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Nicholson v. Wolfe (3/26/99), 974 P 2d 417
<![CDATA[
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.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL A. NICHOLSON, )
) Supreme Court No. S-8130
Appellant, )
) Superior Court No.
v. ) 3AN-94-5434 CI
)
DEBORAH K. WOLFE, ) O P I N I O N
)
Appellee. ) [No. 5097 - March 26, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Steven Pradell, Steven Pradell &
Associates, Anchorage, for Appellant. David R. Edgren, Robertson,
Edgren & Christensen, LLC, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
Daniel A. Nicholson appeals the trial court's division of
property. We affirm in part, reverse in part, and remand for
further consideration.
I. FACTS AND PROCEEDINGS
Deborah K. Wolfe, now in her early forties, and Daniel A.
Nicholson, in his late fifties, began living together in 1985 and
were married in 1989. They separated in June 1994 and divorced in
June 1996. Throughout their cohabitation, the parties lived in a
house owned by Nicholson. Wolfe has been a teacher in Anchorage
for over twelve years and earns about $58,600 per year. For the
first five years of their cohabitation, Nicholson was in active
duty in the Air Force. He retired three days before the wedding
and has since received a $2,013 net monthly pension and medical
benefits from the federal government. Since his retirement,
Nicholson has held various temporary jobs.
In 1993 Nicholson inherited about $32,000 from his
mother's estate, and between $145,000 and $147,000 from his
father's estate. Nicholson testified that he spent virtually all
of the money on personal expenses and on acquiring business assets,
in particular by the purchase and improvement of an empty lot on
Tudor Road ("the Tudor property"). In June 1995 Nicholson invested
$65,000 from his remaining inheritance funds in the Tudor property.
He stated that he had intended to operate a trailer park on the
property, but discovered after he made the purchase that the parcel
was no longer zoned for that use. Wolfe makes no claim to this
parcel.
Nicholson started a snowplowing and landscaping business,
Northstar, in 1986 and ran the business out of the family home. He
purchased much of the equipment for the business with his separate
property before and during the marriage. Nicholson stated that he
abandoned the business in the fall of 1994, just after the parties
separated. In addition, during the marriage, the parties began a
wedding consulting and supply company, Perfect Impressions, which
they operated out of their home. Although Nicholson performed most
of the day-to-day work of these businesses, Wolfe helped out from
time to time. Neither business was especially profitable. The
parties agree that Perfect Impressions is a non-marital asset
belonging to Nicholson, but they contest the ownership of
Northstar's significant assets, which the trial court valued at
$73,440.
In the divorce proceedings, the court identified as
marital property some of the contents of the marital residence, the
Northstar business and its assets, a motor home, Wolfe's retirement
benefits, and an ATV (all-terrain vehicle); the cost of storage for
the Northstar assets that had accrued as of separation --
$12,756.11 -- was the sole marital debt. On appeal, Nicholson
challenges numerous aspects of the property division.
II. DISCUSSION
A. The Trial Court Did Not Err in Choosing Not to Use
Rescission Principles as the Proper Method of Property Division.
Alaska has adopted an equitable distribution system for
dividing marital property in divorce actions. [Fn. 1] This court
has created a limited exception to this general rule, however, in
Rose v. Rose. [Fn. 2] In that case, we held that after a
relatively brief marriage, in which the parties have "maintained
completely separate economic identities,"[Fn. 3] the trial court
may "treat the property division as an action in the nature of
rescission."[Fn. 4] Nicholson asks us to extend that rule and
hold that in circumstances where the Rose criteria are met, the
court must apply Rose rescission principles.
Nicholson argues that in his case the trial court should
have applied the Rose recission principles rather than the
equitable principles employed in most property divisions. [Fn. 5]
We have often recognized the trial court's broad discretion in
determining a just disposition of property based upon the facts in
the particular case before it, and have repeatedly held that we
will reverse the trial court's determination only where it is
clearly unjust. [Fn. 6] In Rose, we held that it was not clearly
unjust to apply recission principles where there was no significant
commingling of assets:
[I]n marriages of short duration, where there
has been no significant commingling of assets between the parties,
the trial court may, without abusing its discretion, treat the
property division as an action in the nature of rescission, aimed
at placing the parties in, as closely as possible, the financial
position they would have occupied had no marriage taken place.[[Fn. 7]]
Thus, in Rose, we held that the trial court had discretion to apply
rescission principles under the circumstances presented; we neither
held nor implied that the court was required to apply recission
principles. Since Rose, we never have held that it would be
clearly unjust to adopt equitable rather than rescission princi
ples, [Fn. 8] and we decline to do so today. Rose stands for the
limited proposition that trial courts have discretion to apply
rescission principles in certain circumstances. But since
equitable division is the prevailing rule, we decline to hold that
a trial court would ever be required to adopt rescission.
B. The Trial Court's Property Distribution Order Must Be
Remanded in Part for Reconsideration.
1. The trial court's equal allocation of the marital
property was not clearly unjust.
Nicholson contends that although the trial court claimed
to be applying the Merrill [Fn. 9] factors in allocating the
marital property equally between the parties, it "did not properly
consider"the Merrill factors. Specifically, he argues that the
trial court did not appropriately consider the parties' ages,
earning capacities, and financial conditions.
The trial court has broad discretion in fashioning an
equitable property distribution. [Fn. 10] We will reverse an
allocation only if it is clearly unjust. [Fn. 11] In exercising
its discretion, the trial court must consider the duration of the
marriage, the stations in life of the parties, their ages, physical
conditions, earning capacities, conduct of financial affairs during
the marriage, and circumstances and needs. [Fn. 12] With regard to
specific property, it should also consider when and how the parties
acquired the property, its value at the time of the division, and
its income-producing capacity, if any. [Fn. 13] This enumeration
is not exhaustive, and the trial court need not make findings
pertaining to each factor, [Fn. 14] but its findings must be
sufficient to indicate the factual basis for the conclusion
reached. [Fn. 15] We will not reevaluate the merits of the trial
court's property division in most cases in which it makes these
threshold findings. [Fn. 16]
An equal division of the marital property is presumed to
be equitable. [Fn. 17] The trial court began with this presumption
and concluded that "[a] preponderance of the evidence fails to
establish [relevant facts suggesting] that the Merrill/statutory
factors should result in less than equal division of marital
property in this case." The trial court supported its conclusions
with adequate findings. In support of its conclusion, the court
noted that "[b]oth parties are in good health, have education,
multiple skills, training, and job experiences that make them
viable employees in several job markets." Wolfe has a steady job
as a teacher. After separation, she earned a master's degree.
Nicholson, who retired from the military as a lieutenant colonel
just days before the marriage, also has a master's degree in public
administration. Implicitly rejecting Nicholson's poorly
substantiated claims of financial ruin, the court went on to note
that although Nicholson was older than Wolfe, he had a steady
retirement income and substantial inheritances. It commented that
"although he has been less than careful about maintaining the
Northstar Landscaping assets,"he had the potential to reactivate
that business as well as the Perfect Impressions business.
Nicholson argues that the court erred when it considered as a
factor the possibility of reactivating Northstar. But the court
properly considered "the income-producing capacity"of Northstar
[Fn. 18] and, in any case, did not appear to give much weight to
this factor. It noted the "potential"for Nicholson to restart
Northstar but recognized that the assets were not well maintained.
This was not error.
In examining the factors considered, we cannot conclude
that the trial court's allocation was clearly unjust. Contrary to
Nicholson's contentions, the trial court did consider the parties'
ages, earning capacities, and financial conditions: It noted that
Nicholson was older, but also took note of his retirement income
and inheritances; it compared their respective educations and
experiences; and it put their financial circumstances into the
balance, which we have discussed above. Although the trial court
could have reached another result without abusing its discretion,
we cannot conclude that the result it reached was clearly unjust.
2. The trial court failed to make an adequate finding
that the parties intended to treat the Northstar business as
marital property.
The trial court may only divide property characterized as
marital. [Fn. 19] "Separate property becomes marital only upon a
showing that the parties intended to treat the property as
marital,"[Fn. 20] and that "there is an act or acts which
demonstrate that intent."[Fn. 21] Separate property may be
invaded in the overall property distribution only when the court
finds that the equities demand an invasion. [Fn. 22] The trial
court found that Nicholson started the Northstar business prior to
the parties' marriage. Wolfe admits that Nicholson established
Northstar's assets with his separate property. The trial court did
not find that the Northstar assets were marital because the parties
intended to treat them as such. Instead, it found that it would be
unfair to treat the property as separate, since both parties had
contributed significant efforts to the business during the
marriage.
Nicholson argues that the trial court erred in focusing
solely on the parties' acts and disregarding their intentions. We
agree.
Without finding that the parties intended to convert
Northstar to marital property, the trial court could not properly
consider the business to be a marital asset. [Fn. 23] In
determining the existence of this intent, the court could look to
the parties' conduct. "It is true that parties may, by their
actions during marriage, demonstrate intent to treat specific
[separate] properties as joint holdings . . . ."[Fn. 24] We have
previously described a variety of ways in which conduct may evince
an intent to transmute separate property:
[S]eparate real estate can become marital
where the owner permits the non-owner spouse to lend her credit to
improve the property, or to devote substantial efforts to its
management, maintenance or improvement, or where the parties use
the premises as their personal residence. Similarly, placing
separate property in joint ownership is rebuttable evidence that
the owner intended the property to be marital. Likewise, agree
ments oral or written, may demonstrate the owner's intent, or lack
of intent, to convert separate property to marital property.[ [Fn.
25]]
In the present case, we recognize that the trial court
might have believed that the parties' conduct demonstrated their
intent to treat Northstar as marital property. But the court did
not make this finding expressly; nor does the record convince us
that it made this finding implicitly.
In fact, much of the evidence would seem to indicate a
contrary intent. The record indicates that Nicholson maintained
title to the Northstar assets in his name alone; he meticulously
kept separate records, so that Wolfe was unaware of the assets and
debts of the business, and exerted minimal control over them; Wolfe
never assumed any liability for the business, nor did she co-sign
any business loans; Nicholson spent little or no marital monies on
the business. According to Wolfe, she helped set up Northstar's
books (although she apparently did not maintain them), answered the
business phone, and occasionally accompanied Nicholson "on his
business activities"(emphasis added).
Given these facts, we cannot overlook the absence of an
express finding of intent to treat the Northstar assets as marital
property. Without expressly finding an intent to transmute, the
trial court could not properly designate Northstar as marital
property. Accordingly, we must vacate the court's decision on this
point and remand for reconsideration. On remand, the court should
treat Northstar as Nicholson's separate property, and revise the
property division accordingly, unless it expressly finds an act or
acts that demonstrate the parties' intent to treat the property as
marital. [Fn. 26] Because we remand for further findings on this
point, we need not address Nicholson's related arguments
challenging the adequacy of the court's findings and conclusions
valuing and dividing the Northstar property.
3. Other property issues
Nicholson also challenges numerous specific aspects of
the trial court's property division.
The court awarded the motor home to Wolfe, credited her
with $1,300 she spent in repairing it, and did not offset
Nicholson's costs in storing and insuring it. Nicholson asserts
that the court abused its discretion in failing to award the motor
home to him because he asked for and needed it. The needs of the
parties are relevant considerations in the allocation of the
marital property. [Fn. 27] Nicholson testified that he needed the
motor home to live in and would place the motor home on the Tudor
Road property. But he also testified that the Tudor Road property
was not connected to water or electrical services. On this basis,
the court could have reasonably concluded that Nicholson's claimed
need for the motor home was unrealistic. We cannot conclude that
the court's failure to award Nicholson the motor home was clearly
unjust.
Nicholson also argues that the court erred in crediting
Wolfe for her repair payments. But a court may properly consider
post-separation payments made from separate income in order to
preserve marital property and has the discretion to give the paying
party credit for these payments. [Fn. 28] Wolfe testified that
while storing the motor home, she spent $1,300 on cleaning,
registering and titling the vehicle, and changing the oil, filter,
plugs and tires. Nicholson also testified that he incurred costs
to insure the motor home. But because Nicholson failed to submit
any evidence specifying the costs he incurred, we conclude that the
court did not abuse its discretion in failing to credit them.
Nicholson next contends that the trial court erred in
concluding that his ATV was a marital asset, not a separate
business asset. Nicholson argues that he paid for the ATV with
separate funds in order to use it in the Northstar business. Wolfe
and Nicholson both testified -- and the trial court found -- that
the ATV "was used on hunting and fishing trips; it was not used in
the businesses." The court evidently relied on this finding in
treating the ATV as marital property. But Nicholson's use of the
ATV for his own pleasure does not imply an intent to make it an
asset belonging to both parties. And unless Nicholson intended the
ATV to become marital property, it retained its character as
separate property. [Fn. 29] Accordingly, on remand, unless the
court expressly finds the requisite intent, it should treat the ATV
as Nicholson's separate asset.
Nicholson argues that the trial court erred when it
awarded Wolfe a Johnny Johnson print depicting musk oxen. Wolfe
testified that she purchased the print during the marriage and hung
it in the family home. Nicholson admitted that the print was
purchased with "joint funds." The trial court found that the
Johnny Johnson print was marital property. Nicholson now claims
that it was a gift to him and is his separate property, but points
to no evidence to support this assertion. We conclude that the
trial court did not err when it identified the print as marital and
allocated it to Wolfe.
Nicholson also vaguely refers to other prints and
photographs, but points to no error of the trial court with regard
to these items. We deem these claims waived for inadequate
briefing. [Fn. 30]
4. The trial court erred in failing to make findings
on certain alleged debts owed to Nicholson by Wolfe.
Nicholson argues that the trial court erred in failing to
honor an agreement between Wolfe and Nicholson whereby she would
pay him $300 for his computer so that she could donate it to the
Civil Air Patrol and receive tax benefits. Apparently, Wolfe never
paid Nicholson. The court found that this agreement and debt were
not supported by sufficient evidence to make an award. The
evidence supporting this debt was purely testimonial. The court
found that the testimony was less than reliable and seemed to be
motivated by pettiness. The weight accorded to testimony should be
determined by the trier of fact. [Fn. 31] It was not clearly
erroneous to find the testimony incredible.
Nicholson also argues that he was entitled to payment for
damage that Wolfe's dog caused to his house. Nicholson estimated
at trial that it would cost about $500 to repair the damage but did
not get an appraisal to support his claim. Wolfe admitted that her
dog did some damage that was not repaired. She claimed that she
offered to repair the damage many times, but that Nicholson
declined the offers. Again, the weight accorded to testimony
should be determined by the trier of fact. It was not clearly
erroneous to find that Nicholson presented insufficient evidence to
merit an award.
Nicholson further maintains that the trial court failed
to credit him for certain insurance reimbursements that Wolfe
improperly retained. In addition, he complains that Wolfe should
not have been allowed to keep the money remaining in the parties'
joint bank accounts. Both of these complaints are meritless. The
court reduced Wolfe's share of the business assets to account for
the insurance debt and awarded the contents of the joint bank
accounts to Wolfe as part of the overall property settlement. As
explained above, the overall property settlement was not clearly
unjust.
Last, Nicholson argues that the parties verbally agreed
that Wolfe would pay half of his mortgage each month while she
lived there. He contends that she failed to honor the agreement
for the last three months prior to separation. He was not sure of
the exact amount of the debt, but estimated that it was about $950
per month for a total of $2,850. Wolfe admitted to no formal
contract but did admit that they had an informal agreement to share
the household expenses and that she did not pay half of the
mortgage for the month prior to separation. The trial court made
no express findings on this point. Given Wolfe's admission, the
trial court should address this issue on remand and make
appropriate findings.
5. The trial court did not abuse its discretion in
awarding Nicholson his portion of Wolfe's retirement benefits in
the form of a QDRO.
Trial courts have discretion to distribute retirement
benefits to a non-employee spouse through either a qualified
domestic relations order (QDRO) or through a lump sum payout. [Fn.
32] In this case, Wolfe accrued significant retirement benefits
during the marriage. Nicholson argues that the trial court erred
in failing to award him his present interest in the marital portion
of Wolfe's retirement in a lump sum rather than in a QDRO. He
points out that Wolfe is much younger than he is and argues that he
will probably live to see little, if any, of the benefits if paid
out in a QDRO. Wolfe counters that the trial court had the
discretion to award the benefits either in a lump sum or in a QDRO
and properly exercised its discretion in awarding the benefits in
a QDRO.
It is true that the payment of Nicholson's share of
Wolfe's benefits through a QDRO entails some risk that he may not
live to enjoy them. The court considered this in its findings and
conclusions. But the court also heard evidence that Nicholson was
not careful with his money. He testified that he had managed to
run through over $200,000 in savings and inheritance in just a few
years. The court was also aware that Nicholson's own military
pension already provided him with a regular and dependable stream
of income. Given Nicholson's fiscal irresponsibility, the trial
court could have reasonably found it more appropriate to award his
share of Wolfe's retirement in the form of a QDRO, so that he would
be assured a reliable stream of income in the future. Moreover,
although an immediate payout would certainly have ensured that
Nicholson would actually recover his share of Wolfe's retirement,
a postponed payout through a QDRO did not increase the risk of non-
recovery that Nicholson had faced while still married. Nicholson
chose to marry a woman many years his junior. As a married man, he
had no assurance that he would live until his wife retired; the
QDRO did not enhance this pre-existing uncertainty.
Finally, Wolfe's ability to pay out Nicholson's share of
her retirement in a lump sum was a relevant consideration.
Generally, courts have approved of lump sum payouts when there are
"marital assets sufficient to satisfy the non-employee spouse's
claim without undue hardship on the employee spouse."[Fn. 33] In
this case, Wolfe does not appear to have had any ready source of
funds from which she could have made a lump sum payment without
undue hardship. Wolfe took from the marriage certain personal
property and her share of her retirement benefits. The personal
property is illiquid (and may cause hardship to liquidate), and the
retirement benefits are unavailable. Therefore, a payout from her
share of the marital assets would not be realistic.
For these reasons, we conclude that the trial court did
not abuse its discretion in awarding Nicholson his retirement
benefits in the form of a QDRO rather than a lump sum payment.
6. The trial court did not abuse its discretion in
declining to award Nicholson rehabilitative alimony.
Nicholson contends that the trial court erred in
concluding that no credible evidence supported his unrebutted claim
for alimony. He claims on appeal, as he did below, that he needs
extensive training to become qualified as a commercial pilot, which
would take two and a half years and cost about $21,400.
We review the trial court's decision regarding
rehabilitative alimony for abuse of discretion. [Fn. 34] The
purpose of rehabilitative alimony is to allow a recipient spouse
who exits a marriage with few job skills and little earning
capacity to secure a means of earned income. [Fn. 35] The trial
court found that Nicholson had significant education, skills, and
experiences that would make him employable in several job markets.
The record supports this finding. We conclude that the trial court
did not abuse its discretion in refusing to award Nicholson
rehabilitative alimony.
7. The trial court did not abuse its discretion in
declining to award Nicholson attorney's fees and costs.
Nicholson argues that it was an abuse of discretion for
the court to decline to order Wolfe to pay a portion of Nicholson's
legal fees, including expert witness fees, and costs. The award of
attorney's fees in divorce actions is within the broad discretion
of the trial court. [Fn. 36] "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 this statute is to 'assure that
both spouses have the proper means to litigate the divorce action
on a fairly equal plane.'"[Fn. 37] The general rule with regard
to fees in a divorce case is that the court should consider the
economic situation and earning power of each party. If the parties
are in comparable economic situations, they should bear their own
costs and fees. [Fn. 38] Generally, a court will award costs and
fees only to the economically disadvantaged divorce litigant. [Fn.
39]
The court rejected the factual predicate for Nicholson's
claim -- abject poverty -- and found the parties to be in roughly
similar economic circumstances. There is no reason here to stray
from the general rule that equally situated parties should bear
their own costs and fees. We conclude that the trial court did not
abuse its discretion when it directed each party to pay its own
costs and fees.
Nicholson claims that Wolfe was guilty of vexatious
conduct, thus justifying an award of costs and fees that might not
otherwise be warranted. [Fn. 40] But the trial court made no
finding of vexatious conduct by either party, and Nicholson fails
to demonstrate that this amounted to error.
III. CONCLUSION
Because we hold that the trial court erred in treating
the Northstar assets as marital, we REVERSE and REMAND for
reconsideration of this aspect of the property division.
Additionally, we REMAND for specific findings concerning the
alleged mortgage payments that Wolfe owes to Nicholson. We AFFIRM
the trial court's decision in all other respects.
FOOTNOTES
Footnote 1:
See AS 25.24.160.
Footnote 2:
755 P.2d 1121 (Alaska 1988).
Footnote 3:
Id. at 1125.
Footnote 4:
Id.
Footnote 5:
See, e.g., Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska
1983).
Footnote 6:
See, e.g., Morris v. Morris, 724 P.2d 527, 529-30 (Alaska
1986); Vanover v. Vanover, 496 P.2d 644, 645 (Alaska 1972).
Footnote 7:
Rose, 755 P.2d at 1125 (emphasis added).
Footnote 8:
See McCoy v. McCoy, 926 P.2d 460, 462 (Alaska 1996) ("The
decision to apply Rose when there is no significant commingling of
assets is a matter of discretion."); Zimin v. Zimin, 837 P.2d 118,
121 (Alaska 1992) (holding it was not abuse of discretion for court
to decline to apply Rose where the parties "did not maintain
completely separate economic identities"during marriage); cf. Cox
v. Cox, 882 P.2d 909, 915 (Alaska 1994) ("It is one thing to hold
that use of the source of funds rule in limited circumstances is
not an abuse of discretion; it would be quite a leap . . . to hold
that it must be applied in a given set of circumstances as a matter
of law.").
Footnote 9:
See Merrill v. Merrill, 368 P.2d 546, 547-48 & n.4 (Alaska
1962).
Footnote 10:
See Cox, 882 P.2d at 913; see also McCoy, 926 P.2d at 463
("The superior court's distribution will not be disturbed unless it
is so clearly unjust as to constitute an abuse of discretion.").
Footnote 11:
See Compton v. Compton, 902 P.2d 805, 808 n.2 (Alaska 1995).
Footnote 12:
See AS 25.24.160(a)(2); Merrill, 368 P.2d at 547-48 & n.4.
Footnote 13:
See AS 25.24.160(a)(4).
Footnote 14:
See Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)
(citing Merrill, 368 P.2d at 548 n.10).
Footnote 15:
See Merrill, 368 P.2d at 548 n.10; see also Burcell v.
Burcell, 713 P.2d 802, 805 (Alaska 1986) (finding that trial
court's application of Merrill factors was clearly erroneous).
Footnote 16:
See Wanberg v. Wanberg, 664 P.2d 568, 574 n.20 (Alaska 1983)
("Given adequate factual findings, and a demonstration that the
trial court weighed those facts in reaching its conclusion, we will
not overturn a property division unless it is clearly unjust.");
Merrill, 368 P.2d at 547-48.
Footnote 17:
See Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991); Wanberg,
664 P.2d at 574-75.
Footnote 18:
See AS 25.24.160(a)(4)(I); see also Lang v. Lang, 741 P.2d
1193, 1196 (Alaska 1987) (requiring trial court finding on income-
producing potential of marital property).
Footnote 19:
See Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997).
Footnote 20:
Dunn v. Dunn, 952 P.2d 268, 273 (Alaska 1998) (citing Chotiner
v. Chotiner, 829 P.2d 829, 832 (Alaska 1992)).
Footnote 21:
Chotiner, 829 P.2d at 832.
Footnote 22:
See AS 25.24.160(a)(4), construed in Carlson v. Carlson, 722
P.2d 222, 223-24 (Alaska 1986); see also Matson v. Lewis, 755 P.2d
1126, 1127 n.2 (Alaska 1988) (reporting that one of the primary
justifications for discretionary invasion is where the non-owning
spouse makes contributions to the marital community that benefit
the premarital property).
Footnote 23:
See Bellanich v. Bellanich, 936 P.2d 141, 144 (Alaska 1997)
(vacating trial court's treatment of property as marital because it
made no findings regarding spousal intent).
Footnote 24:
Carlson, 722 P.2d at 224.
Footnote 25:
Chotiner, 829 P.2d at 833 (citations omitted); see also Dunn,
952 P.2d at 273-74 (upholding court's determination that van was
marital asset where parties commingled funds to purchase the
vehicle, it was held solely in husband's name, husband encouraged
wife to sell her car and use van, and wife was primary driver of
van for a while and controlled its use); Johns v. Johns, 945 P.2d
1222, 1225 (Alaska 1997) (upholding court's finding that boat was
marital property where the parties took joint title to the boat and
co-signed on the purchase loan).
Footnote 26:
In the absence of such a finding, the trial court would be
justified in dividing the Northstar assets only if it "specifically
found that a 'balancing of the equities between the parties'
required invasion of the pre-marital holding." Carlson, 722 P.2d
at 224; see also Chotiner, 829 P.2d at 831. The circumstances here
do not appear to require invasion of separate property.
Footnote 27:
See AS 25.24.160(a)(4)(G).
Footnote 28:
See Rodriguez v. Rodriguez, 908 P.2d 1007, 1013 (Alaska 1995);
Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992).
Footnote 29:
See Cox v. Cox, 931 P.2d 1041, 1043 (Alaska 1997).
Footnote 30:
See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) ("Where a
point is given only cursory statement in the argument portion of a
brief, the point will not be considered on appeal.").
Footnote 31:
See Evans v. Evans, 869 P.2d 478, 480-81 (Alaska 1994).
Footnote 32:
See Laing v. Laing, 741 P.2d 649, 655-58 (Alaska 1987).
Footnote 33:
Id. at 657.
Footnote 34:
See Ulsher v. Ulsher, 867 P.2d 819, 821 (Alaska 1994).
Footnote 35:
See Myers v. Myers, 927 P.2d 326, 329 (Alaska 1996).
Footnote 36:
See Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991).
Footnote 37:
Id. (quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192
(Alaska 1987)).
Footnote 38:
See Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991).
Footnote 39:
See Hilliker v. Hilliker, 828 P.2d 1205, 1206 (Alaska 1992).
Footnote 40:
See Horton v. Hansen, 722 P.2d 211, 218 (Alaska 1986) (noting
that vexatious conduct by one party that leads to increased
attorney's fees will justify a fee award to the burdened spouse).
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