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L. Barnes v. R. Barnes (7/26/91), 820 P 2d 294
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
LARRY A. BARNES, )
) Supreme Court No. S-3827
) Trial Court No.
v. ) 3AN-88-1321 Civil
RAMONA L. BARNES, ) O P I N I O N
Appellee. ) [No. 3724 - July 26, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Rene Gonzalez, Judge.
Appearances: Robert C. Erwin, Erwin &
Smith, Anchorage, for Appellant. Robert D.
Frenz, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Matthews, Compton and Moore, Justices.
[Burke, Justice, not participating.]
In this divorce case, the trial court entered a final
decree dividing the property of the parties on April 14, 1989.
The court made a "substantially equal division" of a marital
estate having a net value of approximately $369,000, awarding
approximately $195,000 to Ramona Barnes and approximately
$174,000 to Larry Barnes. Included in Ramona's share of the
award was Larry's deferred income account as of February 1, 1988,
with his employer, the Municipality of Anchorage. This was
valued at $82,000. All parties and the court believed that this
account could be transferred to Ramona.
This assumption proved to be mistaken. On July 17,
1989, the Office of the Municipal Attorney for the Municipality
of Anchorage wrote Ramona's attorney, stating that the deferred
income account could not be transferred to Ramona. According to
the letter, the funds in the account could not be made available
even to Larry until he attained the age of 70«,1 stopped working
for the Municipality, or was "faced with an unforeseeable
emergency." Concerning the last event, the letter stated:
[T]he participant may withdraw funds
under the plan if financial hardship is
shown. Neither the order nor the final
judgment in the case require Mr. Barnes to
pay the sum of $82,000 to Ramona Barnes at
any particular time. It would appear to be
difficult to establish current financial
hardship unless Mr. Barnes has been ordered
to pay that amount of money in the near
In the meantime, Ramona had filed a notice of appeal
from the final divorce judgment. She also moved in this court to
stay preparation of the record on appeal "pending resolution of
several matters concerning the case in the Superior Court,"
referring specifically to "certain deferred compensation funds
held by the Municipality of Anchorage." Her motion was granted
on August 3, 1989. We granted a 60-day stay and "temporarily
remanded"the case "to the superior court to allow for resolution
of the issue of distribution of certain deferred compensation
On September 22, 1989, Ramona made a motion to modify
the final judgment pursuant to Civil Rule 60(b), requesting,
among other things, that she be awarded a money judgment against
Larry in the sum of $82,000 plus accrued interest from February
1, 1988. In support of this motion, Ramona referred to the
Municipality's position concerning the terms under which the
deferred income account could be distributed to Larry. She
stated: "The entry of this judgment will force Mr. Barnes to pay
the $82,000.00 plus interest for which he can apply to the
Municipality on the grounds of hardship to have the funds
released to Mrs. Barnes."
On September 29, 1989, Larry also moved to modify the
final divorce judgment to include certain new assets and correct
the judgment in two respects: 1) to reflect that he was in the
military service for seven years before he was married to Ramona
and therefore that part of his military pension which was
attributable to those years should not have been counted as
marital property; and 2) to correct a clerical error in a
qualified domestic relations order that was issued subsequent to
the divorce. Each party opposed the other's Rule 60(b) motion.
We extended the 60-day order of remand on October 31,
1989, "pending a decision of the superior court." On the same
day, the superior court held oral arguments on the motions to
amend the final judgment.
At oral argument, Ramona's counsel requested that "the
Court either . . . enter a judgment against Mr. Barnes in the
amount of . . . $82,000.00 plus accumulated interest to
essentially constitute a hardship to jar the funds loose from the
Municipality" or make a more comprehensive redivision of the
parties' assets. In response, counsel for Larry argued that
under the terms of the remand from this court, the trial court
lacked jurisdiction to grant any relief other than that
pertaining directly to the deferred income account. The trial
court agreed with this argument and ruled that it would enter an
amended judgment relating only to the problem created by the non-
transferability of the $82,000 account. On this basis, the court
denied Larry's Rule 60(b) motion and the other relief sought by
Subsequently, the court entered an order requiring
Larry to pay Ramona the sum of $82,000 plus all earnings on the
$82,000 in the deferred income account from February 1, 1988,
until the date of the order, January 12, 1990.2 From this order,
Larry has appealed. Ramona has dismissed her appeal from the
Larry's first point on appeal is that the trial court
had no jurisdiction to grant Ramona's Rule 60(b) motion "without
a specific remand of the issue from the Alaska Supreme Court for
that purpose." In support of his position Larry makes two
arguments. He argues first that the oral argument was held after
the 60-day stay entered by this court had expired and "no attempt
was made to continue the stay or to broaden the scope of the
order." This argument is factually incorrect as Ramona sought
and had obtained an extension of the stay.
Larry's second argument is that the procedure for
seeking relief under Civil Rule 60(b) after a case is on appeal,
outlined in Duriron Co. v. Bakke, 431 P.2d 499, 500 (Alaska
1967), was not followed. In Duriron we held that a party may
move for Rule 60(b) relief in the superior court while an appeal
is pending. The superior court has jurisdiction to deny the
motion. If the superior court wishes to grant the motion, "it
must first apply for and obtain a remand of the case from this
court for the stated purpose of granting a Civil Rule 60(b)
We have never stated or implied that this procedure is
exclusive. It is merely one way to resolve the competing
policies presented. The policies are "the traditional rule that
only one court can have jurisdiction over a case at one time
. . . [and the] equally traditional notion that appellate court
evaluation should not precede trial court consideration of
matters properly within the province of a lower court." Id. at
501 (quoting Note, Disposition of Federal Rule 60(b) Motions
During Appeal, 65 Yale L. J. 708, 709 (1956)). The procedure
employed in this case is consistent with both of these policies.
If the trial court had desired to follow the Duriron method
precisely, it could have applied to this court for a remand for
the purpose of granting Ramona's motion. This, however, would
have been an unnecessary step since we had already ordered a
remand for the purpose of considering the issue which later
became the substance of her Rule 60(b) motion.
Larry also argues that our order of remand was insuf
ficiently specific to empower the superior court to grant
Ramona's motion for Rule 60(b) relief. Although neither Ramona's
motion nor our order explicitly mentioned a 60(b) motion, our
order explicitly remanded "to allow for resolution of the issue
of distribution of certain deferred compensation funds." This
was the issue that was resolved by the trial court on remand.
Our order was understood and correctly followed by the trial
Larry's second point on appeal is that the trial court
abused its discretion in granting the motion to modify because
Larry lacks the funds to make the cash payment required by the
modification. Larry argues that in order to satisfy the judgment
he will have to liquidate some of his assets. He cites Hayes v.
Hayes, 756 P.2d 298, 300 (Alaska 1988), for the proposition that
a court should not order a party to make a payment which is
beyond his financial ability.
Larry's argument is not compelling. Hayes is
inapplicable. In that case the debtor was required to make
annual recurrent payments which exceeded his income. We held
that on remand "[e]ither appropriate adjustments should be made,
or findings should be entered to the effect that alternative
means are available to the husband to meet his obligations." Id.
at 300-301. Here, Larry can meet his obligations. He can
liquidate his other assets or obtain money from the deferred
income account by persuading the Municipality that his has become
a hardship case.
Larry's third point is that the trial court erred "in
attempting to substitute a lump sum judgment for retirement
benefits without reducing the same to present value or
determining the taxes on such funds." Larry's argument is that
there is a lack of equivalency between the amount which he must
pay to Ramona and the value of the deferred income account, which
was retransferred to him, by implication, because he will, at
some point, have to pay taxes on the latter.3
This argument does not warrant reversal. Although the
account will be taxed in the future, the superior court is only
required to consider tax consequences when there is proof of an
"immediate and specific tax liability." Oberhansly v.
Oberhansly, 798 P.2d 883, 887 (Alaska 1990). As this case
stands, it is uncertain as to whether Larry intends, or will be
able, to use the deferred income account to discharge his
liability to Ramona. Instead, he may sell or mortgage other
assets in order to do so. Thus, the posture of this case is much
like that present in a case which we quoted and relied on in
Although there will be tax consequences
if defendant satisfies the judgment by with
drawing funds from the corporations or
selling some of his stock, there is no
indication that he must or intends to do
either to satisfy the judgment. He may
choose to borrow the money or make the
payments out of other property. Of course,
once the property is divided pursuant to the
trial court's order, the [future] tax conse
quences may vary on further sale or liquid
ation from what they would have been had the
property been divided differently. The trial
court need not speculate on such
possibilities, however, or consider tax
consequences that may or may not arise after
the division of the community property.
Id. (quoting Weinberg v. Weinberg, 432 P.2d 709, 714 (Cal.
1967)). Thus, Larry has not satisfied the immediacy requirement
Larry's fourth point on appeal is that the trial court
erred in refusing to consider his Rule 60(b) motion. At the
hearing to consider the parties' respective Rule 60(b) motions,
the trial judge ruled that, based on our remand, he had
jurisdiction to redivide the marital estate in order to deal with
the nontransferability of the deferred compensation account.
However, the court refused to consider any other matters raised
by the parties, deeming them "beyond the jurisdiction of the
remand." Larry's argument is that, apart from any jurisdiction
conferred by the remand, the superior court had independent
jurisdiction under Duriron to consider his Rule 60(b) motion.
We agree with Larry on this point. Under Duriron, the
superior court had jurisdiction to consider Larry's Rule 60(b)
motion without obtaining a remand from this court for that
specific purpose. Contrary to what Ramona argues, a remand would
have been required only if the court had considered Larry's
motion and decided to grant it. Since Larry was entitled to have
his Rule 60(b) motion considered, we remand to the superior court
for that purpose. If the court decides to grant Larry's motion,
no request for a remand will be necessary because the case will
no longer be pending before this court.
Larry's final point on appeal is that the amended
judgment constitutes an unfair distribution of the marital
property. This is, in essence, an attack on the original
property division made by the trial court. As the original
judgment is not before us on appeal, this point may not be
For the reasons stated, the judgment is AFFIRMED in
part, REVERSED in part, and REMANDED.
1 At the time, Larry was 51 years of age.
2 We assume that the court also intended to modify the final
decree by transferring to Larry ownership of the deferred income
3 Larry also argues that the deferred income account had not
vested at the time of trial and should have been reduced to
present value. Both points lack merit. This is not an appeal
from the original judgment. The account had vested by the time
the Rule 60(b) motion was granted. Apart from the question of
taxes, Larry has made no argument that the present value of the
account is not its stated value.