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Sanders v. Sanders (9/8/95), 902 P 2d 310
Notice: This opinion is subject to formal 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,
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THE SUPREME COURT OF THE STATE OF ALASKA
KAREN D. SANDERS, )
) Supreme Court No. S-6586
) Superior Court No.
) 3AN-93-663 Civil
) O P I N I O N
THOMAS A. SANDERS, )
) [No. 4254 - September 8, 1995]
Appeal from the Superior Court of the State
of Alaska, Judicial District, Anchorage,
John Reese, Judge.
Appearances: Dennis P. James and Keith A.
Christenson, Anchorage, for Appellant.
Jennifer L. Holland and Max F. Gruenberg,
Jr., Gruenberg and Clover, Anchorage, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
This dispute arises out of the divorce of Karen and
Thomas Sanders. Karen appeals several aspects of the superior
court's division of marital property, its order that she make
payments to Thomas for the support of the couple's adult son, and
its order that she pay $8500 of Thomas' attorney's fees. We
affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
Karen and Thomas Sanders were married in 1965. They
have two adult children, Kenneth and Michelle, who were over the
age of eighteen when their parents permanently separated on
October 1, 1992.
In January of 1993, Thomas filed a complaint for
divorce. After a three day trial, the superior court evenly
divided the marital property. The most contentious property
division issue involved the classification of a Bristol Bay
limited entry fishing permit worth $150,000, which Thomas
acquired during marriage. According to both Thomas and Michelle,
Karen and Thomas decided that the permit should be given to their
children. In January 1992, Thomas signed a notice of intent to
transfer the permit to Michelle. The permit did not officially
change hands until early November, however, several weeks after
the Sanders' separation. Notwithstanding Karen's testimony that
she thought the transfer was only temporary and not an outright
gift, the trial court found that Karen and Thomas had given
Michelle the permit to hold in trust for herself and Kenneth.
The court therefore excluded the permit from the marital
The court also ruled that Karen had a duty to
contribute to Kenneth's support during the eight month period
immediately following the parties' October 1992 separation, while
Kenneth was pursuing a high school degree. Based on the formula
set forth in Civil Rule 90.3, the court determined that Karen
owed Thomas $5040 in retrospective support.1 Finding that
Kenneth was unable to support himself due to his emotional
problems, the court further ordered Karen to pay Thomas $500 per
month toward Kenneth's maintenance for as long as Kenneth lived
with his father and was unable to support himself. The court
specified, however, that Karen's prospective support obligation
was subject to quarterly review.
Finally, the court ordered Karen to pay $8500 of
Thomas' attorney's fees in order to equalize the parties' legal
expenses. This appeal followed.
A. The Lower Court's Support Order
Karen argues that she is not liable for Kenneth's
support, that the amount of support established by the court was
improper, and that the court failed to establish identifiable
standards for continuing review of the support payments. We
review child support awards under an abuse of discretion
standard. Murphy v. Murphy, 812 P.2d 960, 962-63 (Alaska 1991).
Whether the trial court applied the correct legal standards in
making its determination is a question we review de novo. Lantz
v. Lantz, 845 P.2d 429, 431 n.1 (Alaska 1993).
"The duty of support generally exists only until the
children 'are emancipated or reach the age of majority,' which is
by statute eighteen years." Streb v. Streb, 774 P.2d 798, 800
(Alaska 1989) (citations omitted); AS 25.20.020. Two exceptions
to that general rule apply here.
First, AS 25.24.140(a)(3) provides for the support,
under special circumstances, of children who have reached their
eighteenth birthday. In a divorce action
a spouse may . . . be awarded expenses,
including . . .
. . . .
(3) reasonable care for minor children
in the care of the spouse and reasonable
support for unmarried 18-year-old children of
the marriage who are actively pursuing a high-
school diploma or an equivalent level of
technical or vocational training and living
as dependents with the spouse or designee of
the spouse, if there is a legal obligation of
the other spouse to provide support.
(Emphasis added.) At trial, Karen's attorneys stipulated that
this provision applied to Kenneth between October 1992 and May
1993, when he was pursuing a high school diploma. This appears
to be the basis for the court's order that Karen pay Thomas $5040
in retrospective child support.
Second, we have held that the duty of support continues
beyond the age of majority where "an adult child is incapable of
supporting himself or herself by reason of a physical or mental
disability." Streb, 774 P.2d at 800. While the court's
prospective child support order does not cite Streb, that case
was argued by the parties and thus appears to be the basis for
the court's $500 per month support order.
1. The court did not err in awarding $5040
in retrospective support for the period when
Kenneth was pursuing a high school degree
Although Karen concedes her obligation to contribute to
Kenneth's support between October 1992 and May 1993, she argues
that the trial court erred in computing that liability at $5040.
The court calculated the retrospective support award using the
formula set forth in Civil Rule 90.3, and Karen argues that the
Rule does not apply to the calculation of support for an adult
Karen points to Streb's statement that "Civil Rule 90.3
. . . does not govern an award for a handicapped adult," 774 P.2d
at 801, and also notes that the unofficial commentary to Rule
90.3 states that the Rule "does not apply to set any support
which may be required for adult children." Civil Rule 90.3
Commentary I.C. She urges us to calculate retrospective support
using the Streb standard, which says an award should be a "fair
percentage of funds actually spent on reasonable child care
expenses." 774 P.2d at 801.
We agree with the trial court that Rule 90.3 should
apply to a determination of support mandated by AS
25.24.140(a)(3). Streb's rejection of a Rule 90.3 calculation
has no relevance when support is mandated by AS 25.24.140(a)(3).
That statute simply acts to postpone the age of majority, for
child support purposes, of dependent children living at home and
pursuing a high school or similar degree. Support payments for
those children will have been calculated under Rule 90.3 until
they reach eighteen years of age, and it makes sense to extend
those payments under AS 25.24.140(a)(3), rather than to employ an
entirely new standard of calculation for the relatively short
period in which they will be subject to the statute.
2. The court did not err in imposing on
Karen a prospective support obligation
Streb imposes a support obligation where "evidence
[shows] that an adult child is incapable of supporting himself or
herself by reason of a physical or mental disability." Streb,
774 P.2d at 800. Based mainly on the testimony of Dr. Patrick, a
psychiatrist, the superior court found that
Kenny needs parental support, even though he
is an adult, until he accomplishes what can
be accomplished at [the Division of
Vocational Rehabilitation] and is able to be
employed. . . . The support will continue so
long as Kenny lives with Tom, and it will
continue only so long as he is unable to
fully support himself due to the emotional
problems described by Dr. Patrick.
Karen disputes the trial court's conclusion that Streb
imposes on her a duty to support Kenneth. She directs our
attention to the evidence supporting her contention that Kenneth
is capable of supporting himself2 and complains that the court's
determination of incapacity occurred without hearing testimony
from Kenneth or obtaining an independent evaluation. Karen notes
that AS 13.26.005 (defining "incapacitated person" for purposes
of establishing guardianship) mandates a more rigorous procedure
before a determination of incapacity is made, and implies that
this procedure should have been used here.3
In response, Thomas points to his own testimony and the
testimony of Dr. Patrick. This evidence indicated that Kenneth
had a history of hospitalizations and suicide attempts, had held
a series of jobs for only short periods before being fired or
leaving, and suffered from "bipolar illness, mixed type, with a
secondary diagnosis of learning disability." Thomas also notes
that the trial court found that
Ms. Sanders says that he [Kenneth] can work,
but has offered no evidence of it. In fact,
she's surprisingly uninformed about his
present situation. . . . I think his
difficulties are something that she has
translated into anger at him, rather than
accepting them for what they are.
The superior court's conclusions with regard to
Kenneth's abilities and his capacity for self-support amount to
factual findings, and as such may be reversed only if clearly
erroneous. Alaska Civil Rule 52(a). We will not reverse such
determinations unless left with a "definite and firm conviction
that a mistake has been made." Murphy v. Murphy, 812 P.2d 960,
964 n.7 (Alaska 1991). There was evidence to support the trial
court's findings, and they cannot be called clearly erroneous.4
We therefore affirm the trial court's finding that Karen was
liable to make support payments to Thomas.
3. The court erred in setting the amount of
Karen argues that the trial court erred by calculating
her support obligation without regard to Kenneth's one-half
ownership of two valuable income-generating fishing permits.5
There is authority for the proposition that an adult
disabled child's "ability to provide for herself out of her own
means must always be considered" when determining whether a
parent has a continuing duty of support for that child. Sayne v.
Sayne, 284 S.W.2d 309, 312 (Tenn. App. 1955) (ordering support
for disabled 27-year-old child); see also 59 Am. Jur. 2d Parent &
Child ' 103 (1971) (citing Sayne).6 We believe that the Sayne
principle is economically sound and consistent with the rule set
forth in Streb. We therefore incorporate it into Streb's general
rule for ordering support for an adult dependent child, and
direct the superior court to reconsider Karen's support
obligation in light of this principle.
Even without considering Sayne, however, we would be
obliged to reverse the lower court's support award, because it
was calculated in violation of Streb. As noted above, Streb
requires that "the [support] award should be reasonably
calculated to reimburse the moving party for a fair percentage of
the funds actually spent on reasonable child care expenditures."
774 P.2d at 801. In this case, the court's finding of "funds
actually spent" on Kenneth's support came from Thomas' estimated
budget of $1460 per month. The court set Karen's support
obligation at $500, an amount less than 50% of Kenneth's monthly
expenses, in order to "motivate [Thomas] to help Kenny advance"
Thus in calculating the support award, the lower court
apparently assumed that Thomas would personally spend the full
$1460 needed to support Kenneth. That assumption, however,
ignored the fact that the court also held that Kenneth was a 50%
owner of a fishing permit worth $150,000. According to
Michelle's testimony, this permit produced $30,000 per year in
before-tax income to the permit-holder who fished it. Kenneth
had fished the permit with his father and sister in 1992, and
Michelle testified that Kenneth was expected to fish the permit
again in 1994. Michelle also testified that she planned to sell
the Norton Sound herring permit and split the money with Kenneth.
This undisputed evidence of Kenneth's past and future income-
earning capability disproves the central assumption of the
court's calculation of Karen's support payments: that Thomas
would be "out-of-pocket" for the entire $1460 per month needed to
Because the court failed to properly calculate how much
Thomas would "actually spen[d] on reasonable child care
expenditures," Streb, 774 P.2d at 801, the derivative figure that
Karen was ordered to pay as support is also in error.
Consequently, the court's calculation of Karen's support
obligation was an abuse of discretion and must be reversed. On
remand, the court should calculate the amount of Kenneth's $1460
per month expenses that Thomas will be forced to "actually
spen[d]." Id. Karen may then be ordered to pay a "fair
percentage" of that amount. Id.
Karen also claims that the court "failed to articulate
its basis for assessing $500 per month" in support, and failed to
"set any guidelines or standards to assist [her] in determining
when to request a hearing and the nature of proof required [to
change the support payments]."
We agree that in light of the facts of this case, the
court should have differently structured the quarterly reviews of
the support award. As noted, uncontested evidence indicated that
Kenneth had income-earning capability, and the court found that
"at some point, probably soon, Kenny will be able to at least
partially support himself." Under these circumstances, we hold
that the court's order should be modified to make clear that on
quarterly review it will be incumbent on Thomas to demonstrate
that Kenneth's disability, and thus the need for support,
With that modification in place, however, Karen has no
basis to complain that the court's order lacks sufficient
standards. The court stated that "support will continue so long
as Kenny lives with Tom, and it will continue only so long as he
is unable to fully support himself due to the emotional problems
described by Dr. Patrick." These criteria, along with the
standard set forth in Streb, provide adequate information to
guide Karen during the quarterly reviews of the support order:
the amount of the award will be modified if it no longer
represents a "fair percentage of funds actually spent on
reasonable . . . care" for Kenneth. Id. As the court's findings
imply, modification of the payments will be warranted if Kenneth
is able to "at least partially support himself," and the payments
to Thomas will cease altogether if Kenneth leaves home or becomes
able to "fully support himself."
B. The Lower Court's Division of Property Was Not
Equitable division of marital assets by the
superior court involves a three step
procedure. First, the trial court must
determine what specific property is available
for distribution. Second, the court must
find the value of this property. Third, it
must decide how an allocation can be made
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). Karen's
arguments regarding the court's division of property implicate
each of Wanberg's three steps. Karen argues that the Bristol Bay
permit should have been classified as marital property.7 She
claims that the court improperly valued Thomas' PERS state
retirement benefits. Finally, she contends the court erred by
awarding Thomas all of the family's vehicles. We review the
trial court's division of property under an abuse of discretion
standard. Id. Whether the trial court applied the correct legal
standard is a question we resolve using our independent judgment.
1. The Bristol Bay permit
The lower court found that Thomas and Karen gave the
Bristol Bay permit to Michelle Sanders in constructive trust for
her and her brother. We have held that a gift to a third person
out of the marital property is valid when both spouses act
together in making the gift. Brooks v. Brooks, 733 P.2d 1044,
1055 (Alaska 1987). "However, if both spouses do not join in
making the gift, it is voidable at the option of the non-
participating spouse." Id. Karen contends that the lower court
erred in finding that an effective gift had occurred.
Karen claims that there was a "dearth of evidence
regarding [her] donative intent," and thus essentially argues
that Brooks' requirement that both spouses act together was not
met. Second, she notes that the date when property should be
classified as separate or marital is the date of separation.
Ogard v. Ogard, 808 P.2d 815, 819 & n.8 (Alaska 1991). This
implies that since the permit was not officially transferred to
Michelle until after the separation, the permit must be
considered marital property. Finally, Karen points out that a
donor must part with all present and future dominion over
property before a gift inter vivos can be said to have occurred.
Boston Ins. Co. v. Beckett, 419 P.2d 475, 477 (Idaho 1966). She
argues that since Thomas had access to an account into which the
family's fishing revenue was deposited, he did not divest himself
of control over the permit, and thus the gift should not be
But, as Thomas notes, the lower court heard sufficient
testimony to allow it to conclude that Karen originally agreed
that the permit should be transferred to Michelle, but then
changed her mind during litigation and sought to void the gift.
Additionally, Thomas' access to the bank account has no bearing
on his control over a revenue-generating asset like the permit.
Karen has not shown Thomas had any control over where Michelle
deposited the proceeds from fishing the permit. There is no
evidence that Thomas failed to fully relinquish the permit to his
The final point concerns the timing of the permit's
transfer. The question is whether, in light of the trial court's
finding that Thomas and Karen agreed to give the permit to their
children, the permit can be excluded from marital property even
though it was not formally transferred to Michelle until after
the separation. We believe the trial court's disposition of this
issue was correct. The gift of the marital asset at issue here
does not give rise to the concerns implicated by Brooks, since
(according to the trial court finding, which cannot be termed
clearly erroneous) Karen acceded to the transfer. We therefore
affirm the trial court's classification of the Bristol Bay
2. Thomas' retirement benefits
Karen has forfeited her ability to complain that the
court undervalued Thomas' PERS benefits, because her counsel
stipulated to their value at trial. See Oregon Auto. Ins. Co. v.
Walkins, 506 P.2d 179, 181 (Or. 1973) (disallowing appeal of
factual issue which had been subject of stipulation at trial).
3. The family vehicles
The court's award of the family's vehicles to Thomas
does not constitute an abuse of discretion. Karen's argument
overlooks the fact that the court divided the property equally:
Thomas was credited with the value of each automobile and Karen
was awarded items of offsetting value. Furthermore, Karen stated
that she would sell the Audi to Thomas for $25008 and that she
did not want any of the other vehicles. Karen seems most upset
about the loss of the Audi. But while that car may have been
driven mainly or exclusively by her, it has no obvious intangible
value that shows the court's financial ledger-balancing to be an
abuse of discretion.
C. The Lower Court Erred in Awarding Attorney's Fees
Karen's final argument is that the court erred by
awarding Thomas $8500 in attorney's fees. The award of
attorney's fees in divorce actions is within the broad discretion
of the trial court. Kowalski v. Kowalski, 806 P.2d 1368, 1372
(Alaska 1991). Nevertheless, we agree that this fee award must
Alaska Statute 25.24.140 provides that the court may
order one spouse to pay an amount of fees and costs necessary to
enable the other spouse to prosecute or defend the action. "The
purpose of the statute is to 'assure that both spouses have the
proper means to litigate the divorce action on a fairly equal
plane.'" Id. (citation omitted). Thus the general rule with
regard to fees in a divorce case is that
[t]he relevant considerations for determining
attorney's fees awards in divorce cases are
the relative economic situation and earning
power of each party. If the parties are in
"comparable economic situations, each side
should bear [its] own costs."
Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991) (citations
The parties to this litigation possess relatively
equivalent incomes9 and, in the wake of the trial court's
property division, equal assets. Nevertheless, the trial court
awarded Thomas $8500 in attorney's fees, explaining that
counsel and the submissions indicate $25,000
[in legal] fees from Tom, who had to bear the
lion's share of the preparation. I think the
record is quite convincing that . . . almost
all of the preparation of the case was done
by [Thomas' attorney]. . . . I think the
parties should split the expense of this
litigation evenly, and so it takes [an] $8500
[payment by Karen to Thomas] to put them in
an equivalent position, with each paying
Karen appeals this award as inconsistent with the
general rule that equally situated parties should bear their own
fees. Thomas cites Johnson v. Johnson, 564 P.2d 71, 77 (Alaska
1977), for the proposition that the amount of fees expended by
each party may be considered by a court in making an award. He
also notes that fees can be awarded where one party causes
unwarranted delay and unnecessary costs, see Hartland v.
Hartland, 777 P.2d 636, 644 (Alaska 1989), and alleges that Karen
is guilty of these offenses.10
Thomas' citations to authority are inapposite. His
attempt to defend the fee award as the result of Karen's alleged
misconduct fails, because "the court must make explicit findings
of bad faith or vexatious conduct and clearly explain its
reasons" when it departs from the general rule that equally
situated parties will bear their own costs. Kowalski, 806 P.2d
at 1373. The lower court made no such findings here. Thomas is
also wrong to argue that the lower court "had authority under
Johnson to place the parties in an equivalent financial position
where there had been inequality in fees and efforts." In
Johnson, we affirmed a trial court's decision to deny a fee award
in a divorce case where marital property was divided evenly and
each party was reportedly "bankrupt." 564 P.2d at 77. In other
words, the trial court in Johnson refused to depart from the
general rule that similarly situated parties bear their own
As Kowalski explains, the purpose of the fee-shifting
statute in divorce actions is to "assure that both spouses have
the proper means to litigate the divorce action on a fairly equal
plane." 806 P.2d at 1372 (citations omitted). In this case, the
parties are equally situated economically. Thomas simply spent
more resources preparing his case than Karen did preparing hers.
This tactical litigation decision does not demonstrate the
financial disadvantage that justifies an attorney's fee award in
a divorce case. In fact, just the opposite is true: Thomas'
expenditures evidence his ability to litigate the case
The attorney's fee award in this case appears to be
simply an extension of the lower court's desire to divide the
marriage's assets and liabilities equally. But where parties in
a divorce case are equally economically situated, the default
rule with regard to attorney's fees is "to each his (or her)
own," not "share and share alike." We find nothing in this case
that justifies departure from that general rule. Consequently,
we reverse the fee award as an abuse of discretion.
For the reasons described above, we AFFIRM the lower
court's order that Karen pay Thomas $5040 in retrospective
support; the court's determination that Karen is obligated to
make prospective, quarterly-reviewable support payments to Thomas
on Kenneth's behalf; and the trial court's division of property.
We MODIFY the court's prospective support award, however, to
clarify that Thomas bears the burden of showing the need for
continued support at the quarterly review sessions. Because the
court failed to properly calculate how much money Thomas would
actually spend on Kenneth's expenses, we REVERSE and REMAND the
court's calculation of the prospective support payment. We also
REVERSE the trial court's award of attorney's fees.
1 Plaintiff's exhibit 38 ("Child Support Guidelines
Affidavit") uses Rule 90.3's formula to calculate child support
based on an average of Karen's paystubs for November 1992 and May
1993. The monthly support amount, $630.00, was multiplied by
eight to arrive at a $5040 award for the period encompassing
October 1992 through May 1993.
2 Kenneth has completed the requirements for a high school
diploma, owns and operates a motor vehicle, has been denied
disability benefits by Social Security, and possesses the legal
status of an independent adult (i.e., has no legal guardian).
3 Karen has also submitted an affidavit stating that
Kenneth fished the Bristol Bay permit in the summer of 1994 and
made approximately $30,000. This is obviously information that
was not before the trial court, since it concerns events that
occurred after the trial. Karen may introduce this information
at the quarterly review sessions where her support obligation
will be examined, but we do not consider it here.
4 Karen's account of her son's post-trial income-earning
activity may be correct, but as we explained above, the proper
occasion for Karen to present that information is during one of
the quarterly review opportunities established by the trial
5 Karen cites AS 25.20.040 in support of her claim that
the court improperly ignored Kenneth's assets when it imposed the
$500 per month support obligation. Alaska Statute 25.20.040
provides that, under certain circumstances, the expense of
maintaining a child "may be defrayed out of income from the
minor's property." The statute is unhelpful to Karen, however --
mainly because it contains merely a permissive authorization, not
a mandatory command, that a child's assets are available for use.
AS 25.20.040. For the reasons described in the textual
discussion that follows, however, we hold that Karen's more
general objections to the trial court's computation of her
support obligation have merit.
6 Sayne took care to note, however, that the fact that the
child's estate must be considered in relation to the support
ability of the parent does not mean that the child's property
must be exhausted before contribution from the parent will be
required. 284 S.W.2d at 312.
7 At one point in her brief, Karen implies that she is
also objecting to the court's disposition of a second fishing
permit, a Norton Sound herring permit which Thomas purchased with
separate property and later transferred to Michelle. Karen has
not briefed this argument, and thus we will not consider it on
appeal. Kristich v. State, 550 P.2d 796, 804 (Alaska 1976).
8 This is effectively what happened, since Thomas was
awarded the vehicle and credited with a $2500 asset on his side
of the ledger.
9 Documents filed with the court show Thomas' income to be
considerably higher than Karen's. Under the superior court's
order, however, most of this disparity was scheduled to
terminate, because Thomas was directed to sell a duplex and would
consequently lose $1000 per month in rental income.
10 Thomas complains that Karen's "discovery responses were
generally defective, forcing Tom to spend several extra hours of
attorney time and money sorting through them." He also accuses
Karen of forcing him to file an expedited motion and forcing him
to come to a calendar call with a motion to resolve an issue to
which Karen had failed to stipulate. Finally, he claims that
Karen failed to pay half of the appraisals ordered in preparation