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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hooper v. Hooper (07/25/2008) sp-6292
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TAGGART HOOPER, | ) |
| ) Supreme Court No. S- 12356 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-04-11587 CI | |
| v. | ) |
| ) O P I N I O N | |
| SABRA HOOPER, | ) |
| ) No. 6292 July 25, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Herbert M. Pearce, Law Office
of Herbert M. Pearce, Anchorage, for
Appellant. No brief filed by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
When Sabra and Taggart Hooper divorced, the superior
court awarded nearly sixty-seven percent of the main marital
estate to Sabra, and thus gave her about $110,000 more than it
gave Taggart. Taggart challenges this division and other
rulings. We affirm the property division because we conclude
that it was supported by sufficient findings of fact and that the
court did not abuse its discretion. But because some other
awards require additional explanation, we vacate those awards and
remand.
II. FACTS AND PROCEEDINGS
Sabra and Taggart Hooper married in 1991, and in 2004
Sabra filed for divorce. The parties agreed as to custody for
their two children, but were unable to agree on other issues. In
late 2005 the superior court conducted a trial as to the disputed
issues; both parties testified. In late May 2006 the superior
court entered findings of fact and conclusions of law.
The court found that Sabra had not worked fulltime for
more than seven years and that her current employment as a part-
time teachers assistant (earning $1,200 net per month during the
school year) was reasonable. The court found that Taggart earned
at least $3,000 net per month[].1
As to the property division issue, the court decided
that Sabra was entitled to sixty-seven percent of the estate
based on
the length of the marriage, the time Sabra
spent raising the children, the relative
earning capacities of the two, the disparate
incomes of the two, the relatively greater
time that Sabra will be rearing the children,
and the economic needs of the parties,
including Sabras need for money to refinance
the marital home to keep it for the children,
if she can, or to pay for costs of repairs in
order to sell the house if she must.
The court found that the total value of the marital
estate apart from the parties retirement accounts was $348,537.
It then awarded Sabra $229,162 and Taggart $119,375 of the non-
retirement account portion of the marital estate. It thus
awarded Sabra slightly less than sixty-seven percent of this part
of the marital estate. As the superior court observed, sixty-
seven percent of this part of the marital estate would have been
$233,520. The court noted that although it was awarding Sabra
slightly less than sixty-seven percent of the marital estate, it
believed the actual division was fair and equitable, and is close
enough to what the court believes is a just division that further
refinement is not warranted. The courts awards of this part of
the marital assets had the effect of giving Sabra about $110,000
more than they gave Taggart.
As to the retirement accounts, the court stated that
Qualified Domestic Relations Orders (QDROs) would be entered
awarding Sabra sixty-seven percent of Taggarts unvested Federal
Employees Retirement System (FERS) account, Taggarts National
Guard pension account, and Sabras Public Employees Retirement
System (PERS) account. By stipulation, the court awarded Sabra
all of her Alaska Airlines retirement account.
The portion of the marital assets valued by the court
at $348,537 included much of Taggarts Thrift Savings Plan (TSP),
which had a marital value of about $194,417 as of July 2005.
When Taggart, who had agreed to pay the mortgage on the marital
home following separation, did not make some of the 2005 mortgage
payments, the court ordered him in mid-2005 to borrow $10,000
from his TSP account so he could continue to make those payments.
The monthly mortgage payments were about $1,500. At trial, there
was a dispute whether the superior court should treat this loan
as marital property, as Taggart contended, or as Taggarts
individual property, as Sabra contended. The courts post-trial
decision characterized Taggarts mortgage payments following
separation as payments in lieu of child support, found that
Taggart had agreed to pay the mortgage instead of paying child
support, and concluded that the loan would be counted against
Taggarts portion of the TSP.
Taggart testified at trial that in August 2005 he had
begun paying monthly child support of $500. The findings of fact
did not discuss these payments.
The findings and conclusions ordered Taggart to
purchase, at his expense, FERS survivor benefits for Sabra. The
findings did not determine the cost of these survivorship
benefits.
The findings also divided Taggarts employment leave
that he had accrued during the marriage. The parties were to
determine its value, and Taggart was to cash out sixty-seven
percent of the accrued leave and pay that amount to Sabra. The
court did not specify whether the leave to be divided included
sick leave.
The court also awarded Sabra $3,000 in rehabilitative
alimony to assist her in acquiring new job skills and returning
to work. Sabra had requested $10,000 in rehabilitative alimony
so she could complete college and obtain an elementary education
degree. The court declined to award that amount, stating that
Taggart could not reasonably afford to make payments over three
years totaling $10,000 in addition to his child support and other
payments and obligations, and that such an award would be unfair.
The superior court also awarded Sabra attorneys fees of
$5,000 [b]ased on the disparity in income between the parties.2
It denied her request for an award of nearly $12,000 to cover
credit card debt she incurred in paying her legal fees and child
expenses. It also denied her request for an award of $21,372 to
repay a loan she claimed she had obtained from her mother to
support herself and the children after separation.
Taggart appeals. Sabra has filed a notice of non-
participation in the appeal.
III. DISCUSSION
A. The Court Did Not Err in Awarding Sabra Sixty-Seven
Percent of the Marital Estate.
1. Standard of review
Taggart argues that the superior court did not appl[y]
the appropriate legal standards in exercising its broad
discretion when it awarded Sabra approximately sixty-seven
percent of the marital estate. He asserts that his argument
raises a question of law, to which we apply our independent
judgment. But it appears that he also takes issue with the
courts findings of fact and its exercise of discretion in
applying the factors listed in AS 25.24.160(a)(4). We have held
that, [a]lthough an equal division of property is presumed to be
the most equitable, the trial court has broad discretion to
deviate from absolute equality.3 We therefore review the
superior courts decision to award Sabra approximately sixty-seven
percent of the estate under the abuse-of-discretion standard of
review.
For us to review an award, we must be informed by the
[superior] court what it found to be the ultimate facts upon
which it based its conclusion that the property should be divided
as it has decreed.4 Whether there are sufficient findings for
informed appellate review is a question of law.5 We apply our
independent judgment to questions of law,6 and review findings of
fact for clear error, a standard met only if, after review of the
entire record, we are left with a definite and firm conviction
that a mistake was made.7
2. Whether the trial court applied the appropriate
legal standards We first consider whether, as Taggart
argues, the trial court committed legal error by failing to apply
the appropriate legal standards in exercising its broad
discretion.
The equitable division of marital assets is a three-
step process: first, the court must determine what specific
property is available for distribution; second, it must find the
value of this property; third, it must decide how an allocation
can be made most equitably.8 In determining the most equitable
division, the starting point is the presumption that an equal
division is the most just.9 From there, the superior court must
consider the Merrill v. Merrill10 factors now codified in AS
25.24.160(a)(4).11 The superior court may divide the assets and
liabilities unequally if it finds that such a division is just
after considering the statutory factors.12
Before unequally dividing property, the superior court
must consider the necessities element of AS 25.24.160(a)(4) by
specifically discussing the parties individual needs. We have
upheld an unequal division of property in a case in which the
superior court discussed each of the statutory factors,13 and
affirmed a fifty-six/forty-four percent property division in a
case in which the superior court found the wife needed future
income while pursuing a professional degree.14 Likewise, we have
vacated an unequal property division and remanded because the
superior court did not appear to discuss the needs of the parties
beyond discussing the property available.15
The superior court here entered thoughtful and detailed
findings of fact discussing all of the relevant factors set out
in AS 25.24.160(a)(4).16 The findingsdiscussed Sabras present
relative lack of employment skills, the parties relative earning
capacities, the disparity in the parties incomes, the duration of
the marriage, the time Sabra spent and will spend raising the
children, and in a general way the economic needs of the
parties, including Sabras need for money either to refinance the
home or to repair and sell it. The findings also discussed the
amount of equity in the home and the exact amount the court was
awarding each party from the marital estate, apart from what they
were also to receive from the retirement accounts. These
findings addressed the appropriate legal standards for property
division. The trial court therefore committed no legal error.
We next consider whether the findings are sufficient
for appellate review of the disparate awards challenged by
Taggart. In deciding whether to deviate from the presumptively
appropriate fifty/fifty division, a superior court must consider
the statutory factors, including the parties economic
circumstances and necessities.17 The superior court did not
explain the mathematical process by which it reached a conclusion
that Sabra should receive about sixty-seven percent of the
marital property, and thus $110,000 more of the non-retirement
account property than Taggart received. But the findings
discussed the parties significant income disparity and broadly
discussed Sabras need to keep the family home, if possible. The
findings did not directly address the parties monthly needs.
They did not identify Sabras specific monthly financial
necessities,18 or the value of any extraordinary expenses Sabra
might face that might themselves justify the disparity in the
awards.19 On the other hand, Taggarts main property division
theme at trial was that Sabra was voluntarily underemployed and
capable of earning more than she did. The court rejected
Taggarts contention that Sabra had unilaterally chosen not to
return to full-time employment; there was no significant dispute
that Sabra was disadvantaged economically, to the point the court
declined to penalize her after she violated a court order by
selling marital property to pay expenses. And when Taggart failed
to make several mortgage payments on the marital home in 2005, a
foreclosure notice was issued for the marital home occupied by
Sabra and the children. As the court noted, this left her in
financial difficulties. The court thus effectively found Sabra
had no financial reserves. The trial courts order correctly
noted that the parties had noticeably disparate incomes, and that
Taggart earns far more than Sabra and has a greater earning
capacity. The court found that Taggart earns at least $3,000 net
monthly, and Sabra earns $1,200 net monthly, during the school
year.20 These figures reflect a roughly 2.5-to-1 disparity in the
parties incomes; that disparity exceeds the approximately 2-to-1
disparity between the parties property awards. The court also
noted that Taggart had regularly deposited more than 7.5 percent
of his income in his retirement plans.
The findings and conclusions sufficiently explain why
the court awarded Sabra approximately two times what it awarded
Taggart. We are therefore able to determine whether the awards
were within the superior courts considerable discretion.
This is not to say that the size of the disparity from
the fifty/fifty norm for property division does not cause
concern. Care must be taken to adhere to the norm unless there
are good reasons for deviating from it. Here, the reasons for
deviation are sufficient and we are influenced in this conclusion
by the relatively modest size of the marital estate.
3. Taggarts challenge to specific rulings
Taggart also challenges specific rulings of the trial
court, although he contends that he is only arguing that the
superior court applied the wrong legal standard. Some of these
rulings resolved fact disputes or were based on factual findings.
Factual findings will not be reversed unless they are clearly
erroneous.21 The others we review for abuse of discretion.22
Taggart first argues that Sabra refused to return to
work fulltime and that this created financial problems for the
parties. He implies that her refusal was contrary to the parties
agreement. The superior court found that Sabra was a part-time
Anchorage School District teaching assistant during the school
year, that this employment was reasonable, that she would slowly
re-enter the work force, and that she was not underemployed
during the school year.
Taggart testified only that he had expected Sabra to go
back to work fulltime when the children were in school. He did
not testify that Sabra had refused to return to work fulltime,
that she had failed to abide by any agreement between them
regarding her employment, or that her part-time schedule created
any financial difficulties. Sabra testified that she was in the
process of returning to work fulltime, and that the parties had
agreed that she would not work at all between 1997 and 2001. The
superior court therefore did not clearly err by finding that
Sabras employment was reasonable.
Taggart next asserts that Sabra is voluntarily
underemployed, because [t]he evidence presented clearly
demonstrated that Sabra had the skills and ability to work full-
time at a wage of at least $13.00 an hour. He implicitly argues
that such jobs were actually available to Sabra. When asked by
Taggarts attorney if she would take a full-time job that paid
$13.15 per hour, Sabra testified that she would. She also
testified that she thought she could earn $13 per hour. But
Sabra did not testify expressly or implicitly that a full-time
job paying $13 per hour was available to her. She explained
that she no longer has the skills necessary to do the work she
had previously done for Alaska Airlines, when she last earned
about $13 per hour in full-time employment. Sabra also testified
that she had applied for several full-time jobs with the school
district and had not been hired. The record does not compel a
finding that Sabra actually could have obtained full-time
employment for $13 per hour, and it does not demonstrate that the
court clearly erred in failing to find that she could have.
The superior court did not clearly err by finding that
Sabras current level of employment was appropriate, given her
skills. The court also did not clearly err in finding that she
was not underemployed during the school year. And as to summer
employment, the court reasoned that while the children were
young, child care expenses of at least $750 monthly would be
incurred; it seemed to assume that if she worked thirty hours a
week at $13 per hour these expenses would consume about fifty
percent of her summer earnings. We are unconvinced that this
finding and this implicit assumption were clearly erroneous.
Taggart next asserts that Sabra will earn more money in
the future, when and if she obtains a teaching degree. But the
statute requires the court to consider each partys earning
capacity.23 It does not require the court to consider the partys
potential future earning capacity following significant
additional education. There was no evidence Sabra would earn a
teaching certificate in the near future. She testified she had
about ten credit hours and needed about 112 more to obtain a
teaching certificate. It was not an abuse of discretion to
decline to attribute a teachers earning capacity to Sabra.
Taggart next asserts that the trial court also
justified [awarding] 67% of the marital estate to Sabra based
upon the fact that if she was unable to refinance the home then
she would need to pay for cost[s] of repairs in order to sell the
house if she must. We assume Taggart is not contending that the
prospect of pre-sale repair expenses was the courts only
justification for the disparate award; the findings also
discussed a variety of other facts which the court thought
rendered a sixty-seven/thirty-three division fair and equitable.
It appears the court regarded pre-sale repair costs as a logical
alternative to its finding that Sabra needed money to refinance
the marital home to keep it for the children, if she can . . . .
It also appears, as Taggart argues, that there was no evidence in
the record that the house needed repairs, whether or not it had
to be sold. But there is likewise no indication the superior
court gave the possibility of repair costs significant weight.24
Taggart also seems to argue that in determining whether
Sabra was to receive more than half the marital estate, the court
improperly considered the cost of child care and the amount of
time Sabra spent raising the children. We have stated that the
list of factors in AS 25.24.160(a)(4) is not exhaustive and that
it is entirely appropriate for a court to consider factors not
enumerated in that statute.25 The statute did not prevent the
court from considering these circumstances. To the extent these
circumstances may have been relevant to Sabras economic
necessities not otherwise covered by child support payments, it
was not inappropriate to consider them.
Taggart also argues that the court should have
considered his child-care costs. Because Taggart testified that
he had no child-care costs, we are unpersuaded by this argument.
B. It Was Error To Deduct the $10,000 Loan from Taggarts
Portion of the TSP Without a More Detailed Explanation.
In mid-2005 the superior court ordered Taggart to
borrow $10,000 from his TSP account so he could continue to make
mortgage payments on the marital home occupied by Sabra and the
children. Although the superior court found the marital portion
of the TSP account was worth about $194,000 in July 2005, in its
2006 decision the court attributed the entire $10,000 TSP loan to
Taggart, rather than dividing it between the parties. Taggart
argues that it was error to treat the loan as his, and that it
should have been classified as a marital loan to be divided
between the parties.
The May 31, 2006 findings of fact and conclusions of
law characterized all mortgage payments, including those made
from the TSP loan, as payments made in lieu of child or spousal
support.26 Thus, the superior court found:
After separation, Taggart agreed (and his agreement
subsequently was made into an order) to pay the
mortgage on the marital home in lieu of child support.
He stopped paying the mortgage on occasions, leaving
Sabra in financial difficulties, and Taggart eventually
was ordered to take a loan of $10,000 from the TSP to
continue to pay mortgage payments in the interim, and
to pay for a second appraisal. . . . The $10,000 loan
amount from the TSP shall be counted against Taggarts
33% share of the TSP, because he agreed and was ordered
to pay the mortgage from his post-separation income.
The court then added that to the extent the mortgage payments
exceeded Taggarts child support obligation, it was fair and
equitable to deem the excess interim spousal support.
Taggart argues that although he did originally agree to
continue to make the mortgage payment on the marital residence in
lieu of child support at the onset of this litigation, by the
time he took out the TSP loan, he no longer wished to pay the
mortgage in lieu of child support. Instead, beginning in mid-
2005 Taggart filed repeated motions asking the court to issue a
written decision and to award the home (and the responsibility
for making the mortgage payments) to Sabra. Taggart argues that
because the court delayed issuing its decision,27 and because the
TSP loan was utilized to preserve the marital estate, it should
have been split between the parties
Taggart is correct in arguing that the superior court
must consider payments made to maintain marital property from
post-separation income when dividing marital property,28 even
though we have recognized that [w]e have not . . . held that the
spouse who makes such payments must necessarily be given credit
for them in the final property division.29 Here it appears
Taggart may be correct in arguing that the court entered a
separate interim $500 per month child-support order at about the
same time the court ordered him to take out the TSP loan to make
the mortgage payments. This would seem to be inconsistent with
treating the mortgage payments as Taggarts own obligation on the
theory they were in lieu of his child support payments. Also,
because most of Taggarts TSP account was marital, in effect the
loan (although taken out by Taggart) used marital assets to
preserve another marital asset (the parties home) before trial.
It therefore would have been appropriate to presume that the loan
was marital. Nonetheless, the findings of fact and conclusions
of law do not discuss whether the court considered these payments
when it divided the property. We remand for more detailed
findings explaining why the TSP loan should not be treated as a
marital debt to be divided equitably between the parties, rather
than counted only against Taggarts share of the TSP.
C. It Was Error To Overlook Taggarts Interim Child Support
Payments.
Taggart claims that he testified that he made three
child support payments of $500 for August, September, and
October, 2005. The findings of fact and conclusions of law did
not mention these payments. Taggart argues that he began paying
child support based upon the trial courts oral order entered on
July 22, 200[5]. We assume he is referring to the July 21 order
requiring that child support be calculated in accordance with
Alaska Civil Rule 90.3, beginning August 1. Taggart did not file
a Rule 90.3 income affidavit at that time. Nevertheless, in
Ogard v. Ogard, we held that payments made on behalf of the
children were to be credited against interim child support
obligations.30 On remand, the superior court should clarify to
what extent, if any, Taggart should receive credit for interim
child support payments he made beginning in August 2005.31
D. It Was Error To Require Taggart To Purchase Survivor
Benefits Without Determining Their Cost.
The superior court ordered the division of Taggarts
unvested FERS account by QDRO, awarding sixty-seven percent to
Sabra while requiring Taggart to bear the cost of purchasing
survivor benefits. Taggart argues that the cost of purchasing
the survivor benefits should have been allocated between the
parties in the same proportion as the rest of the marital estate.32
We express no opinion about how the cost of survivor
benefits should have been divided. But allocating the entire
cost to Taggart effectively deviated from the allocation scheme
the court stated it was following. Absent a determination (or
undisputed evidence) that the cost of the benefits was
financially insignificant, Taggart should not have been required
to pay the entire cost of purchasing the benefits without
determining how much the benefits cost and without considering
how imposing that expense on Taggart would affect the property
division. As we held in Lang v. Lang, we need to know the
ultimate facts that the property division was based on to
determine whether the superior court abused its discretion.33 We
therefore remand for determination of the cost of the survivor
benefits and, unless the cost is insignificant, for further
consideration and explanation of how that cost should be
allocated.
E. Taggart Waived His Argument Pertaining to Leave.
Taggart argues that he should not have to cash out
sixty-seven percent of his leave and pay Sabra its value because
the superior court did not ascertain whether all of his leave
could be cashed out. He contends that the court erred by not
determining if some or all of Taggarts personal leave that was
accrued is sick leave that is only available to him for the
limited purposes of actual illness or for determining the length
of service upon retirement its value is inherently speculative.
Because Taggart presented no evidence at trial that any of his
leave could not be cashed out, he did not preserve this argument.34
F. The Findings Are Inadequate for the $3,000
Rehabilitative Alimony Award.
Taggart argues that Sabra was not entitled to
rehabilitative alimony because she was awarded sixty-seven
percent of the marital estate.35 Sabra sought rehabilitative
alimony of $10,000. The court denied that request, but awarded
her $3,000. In doing so, the court did not explain how it
calculated this amount, or what expenses and for what duration
this amount would cover. And it did not explain why an award of
this amount was needed, given Sabras income and given the size of
the marital estate, its unequal allocation, and the amount of
marital property awarded her. Sabra should not have been awarded
$3,000 in rehabilitative alimony absent factual findings about
the cost and duration of the projected rehabilitation plan and
absent findings that her income and her share of the marital
property were insufficient to allow her to pursue a
rehabilitation program at her own expense.36 We therefore vacate
this award and remand for further findings. The court, at its
discretion, may receive additional relevant evidence.
G. The Award of Attorneys Fees Was Reasonable.
Taggart argues that Sabra should not have been awarded
$5,000 in attorneys fees. He asserts that [t]here was no finding
by the trial court that Sabras financial condition in any way
prohibited her from litigating the divorce action on a fairly
equal plane. He also argues that it was inconsistent to award
Sabra attorneys fees after the court concluded that she was not
entitled to be reimbursed for credit card debt she incurred to
pay for attorneys fees and the childrens expenses. Taggart also
argues that Sabra received a significant award in the form of
mortgage payments and the property division.
We will not reverse an award of attorneys fees unless
it is arbitrary, capricious, or manifestly unreasonable.37 The
superior court did not need to make a specific finding that Sabra
would be unable to litigate the divorce on a fairly equal plane.
As Taggart recognizes, cost and fee awards in a divorce action
are not to be based on the prevailing party concept, but
primarily on the relative economic situations and earning powers
of the parties.38 Taggart acknowledges that the superior court
awarded Sabra $5,000 [b]ased on the disparity in income between
the parties. This was an adequate explanation for this award.
We therefore affirm the $5,000 attorneys fees award.
Although Taggart has prevailed on some issues on
appeal, in Part III.A we affirmed the unequal property division.
The amount in dispute as to the property division very
substantially exceeds the total amounts in dispute as to issues
on which Taggart prevailed at trial and as to those additional
issues on which he may prevail on remand. We therefore decline
to remand for reconsideration of the attorneys fees award.
IV. CONCLUSION
We VACATE as to the treatment of the $10,000 TSP loan
as Taggarts, Taggarts claim of credit for interim child support,
the cost and allocation of the survivor benefits, and the award
of rehabilitative alimony, and REMAND for additional proceedings
as to those disputes. We AFFIRM the remainder of the superior
courts findings of fact and conclusions of law, including its
property division.
_______________________________
1 The Final Child Support Order entered in 2006 set basic
child support at $885 per month and stated that Taggarts net
wages were approximately $3,277. We cannot confirm the accuracy
of the $3,277 figure, because the record does not include a
signed Alaska Civil Rule 90.3 affidavit current as of the date of
trial. An unsigned affidavit stated that Taggarts adjusted annual
income was $50,388. Taggart testified that his 2004 gross wages
were $64,990. This figure reflected earnings from his full-time
job as an aircraft mechanic with the Department of Defense and
his part-time job with the Alaska Air National Guard and may have
included significant earnings attributable to overtime. There
was no trial evidence clearly establishing Taggarts adjusted
annual income or bearing on whether his 2004 gross wages were
aberrationally high.
2 Sabra was represented by counsel in the superior court.
3 Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994)
(affirming award of two-thirds of marital estate to wife where
marriage was of moderate length, wife worked intermittently
during marriage, and wife earned half of what husband earned).
4 Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987)
(stating that court must make fact findings that are sufficiently
specific to indicate basis for property division) (quoting
Merrill v. Merrill, 368 P.2d 546, 547-48 (Alaska 1962) (footnote
omitted)).
5 We have previously stated that [w]e review the alleged
inadequacy of a trial courts fact findings to determine whether
they give [us] a clear indication of the factors considered
important by the trial court or allow us to determine from the
record what considerations were involved. Borchgrevink v.
Borchgrevink, 941 P.2d 132, 137 (Alaska 1997). We conclude here
that this threshold question presents a question of law.
6 E.g., Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska
1983).
7 Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005).
8 Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)
(citing Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002) (citing
Lundquist v. Lundquist, 923 P.2d 42, 46-47 (Alaska 1996);
Wanberg, 664 P.2d at 570)).
9 Burcell v. Burcell, 713 P.2d 802, 805 (Alaska 1986)
(citing Jones v. Jones, 666 P.2d 1031, 1034 (Alaska 1983));
accord Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)
(stating that [a]n equal division of the marital property is
presumed to be equitable and approving the superior courts
decision to begin its analysis with this presumption).
10 Merrill v. Merrill, 368 P.2d 546, 547-48 n.4 (Alaska
1962).
11 Tybus v. Holland, 989 P.2d 1281, 1286 (Alaska 1999).
12 Id. at 1286.
13 Id.
14 Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988).
15 Walker v. Walker, 151 P.3d 444, 450-51 (Alaska 2007)
(in absence of findings under Merrill factors, unequal property
division was abuse of discretion).
16 AS 25.24.160(a) states in pertinent part:
In a judgment in an action for divorce or
action declaring a marriage void or at any
time after judgment, the court may provide
. . . .
(4) for the division between the parties of
their property, including retirement
benefits, whether joint or separate, acquired
only during marriage, in a just manner and
without regard to which of the parties is in
fault; however, the court, in making the
division, may invade the property, including
retirement benefits, of either spouse
acquired before marriage when the balancing
of the equities between the parties requires
it; and to accomplish this end the judgment
may require that one or both of the parties
assign, deliver, or convey any of their real
or personal property, including retirement
benefits, to the other party; the division of
property must fairly allocate the economic
effect of divorce by being based on
consideration of the following factors:
(A) the length of the marriage and
station in life of the parties during the
marriage;
(B) the age and health of the parties;
(C) the earning capacity of the
parties, including their educational
backgrounds, training, employment skills,
work experiences, length of absence from the
job market, and custodial responsibilities
for children during the marriage;
(D) the financial condition of the
parties, including the availability and cost
of health insurance;
(E) the conduct of the parties,
including whether there has been unreasonable
depletion of marital assets;
(F) the desirability of awarding the
family home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities
of each party;
(H) the time and manner of acquisition
of the property in question; and
(I) the income-producing capacity of
the property and the value of the property at
the time of division.
17 AS 25.24.160(a)(4)(G); Veselsky v. Veselsky, 113 P.3d
629, 639 (Alaska 2005); cf. Hayes, 756 P.2d at 300.
18 AS 25.24.160(a)(4)(G).
19 There was no suggestion any possible repair costs would
approach $110,000. The court also divided the retirement
accounts applying the sixty-seven/thirty-three percentage without
specifying the value of these accounts or the net effect. But
given the relatively modest values of these accounts (Taggarts
FERS account had not vested at the time of trial), the parties
relative youth, and the courts permissible use of QDROs to divide
these accounts, it does not appear that the division of the
retirement accounts significantly contributes to the disparity
between the awards to Taggart and Sabra.
20 This may understate Taggarts net income. See note 1,
above.
21 Beal v. Beal, 88 P.3d 104, 110 (Alaska 2004).
22 Krize v. Krize, 145 P.3d 481, 483 (Alaska 2006) (We
review property division rulings for abuse of discretion.).
23 AS 25.24.160(a)(4)(C).
24 In her trial brief Sabra argued she had been given an
estimate of $18,000 to repair the house for sale. She also
argued the repairs would be obligatory. So far as we can tell,
no evidence was offered at trial to support these contentions.
25 Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999).
26 Taggart does not argue that Sabra was not entitled to
interim spousal support.
27 Citing AS 22.10.190(b), Taggart implies that the
decision was untimely. The court issued its decision on May 31,
2006, within six months of the December 2, 2005 closing
arguments, satisfying AS 22.10.190(b).
28 Cf. Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992)
(citation omitted) (holding that superior court was not required
to give husband credit for post-separation payments that
preserved marital estate, but recognizing that it could do so).
29 Id. In reviewing the division of property, we have
held that the division of property between the parties in a
divorce action rests in the discretion of the trial judge, and we
should not disturb such division unless clearly unjust. Merrill
v. Merrill, 368 P.2d 546, 547 (Alaska 1962).
30 Ogard v. Ogard, 808 P.2d 815, 817 (Alaska 1991).
31 Taggart also argues that he was not given credit for
his post-November 2005 monthly support payments. He can also
pursue that contention on remand.
32 In reviewing the superior courts division of property,
we will not disturb the division unless it is clearly unjust.
Merrill, 368 P.2d at 547.
33 Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987) (citing
Merrill, 368 P.2d at 547-48).
34 Harvey v. Cook, 172 P.3d 794, 802 (Alaska 2007).
35 We review rehabilitative alimony awards for abuse of
discretion. McDougall v. Lumpkin, 11 P.3d 990, 992 (Alaska
2000).
36 Cf. Brown v. Brown, 914 P.2d 206, 209 (Alaska 1996);
but see Bays v. Bays, 807 P.2d 482, 485 (Alaska 1991) (citing
Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986)). In Bays, we
stated that our preference for meeting the parties needs with the
property division does not apply to rehabilitative alimony or
support of limited duration. 807 P.2d at 485. Here, however,
the question is not whether, given the property division, it was
an abuse of discretion to award any rehabilitative alimony, but
whether there were adequate factual findings to justify the
$3,000 award.
37 Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).
38 Rodvik v. Rodvik, 151 P.3d 338, 351 (Alaska 2006)
(quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska
1987)).
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