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J. Root v. L. Root (4/30/93), 851 P 2d 67
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
JUDITH A. ROOT, )
) Supreme Court File No. S-4901
) Superior Court File No.
Appellant, ) 3AN-91-78 Civil
v. ) O P I N I O N
LESLIE R. ROOT, )
) [No. 3947 - April 30, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Elaine M. Andrews, Judge.
Appearances: Kenneth P. Jacobus, P.C.,
Anchorage, for Appellant. Leslie R. Root,
Cibolo, Texas, pro se.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
In this property division appeal, Judith Root contends
that the trial court's decision to award Leslie Root his
nonvested military retirement pension is contrary to this court's
holding in Laing v. Laing, 741 P.2d 649 (Alaska 1987). We agree.
I. FACTS AND PROCEEDINGS
After a twenty-year marriage, Judith Root filed for
divorce in January 1991. The only contested issue at trial
concerned the equitable division of the marital estate.
At the time of divorce, the parties' only significant
marital assets were the Anchorage family home, Judith's thrift
account, Judith's vested PERS pension and Leslie's nonvested
military retirement benefits. The estimated equity in the family
home ranged from $26,098 to $36,098.1 Judith's thrift savings
account had a balance of approximately $4,187.54. The value of
Judith's vested PERS pension plan was not established at trial.
Similarly, Leslie's nonvested military retirement benefits were
not valued at trial.2
The trial court entered its findings of facts and
conclusions of law in October 1991. It awarded the family home
to Judith along with the associated debt. It also awarded Judith
all of the funds in her thrift account and in her unvalued PERS
pension plan, as well as various items of personal property worth
approximately $23,865. The court awarded Leslie his unvalued
nonvested military retirement benefits and various items of
personal property worth approximately $22,505. This appeal
A. Standard of Review
The division of property in a divorce action involves a
three-step process -- the trial court must (1) determine what
property is available for distribution, (2) value the property,
and (3) determine the most equitable allocation. Carlson v.
Carlson, 722 P.2d 222, 223-24 (Alaska 1986). The identification
of the property available for distribution is reviewed under the
"abuse of discretion standard, although it may involve legal
determinations to which this court applies its independent
judgment." Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988).
The valuation of the marital property is a factual determination,
and will be reversed only if clearly erroneous. Id. We will
reverse an allocation decision only for abuse of discretion and
only if the allocation is clearly unjust. Id.
B. Equitable Distribution of Nonvested Pension Benefits
Relying on Laing v. Laing, 741 P.2d 649 (Alaska 1987),
Judith contends that the trial court erred in distributing
Leslie's nonvested military pension to Leslie. In Laing, we held
that nonvested retirement benefits are marital assets subject to
division by the trial court.3 Id. at 656. We observed that:
[T]he contingent nature of a nonvested
pension presents simply a valuation problem,
not bearing on the non-employee spouse's
entitlement to a just share of the marital
assets. Pension benefits are generally
viewed as deferred compensation for services
rendered and the employee spouse's right
thereto is a contractual right.
Id. (citations omitted). We then adopted the following approach
for dividing nonvested pension rights:
First, because the nonvested pension
may, by definition, be forfeited in its
entirety, it should not be considered when
the trial court makes the initial property
division at the time of the divorce. If and
when the employee spouse's pension rights
vest and if the parties are unable to reach
an agreement on their own, the non-employee
spouse may at any time thereafter seek an
order dividing the pension. This is to be
done in the same manner as if the pension had
been vested at the time of the divorce. . . .
Once the pension has vested, the trial court
can determine whether the present value or
the retained jurisdiction approach is
appropriate in a given case and adapt that
approach to the specific circumstances
Id. at 658; see also Thomas v. Thomas, 815 P.2d 374, 375-76
(Alaska 1991) (holding that trial court should follow the Laing
procedure unless it specifically finds that the pension will not
vest and that the employee's contributions will be refunded -- in
which case the court should value and divide the marital portion
of the employee's contributions upon divorce).
Under Laing, the trial court clearly erred in awarding
Leslie his nonvested retirement benefits at the time of divorce.
The trial court apparently felt that Judith would be best served
by an award of all of the equity in the family home in lieu of a
share of Leslie's retirement benefits because this division would
provide her with a lump sum with which to pursue her educational
goals. The court also believed that this distribution scheme
would best achieve our policy of disentangling the financial
affairs of those seeking divorce.
However, Judith will only receive this lump sum after
the current leasehold expires in June 1993 and the house is sold.
Leslie's retirement benefits vest in April 1993. Thus the trial
court could have achieved the same result by retaining
jurisdiction over Leslie's nonvested pension and equitably
dividing the remaining marital assets. Once Leslie's pension
vested, the court could then have determined the present value of
the vested pension and awarded Judith a lump sum (possibly out of
Leslie's share of the house equity when sold) as her share of the
pension. See Thomas, 815 P.2d at 376 n.2; Laing, 741 P.2d at 657-
58 (once vesting occurs, the marital portion of the pension may,
in appropriate cases, be made payable in a lump sum or in
installments without regard to when the pension benefits are
C. Necessity for Adequate Evidence at Trial
The trial court's error in distributing Leslie's
nonvested retirement benefits is aggravated by the fact that
Leslie failed to present evidence indicating the present value of
these benefits. See Wanberg v. Wanberg, 664 P.2d 568, 570
(Alaska 1983) (trial court must determine the value of the
marital assets available for distribution). Similarly, Judith
failed to present any evidence of the value of her vested PERS
pension. We have previously held that it is the duty of the
parties, not the court, to ensure that all necessary evidence is
before the court in divorce proceedings and that a party who
fails to present sufficient evidence may not later challenge the
adequacy of the evidence on appeal. Hartland v. Hartland, 777
P.2d 636, 640 (Alaska 1989). However, in cases such as this one,
where a party identifies a significant marital asset but presents
no evidence as to its value, the best practice is for the trial
court to direct the parties, or the delinquent party, or the
party having the best access to the proof, to fill the
REVERSED and REMANDED for proceedings consistent with
1. The house, valued between $145,000 and $135,000, has an
outstanding mortgage of $108,902. However it cannot be sold
until the current leasehold expires in June 1993.
2. Leslie's military retirement benefits do not vest until
April 1993 when he will complete 20 years of service with the
army. The amount of the benefit will be one half of Leslie's
base pay at the time of retirement. The parties do not dispute
that approximately 68% of these retirement benefits are part of
the marital estate.
3. Leslie cites outdated case law to argue that military
retirement benefits are not available for equitable division.
Following the 1982 enactment of the Uniformed Services Former
Spouse's Protection Act, we held that military retirement
benefits may be equitably divided under state law. Chase v.
Chase, 662 P.2d 944 (Alaska 1983).