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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Young v. Lowery (12/24/2009) sp-6444
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SCOTT H. YOUNG, | ) |
| ) Supreme Court No. S- 13180 | |
| Appellant, | ) |
| ) Superior Court No. 3KO-07- 20 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| CHERYL K. LOWERY, | ) No. 6444 - December 24, 2009 |
| ) | |
| Appellee. | ) |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Kodiak, Joel H. Bolger,
Judge.
Appearances: Mary A. Gilson, Allison E.
Mendel, Mendel & Associates, Anchorage, for
Appellant. Steven P. Gray, Law Office of
Steven P. Gray, Kodiak, for Appellee.
Before: Fabe, Chief Justice,
Eastaugh,Carpeneti, Winfree, and Christen,
Justices.
WINFREE, Justice.
I. INTRODUCTION
A husband and wife sought a divorce and the division of
their marital property. The trial court granted the divorce and
divided the property unequally, awarding the wife a larger share.
As part of the division, the court awarded the wife a share of
the husbands military pension, ordered him to pay her a portion
of the pension payments he had already received, and authorized a
constructive trust on his assets in the event he causes the
amount of her payments from his pension to decrease. The husband
challenges specific aspects of the pension division and the
overall property division. We affirm the property division as
within the trial courts discretion, but we vacate, reverse, and
remand certain elements of the pension division.
II. FACTS AND PROCEEDINGS
A. Facts
Cheryl Lowery and Scott Young were married in 1994.
Each had three children from an earlier marriage. Neither Lowery
nor Young adopted the others children, and they had no children
together. The couple moved from Florida to Kodiak in 2000, where
Young worked for the United States Coast Guard.
In 2001 Lowerys two sons were killed, and Lowery
received a $655,802 wrongful death settlement in 2002. The funds
were placed in joint accounts actively managed by Young.
The marriage became strained in November 2006. Lowery
entered a residential alcohol-abuse treatment facility in
California in early December 2006. She spent one month in
treatment and another in aftercare. Young and Lowery never
reunited, and the trial court determined the functional end of
their marriage was approximately November 30, 2006. Lowery filed
for divorce in January 2007. She then moved to Florida and found
work with a former employer. Young moved to Arkansas in March
2007 and retired from Coast Guard service on May 1, 2007.
B. Proceedings
Trial was held in early April 2008. The trial court
calculated Youngs Coast Guard pension value as $706,125 and
determined the marital portion of the pension to be 50.68%. The
court found that Young maintained a 55% survivor benefit for
Lowery, ensuring that if he predeceased her, she would continue
to receive a share of his retired pay for the rest of her life.1
The court also found that Young received military disability
benefits. Under current federal law, a veteran cannot receive
the full amount of both retired and disability pay and must waive
a portion of retired pay in order to receive disability pay.2
The court recognized this, but concluded that [n]either party
presented any persuasive evidence on exactly how much [Youngs]
retirement benefits will be reduced.3
The trial court calculated the value of the parties
other marital assets to be $689,725. The court noted that the
bulk of these assets originated as Lowerys wrongful death
settlement, but concluded that the settlement proceeds had been
transmuted into marital property. Adding the marital portion of
the Coast Guard pension, the court calculated the total value of
the marital estate to be $1,047,589.
The trial court awarded Lowery one-half of the marital
portion of Youngs pension, which amounted to $178,932. The court
also ruled that [t]he balance of the marital property should be
divided on an unequal basis in order to allow [Lowery] to secure
additional retirement and health benefits or equivalent financial
security. It awarded Lowery $524,298 (roughly 75%) of the non-
pension marital property and awarded Young the remaining
$165,428. Lowery thus received roughly 67% of the total marital
property, including the equally divided Coast Guard pension. The
court ordered Young to pay Lowery $7,372, representing one half
of the marital portion of the retirement pay he received for the
period from May 1, 2007 through April 30, 2008 and to continue
purchasing survivor benefits for Lowery.
The trial court entered a qualified order instructing
the Coast Guard to distribute each spouses share of the retired
pay directly to that spouse. The qualified order requires
division and payment according to the percentages announced in
the courts written decision, but states that Lowerys monthly
payment shall not be less than $614.36 per month with cost-of-
living increases. The order also provides:
If at any time after the entry of this order,
action is taken which causes a reduction in
[Youngs] disposable retired pay, other than
his election of benefits under the Survivor
Benefit Plan required hereunder, from less
than it would have been on the date of this
Order absent such action(s), [Young] shall be
deemed to have created a constructive trust
for [Lowery] under Federal and all applicable
State law for the amount by which payments to
[Lowery] are reduced. [Lowery] shall
thereupon have an interest in, and the right
to immediate possession of, so much of
[Youngs] property as is necessary to satisfy
said trust.
Young moved for reconsideration. The trial court
corrected a typographical error in the original written order but
otherwise denied the motion. Young appeals.
III. STANDARD OF REVIEW
We review the equitable division of marital property
for abuse of discretion and will affirm the trial court unless
the division is clearly unjust.4 Factual findings supporting the
division will not be reversed unless clearly erroneous.5 We
review de novo whether the trial court applied the correct legal
rule in exercising its discretion.6 Whether the trial courts
equitable division of a military pension is consistent with
federal law is a question of law we review de novo.7
IV. DISCUSSION
A. The Military Pension Division
Young makes three arguments challenging the division of
his military pension. First, he argues the $614.36 minimum
payment to Lowery violates federal law by effectively dividing
disability payments that should not be subject to division.
Second, he argues the creation of a constructive trust was
erroneous. Third, he argues the trial court abused its
discretion by requiring him to pay the majority of the expense
for Lowerys survivor benefits. We address each argument in turn.
1. It was error to order Young to pay Lowery no less than the
fixed-dollar sum of $614.36 per month.
The trial court determined that the marital portion of
Youngs pension was 50.68% and awarded Lowery half of that
portion, or 25.34%, of Youngs total monthly retired pay. After
issuing a written decision, the court issued a qualified order
incorporating this percentage. The qualified order also states:
Provided, however, [Lowerys] award shall not be less than $614.36
per month with cost-of-living increases. Young argues that
because he is required by law to use a portion of his $2,424.45
monthly pension payment as a substitute for his disability
payment, the court-ordered $614.36 minimum payment to Lowery
erroneously reduces his disability payment. We agree.
Young retired in May 2007 and was awarded $2,593 per
month in total retired pay. He elected survivor benefits, and
the monthly fee of $168.55 was deducted from his total retired
pay, leaving him with disposable retired pay of $2,424.45. On
April 1, 2008, a week before trial, Young was awarded disability
pay retroactive to June 1, 2007. Because a portion of his
retired pay must be waived to receive that disability pay, at the
time of trial Youngs disposable retired pay was actually less
than $2,424.45, but the exact amount was unknown.8 The court
awarded Lowery 25.34% of Youngs monthly disposable retired pay,
but required Young to pay Lowery no less than $614.36 per month.
Although $614.36 is exactly 25.34% of $2,424.45, it is more than
25.34% of the actual disposable retired pay Young was receiving
at the time of trial.
State courts have limited authority to equitably divide
a military pension upon divorce. The United States Supreme Court
held in McCarty v. McCarty9 that federal law on military pensions
preempted state domestic relations law and barred state courts
from treating military retired pay as marital property divisible
upon divorce.10 The following year Congress overruled McCarty by
passing the Uniformed Services Former Spouses Protection Act
(USFSPA),11 allowing state courts to treat a portion of a service
members military retired pay termed disposable retired pay12 as
marital property divisible upon divorce according to state
domestic relations law.13 Disposable retired pay is defined in
the USFSPA as total (gross) monthly retired pay less:
(1) amounts waived in order to receive military disability pay;
(2) deductions for the cost of survivor benefits; and (3) other
deductions not pertinent here.14 After Congress passed the USFSPA
the Supreme Court ruled in Mansell v. Mansell15 that a state court
may consider only USFSPA-defined disposable retired pay as
marital property divisible upon divorce.16 Accordingly, a court
may not equitably divide total retired pay; it may equitably
divide only the amount of retired pay remaining after the court
deducts waived retired pay and the cost of purchasing survivor
benefits.
Failing to limit the property division to Youngs actual
disposable retired pay violates the USFSPA. It was therefore
error to set the minimum monthly payment at $614.36 per month and
we must vacate this portion of the qualified order.
The trial court also ordered Young to pay Lowery
$7,372, representing one half of the marital portion of the
retirement pay he received for the period from May 1, 2007
through April 30, 2008. Young correctly argues this sum is
erroneously calculated because it is based on the monthly figure
and does not account for retired pay waived to receive disability
benefits, which were awarded retroactive to June 1, 2007. We
therefore must also reverse this portion of the courts decision
and remand for re-calculation of the correct amount to be paid to
Lowery.
2. It was error to create a constructive trust, but
other means of indemnification would be
appropriate.
Because Lowery receives a proportional share of Youngs
disposable retired pay, any reduction in the amount of total
disposable retired pay occasioned, for example, by an increase
in Youngs disability pay requiring additional waiver of retired
pay would cause a decrease in Lowerys monthly payment. The
qualified order provides that if Young takes future action to
reduce his disposable retired pay, a constructive trust will be
created for the amount that Lowerys payments are reduced,
allowing Lowery the right to immediate possession of Youngs
property sufficient to satisfy that amount. Young objected to
the trial courts inclusion of the constructive trust language in
the qualified order, arguing that the conversion of retired pay
to disability pay under federal law is not the kind of
unconscionable conduct necessary to support the imposition of a
constructive trust.
When the trial court entered the qualified order, the
amount of Youngs retired pay converted to disability pay was
unknown.17 On appeal Youngs argument concerns the effect of the
constructive trust on the governments initial conversion of his
retired pay to disability pay. That portion of his argument is
moot in light of our reversal of the trial courts calculation of
Youngs disposable retired pay. However, the effect of the
constructive trust on possible future decreases in Youngs
disposable retired pay is included in Youngs argument and is
still at issue.
A constructive trust is an equitable remedy that
becomes available upon clear and convincing proof that the party
against whom the trust will be imposed has been unjustly enriched
by receiving assets that rightly belong to the party in whose
favor the trust will be created.18 [T]he trust arises to prevent
the property holder from retaining property obtained by reason of
unjust, unconscionable, or unlawful means. 19
The trial court did not expressly forbid Young from
taking action that would reduce Lowerys monthly retired pay;20
instead it required him to make up that difference if he elected
to do so. Young therefore would not violate the terms of the
courts order by waiving more retired pay, nor would he violate
any state or federal law by doing so. We also do not believe
that choosing to receive more disability pay in lieu of retired
pay to reduce ones tax burden, which federal law permits, is so
unjust or unconscionable as to warrant a constructive trust.21
But the trial court may expressly order Young not to reduce his
disposable retired pay and require Young to indemnify Lowery for
any amounts by which her payments are reduced below the amount
set on the date the amended qualified order is entered.22 We
vacate the portion of the qualified order relating to a
constructive trust; on remand the court may in its discretion
replace that language with an appropriate indemnity provision.
3. The trial court did not abuse its discretion with
respect to the cost of the survivor benefit.
The trial court found that Young elected to provide
Lowery a 55% survivor benefit and ordered Young to continue
purchasing that benefit to protect Lowerys interest in Youngs
pension. Relying on our decision in Hooper v. Hooper,23 Young
contends the trial court abused its discretion because it did not
explain the allocation of the survivor benefit cost.
As discussed above, the portion of a military pension
which may be equitably divided upon divorce disposable retired
pay already reflects a deduction for the cost to purchase
survivor benefits.24 As a result, the cost of purchasing survivor
benefits is automatically allocated between the parties in the
same proportion as their share of disposable retired pay.25
In Hooper we held the trial court abused its discretion
in allocating the entire cost of purchasing survivor benefits to
the husband, without explanation, when the marital property was
split 67% to 33% in the wifes favor.26 The pension in Hooper was
a Federal Employees Retirement System (FERS) pension, not a
military pension,27 and federal law does not limit state courts
authority to divide FERS pensions upon divorce.28 When a court
divides a FERS pension the cost of survivor benefits is not
automatically allocated; the court may allocate that cost as it
sees fit.29 The trial court in Hooper decided to allocate the
entire cost of the FERS survivor benefit to the husband, but
lacking an explanation for that decision, we could not determine
if it was arbitrary or reasoned.30
Here federal law automatically allocates the cost of
purchasing survivor benefits between the spouses because Young
received 74.66% of the retired pay, federal law allocates to him
74.66% of the cost of purchasing survivor benefits.31 Although it
may have been permissible to re-allocate that cost some other
way, perhaps by requiring Lowery to reimburse Young,32 the trial
court did not abuse its discretion by declining to do so.33 We
therefore affirm the order for continuing survivor benefits with
the natural allocation of the cost under federal law.
B. The Marital Property Division
1. The trial court did not commit legal error in
dividing the marital property unequally.
Young argues the trial court committed three legal
errors in dividing the parties marital property unequally.
Young first argues the courts findings of fact lack the
specificity required to justify an unequal property division,
citing Lang v. Lang.34 When dividing marital property, the trial
court must consider the factors enumerated in AS 25.24.160(a)(4).35
These factors are not exhaustive, and the trial court need not
make findings pertaining to each factor, but its findings must be
sufficient to indicate the factual basis for the conclusion
reached.36
In undertaking the property division in this case, the
trial court considered the duration of the marriage, the parties
ages and health (specifically noting Lowerys prior need for
substance abuse treatment), and their earning capacities, future
access to health benefits, financial conditions, and expected
retirement incomes. The courts justification for the unequal
division was Lowerys need to secure additional retirement and
health benefits or equivalent financial security. Unlike the
trial court decision reversed in Lang,37 the order adequately
explains the factual basis for the property division.
Young next argues that the trial court erred in
attempting to equalize the parties financial conditions rather
than considering only Lowerys reasonable needs.38 After
separately dividing Youngs pension, the court ruled the balance
of marital property should be divided on an unequal basis in
order to allow [Lowery] to secure additional retirement and
health benefits or equivalent financial security. Young links
this statement with the courts earlier observation that Young is
in a far superior financial condition and will receive greater
health and retirement benefits than Lowery, and argues that the
court incorrectly tried to give Lowery financial security
equivalent to his own.
We disagree. The courts statement about equivalent
financial security referred to Lowerys need for additional
retirement and health benefits, not Youngs financial condition.39
A court properly considers the financial condition of the
parties, including the availability and cost of health insurance,40
when dividing marital property. The court therefore committed no
legal error in awarding a greater share of the marital assets to
Lowery so she could either purchase adequate health and
retirement benefits or maintain a financial cushion to provide
similar protection.
Finally, Young argues the trial court erred in
determining that his disability pay justifies a greater award to
Lowery. He contends the court erroneously considered his
disability pay as income without recognizing it compensates him
for a disability (primarily migraine headaches) that may cause
chronic health problems or prevent him from working. We
disagree. Youngs benefits guarantee him some financial
protection in the event his health problems become debilitating
and he cannot work.41 Lowery has no guaranteed protection in the
event her own health issues problems with alcohol and depression
become debilitating, and the court therefore awarded her a
greater share of the assets so she can obtain some security in
this regard. Because the court may properly consider each partys
financial condition, including the availability of health
insurance and disability pay, it did not err in considering
Youngs disability pay.
2. The trial court did not abuse its discretion in
dividing the marital property unequally.
The trial court divided the marital share of Youngs
military pension equally but awarded Lowery roughly 75% of the
remaining marital property, resulting in an overall award to
Lowery of roughly 67% of the marital assets. The court divided
the marital property unequally primarily to enable Lowery to
secure additional health and retirement benefits. Young argues
the evidence does not show Lowery needs additional benefits and
that the court abused its discretion by considering that the
source of the marital assets was Lowerys wrongful death
settlement proceeds.
Young correctly asserts that Lowery testified to having
no health problems presently preventing her from working and that
she was eligible for health insurance through her employer once
the divorce became final. But Lowery has a history of alcoholism
and depression stemming from the death of her sons, which may
continue or worsen in the future and require her to re-enter
treatment or residential therapy. Because her currently
available health benefits are tied to employment, she may well
need the ability to fund her own treatment in the future. The
finding that Lowery needs to secure additional health benefits,
or their financial equivalent, is not clearly erroneous.
Young also argues that Lowery presented no evidence
that her retirement needs are unmet. At the time of trial,
Lowery was forty-four years of age and earning roughly $45,000
per year. No evidence was presented that she has a retirement
plan through her employer, and her portion of Youngs pension is
modest. Given her age and the small portion of Youngs pension
that she receives, we are not convinced the court clearly erred
in finding Lowery needs additional retirement security.
Finally, Young asserts the trial court abused its
discretion by assigning undue weight to the fact that almost all
of the non-pension marital assets originated from Lowerys
wrongful death settlement. He contends that the origin of the
marital estate does not justify an unequal division absent some
findings that [Lowerys] needs justify it. But the court did not
find that the origin of the marital assets was a justification
for the unequal division. And if this factor did play some role
in the courts decision, it would not necessarily be improper. A
trial court may properly consider a spouses substantial
contribution of separate property in making an unequal division
of the marital estate.42 Awarding Lowery a greater share of money
originally intended to compensate her for the loss of her sons is
not clearly unjust.
The overall property division roughly two-thirds to
Lowery, one-third to Young is a significant departure from the
fifty-fifty norm, but not outside the parameters of the trial
courts broad discretion. We have previously concluded that
awarding two-thirds of the marital property to one spouse was not
an abuse of discretion when justified by the long duration of the
marriage and that spouses lower income, greater responsibility
for child-rearing, and need to refinance or repair the marital
home.43 In this case, the bulk of marital assets came from
Lowerys separate property contribution; Youngs decision to elect
disability benefits has rendered Lowerys share of his pension
quite modest; and the court determined that Lowery needed to
obtain additional health and retirement benefits, or equivalent
financial security. We therefore conclude the court did not
abuse its discretion in awarding Lowery two-thirds of the marital
assets.
V. CONCLUSION
I. We AFFIRM the unequal division of marital assets as within
the trial courts discretion. We VACATE that portion of the
qualified order expressing Lowerys share of monthly retired pay
as a minimum fixed-dollar amount and that portion authorizing a
constructive trust on Youngs assets. We REVERSE the award of
accrued retired pay owed by Young to Lowery and REMAND with
instructions to re-calculate this figure. We AFFIRM the trial
courts allocation of the survivor benefit cost.
_______________________________
1 When a service member dies, retired pay generally
ceases and the service members spouse loses that source of
income. Purchasing survivor benefits allows a service member to
ensure that a surviving spouse continues to receive a portion of
the service members monthly retired pay even after the service
members death. A service member purchases survivor benefits by
paying a fee that is deducted from the monthly retired pay. 2
Brett R. Turner, Equitable Distribution of Property, 6:2, at 6
(3d ed. 2005).
2 38 U.S.C. 5305. Young was awarded disability pay
retroactive to June 1, 2007, but his disability pay was being
withheld to prevent a double payment. Legally, however, the
retired pay is considered waived during that period. See id.
Veterans find it advantageous to receive disability pay
in lieu of retired pay because disability pay is not taxable
income, but retired pay is. Clauson v. Clauson, 831 P.2d 1257,
1259 n.2 (Alaska 1992) (citing Mansell v. Mansell, 490 U.S. 581,
583-84 (1989)).
3 The law governing the interplay between military
pensions and military disability payments has changed in recent
years, and calculating the amount of retired pay a veteran must
waive to receive disability pay is difficult. Before 2004 the
amount of retired pay waived was the amount of disability pay
received. 38 U.S.C. 5305 (2000) amended by Veterans Benefits
Improvement Act of 2004, Pub. L. No. 108-454, Tit. III, 308(b),
118 Stat. 3598, 3614 (2004). Congress passed a law effective in
2004 allowing veterans with a disability rating of 50% or higher
(as determined by the Department of Veterans Affairs) to
concurrently receive disability and retired pay. National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-
136, Div. A, Tit. VI. 641, 117 Stat. 1392, 1511 (2003) (codified
at 10 U.S.C. 1414(c) (2006)). The law created a ten year phase-
in period, during which veterans must waive a portion of retired
pay that is less than their disability pay. Each year the waived
retired pay is a smaller portion of the disability pay, and by
2014 veterans will receive the full amount of each entitlement.
10 U.S.C. 1414(c).
4 Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005).
5 Hooper v. Hooper, 188 P.3d 681, 687 (Alaska 2008).
6 Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).
7 See Clauson, 831 P.2d at 1261-62.
8 The trial court found that [n]either party presented
any persuasive evidence on exactly how much [Young]s retirement
benefits will be reduced. Lowery argues the burden was on Young
to produce this evidence and, having failed to do so, he cannot
now claim error. At the close of trial, the court indicated the
evidence presented was sufficient for the court to make findings
on the issue. It allowed Lowery the option of moving within ten
days to offer further evidence of the amounts waived, but did not
give that option to Young. Although Youngs expert was not able
to supply persuasive evidence at trial (being unaware of the
recent changes in federal law), because Young was not given
additional time as Lowery was to procure evidence, we conclude he
did not forfeit his ability to claim error on appeal.
9 453 U.S. 210 (1981).
10 Id. at 223, 235-36.
11 Pub. L. No. 97-252, Tit. X, 1002, 96 Stat. 730 (1982)
(codified as amended at 10 U.S.C. 1408 (2006)).
12 The initial language of the Act used the term
disposable retired or retainer pay, but our decision is not
affected by the change to the current term. Id.; Abernathy v.
Fishkin, 599 So. 2d 235, 237 n.1 (Fla. 1997).
13 10 U.S.C. 1408(c)(1) (Subject to the limitations of
this section, a court may treat disposable retired pay payable to
a member . . . either as property solely of the member or as
property of the member and his spouse in accordance with the law
of the jurisdiction of such court.).
14 10 U.S.C. 1408(a)(4).
15 490 U.S. 581 (1989).
16 Id. at 589. The opinions in McCarty and Mansell
specifically barred the treatment of total retired pay as
community property, the approach to marital property division
used in California, where both cases originated. McCarty, 453
U.S. at 232-33; Mansell, 490 U.S. at 584 n.2. We held the
Mansell decision applies to our system of equitable division in
Clauson, 831 P.2d at 1262.
17 See note 8, above.
18 Riddell v. Edwards, 76 P.3d 847, 852 (Alaska 2003)
(citing McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d
1330, 1334-35 (Alaska 1984) and City of Lakewood v. Pierce
County, 30 P.3d 446, 450 (Wash. 2001)).
19 Id. (quoting McKnight, 678 P.2d at 1335).
20 Courts in other jurisdictions have concluded that
Mansells prohibition against equitably dividing waived retired
pay does not bar a court from enforcing a lawful equitable
division by ordering the military spouse not to reduce disposable
retired pay. In re Marriage of Strassner, 895 S.W.2d 614, 617-18
(Mo. App. 1995); Owen v. Owen, 419 S.E.2d 267, 269-70 (Va. App.
1992); see also Abernathy, 699 So. 2d at 236-37, 240 (concluding
that court may enforce final judgment where payment to spouse
arose through an indemnification provision providing for
alternative payments to compensate for reduction in non-
disability retirement benefits divided as part of a property
settlement agreement).
21 See, e.g., Rausch v. Devine, 80 P.3d 733, 744 (Alaska
2003) (holding grantor not entitled to constructive trust when he
gratuitously quitclaimed property to woman and then sought return
of property when relationship deteriorated because the argument .
. . that it is unfair that [grantee] should hold title to
something that [grantor] paid for does not justify constructive
trust); Riddell, 76 P.3d at 852-53 (vacating a constructive trust
and noting that the surviving spouse of an incompetent woman
could not have obtained his statutory benefits by unjust,
unconscionable, or unlawful means because the superior court
found the marriage was valid) (quoting McKnight 678 P.2d at
1335).
22 E.g., In re Marriage of Strassner, 895 S.W.2d at 618
(Under these circumstances it was within the trial courts
discretion to prohibit husband from reducing his retirement pay
or to indemnify wife for any breach.).
23 188 P.3d 681.
24 10 U.S.C. 1408(a)(4)(D).
25 2 TURNER, note 1, above, 6:46, at 283.
26 188 P.3d at 690-91.
27 Id. at 684.
28 5 U.S.C. 8345(j)(1).
29 See 5 C.F.R. 838.807.
30 188 P.3d at 690-91.
31 See 10 U.S.C. 1408(a)(4)(D).
32 In Berry v. Berry, 978 P.2d 93 (Alaska 1999), we held
that if a spouse desired the protection of a survivor benefit and
were willing to bear the cost, then the other spouse should be
required to facilitate covering her under the survivor benefit
plan to the extent of her interest. Id. at 98. However, we did
not describe how to execute this arrangement.
33 Professor Turner recognizes that a court could override
the default allocation by requiring one party to reimburse the
other outside the parameters of a qualified domestic relations
order, but characterizes this arrangement as a needless burden
upon all involved and suggests this area of federal law be
amended. 2 Turner, note 1, above, 6:46, at 283.
34 741 P.2d 1193 (Alaska 1987).
35 AS 25.24.160(a)(4) provides in pertinent part:
[T]he division of property must fairly
allocate the economic effect of divorce by
being based on consideration of the following
factors:
(A) the length of the marriage and station in
life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties,
including their educational backgrounds,
training, employment skills, work
experiences, length of absence from the job
market, and custodial responsibilities for
children during the marriage;
(D) the financial condition of the parties,
including the availability and cost of health
insurance;
(E) the conduct of the parties, including
whether there has been unreasonable depletion
of marital assets;
(F) the desirability of awarding the family
home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities of each
party;
(H) the time and manner of acquisition of the
property in question; and
(I) the income-producing capacity of the
property and the value of the property at the
time of division.
36 Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)
(citing Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984) and
Merrill v. Merrill, 368 P.2d 546, 548 n.10 (Alaska 1962)).
37 741 P.2d at 1196 (vacating and remanding where trial
court gave no indication of which, if any, of the Merrill factors
[codified and expanded in AS 25.24.160(a)(4)] it weighed in
deciding that its allocation was fair and equitable ).
38 Young errs in relying on our discussion of reasonable
needs in Odom v. Odom, 141 P.3d 324, 341 (Alaska 2006). In Odom
we held that before awarding one spouses separate property to the
other spouse, a court must first determin[e] whether an unequal
division of the marital estate would balance the equities . . .
in light of the parties reasonable needs. Id. at 339-40. We did
not hold that the division of marital property is determined by
looking at only one partys reasonable needs. In the context of
equitable division of marital property, reasonable needs is a
relative concept: The most significant equitable distribution
factor outside the marital partnership theory is the future
financial needs of the parties. The theory behind this factor is
simple: more marital property should go to the party who has the
most need for it. 2 Turner, note 1, above, 8:15, at 866.
Factors may include comparative future earning capacity, assets,
liabilities, age, health, and education. Id. 8.16-8.20, at 867-
82.
39 At oral argument on appeal Youngs counsel conceded this
interpretation may be correct.
40 AS 25.24.160(a)(4)(D).
41 The trial court found that neither party had any
serious health problems that currently prevented them from
working, a finding Young does not challenge.
42 Laing v. Laing, 741 P.2d 649, 654 (Alaska 1987).
43 Hooper, 188 P.3d at 685-87.
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