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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kendre Jones v. Vieanna Jones (3/4/2022) sp-7586

Kendre Jones v. Vieanna Jones (3/4/2022) sp-7586

          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  

                                                                                                                     

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



KENDRE  JONES,                                                )  

                                                              )    Supreme  Court  No.  S-17977  

                               Appellant,                     )  

                                                                                                                           

                                                              )    Superior Court No. 3AN-18-07745 CI  

          v.                                                  )  

                                                                                       

                                                              )    O P I N I O N  

                    

VIEANNA JONES,                                                )  

                                                                                                     

                                                              )    No. 7586 - March 4, 2022  

                               Appellee.                      )  

                                                              )  



                                                                                                         

                                               

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

                                                                                           

                     Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                    

                    Appearances: Kendre A. Jones, pro se, Hephzibah, Georgia,  

                                                                                                        

                    Appellant.           Roberta  C.  Erwin,  Palmier  ~  Erwin,  LLC,  

                                              

                    Anchorage, for Appellee.  



                                                                                                

                     Before:   Winfree, Chief Justice, Maassen, and Borghesan,  

                                                                    

                     Justices. [Carney, Justice, not participating.]  



                                               

                     BORGHESAN, Justice.  



I.        INTRODUCTION  



                                                                                                                              

                     Federallawprohibits statecourts fromdividingmilitarydisabilitypaywhen  



                                                                                                                        

equitably dividing marital property upon divorce. In  this case a divorcing couple's  



                                                                                      

property settlement agreement required the husband to pay the wife $1,200 per month  



                                                                                                                                

fromthe non-disability portion of the husband's military retirement. The agreement also  



                                                                                                                                

provided  that  if  the  husband  took  any  action  that  reduced  the  wife's  share  of  this  


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

                                                                                                                               

payment, the husband would directly pay the wife so as to indemnify her against the  



                                                                                                          

reduction. After the husband's retirement was converted to disability pay and the wife  



                                                                                                                   

stopped  receiving  her  monthly  payment,   she  moved  to  enforce  the  settlement  



                                                                                                                              

agreement's  indemnity  provision.  The  superior  court  initially  concluded  that  the  



                                                                                                                               

indemnity provision was unenforceable because it violated federal law.  But when the  



                                                                                                                               

wife then moved to set the settlement agreement aside, the court decided to enforce the  



                                                                                                                        

indemnity  provision  and  ordered  the  former  husband  to  make  the  monthly  $1,200  



                                                                                                                      

payment  and to  pay  arrears.  We  affirm, holding  that  federal  law  does not  preclude  



                                                                                                                               

enforcing one spouse's promise to pay another a sum of money each month even if the  



                                                                        

source of the money is military disability pay.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                      

                    Vieanna and Kendre A. Jones were married in October 1993 and separated  



                                                                                                                    

in June 2018. After working with a mediator, Vieanna and Kendre reached an agreement  



                                                                                                                            

to  divide  their  property.             They  then  filed  for  divorce  in  July  2018.   Vieanna  filed  



                                                                                                                                

proposed orders reflecting the parties' mediated agreement in superior court.  One of  



                                                                                                                           

these orders set forth the terms for dividing Kendre's military retirement pay.  It stated  



                                                                                                                             

that Vieanna was awarded "$1,200.00 per month from the non-disability portion [of Mr.]  



                                                                                                                                 

Jones'[s] military retirement monthly benefit."  It then defined "military retirement" as  



                                                                                               

including "all amounts of retired pay HUSBAND actually or constructively waives or  



                                                                                                                              

forfeits in any manner and for any reason or purpose, including but not limited to any  



                                                                                                                                     

post-divorce waiver made in order to qualify for Veterans Administration benefits . . . .  



                                                                                                                    

It  also  includes  any  sum  taken  by  Husband  in  addition  to  or  in  lieu  of  retirement  



                                                                                                                       

benefits."  Paragraph 12 of the order contained an indemnification provision:  



                                                                                                            

                    If HUSBAND takes any action that prevents, decreases, or  

                                                                                                        

                    limits  the  collection  by  WIFE  of  the  sums  to  be  paid  



                                                               -2-                                                         7586
  


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

                                                                                                

                    hereunder   (by   application   for   or   award   of   disability  

                                                                                                      

                    compensation, combination of benefits with any other retired  

                                                                                                       

                    pay,  waiver  for  any reason,  including  as  a result  of  other  

                                                                                                 

                    federal service, or in any other way), he shall make payments  

                                                                                        

                    to WIFE directly in an amount sufficient to neutralize, as to  

                                                                                                                 

                    WIFE,  the  effects  of  the  action  taken  by  HUSBAND.  

                                                                                                            

                    HUSBAND shall indemnify WIFE as to any sums paid to  

                                                                                                             

                    HUSBAND that this court order provides are to be paid to  

                                                                                                           

                    WIFE so she will not suffer a reduction in her share of the  

                                                                                                           

                    retired pay as a result of any of his post-divorce actions.  



                                                                                                                            

After a hearing at which the superior court received testimony from the parties, the court  



                                                                                    

signed all the proposed orders and granted the parties' divorce.  



          B.        Proceedings  



                                                

                    1.        Motion to enforce  



                                                                                                                      

                    Almost  a  year  later  Vieanna  filed  a  motion  to  enforce  the  property  



                                                                                                                       

settlement and related orders.  She claimed that she had stopped receiving her monthly  



                                                                                                                     

share  of  Kendre's  retirement  because  Kendre  was  now  receiving  100% veterans'  



                                                      

disability pay in lieu of retirement pay.  



                                                                                                                      

                    The  court held a hearing  on Vieanna's  motion  in July  2019.   Vieanna  



                                                                                                                               

testified  that  since the  divorce  she had been receiving  $1,200 a month, but  that  the  



                                                                                                                           

payments stopped in June 2019.  Kendre presented evidence that in May 2019 he began  



                                                                                                                               

receiving 100% disability benefits instead of retirement benefits. He testified that he had  



                                                                                                                              

not "tr[ied] to change anything so that Ms. Jones wouldn't get money."  Rather, he had  



                                                                          

been determined unemployable after a physical exam.  



                                                                                                                     

                    The superior court entered what it first described as "preliminary thoughts"  



                                                                                                                               

and then ultimately described as a "partial ruling" on the record.  The court invoked our  



                                                               -3-                                                         7586
  


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                                                                             1  

decision in              Guerrero v. Guerrero,  which recognized that federal law prevents a state                                                                                    



court from awarding military disability pay to the non-military spouse as part of a                                                                                                           



property division incident to divorce.                                               We also ruled in                       Guerrero  that when a property                    



settlement agreement awards the non-military spouse a share of military retirement pay                                                                                                    



and then the military spouse elects to receive disability pay in lieu of retirement pay -                                                                                                   



cutting off the non-military spouse's ability to receive the payments provided for in the                                                                                                  



settlement   agreement   -   "extraordinary   circumstances"   may  exist   to   set   aside   the  

                                                                                              2  In light of this decision, the superior court  

agreement under Alaska Civil Rule 60(b).                                                                                                                                              



reasoned that federal law precluded it from enforcing Vieanna's right to the $1,200 per  

                                                                                                                                                                                           



month provided for in the settlement agreement because the money would be coming  

                                                                                                                                                                                 



from Kendre's disability benefits.  

                                                         



                              But the court noted  that if Vieanna had  entered  the  settlement on  the  

                                                                                                                                                                                          



assumption  that  she  would  receive  $1,200  a  month,  she  "may  be  entitled  to  a  re- 

                                                                                                                                                                                          



evaluation and a re-jiggering, if you will, of the overall settlement that [she] entered  

                                                                                                                                                                                 



into."  Accordingly the court said that it would treat Vieanna's motion "as a request for  

                                                                                                                                                                                           



Rule 60(b) relief, and a reconfiguration of the original property settlement."  Vieanna  

                                                                                                                                                                              



responded by telling the court that she would attempt to work out an agreement with  

                                                                                                                                                                                       



Kendre. The court suggested that Vieanna confer with Kendre's attorney and "if you're  

                                                                                                                                                                                   



not able to work something out, you file a motion . . . setting forth how you think the  

                                                                                                                                                                                           



property settlement should be re-done."  

                                                                    



                              3.             Motion for Rule 60(b) relief  

                                                                                                   



                              In  August  2020  Vieanna  moved  to  set  aside  the  property  settlement  

                                                                                                                                                                          



agreement under Rule 60(b).   She claimed that "extraordinary circumstances" were  

                                                                                                                                                                                      



               1              362  P.3d  432,  440-41  (Alaska  2015).  



               2              Id.  at  444  (discussing  Rule  60(b)).  



                                                                                              -4-                                                                                             7586  


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

 present sufficient to justify relief because the fundamental underlying assumption of the                                                                                                                                                                                                                                   



 dissolution agreement had been destroyed.                                                                                                                                Kendre opposed the motion, presenting                                               



 evidence that after Vieanna's motion to enforce had been denied in July 2019, she had                                                                                                                                                                                                                                     



 filed   a   similar   pleading   in   Tennessee,   which   had   been   dismissed.     He   argued   that  



 Vieanna's motion was barred by the law of the case and res judicata; that Rule 60(b)                                                                                                                                                                                                                              



 relief was inappropriate because too much time had expired since the parties' divorce;                                                                                                                                                                                   



 and that he could not afford to pay the $15,600 in accumulated back payments that                                                                                                                                                                                               



 Vieanna claimed he owed her.                                                                        



                                                    The superior court ruled that it was unnecessary to set aside the settlement                                                                                                                                                                  



 agreement under Rule 60(b) because the agreement could be enforced:                                                                                                                                                                     



                                                    The   terms   of   the   parties'   agreement   contemplate[]   the  

                                                    eventuality   that   has   transpired   (i.e.,   the   elimination   of  

                                                    [Kendre]'s   non-disability   retirement)   and   requires   him   to  

                                                    indemnify [Vieanna]. Therefore, the issue is not one of 60(b)                                                                                                                                                 

                                                   relief   but   rather   of   enforcement.     The   undisputed   facts  

                                                    establish [Vieanna]'s right to indemnity in the amount of                                                                                                                                                                

                                                    $1200/mo. from [Kendre].                                                                              



 The court denied Kendre's subsequent motion for reconsideration and then issued its                                                                                                                                                                                                                                           



judgment requiring Kendre to pay Vieanna $1,200 per month going forward and to pay                                                                                                                                                                                                                                         



 her $16,800 in arrears, with interest accruing.                                                                                                                                Kendre appeals.   



 III.                      STANDARD OF REVIEW                                                    



                                                    "We   construe   property   settlement   agreements   in   divorce   actions   in  



 accordance with basic principles of contract law"; "[q]uestions of contract interpretation                                                                                                                                                                                           

                                                                                        3      "We review de novo whether the trial court applied the correct  

 are reviewed de novo."                                                                                                                                                                                                                                                                                       



 legal rule," including whether a court order concerning payment of federal benefits is  

                                                                                                                                                                                                                                                                                                                                  



                          3                        Id. at 437 (quoting Glover v. Ranney, 314 P.3d 535, 539 (Alaska 2013),  

                                                                                                                                                                                                                                                                                                               

 overruled on other grounds by Howell v. Howell, 137 S. Ct. 1400 (2017)).  

                                                                                                                                                                                                                                                            



                                                                                                                                                                -5-                                                                                                                                                   7586  


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

consistent with federal law.                   4  We review the superior court's decision to apply the law                                     



of the case doctrine for abuse of discretion.                             5  



IV.	        DISCUSSION  



                                                                                                                                            

           A.	         The   Superior   Court   Correctly   Interpreted   And   Applied   The  

                                                                                                                             

                       Indemnity Clause In The Parties' Property Settlement Agreement.  



                                                                                                                                    

                       Kendre argues that the superior court improperly interpreted the indemnity  



                                                                                                                                     

provision of the parties' agreement, which requires him to "make payments to [Vieanna]  



                                                                                                                                               

directly in an amount sufficient to neutralize . . . the effects of" any action by Kendre that  



                                                                                                                                             

"prevents,  decreases,  or  limits  the  collection  by  [Vieanna]  of  the  sums  to  be  paid  



                                                                                                                                          

hereunder (by application for or award of disability compensation . . . )." Kendre claims  



                                                                                                                                                  

that paragraph 12 applies only if he "takes any action" to reduce the sums owed to  



                                                                                                                                  

Vieanna and that he did not do so; rather, "the government independently determined  



                                                                                                   

that Kendre was 100% disabled and unable to work and the government awarded him  



                                                                                                                                                  

disability pay."   Kendre also argues that the language of the indemnity provision is  



                                                                                                                                              

ambiguous, so it should be construed against Vieanna because "[s]he, presumably with  



                                                                                                                                               

the  assistance  of  an  attorney,  on  her  own  letterhead,  presented  the  court  with  the  



                                                                                                                                    

proposed [o]rder," while Kendre "was pro se and did not prepare any of the settlement  



                                                                         

paperwork."  We reject these arguments.  



                                                                                                                                                  

                       First,  the  meaning  of  the  indemnity  provision  is  not  ambiguous.                                                   It  



                                                                                                                                                

expressly provides for indemnification in the event that Kendre's retirement benefits are  



                                                                                                                                                

affected by his receipt of disability pay.  Paragraph 12 of the court order incident to the  



                                                                                                                                     

final  settlement  agreement  begins:  "If  HUSBAND  takes  any  action  that  prevents,  



                                                                                                                                               

decreases,  or  limits  the  collection  by  WIFE of  the  sums  to  be  paid  hereunder  (by  



            4	         Glover,  314  P.3d  at  539.  



            5          Hallam  v.  Holland  Am.  Line,  Inc.,   180  P.3d  955,  958  (Alaska  2008).  



                                                                        -6-                                                                      7586  


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

application  for  or  award  of  disability  compensation,  combination  of  benefits  with  any  



other  retired  pay,  waiver  for  any  reason,  including  as  a  result  of  other  federal  service,  or  



in  any  other  way)  .  .  .  ."   The  order  thus  defines  "takes  any  action"  to  include  receiving  



an  "award of disability compensation."  Under this clear language, Kendre's receipt of  



an   "award   of   disability   compensation"  triggers  his   duty  to   indemnify  Vieanna  to  the  



extent  her  $1,200  monthly  payment  is  reduced.   



                 Second,  Kendre's  argument  that  he  did  not  "take  any  action"  to  trigger  the  



indemnity  provision   is  not  persuasive.    He  testified  that  his  retirement pay  had  been  



converted  to  disability  pay  after  he  had  been  found  unemployable  following  a  doctor's  



appointment.     Attending   a   doctor's   appointment   at   which   one's   disability  rating   is  



assessed is taking action; the government does not change a veteran's  disability rating  



without   input   about   the   veteran's   health   status.     So   putting  aside   the   fact   that   the  



agreement's  terms  define  "takes  any  action"  to  include  receiving  an  award  of  disability  



pay,  Kendre's  visiting  a  doctor  and  having  his  disability  assessed  counts  as  taking  action  



that  led  to  the  reduction  of  Vieanna's  payments.   



                 The  purpose   of   the   indemnification  provision   in   Kendre   and   Vieanna's  



agreement is to protect  Vieanna's right to receive the benefits that  were  bargained  for.  



The  total  conversion  of  Kendre's  retirement  benefits  to  disability  benefits  is  precisely  the  



type  of  situation  the  provision  was  designed  to  protect  against.   



         B.	     The  Superior  Court  Did  Not  Err  By  Ruling  The  Indemnity  Clause  Is  

                 Enforceable  Under  Federal  Law.  



                 Kendre  argues  that  enforcing  the  indemnity  provision  violates  federal  law.   



He  claims  that  after  he  was  found   100%  disabled,  the  superior  court  required  him  "to  



continue  to  pay  the  exact  same  amount,  $1,200  per  month,  directly  from  his  only  source  



of   income,   i.e.   his   disability   pay."     Kendre   argues  that   "[t]his   dollar   for   dollar"  



replacement  of  retirement  pay  with  disability  pay  is  prohibited  by  federal  law.   



                                                     -7-	                                               7586
  


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

                       Although military retirement pay is considered marital property that may                                                



be divided between the spouses upon divorce, in                                      Mansell v. Mansell                 the United States   



                                                                                                                                                    6  

Supreme   Court   held   that   state   courts   may   not   divide   veterans'   disability   benefits.   



                                                                                                                              

Because a military retiree "may receive [VA] disability benefits only to the extent that  

                                                                                                                 7  a veteran's decision  

                                                                                                                                        

he waives a corresponding amount of his military retirement pay," 



to waive retirement pay and receive disability benefits instead creates problems for the  

                                                                                                                                                 



division  of  marital  property.                         In  Clauson  v.  Clauson  we  held  that  it  would  be  

                                                                                                                                                 



"unacceptable" for a court to "simply shift an amount of property equivalent to the  

                                                                                                                                                



waived retirement pay from the military spouse's side of the ledger to the other spouse's  

                                                                                                                                        

side" to balance the military spouse's receipt of disability benefits.8   "Disability benefits  

                                                                                                                                         



should not, in either form or substance, be treated as marital property subject to division  

                                                                                                                                         

                                                          9  Yet courts neednot"completely ignore the economic  

upon the dissolution ofmarriage."                                                                                                     

                                         



consequences of a military retiree's decision to waive retirement pay in order to collect  

                                                                                                                                           



            6          Mansell  v.  Mansell,  490  U.S.  581,  594-95  (1989)  (holding  that  dividing  



military  disability  benefits  violates  the  Uniformed  Services  Former  Spouses'  Protection  

Act  (USFSPA)).  



            7          2 MARK  E.  SULLIVAN,  THE  MILITARY  DIVORCE  HANDBOOK :  A  PRACTICAL  

                           

GUIDE  TO  REPRESENTING  MILITARY  PERSONNEL  AND  THEIR  FAMILIES  670 (3d  ed.  2019)  

                                                                                                                                

(quoting  Mansell,  490  U.S.  at  583).  



            8          Clauson  v.  Clauson,  831  P.2d   1257,   1264  (Alaska   1992).  



            9          Id .  



                                                                        -8-                                                                  7586
  


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

                         10  

disability pay."              The superior court may consider the economic consequences of this  

decision in deciding upon an equitable division of the marital property that remains.                                                     11  



                      Both  the  U.S.  Supreme  Court  and  our  court  have  also  addressed  the  

                                                                                                                                         



problem of enforcing the parties' obligations to one another if the military retiree elects  

                                                                                                                                     



to waive retirement pay that has already been divided in divorce, thereby reducing  

                                                                                                                                



benefits that the other spouse was entitled to receive under the property division order.  

                                                                                                                                                



In  Young v. Lowery we held  that "the trial court may  expressly  order  [the  service  

                                                                                                                                  



member] not to reduce his disposable retired pay and require [him] to indemnify [the  

                                                                                                                                        



former spouse] for any amounts by which her payments are reduced below the amount  

                                                                                                                                  

set" in the qualified order.12                   However, in Howell v. Howell the U.S. Supreme Court  

                                                                                                                                     

rejected this approach.13 After a veteran had elected to receive disability pay in lieu of  

                                                                                                                         



retirement, the Arizona SupremeCourt upheldatrial court's decision to order the veteran  

                                                                                                                                   



to "reimburse" his former spouse for the amount her share of his retirement pay had been  

                                                                                                                                       

              14  TheU.S. SupremeCourt reversed, statingthat courts may not avoid Mansell 's  

reduced.                                                                                                                       



holding "by describing the family court order as an order requiring [the veteran spouse]  

                                                                                                                                  



           10         Guerrero  v.  Guerrero,  362  P.3d  432,  440  (Alaska  2015)  (quoting  Clauson,  



831  P.2d  at   1262).  



           11         Id .  



           12         221  P.3d   1006,   1012  (Alaska  2009),  abrogated  by  Howell  v.  Howell,   137  



S.   Ct.   1400   (2017),  as  recognized   in   Gross  v.   Wilson,  424  P.3d   390,  400-01   (Alaska  

2018).  



           13         137 S. Ct. at 1405-06.  

                                            



           14         Id. at 1405.  

                                



                                                                     -9-                                                              7586
  


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

to 'reimburse' or to 'indemnify' [the other spouse], rather than an order that divides                                                                  



                                                                                                                                15  

property" because "[t]he difference is semantic and nothing more."                                                                   



                         Although  Howell  makes  clear  that  state  courts  cannot  simply  order  a  

                                                                                                                                                                   



military spouse who elects disability pay to reimburse or indemnify the other on a dollar  

                                                                                                                                                          



for dollar basis, Howell does not preclude one spouse from agreeing to indemnify the  

                                                                                                                                                                



other as part of a negotiated property settlement. Nor does Howell preclude courts from  

                                                                                                                                                             



enforcing such an agreement.  In Gross v. Wilson we held that courts may enforce a  

                                                                                                                                                                   



negotiated settlement agreement in which a military spouse promised to pay another a  

                                                                                                                                                    

share of the military spouse's disability benefits.16                                              When the military spouse stopped  

                                                                                                                                                       



making the payments, arguing that they were improper under federal law, the superior  

                                                                    

court ordered the payments to continue, and we affirmed.17                                                         We concluded:  

                                                                                                                            



                         Under Howell a state court may not circumvent Mansell by  

                                                                                                                                        

                          ordering a service member to "indemnify" a former spouse  

                                                                                                                               

                          for retirement benefits waived to receive disability pay.  But  

                                                                                                                                      

                         Howell  does  not  hold  that  a  state  court  cannot  enforce  a  

                                                                                                                                          

                         property  division  by  ordering  a  service  member  who  

                                                                                                                                  

                         unilaterally stops making payments the service member was  

                                                                                                                                     

                          legally obligated to make to resume those payments and pay  

                                                                                                                                      

                                               [18]  

                          arrearages.                



             15          Id.  at   1406.  



             16           424  P.3d  at  401.   



             17          Id.  at  394.   



             18          Id.  at  401.  



                                                                               -10-                                                                         7586
  


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

A treatise on military divorces concurs, observing that "[i]t's one thing to argue about   



a judge's power to require . . . a duty to indemnify," but "another matter entirely to                                                                   



                                                                                                                      19  

require a litigant to perform what he has promised in a contract."                                                        



                                                                                                                                             

                        Only the latter is at issue here.  The superior court did not divide Kendre's  



                                                                                                                                          

disability pay.  It merely required him to keep the terms of his promise:  to indemnify  



                                                                                                                                                  

Vieanna should he take any action that caused her to receive less than $1,200 per month  



                                                                                                                                                      

from his military retirement pay.  An indemnity provision like the one in Kendre and  



                                                                                                                                               

Vieanna's negotiated property settlement agreement is a bargained-for termthat "take[s]  



                                                                                                                                                  

account of the contingency that some military retirement pay might be waived," which  

                                                                                                                                          20   Neither  

                                                                                                                                                

is a proper consideration in arriving at an overall division of marital property. 



federal law nor our own precludes the superior court from enforcing this contract term.  

                                                                                                                                                               



            C.	         The Superior Court's Order Granting Vieanna Relief Did Not Violate  

                                                                                                                                                

                        The Law Of The Case Doctrine.  

                                                                     



                        Kendre claims that the law of the case doctrine precluded the superior court  

                                                                                                                                                    



from enforcing the indemnity provision in 2020 because it had already denied Vieanna's  

                                                                                                                                           



motion to enforce a year earlier. But the superior court did not abuse its discretion when  

                                                                                                                                                   



it decided to grant Vieanna relief.  

                                                               



                        The law of the case doctrine "limits redetermination of rulings made earlier  

                                                                                                                                                  

in the same lawsuit."21   It applies both to issues that have been "adjudicated in a previous  

                                                                                                                                             



            19          SULLIVAN,  supra  note 7,  at  691 (explaining that  Howell  decision  "magnifies  



the   importance   of  using   an   indemnification  provision   in  the  property   settlement"   for  

parties  negotiating  division  of  marital  property).  



            20          See Howell, 137 S. Ct. at 1406 ("[A] family court, when it first determines  

                                                                                                                                         

the value of a family's assets, remains free to take account of the contingency that some  

                                                                                                                                                    

military retirement pay might be waived . . . .").  

                                                                                         



            21          Robert A.  v.  Tatiana D., 474 P.3d  651, 654-55 (Alaska 2020)  (original  

                                                                                                                                             

                                                                                                                                    (continued...)  



                                                                           -11-	                                                                   7586
  


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

appeal in the same case" and to "issues that have been fully litigated in the superior court                                           

and as to which no timely appeal has been made."                                   22                             

                                                                                       The doctrine is " 'not an absolute  

                                                                                                      23  providing that "issues  

                                                                                                                                   

                                                                                       

rule of law' but rather 'a matter of sound judicial policy' " 



previously  adjudicated  can  only  be  reconsidered  where  there  exist  exceptional  

                                                                                                                           

circumstances presenting a clear error constituting a manifest injustice."24  

                                                                                                                           



                      Kendre is correct that the superior court essentially granted Vieanna's  

                                                                                                                              



motion to enforce over a year after denying this same relief.  Its October 2020 order  

                                                                                                                                       



denied Vieanna's Rule 60(b) motion because "the issue is not one of 60(b) relief but  

                                                                                                                                          



rather of enforcement." The court interpreted the parties' agreement as requiring Kendre  

                                                                                                                                    



to indemnify Vieanna for her monthly payments and ordered that Kendre indemnify  

                                                                                                                              



Vieanna "in the amount of $1200/mo. "- exactly the relief Vieanna sought in her initial  

                                                                                                                                      



motion to enforce in 2019.  

                                    



                      To begin, it is not clear that the law of the case doctrine applies here.  The  

                                                                                                                                         



 superior court described its comments on the record both as "preliminary thoughts" and  

                                                                                                                                          



then as a "partial ruling" denying the motion to enforce, which was "without prejudice  

                                                                                                                                



to [Vieanna's] re-filing . . . another motion."   On one hand, we have held that "[a]  

                                                                                                                                         



judgment of dismissal without prejudice is considered a final judgment for purposes of  

                                                                                                                                            



           21         (...continued)
  



emphasis r  emoved)  (quoting  Rekhi  v.   Wildwood  Indus.,  Inc.,  61  F.3d   1313,   1317  (7th
  

Cir.   1995)).   



           22         Id.  (quoting Barber v. State, Dep't  of Corr., 393 P.3d 412, 419 (Alaska  

                                                                                                                                   

2017)).  

              



           23         Id. (quoting Hallam v. Holland Am. Line, Inc., 180 P.3d 955, 958 (Alaska  

                                                                                                                                   

2008)).  



           24         State, Com. Fisheries Entry Comm'n v. Carlson, 270 P.3d 755, 760 (Alaska  

                                                                                                                                   

2012)  (quoting State,  Com. Fisheries  Entry  Comm'n v.  Carlson,  65  P.3d  851,  859  

                                                                                                                                         

(Alaska 2003)).  

               



                                                                    -12-                                                               7586
  


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

                 25  

appeal."              On the other hand, a fair reading of the decision indicates the superior court's                                                             



expectation that the parties would file something further for its consideration, so the                                                                                    



decision might be better characterized as tentative.                                                    It therefore is questionable whether                     



the issue of enforcing the settlement agreement was "fully                                                                     litigated in the superior        

             26   and entitled to the presumption of finality that the law of the case doctrine  

court"                                                                                                                                                          



embodies.  

                       



                           But even assuming the doctrine applies, it was not an abuse of discretion  

                                                                                                                                                        



to revisit the issue of enforcement because doing so was necessary to correct "a clear  

                                                                                                                                                                       

error constituting a manifest injustice."27  The superior court's initial ruling on Vieanna's  

                                                                                                                                                             



motion to enforce in 2019 briefly acknowledged the indemnity provision in the parties'  

                                                                                                                                                                  



settlement agreement, but assumed without analysis that it did not apply.  In 2020 the  

                                                                                                                                                                           



court recognized that the indemnity provision "contemplates the eventuality that has  

                                                                                                                                                                          



transpired (i.e., the elimination of [Kendre]'s non-disability retirement)" - in other  

                                                                                                                                                                       



words, the provision was designed for this situation exactly - and gave effect to it so  

                                                                                                                                                      



that Vieanna would not be deprived of a valuable asset that was a core element of the  

                                                                                                                                                                           



parties' bargain.  In fact, by enforcing the indemnity provision, the court obviated the  

                                                                                                                                            



need to consider setting aside the property settlement entirely due to negation of its  

                                                                                                                                                                            



              25           Farrell  ex  rel  Farrell  v.  Dome  Labs.,  a  Div.  of  Miles  Labs.,  Inc.,  650  P.2d  



380,  383  (Alaska   1982).  



              26           Robert  A. ,  474  P.3d  at  655.  



              27            Carlson,  270  P.3d  at  760  (quoting  Carlson,  65  P.3d  at  859).  



                                                                                    -13-                                                                               7586
  


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

underlying assumptions.28  It was appropriate not to apply the law of the case doctrine   



here.    



                       D.	                     It Was Not Unconscionable To Enforce The Indemnity Clause                                                                                                                                                                             .  



                                              Kendre argues that it would be unconscionable to enforce the terms of the                                                                                                                                                                           



settlement documents against him.                                                                                         We disagree.                                      



                                              Kendrefirst argues that thesettlement agreementwasunconscionablewhen                                                                                                                                                                         



it was signed because of his disability.                                                                                                He points to the fact that he "has suffered from                                                                                                    



a 90% disability rating since 2014," and argues that "the complexity of the language" in                                                                                                                                                                                                              



thesettlement                                    documents indicates that Vieanna"hadan                                                                                                        attorneyassisting                                            her in drafting       



the documents."                                               He asks only                                         for   paragraph   12 of the agreement to                                                                                                     be   set aside,   



claiming that he "arguably did not understand the implications of the provision that                                                                                                                                                                                                           



Vieanna drafted . . . which addressed disability payments."                                                                                                          



                                              We described our approach to unconscionability in                                                                                                                             Askinuk Corp. v. Lower                                     



 Yukon School District                                                       :   



                                              A   contract   or   a   contractual   term   is   "not   unconscionable  

                                              merely because the parties to it are unequal in bargaining                                                                                                                

                                              position,   nor   even   because   the   inequality   results   in   an  

                                               allocation    of    risks    to    the    weaker    party."       But    .    .    .  

                                              unconscionability may exist if the circumstances indicate a                                                                                                                                                 

                                               "vast   disparity   of   bargaining   power   coupled   with   terms  

                                              unreasonably favorable to the stronger party."                                                                                                                   [29]  



                       28                      Cf.  Guerrero  v.  Guerrero,  362  P.3d  432,  445  (Alaska  2015)  (reasoning  that  



setting   aside   property   settlement   agreement   pursuant   to   Civil   Rule   60(b)(6)   may   be  

warranted   when  military   spouse's   election   of   disability   pay   eliminates   non-military  

spouse's   share   of  retirement  pay  promised   in  property settlement   agreement  because  

"fundamental  underlying  assumption"  of  the  agreement  was  destroyed).  



                       29                      214 P.3d 259, 268 (Alaska 2009) (first quoting Vockner v. Erickson, 712  

                                                                                                                                                                                                                                                                                                

P.2d 379, 382 (Alaska 1986); and then quoting OK Lumber Co. v. Alaska R.R., 123 P.3d  

                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                               (continued...)  



                                                                                                                                                -14-	                                                                                                                                       7586
  


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

Kendre fails to show either a vast disparity of bargaining power or terms unreasonably                                                                                                                                                                                                                                                                                                                              



 favorable to Vieanna.                                               



                                                                          The indemnification provision protecting Vieanna's interest in the $1,200                                                                                                                                                                                                                                                                                                     



payments is not unreasonably favorable to her.                                                                                                                                                                                                                     It merely protects the division of assets                                                                                                                                                  



that the parties agreed on from the risk that Kendre's circumstances might change and                                                                                                                                                             



result in his receiving disability pay in lieu of retirement. Although Kendre emphasizes                                                                                                                                                                                                                                                                                                                                      



his modest financial circumstances, he does not claim that he is now receiving                                                                                                                                                                                                                                                                                                                                                                                         less  



money from disability benefits than he previously received from military retirement                                                                                                                                                                                                                                                                                                                                                



benefits.  



                                                                          Nor does therecord support Kendre's argument that because the agreement                                                                                                                                                                                                                                                                                     



is   sophisticated,   Vieanna   must   have   prepared   it   with   a   lawyer   while   Kendre   went  



unprotected.   The parties reached their property settlement through mediation, and each                                                                                                                                                                                                                                                                                                                                                                             



party initialed a provision confirming that they had the opportunity to consult with an                                                                                                                                                                                                                                                                                                                                                                                         



 attorney. Vieanna also testified at the August 2018 hearing that the mediator had helped                                                                                                                                                                                                                                                                                                                                                                



prepare the parties' final divorce settlement agreement for them.                                                                                                                                                                                                                                                                   



                                                                          Kendre's   disability   is   not   grounds   for   a   finding   of   unconscionability.   



Kendre maintains on appeal that he "arguably did not understand the implications of the                                                                                                                                                                                                                                                                                                                                                                                       



 [indemnity] provision."                                                                                                             But there is no evidence in the record to conclude that Kendre                                                                                                                                                                                                                                                  



 did not understand the parties' property division.                                                                                                                                                                                                                                  At the August 2018 hearing on the                                                                                                                                                       



 settlement agreement,Kendre answered "yes"                                                                                                                                                                                                                 when the court asked himif he was "clear-                                                                                                                                                     



headed today, able to think." Although the record indicates that Kendre was disabled in                                                                                                                                                                                                                                                                                                                                                                                             



2018 as a result of a severe head injury, and the superior court noted at the July 2019                                                                                                                                                                                                                                                                                                                                                                          



hearing that Kendre may not have "full capacity," the effect of Kendre's disability on his                                                                                                                                                                                                                                                                                                                                                                                     



                                     29                                   (...continued)  



                                                                                                                                            

  1076, 1081 n.17 (Alaska 2005)).  



                                                                                                                                                                                                                                     -15-                                                                                                                                                                                                                           7586  


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

ability to comprehend the settlement was never litigated before the superior court.                                                                    For  



that reason            there is no           factual record             for   us to        conclude that              his  disability   renders  



enforcement of the parties' settlement agreement unconscionable.                                                              To challenge the   



enforceability of the settlement agreement due to lack of capacity, Kendre would have                                                                 

had to seek relief from the court on that basis.                                   30  



                        Kendrenext argues that thepropertysettlementhasbecomeunconscionable  

                                                                                                                                   



due to changed circumstances because he is "now 100% disabled" and "cannot afford  

                                                                                                                                   



to pay Vieanna ongoing payments of $1,200 per month in addition to judgment for  

                                                                                                                                                        



$16,800."  But enforcing a contractual provision that was designed for precisely this  

                                                                                                                                                       



change in circumstances - Kendre receiving 100% disability pay in lieu of retirement  

                                                                                                                                           

pay - is not unconscionable.31  

                         



            E.	         Kendre Waived His Laches Argument By Failing To Raise It In The  

                                         

                        Superior Court.  

                                                         



                        Kendre  argues  that  Vieanna's  Rule  60(b)  motion  was  barred  by  the  

                                                                                                                                                       



equitable doctrine of laches. He claims that after the superior court told Vieanna that she  

                                                                                                                                                        



            30          See  Alaska R. Civ. P.  60(b)(6)  (allowing  court  to  set aside judgment "for  



any  other  reason").  It  is  worth  noting  that  if  Kendre  proved  that h                                           e  lacked  capacity  to  

enter    into    the    property    settlement    agreement,    the    entire    agreement    would    be  

unenforceable  -  not  just  the  agreement's  indemnity  provision.  



            31          Kendre  asserts  that  the  covenant  of  good  faith  and  fair  dealing  bars  

                                                                                                                                                      

enforcement of the  indemnity provision.   The  covenant, which  is  included  in  every  

                                                                                                                                                   

contract, concerns parties' duty not to act in a way "which will injure the right of the  

                                                                                                                                                        

other to receive the benefits of the agreement," Guin v. Ha, 591 P.2d 1281, 1291 (Alaska  

                                                                                                                                                

 1979),  and  is  intended  to  require  the  parties  "to  do  everything  that  the  contract  

                                                                                                                                              

presupposes will be done in order to accomplish the purpose of the contract," Arizona  

                                                                                                                                                

v. Tohono O'odham Nation, 818 F.3d 549, 562 (9th Cir. 2016) (quoting Sessions, Inc.  

                                                                                                                                     

v.  Morton,  491  F.2d  854,  857  (9th  Cir.  1974)).                                                Kendre's  arguments  concern  

                                                                                                                                              

enforcement of the contract terms themselves, not anything Vieanna has done to deprive  

                                                                                                                                                 

him of the benefit of the contract. The covenant does not apply to this case.  

                                                                                                                                           



                                                                           -16-	                                                                    7586
  


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

could   move   for   the   court   to   reassess   the   property   division,   "she   filed  a   lawsuit   in  



Tennessee asking for the same relief she asked for in Alaska" and ultimately "waited                                                                                                                   



over a year to file her Civil Rule 60(b) motion in Alaska."                                                                                           After the court's ruling on                                   



Vieanna's motion to enforce,                                             Kendre stopped paying Vieanna $1,200 amonth in reliance                                                                       



on the ruling.                       He implies that were it not for Vieanna's delay, he would not now be                                                                                                           



faced with an order to pay arrears of $16,800.                                                                         



                                  But Kendre failed to argue laches to the superior court when opposing                                                                                            



Vieanna's Rule 60(b) motion or when seeking reconsideration.                                                                                                    "A party may not raise                         

                                                                                          32  Because Kendre did not raise his laches argument  

an issue for the first time on appeal."                                                                                                                                                            



to the superior court, the superior court made no findings on this point, and there is no  

                                                                                                                                                                                     



ruling for us to review.  The laches argument is therefore waived.  

                                                                                                                                                  



                 F.               The Superior Court Did Not Rely On An Unpled Legal Theory.  

                                                                                                                                                                                        



                                  Kendre argues that the superior court relied on the indemnity provision of  

                                                                                                                                                                                                                     



the parties' settlement agreement without giving the parties an opportunity to present  

                                                                                                                                                                                                        



argument about it.  He claims that when the court denied Vieanna's Rule 60(b) motion,  

                                                                                                                                                                                                       



it "inserted . . . a ruling on an [unpled] legal theory . . . without giving notice that the new  

                                                                                                                                                                                                                



theory would be used and without affording either party an opportunity to present any  

                                           



evidence and arguments relevant to it."  Kendre argues that this lack of notice "caused  

                                                                                                                                                                                                      



 [him] prejudice."  

                



                 32               Brandon  v.  Corr.  Corp.  of  Am. ,  28  P.3d  269,  280  (Alaska  2001);  see  also  



B.B.  v.  D.D.,  18  P.3d  1210,  1214  (Alaska  2001)  ("Matters  not  made  issues  or  tried  before  

the [superior] court will not be considered  on appeal.").  Kendre also failed to include  

laches  in  his  statement  of  points  on  appeal;  we  ordinarily  decline  to  "consider  issues  that  

are   not   included   in   the   appellant's   statement  of   points  on   appeal."     Mullen   v.  

 Christiansen,  642  P.2d   1345,   1350  (Alaska   1982).  



                                                                                                        -17-                                                                                                  7586
  


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

                        We have held that superior courts should avoid deciding cases on                                                 an unpled   



                                                                                                                                                       33  

theory and that, when they do so, they should provide appropriate notice to the parties.                                                                    



But the superior court in this case did not rely on an unpled legal theory.   In fact,  

                                                                                                                                                  



Vieanna originally moved to enforce the settlement agreement, and it was only after the  

                                                                                                                                                     



superior court suggested that the agreement was unenforceable that Vieanna moved for  

                                                                                                                                                     



relief under Rule 60(b).  And although Vieanna then filed a motion seeking relief under  

                                                                                                                                                



Rule 60(b), it was clear from the content of her motion that she was seeking to enforce  

                                                                                                                                             



the indemnity provision in the settlement agreement:  

                                                                           



                        The  parties'  settlement  agreement  stated  that  the  $1,200  

                                                                                                                     

                        could not be modifiable by either party. . . . It clearly states  

                                                                                                           

                        that if Mr. Jones takes any action to decrease or waive his  

                                                                                                                             

                        retirement pay, . . . he would still owe [Vieanna] the same  

                                                                                                                         

                        amount.  It specifically states that Mr. Jones will indemnify  

                                                                                                        

                        Ms. Jones against reduction of her monthly payment.  This  

                                                                                                                          

                        was an integral part of the parties' agreement.  

                                                                                      



Vieanna went on to "ask[] the court to enforce the parties' settlement agreement and  

                                                                                                                                                   



order [Kendre] to resume paying the $1,200 that the parties agreed he would pay."  

                                                                                                                                                            



Kendre was on notice that Vieanna sought to enforce this aspect of the agreement, so it  

                                                                                                                                                        



was incumbent on him to raise any arguments against that provision when opposing  

                                                                                                                                          



Vieanna's motion. In fact, Kendre did raise a number of arguments - including the law  

                                                                                                                                                    



of the case doctrine and arguments based on Mansell - and fails to explain how he was  

                                                                                                                                                   



            33          State  v.  First  Nat'l  Bank  of  Anchorage ,  660  P.2d  406,  423  (Alaska   1982)  



(holding  court  has  authority  to  decide  case  on  unpled  legal  theory  only  "when  the  new  

theory   applies   to   the   transaction   in   issue,   is   related   to   the   theories   presented   by   the  

parties,  and  is  necessary for a  proper  and  just  disposition  of  the  case"  but  court  must  

"take  steps  to  eliminate  the  prejudice  by  giving  notice  that  the  new  theory  will  be  used  

and  affording  an  opportunity  to  the  parties  to  present  evidence  and  arguments  relevant  

to  it").  



                                                                         -18-                                                                    7586
  


----------------------- Page 19-----------------------

prejudiced by the court's ruling on the argument presented in Vieanna's motion. We see                                                                                                                                                                                                                                                                                                                                             



no abuse of discretion in the superior court's ruling.                                                                                                                                                                                                                   



V.                                CONCLUSION  



                                                                   We AFFIRM the superior court's order.                                                                                                                                        



                                                                                                                                                                                                                                -19-                                                                                                                                                                                     7586
  

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