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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kollander v. Kollander (4/18/2014) sp-6895
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEAN R. KOLLANDER, )
) Supreme Court No. S-14904
Appellant, )
) Superior Court No. 3AN-90-06548 CI
v. )
) O P I N I O N
DARYL E. KOLLANDER, )
) No. 6895 - April 18, 2014
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Stephen Merrill, Anchorage, for Appellant.
David W. Baranow, Law Offices of David Baranow,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Jean Kollander seeks to modify the pension division in a qualified domestic
relations order originally entered by the superior court in 1992. The federal pension
administrator paid Jean's share of her former spouse's pension in accelerated lump sum
payments from 2007 to 2008. In 2012 Jean brought a claim that she was instead entitled
to lifetime monthly payments. After an evidentiary hearing, the superior court found that
----------------------- Page 2-----------------------
her claim was barred by laches and awarded full attorney's fees and costs to her former
spouse. Jean appeals the application of laches and the award of attorney's fees. We
conclude that the superior court's findings of unreasonable delay and prejudice are not
clearly erroneous and that the superior court did not abuse its discretion in applying
laches. But because the superior court failed to apply Alaska Rule of Civil Procedure 82
in the award of attorney's fees, we reverse that award and remand for a determination of
attorney's fees in accordance with this decision.
II. FACTS AND PROCEEDINGS
Daryl and Jean Kollander married in 1969 and separated in 1990. Both
Daryl and Jean were represented by counsel in their divorce proceedings, and they
reached a settlement regarding property division, child support, and custody. The
superior court issued a divorce decree in September 1991 that accorded with the terms
of the parties' settlement.
During the course of their marriage, Daryl and Jean contributed to their
employers' respective retirement programs. At the time of divorce, Jean was vested in
the Alaska Teamsters-Employers Pension Plan, and Daryl was vested in the federal Civil
Service Retirement System through his employment with the Alaska Railroad. The
divorce settlement provided that "each party will be awarded one-half interest in the
other part[y's] pension benefit earned to date" and "[a]ppropriately worded qualified
domestic relations orders will be drafted and submitted to the court for signature."
1
Pursuant to the settlement, Jean's former counsel, Terry C. Aglietti, prepared two
qualified domestic relations orders, which were subscribed as approved by Daryl's
counsel and entered by the court on May 7, 1992.
1
Jean claims that Daryl's counsel drafted his order. However, the superior
court specifically found that Aglietti prepared both orders, and this finding is supported
by the fact that both orders were drafted on Aglietti's pleading paper.
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----------------------- Page 3-----------------------
The order entered on behalf of Jean reads, in relevant part:
6. Alternate payee, Jean R. Kollander, is entitled to one-
half the sum of participant, Daryl E. Kollander's benefits as
of April 1, 1990, payable from the contributions to the plan
made by or on behalf of participant.
7. Distribution and calculation of these benefits pursuant
to this order shall be pursuant to guidelines accepted by the
Internal Revenue Service.
(Emphasis in original.)
The other order contains similar language naming Daryl as an alternate
payee under Jean's plan:
4. The Plaintiff [Daryl Kollander] shall be entitled to
receive one-half the sum of Defendant's [Jean Kollander's]
benefits as of April 1990, payable from the contributions to
the Plan made by or on behalf of the Defendant [Jean
Kollander].
(Emphasis in original.)
Neither party had retired or begun receiving benefits at the time of divorce
or at the entry of the qualified domestic relations orders. In 1996 Daryl received a letter
from the Teamster Pension Trust informing him that the qualified domestic relations
order that he had submitted needed to be amended in order to receive his share of Jean's
benefits once she retired or reached age 50. Jean retired in 1999 although Daryl was
unaware of her retirement. She then turned 50 years old in January 2001, and an
amended qualified domestic relations order was prepared by Daryl and entered by the
court in February 2001.
Jean denies receiving notice of Daryl's amendment although the record
includes the notice and affidavits of mailing to her last known addresses as well as to
Aglietti's law office. In any event, Jean's position is that she would not have objected
to the amendment. The Teamster Pension Trust informed Daryl of his option to receive
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----------------------- Page 4-----------------------
approximately $283.53 per month for his lifetime or to receive a lump sum payment of
$23,766.81. Daryl chose the lifetime benefit and since 2001 has received a periodic
monthly annuity payment from Jean's Teamster pension.
Daryl was employed by the Alaska Railroad from 1969 until June 2007.
According to his affidavit, Daryl was classified as a career employee beginning in 1976
and had contributed $46,663.35 to the Civil Service Retirement System at the time of his
separation from Jean. Daryl's benefits are administered by the federal Office of
Personnel Management, and distribution began when he retired in 2007.
In 2007 Jean received a letter from the Office of Personnel Management
informing her that the Office had "received and approved your application for a portion
of your former spouse's civil service retirement benefit." The letter referenced federal
regulations2 and went on to state that
[b]y court order we are to pay you a lump sum of $22,459.81
from your former spouse's retirement benefit. By regulation
we must pay this lump sum to you in installments equal to
one half of your former spouse's gross monthly annuity until
the lump sum is paid in full. Currently you are to receive
$ 1,796.50 per month.
Jean received subsequent monthly payments of $1,796.50 directly deposited into her
checking account for approximately twelve and a half months. The last payment was
received by Jean in 2008. She acknowledges that she received the $22,459.81 in full,
spent some of the funds, and still retains a portion in her account.
In April 2012 Jean filed motions to reopen the pension division order for
entry of a detailed pension division order and to hold Daryl in contempt for failing to pay
2 5 U.S.C. § 8345 (2012) concerns the commencement, termination, and
waiver of benefits paid by the Office of Personnel Management. 5 C.F.R. § 838 (2014)
concerns court orders affecting retirement benefits.
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----------------------- Page 5-----------------------
the marital share of his pension benefits. In August 2012 the superior court held an
evidentiary hearing during which both Jean and Daryl offered testimony on the division
of his pension. When questioned by the court at the hearing, Jean did not dispute that
the $22,459.81 figure used by the Office of Personnel Management accurately stated her
portion of Daryl's pension that had accrued through the date of the divorce settlement.
She testified that she "was expecting $22,000 but not at $1700 a month." She also
testified, "I would have been satisfied with that . . . if Mr. Kollander hadn't received mine
for life. . . . [Y]ou look at the monies he's already received from mine . . . [and] he got
$38,000. That is a little bit more than $22,000 and he continues to receive that for - for
his lifetime, which will clearly exceed $22,000."
Jean repeatedly attempted to use calculations prepared by her counsel to
show how much money she would have received if she had received monthly lifetime
benefits instead of the accelerated payments. Jean claims that these calculations show
Daryl to be in arrears. The accuracy of Jean's calculations was not established because
the superior court found that her proffered exhibit failed to comply with the applicable
evidentiary rules, and the superior court did not admit the exhibit into evidence. Jean
continues to rely on these calculations on appeal.
There is some question whether Jean properly submitted her order to the
Office of Personnel Management and how the Office obtained her direct deposit
information. Jean denies submitting anything to the Office and disclaims any knowledge
about her former counsel submitting the order or anything else to the Office on her
behalf. In particular, she denies submitting an application for benefits to the Office or
a request for a lump sum payment as opposed to lifelong benefits from Daryl's pension.
When questioned about the direct deposit of the payments, Jean testified that "they just
magically appeared in my account . . . . I had not given a route number, checking number
for Wells Fargo because I'd not had that account open very long."
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----------------------- Page 6-----------------------
The record shows that Aglietti sent the order to the Alaska Railroad, and
they returned it with instructions to file the order with the Office of Personnel
Management. The response also indicated that "[t]he Alaska Railroad will retain a copy
of the [qualified domestic relations order] in Mr. Kollander's personnel file, and send it
along with his retirement application when he files for benefits; however [the federal
Civil Service Retirement System] will execute the order." Jean's current counsel stated
that he contacted Aglietti and was informed that he has no file, no documents, and no
memory of the case.
Daryl also denies submitting anything to the Office of Personnel
Management relating to the division of his pension plan. The superior court made
specific findings of Daryl's credibility in regard to this denial and the lack of any
3
evidence of wrongdoing on the part of Daryl.
Jean testified that after she received the letter from the Office of Personnel
Management in 2007, she called the Office on a regular basis and wrote several letters
to find out why the Office paid her share as a lump sum and to retrieve any records in
their possession. She testified that she received no response from the Office until shortly
before the evidentiary hearing in 2012. The record does not contain any letters or other
communication from Jean to the Office prior to 2012.
3 A significant portion of Jean's argument at trial was devoted to an attempt
to establish a pattern of fraudulent conduct by Daryl. In a similar vein, Jean includes in
her appellant brief numerous factual details relating to points not on appeal. At the
evidentiary hearing, Jean was unable to produce documentary evidence of any
wrongdoing by Daryl or third parties, and Jean's testimony contradicted the documentary
evidence that was available as well as the relevant third-party testimony. The superior
court found no evidence of a pattern of fraudulent conduct. These facts do not otherwise
have legal significance in regard to the division of Daryl's pension.
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----------------------- Page 7-----------------------
While Jean was living in Colorado, she consulted with Colonel Edwin
Schilling, who was assisted by another Alaska attorney, regarding her qualified domestic
relations order. Jean indicated that at some point Col. Schilling and the Alaska attorney
advised her that they were unable to help her and that she should hire an attorney in
Alaska. She testified that when she returned to Anchorage, she hired another attorney.
The record contains no evidence of any contact with the Office of Personnel
Management or any legal action taken on Jean's behalf by any of the attorneys she
contacted. She later hired attorney Stephen Merrill, who initiated motion practice in
April 2012 to reopen the pension division order and find Daryl in contempt. When asked
on cross-examination, Jean acknowledged that she knew of no filings made on her behalf
between the filing of the final orders in 1992 and her 2012 motions.
Merrill wrote a letter of inquiry to the Office of Personnel Management on
April 1, 2012, requesting all records concerning the division of Daryl's pension. On
May 30, 2012, the Office responded in a letter to Jean informing her, "[y]ou did not
complete an actual application for a portion of your ex-spouse's annuity. When a court
order is submitted to our office we must process it according to the law. That is how you
received the monies from your ex-spouse's annuity. A copy of the court order is
enclosed." Enclosed with the letter were Jean's divorce decree, the separation
agreement, and the qualified domestic relations order originally prepared for her in 1992.
It seems likely that these documents were forwarded to the Office of Personnel
Management by the Alaska Railroad when Daryl retired and filed for benefits.
The superior court found that Jean's own counsel prepared a qualified
domestic relations order in conformity with the divorce settlement, that the order was
submitted and accepted, and that the Office of Personnel Management applied its own
published regulations in establishing the mechanism of payment. The court went on to
find that the "[Office of Personnel Management] did exactly that which was requested
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----------------------- Page 8-----------------------
and required of it as the federal pension administrator, and that Jean received the benefit
of her bargain" when she accepted the payments from the Office. The court specified
that it "makes no finding whether there were alternative ways in which these benefits
could have been distributed had [Jean] or her attorney made such a request."
The superior court also found that Jean's "present filings are made more
than twenty years after the entry of all relevant orders, the Findings/Conclusions and the
parties' Decree of Divorce." The court found that Jean "failed to object to the form of
the orders her own counsel drafted over that extended period of time, and that she failed
to make any subsequent effort to open, correct or otherwise seek relief from the
judgments she benefitted from for more than two decades." In applying the doctrine of
laches, the court found that Daryl "has been irrevocably prejudiced in this instance and
motion practice by [Jean's] unexplained and unjustified delay given the dissipation and
reasonably expected loss of evidentiary materials over ensuing years."
At the close of testimony, the superior court discussed attorney's fees with
counsel: "I indicated earlier that I was likely to award attorney[']s fees in this case to the
prevailing party." Addressing Jean's counsel, the superior court "suggest[ed] strongly
you discuss that with [Jean] as to whether you want to take the risk of me making a
ruling on this case or whether you want to work out something in that regard with
[Daryl's counsel]." No settlement was reached, and the superior court subsequently
concluded that "[g]iven the lack of admissible evidence adduced after a protracted
hearing on the merits . . . [Daryl] is entitled to recover his actual attorney['s] fees and
costs from [Jean] incurred in the defense of her motion." The court awarded $8,190.01
in fees and costs to Daryl.
Jean now appeals the superior court's application of laches and the award
of attorney's fees.
-8- 6895
----------------------- Page 9-----------------------
III. STANDARDS OF REVIEW
4
"The first
"The application of laches may raise three issues for review."
issue is whether the doctrine of laches, as an equitable defense, may apply to the claim
5 6
"This raises a question of law, which we review de novo." "The
before the court."
second issue is whether the facts demonstrate an unreasonable delay and a resulting
7
prejudice. This raises questions of fact, which we review for clear error." "Clear error
exists when we have a firm and definite conviction that a mistake has been committed."8
"The third issue is whether, based on the facts, it was appropriate for the trial court to
9 "We review that determination for abuse of discretion"1 and
permit or deny laches."
have explained that the exercise of discretion will not be overturned without "a definite
11
and firm conviction that a mistake has been committed." We have clarified that a
"more precise" formulation may be to ask " 'whether the reasons for the exercise of
discretion are clearly untenable or unreasonable.' "12
4 Burke v. Maka , 296 P.3d 976, 979 (Alaska 2013).
5 Id. (citing Gudenau v. Bang, 781 P.2d 1357, 1363 (Alaska 1989)).
6 Id. (citing Benson v. Benson , 977 P.2d 88, 93 n.2 (Alaska 1999)).
7 Id. (citing Foster v. State , 752 P.2d 459, 465 (Alaska 1988)).
8 Id. (internal citation omitted).
9 Id.
10
Id. (citing Whittle v. Weber, 243 P.3d 208, 211-12 (Alaska 2010)).
11 Id. (internal citation and quotation mark omitted).
12 Id. at 980 (quoting Lewis v. State , 469 P.2d 689, 695 (Alaska 1970)).
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----------------------- Page 10-----------------------
"Whether the court applied the proper legal analysis to calculate attorney's
13 When the correct legal analysis is
fees is a question of law we review de novo."
applied, we review the subsequent award of attorney's fees for abuse of discretion.14
IV. DISCUSSION
A. The Superior Court Did Not Err In Its Application Of The Doctrine
Of Laches.
"Laches is an equitable defense available 'when a party delays asserting a
claim for an unconscionable period. To bar a claim under laches, a court must find both
an unreasonable delay in seeking relief and resulting prejudice to the defendant.' "15
When motions following a divorce decree are brought under the same caption, laches
16 "Having raised the affirmative defense of laches," Daryl
may apply to bar the claims.
"bore the burden of demonstrating . . . both elements of the defense."17
Jean does not contest laches being an appropriate defense to her claim, but
she challenges the factual underpinnings of the superior court's application of laches,
arguing that she was reasonably diligent in pursuing a remedy and that Daryl failed to
show prejudice. She also argues that the superior court abused its discretion in
permitting the laches defense to Jean's claim when Daryl was permitted to amend his
qualified domestic relations order in 2001. The superior court made findings of
13 Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)
(citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).
14 Id.
15 Burke , 296 P.3d at 979 (quoting Whittle, 243 P.3d at 217).
16 See Schaub v. Schaub, 305 P.3d 337, 343-44 (Alaska 2013).
17
See Laverty v. Alaska R.R. Corp., 13 P.3d 725, 731 (Alaska 2000) (citing
Winn v. Mannhalter, 708 P.2d 444, 450 (Alaska 1985)).
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----------------------- Page 11-----------------------
unreasonable delay and prejudice, which we review for clear error. If we do not find
clear error in the factual findings, then we review the application of laches for abuse of
discretion.18
1. The superior court's finding of unreasonable delay was not
clearly erroneous.
"The essence of laches is not merely the lapse of time, but also a lack of
diligence in seeking a remedy, or acquiescence in the alleged wrong and prejudice to the
19
defendant." Jean and Daryl disagree over the point in time when Jean should have
sought a remedy for the pension division and thus how reasonable Jean's delay was.
Daryl asserts that Jean failed to object to the accelerated payments for at least six years
after she received them. Jean argues, without citing legal support, that the controlling
event for applying laches is the date when Daryl first accrued an arrearage in pension
payments to Jean. Jean then relies on the unadmitted calculations prepared by her
counsel to argue that the first arrearage accrued in April 2009, which would make for a
delay of 36 months before she filed her complaint.
To support its finding of unreasonable delay, the superior court found that
Jean did not object to the accelerated payment schedule when she received the
explanatory letter from the Office of Personnel Management, while she was receiving
the payments, or when the payments were completed in 2008. In addition to the finding
that Jean failed to take any legal action between the receipt of the letter from the Office
and the filing of her 2012 motions, the superior court also found that Jean received a
permissible division of Daryl's pension based on the language of the qualified domestic
relations order so there was no arrearage. We note that the language in Jean's qualified
18 Burke , 296 P.3d at 979.
19 Schaub, 305 P.3d at 343 (quoting Wolff v. Arctic Bowl, Inc., 560 P.2d 758,
767 (Alaska 1977)).
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domestic relations order does not mandate accelerated payments instead of a lifetime
monthly benefit. But we conclude that the superior court did not clearly err in finding
that the accelerated payments that Jean received constituted an acceptable division of
Daryl's pension.
Both the superior court and Daryl cite to a case where we held that "[a]n
aggrieved party must file suit promptly once it is clear the transgressor has committed
to an irrevocable course of conduct. . . . The ultimate questions are whether and when a
20
Jean argues that she
reasonable person would have been galvanized into legal action."
was "as diligent in pursuing a remedy as a reasonable soul could be, especially one so
rattled by the prospect of litigation." However, for almost five years after the 2007 letter
informed her of the Office of Personnel Management's understanding of her order, she
took no action other than attempted communication with the Office and consultation with
several attorneys, none of whom took any action on her behalf.
The clearly erroneous and abuse of discretion standards of review employed
in this case are deferential to the superior court's findings and exercise of discretion.21
In Burke v. Maka , a case concerning a real property covenant, we upheld a laches
defense based on the superior court's findings of unreasonable delay and prejudice after
22
a delay of five years. We have also upheld application of laches when a litigant
20 Kohl v. Legoullon , 936 P.2d 514, 517 (Alaska 1997) (citing City & Borough
of Juneau v. Breck, 706 P.2d 313, 316 (Alaska 1985)).
21 See, e.g., Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities ,
282 P.3d 348, 354 (Alaska 2012) (noting the superior court's "broad discretion to sustain
or deny a defense based on laches" (quoting Keener v. State , 889 P.2d 1063, 1066
(Alaska 1995))); Cowan v. Yeisley, 255 P.3d 966, 977 (Alaska 2011); Foster v. State ,
752 P.2d 459, 465-66 (Alaska 1988).
22 Burke , 296 P.3d at 980.
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----------------------- Page 13-----------------------
delayed for only 13 months after learning of his cause of action before seeking to enjoin
23
the performance of a contract. In the two cases cited by Jean, we also affirmed the
superior courts' factual findings and exercise of discretion.24
Jean compares her delay to the amount of time between the 1996 letter that
Daryl received regarding Jean's Teamster pension and the entry of his amended order
in 2001. Jean argues that this period of 53 months between receiving notice of a
deficient qualified domestic relations order and amendment of the order constitutes the
"law of the case," which must also apply to Jean's attempt to amend her order. Jean cites
25
to Beal v. Beal for the proposition that it is a violation of the law of the case doctrine
to take opposite actions in the same case. However, Beal does not support her broad
formulation of the doctrine; Beal dealt with reconsideration of issues adjudicated in a
26
previous appeal. In Jean's case, there has been no previous appeal, only the
uncontested amendment of Daryl's order to comply with the Teamster Pension Trust's
formal requirements, which did not involve a legal ruling on unreasonable delay or the
applicability of laches. The law of the case doctrine articulated in Beal does not support
Jean's contention that an excused delay of up to 53 months is the binding law of the case
such that we must conclude that the superior court clearly erred or abused its discretion
in this case.
23 Laverty v. Alaska R.R. Corp. , 13 P.3d 725, 729 (Alaska 2000).
24 Cowan, 255 P.3d at 977; Foster , 752 P.2d at 466.
25 209 P.3d 1012 (Alaska 2009).
26 Id. at 1016-17 ("The law of the case doctrine . . . generally prohibits the
reconsideration of issues which have been adjudicated in a previous appeal in the same
case." (internal citations and quotation marks omitted)).
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On the issue of disparate treatment by the superior court, Daryl argues that
he was not required to amend his order until Jean retired and he became eligible for
benefits. He asserts that when she did retire, he acted immediately, had an amended
order approved and entered by the court, and served the amended order on Jean before
he received any benefits. He contrasts this with Jean's delay in bringing suit after she
had already accepted and had use of the accelerated lump sum payments.
Jean acknowledged receiving the 2007 letter from the Office of Personnel
Management that clearly stated that she would receive a lump sum of $22,459.81 from
Daryl's retirement benefit in monthly payments of $1,796.50 until the lump sum was
paid in full. She also acknowledged that she consulted with counsel beginning in 2007
and took no legal action until 2012. Based on Jean's receipt of the explanatory letter, her
acceptance of the accelerated payments, and her lack of action for years after the final
payment, we conclude that the superior court did not clearly err in finding unreasonable
delay and did not abuse its discretion in its treatment of Jean and Daryl.
2. The superior court's finding of prejudice was not clearly
erroneous.
The superior court found that Daryl had been "irrevocably prejudiced . . .
by [Jean's] unexplained and unjustified delay given the dissipation and reasonably
expected loss of evidentiary materials over ensuing years." Many of the superior court's
findings of prejudice relate to Jean's claim that she did not receive proceeds from the sale
27
The findings of
of the marital home, a claim which she has dropped on appeal.
prejudice that relate to Jean's pension claim include the specific finding that Jean's
27
The superior court references "the demise of the actual escrow closing
company involved, the assimilation of mortgage companies and the expected passage of
time [which] have resulted in a pervasive inability to produce closing records, check
stubs, files and file notes or statements and the like."
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----------------------- Page 15-----------------------
former attorney, Aglietti, no longer has any files or memory of the transactions at issue,
as well as the more general finding of "profound difficulties engendered in obtaining
decades-old banking, retirement and correspondence records experienced by both parties
in prosecuting and defending the present motion practice."
Daryl adds that Jean's briefing includes suggestions of "corrupt title
companies, complicit pension administrators and attorneys committing wholesale
malpractice," and discovery or proof of these matters would be "incredibly difficult, if
not impossible" given the passage of time and unavailability of records. Jean counters
that Daryl suffered no prejudice since the "entire [Office of Personnel Management] file
was produced for the hearing," and "[l]ike a real estate title, the [qualified domestic
relations orders] and [Office] documents of official record told the full tale."
We note that a portion of Jean's case turns on what, if anything, she or her
prior counsel submitted to the Office of Personnel Management, specifically whether she
requested or approved accelerated lump sum payments instead of lifetime benefits and
how the Office obtained her direct deposit information if she did not. The superior court
found that Jean "denied ever receiving any correspondence or application/option election
documentation from [the Office] as Plan Administrator." In her testimony, Jean details
her own and her counsel's difficulties in obtaining records from the Office as well as her
lack of knowledge about what exactly her various counsel did in filing her order or
pursuing her claim. Given that there is an evidentiary issue about Jean's submissions
and communications with the Office and that the lack of any retained attorney's files
could potentially prejudice Daryl's defense, we conclude that the superior court did not
clearly err in finding prejudice.
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3. The superior court did not impermissibly delegate its authority
to the Office of Personnel Management and did not abuse its
discretion in applying laches.
Jean points to the superior court's findings of fact and comments at the
evidentiary hearing to argue that the superior court impermissibly delegated its authority
to interpret the pension division order to the Office of Personnel Management and
thereby abused its discretion. Jean claims that the superior court gave substantial legal
weight to the Office's 2007 letter and that the court even stated that the IRS has the
authority to interpret divorce decrees.
Jean's qualified domestic relations order provided that she "is entitled to
one-half the sum of participant, Daryl E. Kollander's benefits as of April 1, 1990,
payable from the contributions to the plan made by or on behalf of participant."
(Emphasis in original.) We note that the language in Jean's qualified domestic relations
order does not mandate accelerated payments instead of a lifetime monthly benefit. But
while the Office of Personnel Management may have been mistaken in interpreting
Jean's order to direct a lump sum payment (presuming that Jean did not request or
approve the lump sum payment when her direct deposit information was conveyed to the
Office), the question before this court is not whether the Office correctly interpreted
Jean's order. The question is whether the superior court abused its discretion in applying
laches when it found that Jean knew of the Office's interpretation in 2007, received the
final payment in 2008, and did not seek to correct that interpretation until 2012. We
conclude that the superior court did not abuse its discretion in applying laches.
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----------------------- Page 17-----------------------
B. The Superior Court Erred In Awarding Daryl Full Attorney's Fees.
As noted above, the question "[w]hether the court applied the proper legal
28
Under
analysis to calculate attorney's fees is a question of law we review de novo."
Civil Rule 82, a prevailing party in a civil case is normally entitled to an award of a
percentage of reasonable attorney's fees.29
The superior court awarded Daryl full attorney's fees and costs after noting
"the lack of admissible evidence [presented by Jean] after a protracted hearing on the
merits." The superior court did not state its framework for awarding attorney's fees and
did not discuss Rule 82 or its exceptions in its findings of fact and conclusions of law on
attorney's fees.
1. The divorce exception to Rule 82 does not apply to a pension
order modification case brought after the entry of the divorce
decree.
Jean argues that the superior court was required to apply Rule 82. Relying
30
Daryl responds that Rule 82 does not apply in
on the "divorce exception" to Rule 82,
28 Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska
2010) (citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).
29 Rule 82(a) provides: "Except as otherwise provided by law or agreed to
by the parties, the prevailing party in a civil case shall be awarded attorney's fees
calculated under this rule." Alaska R. Civ. P. 82(a).
30 We have summarized the law governing attorney's fees in divorce cases as
follows:
A prevailing party in a civil case is normally entitled
to an award of attorney's fees, per Rule 82. Divorce cases are
usually excepted from this general rule; fees awards in
divorce cases are typically based on the parties' relative
economic situations and earning powers, rather than
prevailing party status. This "divorce exception" to Rule 82
(continued...)
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----------------------- Page 18-----------------------
divorce cases, with the limited exception of child support modifications. But we held in
Hopper v. Hopper that "Rule 82 can be used to award attorney's fees to the prevailing
party in a Rule 60(b)(6) motion to modify a divorce decree and that the divorce
exception to Rule 82 is inapplicable to post-judgment modification and enforcement
31
motions." While Jean did not frame her pension division claim in the context of Alaska
32
Civil Rule 60(b), the superior court stated at the hearing that the pension issue would
be analyzed under Rule 60(b). Based on the superior court's own stated framework,
Rule 82 was the appropriate rule to govern the award of attorney's fees.
33
involved a post-divorce decree
Like the present case, Worland v. Worland
pension modification and the awarding of attorney's fees. We quoted Hopper for the
proposition that "the divorce exception to Rule 82 is inapplicable to post-judgment
34
modification and enforcement motions." But in Worland, neither party argued that it
was error for the superior court to award attorney's fees under the divorce exception to
30(...continued)
is based on a broad reading of AS 25.24.140(a)(1), and on the
reality that there is usually no prevailing party in a divorce
case.
Johnson v. Johnson , 239 P.3d 393, 399 (Alaska 2010) (internal citations omitted).
31 171 P.3d 124, 133 (Alaska 2007).
32 At the end of the evidentiary hearing, the superior court sua sponte invited
Jean to address Rule 60(b) as a possible basis for her claim. Although Jean chose not to
brief Rule 60(b) in her proposed findings of fact and conclusions of law, the superior
court addressed Rule 60(b) in its decision and found no grounds for relief. In her
appellant brief, Jean affirmatively disavows the applicability of Rule 60(b).
33 240 P.3d 825, 833 (Alaska 2010).
34 Id. at 832 n.38 (quoting Hopper , 171 P.3d at 133).
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35
Rule 82 instead of under Rule 82 itself. Because neither party objected, we followed
the superior court and the parties in analyzing the attorney's fee award under the divorce
36
exception. In this case, by contrast, Jean immediately objected and argued that Rule
82 should have been used. We agree that "Rule 82 applies to post-judgment
modification and enforcement matters in domestic relations disputes and that fees are
appropriately awarded under the prevailing-party standard of Rule 82 as to post-
judgment money and property disputes." 37
We therefore remand the issue of attorney's fees to the superior court for
application of Rule 82.
2. In remanding for application of Rule 82, we note that the
superior court did not make sufficient findings to award full
attorney's fees on the basis of "vexatious or bad faith conduct."
Rule 82(b)(2) provides for partial fee awards "[i]n cases in which the
38
prevailing party recovers no money judgment." Rule 82(b)(3) lists factors that permit
a court to depart from Rule 82(b)(2)'s default fee award and "to award enhanced or even
39
"We have held that '[i]n general, a trial court has broad
full reasonable fees."
discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed by the
35 Id. at 833.
36 Id.
37 Johnson v. Johnson , 239 P.3d 393, 399-400 (Alaska 2010) (internal
citations omitted).
38 Among the factors listed under Rule 82(b)(3) that allow a court to vary an
attorney's fees award is "vexatious or bad faith conduct." Alaska R. Civ. P. 82(b)(3)(G).
39 Johnson , 239 P.3d at 400.
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schedule of the rule, so long as the court specifies in the record its reasons for departing
40
from the schedule.' "
But we have also held that "full fees may not be awarded under
41
"A Rule 82(b)(3) award of full fees is
Rule 82(b)(3) except under Rule 82(b)(3)(G)."
'manifestly unreasonable' absent a finding of bad faith or vexatious conduct."42
Therefore, an award of full attorney's fees is appropriate only if the superior court made
valid findings of vexatious or bad faith litigation or if its findings "reasonably permit an
inference of vexatious or bad faith litigation conduct satisfying Rule 82(b)(3)(G)."43
While the superior court mentioned during the course of the hearing that
Jean failed to meet her burden of proof, and it ultimately found that Jean failed to offer
adequate admissible evidence to support her positions, the superior court did not make
specific findings of vexatious or bad faith litigation. And we note that the findings made
by the superior court do not "reasonably permit an inference of vexatious or bad faith
litigation conduct satisfying Rule 82(b)(3)(G)."44
V. CONCLUSION
We AFFIRM the superior court's application of laches. We REVERSE the
superior court's award of full attorney's fees and REMAND for consideration of
attorney's fees in accordance with this opinion.
40 Id. (alteration in original) (quoting United Servs. Auto. Ass'n v. Pruitt ex
rel. Pruitt, 38 P.3d 528, 535 (Alaska 2001)).
41 Id. at 403.
42 Id. at 400 (citation omitted).
43 Id. at 403.
44 Id.
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