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Myers v. Myers (11/22/96), 927 P 2d 326
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, Alaska 99501, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL RAY MYERS, )
) Supreme Court No. S-6952
) Superior Court No.
) 3AN-93-7903 CI
) O P I N I O N
LYLA DAWN MYERS, )
) [No. 4438 - November 22, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Richard D. Pennington and Kristi
A. Nelson, Richard D. Pennington & Associates,
P.C., Anchorage, for Appellant. Michael B.
Logue, James E. Gorton & Associates,
Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
In this divorce action, Michael Myers contends that the
trial court erred in awarding his former wife, Lyla Myers,
rehabilitative alimony. In the alternative, Michael Myers asserts
that the trial court erred by failing to consider adequately the
needs and financial abilities of the parties in fixing the amount
of the rehabilitative alimony award. We conclude that
rehabilitative alimony was appropriate and that the trial court did
not err in its assessment of Lyla Myers' needs. However, we remand
the case to the superior court for specific findings relating to
Michael Myers' ability to pay the award.
II. FACTS AND PROCEEDINGS
Michael and Lyla Myers were married twice between 1980
and 1995. During the first marriage, which ended in 1986, Michael
adopted two of Lyla's children. The couple also had one child of
their own. On July 16, 1989, Michael and Lyla were remarried.
This second marriage ended in divorce on February 3, 1995. At the
time of the divorce, both Michael and Lyla were thirty-eight years
old and in good health. Michael has been an Anchorage firefighter
since 1984. Lyla has been the primary caretaker of the children
since they were born. She has also been a full-time student at the
University of Alaska, Anchorage since September 1989.
Pursuant to the divorce decree entered by the trial
court, Lyla received custody of the children. The trial court
divided the marital property and awarded Lyla the family residence,
which had $5,000 equity, as well as one-half of Michael's pension
and deferred compensation accrued during the marriage. In
addition, the court found that Lyla's $37,000 in student loans were
used to pay household expenses during the marriage. Therefore, it
divided the student loan debt equally between the parties. Upon
dividing all the property, the trial court determined that Michael
owed Lyla $24,946 and ordered him to pay her this amount in twenty-
six monthly installments of $981 each. Michael does not appeal
this division of the marital property.
During the trial court's proceedings, Lyla argued that
she should receive rehabilitative alimony for approximately six
years so that she might complete her undergraduate and graduate
degrees. The trial court, however, ordered Michael to pay
rehabilitative alimony to Lyla for only twenty-four months. The
amount of the monthly payments, $981, is equal to the monthly
mortgage payments on the family residence. The trial court ordered
Michael to pay the rehabilitative alimony first, and at the
expiration of twenty-four months, to begin paying installments of
the property division. Thus, Michael was to pay Lyla $981 for
fifty months. Michael disputes both the trial court's decision to
award rehabilitative alimony and its methods for calculating the
size of the award.
III. DISCUSSION (EN1)
A. The Superior Court's Award of Temporary Rehabilitative
Alimony to Lyla Was Appropriate.
The first question before us is whether the superior
court erred in awarding rehabilitative alimony to Lyla. Michael
raises two challenges to this award.
1. Lyla's educational plans are sufficient to support
an award of rehabilitative alimony.
First, Michael argues that Lyla's educational plans are
too vague to justify twenty-four months of rehabilitative alimony.
At trial, Lyla testified that she was a full-time student
at the University of Alaska, Anchorage (UAA) and needed three
semesters of course work to complete her bachelor's degree in
sociology and political science. When questioned about her
postgraduation plans, she testified as follows:
Q Okay. On completion of your undergraduate,
what is your next -- what is your plan?
A What with a combined degree in sociology
and political science, I have a --
there's a public administration program
at UAA that's open to me with a master's
Q Okay. And what is your goal after
getting that degree?
A I want to work in community planning,
either private, public, I'm not sure.
And how we go about changing some of the
things that don't work real well in our
society. It's a ways off, and I haven't
really identified a job as yet.
Lyla testified that the master's degree program at UAA would
require two additional years of studies after she earned her
Michael contends that rehabilitative alimony is
inappropriate in this case because Lyla plans to enroll in a
graduate degree program rather than immediately enter the job
market upon completion of her undergraduate degree. As Michael
correctly notes, we have required any rehabilitative alimony award
to be supported by a finding that "the recipient spouse 'intends to
apply the alimony toward job training.'"Dixon v. Dixon, 747 P.2d
1169, 1173 (Alaska 1987) (quoting Miller v. Miller, 739 P.2d 163,
165 (Alaska 1987)). Indeed, in Dixon we determined that a
recipient spouse did not have a "sufficiently detailed course plan
and degree goal"to justify an award of rehabilitative alimony.
Dixon, 747 P.2d at 1173.
However, we conclude that Lyla has submitted a
sufficiently detailed plan for her studies. In two cases
subsequent to Dixon, we established that a spouse's educational
plan is sufficient for the purpose of supporting a rehabilitative
alimony award if the spouse identifies a career goal, a degree
program aimed at realizing that goal, and a time frame during which
the degree may be earned through reasonable diligence. Ulsher v.
Ulsher, 867 P.2d 819, 820-22 (Alaska 1994); Renfro v. Renfro, 848
P.2d 830, 834 (Alaska 1993). In neither case did we require the
spouse to have identified a specific postgraduation job.
For example, in Ulsher we approved Lynda Ulsher's plan to
become a registered engineer by completing her civil engineering
degree in six years. Ulsher, 867 P.2d at 820-21. Similarly, in
Renfro, the court allowed Virginia Renfro forty-eight months to
complete her degree in psychology so that she might begin work as
a mental health counselor. Renfro, 848 P.2d at 834. Although we
remanded for more specific findings about Charles Renfro's ability
to pay, we concluded that the trial court had thoroughly considered
Virginia Renfro's educational plan. Id. We did not conclude that
the plan was too vague or in any way inadequate to support an award
of rehabilitative alimony.
Lyla's plan is substantially similar to those we approved
in Ulsher and Renfro. It is undisputed that, at the time the
divorce decree was entered, Lyla was enrolled in an undergraduate
program of studies at UAA and was majoring in sociology and
political science. Lyla plans to complete the remaining three
semesters of that program before entering a two-year master's
degree program. While she has not identified a specific
postgraduation job, she has stated a clear goal of becoming a
community planner in either the public or private sector. This
career goal, combined with Lyla's plans to complete studies aimed
at achieving her goal, is sufficient to support an award of
2. Lyla's college attendance throughout the marriage
does not render rehabilitative alimony
We also reject Michael's second argument that an award of
rehabilitative alimony is inappropriate because Lyla was a full-
time student for substantially all of their second marriage.
Michael argues that since Lyla did not forego her education during
the marriage, she does not require "rehabilitation"after the
We reject Michael's argument for two reasons. First, if
we were to conclude that rehabilitative alimony may not be awarded
where the recipient spouse is pursuing a course of study prior to
divorce, our holding would be at odds with our decision in Ulsher
v. Ulsher, 867 P.2d 819 (Alaska 1994). In that case, the recipient
spouse had completed forty-five units of credit toward a degree in
civil engineering prior to divorce. Ulsher, 867 P.2d at 820.
Nevertheless, we concluded that the superior court did not abuse
its discretion in awarding rehabilitative alimony for a five-year
period during which the recipient spouse would work toward her
Moreover, our conclusion is consistent with the
underlying purpose of rehabilitative alimony set forth in Schanck
v. Schanck, 717 P.2d 1, 5 (Alaska 1986). We stated that the
purpose of rehabilitative alimony is to allow the recipient spouse
to "secur[e] . . . a source of earned income." Id. Subsequent to
Schanck we recognized, and today we emphasize, that rehabilitative
alimony is an appropriate award for trial courts to make to
minimize the economic impact of divorce on a spouse who exits a
marriage with few job skills and little earning capacity. See,
e.g., Bays v. Bays, 807 P.2d 482, 485 (Alaska 1991).
Rehabilitative alimony should be designed to support recipient
spouses while they receive job training or other education aimed at
improving their ability to become self-supporting. Ulsher, 867
P.2d at 822.
In this case, we conclude that the superior court did not
err in awarding rehabilitative alimony to Lyla. The purpose
underlying rehabilitative alimony is equally well-served regardless
of whether Lyla got a head start on her training prior to divorce.
The record indicates that when the marriage ended, Lyla had few job
skills and little earning capacity. When she married Michael, she
had completed only the ninth grade and had never earned more than
minimum wage. Although she was a college junior with an impressive
record of academic success, Lyla's prospects of employment at the
time of divorce continued to be slim because she had not yet earned
her degree. Moreover, Lyla had been, and would continue to be, the
primary caretaker of the Myerses' three children. Thus, an award
of rehabilitative alimony was appropriate to minimize the effects
of the divorce on Lyla and to help her to become self-supporting.
B. The Superior Court's Calculation of the Amount of
Rehabilitative Alimony Awarded to Lyla
The final question before us is whether the superior
court erred in its calculation of the amount of rehabilitative
alimony awarded to Lyla. Alaska Statute 25.24.160(a)(2) authorizes
a trial court to award alimony so long as it is "just and
necessary." Pursuant to that statute, we require trial courts to
make adequate findings about "the financial needs and abilities of
both parties." Davila v. Davila, 876 P.2d 1089, 1094 (Alaska
1994). We have noted that, "[a]lthough a trial court need not make
findings regarding every factor, we have remanded awards of alimony
when there is an insufficient analysis of the needs of the alimony
recipient or the means of the paying party." Id. at 1095
Michael contends that the trial court failed to make
adequate findings of fact both about Lyla's need for rehabilitative
alimony and about Michael's ability to pay the installments on the
award for twenty-four months.
1. The trial court made adequate findings about Lyla
Michael asserts that the trial court failed to make
adequate findings of fact about Lyla's financial circumstances. He
specifically contends that the trial court underestimated Lyla's
ability to meet her own needs without rehabilitative alimony. We
Contrary to Michael's argument, the trial court made
specific findings that indicate it adequately considered Lyla's
needs and financial abilities. In finding that the alimony award
was appropriate, the court stated that it had "[c]onsider[ed] the
relative earning capacities of the parties, their ages, disparities
in earning capacities and relative economic situations." (Emphasis
added.) As to Lyla's particular "economic situation,"the trial
court found that Lyla had "very limited job skills with a current
earning capacity of making no more than a minimum wage." Indeed,
the record indicates that Lyla had virtually no available cash, and
the trial court specifically noted that she supported herself and
her children solely with money from Aid to Families with Dependent
Children (AFDC), child support, and student loans. Moreover, the
trial court clearly was aware of the implications of its property
allocation scheme, according to which Lyla would have to make
payments on her student loans.
Therefore, we conclude that the trial court recognized
that Lyla needed rehabilitative alimony if she was to remain in the
marital residence with her children while supporting herself and
continuing her education. The trial court found that during the
interim period between the parties' permanent separation and their
divorce, Michael had been making the mortgage payments. In light of
Lyla's need, it was not an abuse of discretion for the trial court
to configure a rehabilitative alimony scheme that required Michael
to pay Lyla an amount equal to the mortgage payment for a period of
2. The trial court failed to make adequate findings in
assessing Michael Myers' ability to pay.
Finally, Michael contends that the trial court erred in
failing to make adequate findings about his ability to pay the
rehabilitative alimony award. We agree and remand this case for
further findings consistent with this opinion.
The trial court's findings of fact contain essentially no
discussion of Michael's ability to pay. At two points in the
record, the trial court comes close to making a reasoned assessment
of Michael's ability to pay. First, it noted that Michael had a
"secure"job as a firefighter. Later the trial court found that
"[c]onsidering the relative earning capacities of the parties,
their ages, disparities of earning capacities and relative economic
situations, an award of rehabilitative alimony is supported by the
facts of this case." However, the trial court never elaborated on
how it concluded that Michael's "economic situation"enabled him to
pay $981 per month in alimony.
Moreover, the most specific statement about Michael's
financial circumstances was not made by Judge Rene J. Gonzalez, who
entered the divorce decree. Instead, it was made by Judge Larry D.
Card, in response to Michael's motion to stay the rehabilitative
alimony award pending this appeal. Judge Card, who granted a stay
of Michael's obligation to pay alimony in excess of $400 per month,
found that "Mr. Myers does not appear to have sufficient funds on
which to live."(EN2)
At a minimum, the trial court must elaborate on its
statement that the $981.00 alimony amount is appropriate in light
of Michael's "economic situation." Such an elaboration would be
sufficient if it were to contain a discussion of Michael's
necessary expenses and an assessment of the sources of funds
Michael might use to meet those expenses. This discussion need not
include a dollar-by-dollar accounting of Michael's monthly income
and expenses; the goal is to determine whether Michael can
reasonably assume the obligation of paying the rehabilitative
alimony award. However, the trial court should make findings that
indicate that it has considered Michael's necessary expenses,
including required work-related expenses, (EN3) as well as the
funds Michael could use to meet those expenses. In this case,
these funds include Michael's earned income along with the
significant tax benefits he can claim for alimony deductions and
dependent deductions for the parties' three children. (EN4)
We AFFIRM in part and REMAND to the superior court to
make additional findings on the appropriate amount of
rehabilitative alimony to be awarded, in light of Michael's
financial circumstances and ability to pay.
1. An award of alimony is reviewed under the abuse of discretion
standard. Groff v. Groff, 408 P.2d 998, 1001 (Alaska 1965).
2. Michael has weakened his argument that he cannot pay $981 of alimony each month by
failing to appeal the property division. The property division calls for him to pay $981 per
month for 26 months, starting upon expiration of the alimony payments. Thus, even if the
rehabilitative alimony award were eliminated, the result would be that Michael would begin
immediately to pay installments on the property division, an amount equal to the sum that he
asserts he cannot afford to pay.
Nevertheless, Michael suggests in the conclusion statement to his brief that he also seeks
a reduction in the monthly payments on the property division. In one sentence he states that he
should be required "to pay Lyla Myers a reasonable set amount on the property division until
the $24,946 he has been ordered to pay Lyla Myers is paid in full."
We conclude that Michael has abandoned any arguments for a reduction in the property
division payments because he not only insufficiently briefed the issue, but he also omitted it from
his points on appeal. Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 145
3. For example, Michael claims a monthly uniform cleaning expense that he asserts is
mandated by his employer.
4. The trial court determined it to be "fair and equitable that [Michael] shall claim the
children as dependents for tax purposes."