     It   was   not   clear  error  for   the   superior   court   to   find   no   evidence   of  



unreasonable depletion of marital assets, and therefore no abuse of discretion to divide                                                                                                        



the marital estate equally.                



                C.	             There Was No Clear Error In The Superior Court's Valuation Of                                                                                                                    

                                Hamilton's Retirement Account.                               



                                Retirement benefits earned during marriage are marital assets subject to                                                                                                  



                                            26  

equitable division.                                                                                                                                                                        

                                                  To calculate the marital portion of Hamilton's retirement account,  



                                                                                                                                                                                                   

the superior court subtracted the account value printed on an account statement from  



                                                                                                                                                                                                            

2007, the time of Gambini's and Hamilton's marriage, from the value printed on a  



                                                                                                                                                                                           

statement from the time of the couple's separation.  Gambini contends that the superior  



                                                                                                                                                                                                         

court undervalued the marital portion of Hamilton's retirement account by focusing on  



                                     27  

                                                                                                                                                                                                

the wrong year.                            She argues that a change in the account's administrator in 2010 means  



                                                                                                                                                                                           

that a 2010 account statement, rather than the 2007 statement used by the court, provides  



                                                                                                                                                                                                       

the actual baseline value for the marital portion of the retirement account.   But the  



                                                                                                                                                                                                  

change in administrator did not affect the validity of the trial court's use of a 2007  



                                                                                                                                                                                               

account statement; absent further evidence not present in the record, there is no reason  



                                                                                                                                                                      

to conclude that a change of administrator in 2010 somehow altered the starting value  



                26              Edelman v. Edelman                                , 3 P.3d 348, 356 (Alaska 2000).                              



                27  

                                                                                                                                                                                                   

                                Valuation of assets is a factual determination, which we review for clear  

                                                                                                                       

error.  Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013).  



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

                                                                                                                                                                                     28  

of the retirement account at the time of marriage in 2007.                                                                                                                                 The trial court thus made no                                                       



clear error in its valuation of Hamilton's retirement account.                                                                                                                                      



                      D.	                  The Superior Court's Handling Of The Divorce Proceedings Did Not                                                                                                                                                                               

                                           Prejudice Gambini Or Violate Her Rights.                                                                                                            



                                           Gambini challenges the superior court's treatment of two pretrial motions,                                                                                                                                     



its failure to resolve the divorce case within six months of trial, and its treatment of her                                                                                                                                                                                



as   an   unrepresented   litigant.     However   none   of   these   claims   provides   grounds   for  



reversal.  



                                           The superior court did not commit reversible error by denying Gambini's                                                                                                                                  



motion to amend her complaint or by tabling her discovery motion until trial.                                                                                                                                                                                   It was   



within the court's discretion to deny the addition of the contract and tort claims for which                                                                                                                                                                       

                                                                                                                                                       29  as it was not manifestly unreasonable  

Gambini sought leave to amend her complaint,                                                                                                                                                                                                



 for the court to determine that they were non-divorce causes of action more properly  

                                                                                                                                                                                                                                                          

decided in a subsequent case at law than in an equitable divorce proceeding.30                                                                                                                                                                                          And  

                                                                                                                                                                                                                                                                      



Gambini was not prejudiced by the court's denial of her request to add specific claims  

                                                                                                                                                                                                                                                                 



regarding distribution of the marital estate since she had the opportunity to raise these  

                                                                                                                                                                                                    



claims at trial.  Likewise she was not prejudiced by the court's decision to leave her  

                                                                                                                                                                                                                                                                           



discovery motion pending at the time of trial and then dismiss it as moot. The arguments  

                                                                                                                                                                                                                                                     



                      28                   Gambini also claims that the loans on Hamilton's 401(k) should be added                                                                                                                                                 



to its value.                          But taking out a loan on a pension account does not increase that pension                                                                                                                                             

account's value by the amount of loan.                                                                       



                      29                   "We review the denial of leave to amend for abuse of discretion."  Valdez  

                                                                                                                                                                                                                                                               

Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 671 (Alaska 2002).  

                                                                                                                                                                                                                                                          



                      30                   Nelson v. Jones, 787 P.2d 1031, 1034 (Alaska 1990) (explaining that it is  

                                                                                                                                                                                                                                                                                 

not necessary "to require tort actions between married persons to be litigated in the  

                                                                                                                                                                                                                                                                           

divorce proceeding").   Gambini's proposed contract and tort claims were based on  

                                                                                                                                                                                                                                                                             

Hamilton's withdrawal from involvement in construction of the Barbi Drive residence.  

                                                                                                                                                                                                                                                      



                                                                                                                                     -13-	                                                                                                                            7347
  


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

in her discovery motion raised questions of fact that could be more efficiently explored                                                                        



                                                                       31  

at trial than in a pretrial proceeding.                                                                                                                       

                                                                            Therefore neither procedure constituted reversible  



error.  



                           The superior court's failure to resolve Gambini's divorce case within six  



                                                                                                                                                                     

months of trial does not affect the validity of the judgment either.  As Gambini points  



                                                                                                                                                                  

out, AS 22.10.190(b) declares that superior court judges may not be issued salaries  



                                                                                                                                                                       

unless they submit an affidavit assuring that all matters referred to them have been  



                                                                                                                                                                    

completed or decided within six months.  But in Hertz v. Hertz we held that this statute  

                                                                                              32   This forecloses Gambini's effort, as a  

                                                                                                                                                            

is not directly enforceable by private citizens. 



private citizen, to enforce the statute. And even if the statute were privately enforceable,  

                                                                                                                                                         



Gambini's failure to show how the delay influenced the court's decision would prevent  

                                                                                                                                                                  

us from reversing on this ground.33  

                                                     



                           Finally the superior court did not violate Gambini's right to due process or  

                                                                                                                                                                              



freedom of expression by the way it handled the case and treated her as an unrepresented  

                                                                                                                                                     



litigant.  Gambini's assertion that the trial court prevented her from presenting her case  

                                                                                                                                                                         



in the manner she intended is not borne out in the record:  the court allowed her to use  

                                                                                                                                



her notes consistent with the court rules and gave her the opportunity to call witnesses.  

                                                                                                                                                                                   



And  the  record  does  not  indicate  that  the  court  was  impermissibly  biased  toward  

                                                                                                                                                                  



Hamilton's counsel; the court's questioning of Gambini evidences its effort to obtain  

                                                                                                                                                                     



relevant testimony, not to act as a cross-examiner for the defense.  Gambini was not  

                                                                                                                                                                           



              31           See   Breck   v.   Ulmer,   745   P.2d   66,   74   (Alaska   1987)  (stating   that   the  



appellant "must show prejudicial error" to succeed on appeal; that is, "that the error . . .                                                                                    

had   'substantial   influence'   on   the   outcome   of   the   case"   (quoting   Loof   v.  Sanders,  

686 P.2d 1205, 1209 (Alaska 1984))).                          



              32            847 P.2d 71, 75 (Alaska 1993).  

                                                                               



              33           See Breck, 745 P.2d at 74.  

                                                                           



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

clearly deprived of any right to cross-examine an adverse witness; she never asked to                                                                                                                                                                          



cross-examine Hamilton, and she raised no objection on the record that she had not been                                                                                                                                                                 



                                                                                                      34 

                                                                                                                                                                                                                

afforded the opportunity to do so.                                                                           Lastly the court's restriction on Gambini's ability  



                                                                                                                                                                                                                                                   

to talk with her brother and sister at counsel table during the proceedings was well within  



                                                                                                                                                                                                                                           35 

                                                                                                                                                            

the court's authority over the kind of speech that is permitted to occur at trial.                                                                                                                                                                There  



                                                                                                                                                                                                                                       

was no constitutional violation in any of these actions by the superior court.  



                                                                                                                                                                                                    

                    E.                  We Retain Jurisdiction Over Gambini's QDRO Claims.  



                                                                                                                                                                                                                                                

                                        Finally, Gambini takes issue with the substance and process of the QDRO  



                                                                                                                                                                                                                                                           

issued to transfer half of the marital portion of Hamilton's pension fund to Gambini. But  



                                                                                                                                                                                                                                                               

we cannot decide her claims regarding the QDRO because the order she disputes and its  



                                                                                                                                                                                                                                   

related filings are not in the record.  We will thus issue additional orders to supplement  



                                                                                                                                                                                                                                         

the record and allow the parties to brief the claims related to the QDRO on the expanded  



record.  



                    34                  Moreover the federal right to cross-examine an adverse witness, flowing                                                                                                                               



from the Sixth Amendment as applied to the states through the Fourteenth Amendment,                                                                                                                                           

applies only to criminal defendants - not civil plaintiffs like Gambini.                                                                                                                                              See  U.S. Const.   

Amend. VI (                              "In all criminal prosecutions                                                           , the accused shall enjoy the right . . . to be                                                              

confronted   with   the   witnesses   against   him."   (emphasis   added));   Davis   v.   Alaska,  

415 U.S. 308, 315 (1974) (stating that the rights conferred by the confrontation clause                                                                                                                 

is secured for defendants in state proceedings under                                                                                                               Pointer v. Texas                                     , 380 U.S. 400                   

(1965)).   And although the federal courts urge that a "special solicitude" be afforded to                                                                                                                                                                      

unrepresented litigants, this is a prudential policy rather than a constitutional mandate                                                                                                                                                                            .   

 Tracy v. Freshwater                                          , 623 F.3d 90, 101-03 (2d Cir. 2010).                                                                            So the trial court's failure to                                                  

ask Gambini if she would like to cross-examine Hamilton cannot constitute a due-                                                                                                                                                                       

process violation.   



                    35                  See Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (stating that the  

                                                                                                                                                                                                                                                            

courtroom is a forum in which "the First Amendment rights of everyone . . . are at their  

                                                                                                                                                                                                                                                        

constitutional nadir").  

                                                                    



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

IV.                                    CONCLUSION  



                                                                              For the reasons stated, we AFFIRM the superior court's property division                                                                                                                                                                                                                                                                                                                     



order. And we retain jurisdiction of the QDRO issue so that the parties may supplement                                                                                                                                                                                                                                                                                                                                                                 



the record and provide additional briefing.                                                                                                                                                            



                                                                                                                                                                                                                                                                      -16-                                                                                                                                                                                                                   7347
  

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