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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Guerrero v. Guerrero (9/18/2015) sp-7050
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
PAMELA LEA GUERRERO, )
) Supreme Court No. S-15340
Appellant, )
) Superior Court No. 3AN-09-05651 CI
v. )
) O P I N I O N
JUAN JOSE GUERRERO, )
) No. 7050 - September 18, 2015
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Catherine M. Easter, Judge.
Appearances: Michael Gershel, Anchorage, for Appellant.
Guy Gautreau, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
A husband and wife dissolved their marriage, agreeing that the wife would
receive the marital home and a portion of the husband's military retirement benefits and
that the wife would remove the husband from the marital home mortgage. Two years
later the wife sought a qualified retirement order to effectuate the property distribution.
Following a protracted dispute over the wife's entitlement to the retirement and the
wife's failure to remove the husband's name from the marital home mortgage, the
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superior court refused to issue a qualified order because the husband's "retirement pay
consist[ed] entirely of VA disability compensation and retirement [pay] for physical
disability" and under federal law the disability compensation is not divisible marital
property. The superior court also ordered the wife to remove the husband's name from
the mortgage within 60 days. When the wife did not comply the court forced the home's
sale. The superior court then awarded the husband prevailing party attorney's fees under
Alaska Civil Rule 82.
The wife appeals, primarily challenging the superior court's refusal to
divide the military retirement and the court's forced home sale. Although we affirm
those decisions, we reverse the accompanying refusal to reopen the marital property
division and remand for further proceedings. We therefore also vacate the superior
court's prevailing party determination and attorney's fees award.
II. FACTS AND PROCEEDINGS
Juan and Pamela Guerrero married in 1997, divorced in 2005, remarried in
2006, and dissolved their second marriage in 2009. During the marriages Juan was a
uniformed service member - he served in the Marines from August 1988 through
August 1992 and in the Army between November 1993 and January 2012.
In March 2009 Juan and Pamela - each appearing pro se - petitioned for
dissolution of their marriage. The petition included agreements that Juan must "allocate
fifty percent (half) of his military retirement benefits to Pamela . . . due to 13 total years
contributed to the marriage" and that Pamela would be awarded their home. In May
Pamela and Juan appeared in court before a master. Pamela agreed to refinance the
marital home within 18 months to remove Juan from the home's mortgage. They stated
that they were satisfied with the property distribution and agreed that "50 percent of
[Juan's] military retirement benefits during the 13 total years of marriage will be
awarded to [Pamela]." The master clarified that even though they had divorced and then
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remarried, they agreed that Pamela would receive half of the marital portion of Juan's
military retirement over the duration of both marriages. In June the superior court
granted the dissolution, finding "[t]he written agreements between the petitioners
concerning . . . division of property, including retirement benefits, and allocations of
obligations are just."
In July 2011 Pamela, appearing pro se, sought a qualified order to distribute
Juan's military retirement. Juan, also appearing pro se, asserted that (1) the parties'
dissolution agreement failed to take into account that the second marriage was only 41
months, and (2) Pamela had failed to refinance the marital home mortgage as required
by the dissolution agreement. Pamela responded that she was unable to refinance or sell
the marital home "due to the housing market" and that the master "did take into
consideration the temporary break in marriage."
In November Juan received a letter notifying him that he was retired from
the Army for permanent physical disability effective January 2012 - Juan had sustained
serious combat-related injuries in Iraq in 2007, and as a result of those injuries Juan's
lower right leg had been amputated in September 2010. In December Juan's lawyer
entered his appearance. Shortly thereafter Pamela moved for documentation of Juan's
military disability rating, explaining: "[Pamela's] retirement award is contingent on
[Juan's] disability rating. Paperwork must be sent to [the Defense Financing and
Accounting Service (DFAS)] in order for [Pamela] to receive retirement benefits."
In January 2012 Pamela moved for Juan to directly pay her for her share
of his military retirement benefits because "DFAS is not required to begin payments to
the former spouse until ninety (90) days after receipt of an acceptable order or the start
of retired pay." Juan opposed, arguing "the remedy which [Pamela] is here requesting,
is that [Juan] pay [Pamela] her share of the retirement benefits prior to his receiving
those benefits. This is simply without merit. [Juan] cannot split marital proceeds which
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he has not yet received." (Emphasis in original.) Juan explained that Pamela "doesn't
require a court order for any of these issues. Rather, all she has to do is file a [form] with
DFAS once this court issues its final orders and she can receive her ordered funds
directly from DFAS."
The master ordered Juan to provide "any documents evidencing the status
of his disability rating with the United States Military." Juan's documents included an
Army order stating "[y]ou are released from assignment and duty because of physical
disability incurred while entitled to basic pay and under conditions that permit your
retirement for permanent physical disability." The Army order characterized Juan's
disability as 70% and noted that the statute authorizing retirement was "1201."1
Pamela's lawyer entered an appearance in February. Responding to
Pamela's discovery requests, Juan provided his retiree account statement from DFAS.
The statement noted that Juan's monthly gross pay was $4,449, his monthly Veterans
Affairs (VA) waiver was $1,424, Juan was exempted from taxes due to his disability
status, and Juan's monthly concurrent retirement disability pay was $1,789.
In April the master held a hearing. The parties' lawyers explained that they
had been working on dividing Juan's military retirement using a qualified military
retirement order (QMRO), but that they could not agree on indemnification language that
arguably "could be interpreted to allow someone to come back and get disability pay
when someone's retired pay is reduced." Pamela's lawyer also expressed confusion
about Juan's retirement, explaining:
[W]e don't know what [Juan] is getting. We don't know
when he's getting it. We don't know how it's composed. I
asked [Juan's lawyer] - and with all due respect to [Juan's
1
See 10 U.S.C. § 1201 (2012) (authorizing the armed services to retire
disabled service members).
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lawyer], it seems it was confusing to him as well. So I think
[Juan] on the record can set us straight as to what he's
getting, what it comprises and, frankly, if he intends to take
any of this disposable retirement pay and turn it into
disability pay . . . .
The parties also stated their positions on the marital home: Juan's lawyer
asserted that Pamela "was ordered to sell the home. She had 18 months from May of '09
and that was never done." Pamela's lawyer argued that Pamela "was not ordered to sell
the house, she was ordered to refinance the house and there [were] a number of things
that were preventing the refinance all directly from [Juan]. Specifically, he did not give
her a quitclaim deed so the house couldn't be refinanced without that."
Pamela asserted that when the parties agreed to dissolve the marriage she
understood that Juan's retirement would be split 50/50. Pamela explained that she had
a QMRO prepared by an expert and that she hoped the court would sign the order and
submit it to DFAS. Pamela also noted that at the time of the hearing she did not know
how long Juan had been receiving retirement benefits, how much he was receiving, and
from what source. Finally, Pamela asserted that she was unable to sell or refinance the
marital home.
Juan responded that Pamela had failed to remove his name from the marital
home mortgage within the 18 months required by the dissolution order. Juan asserted
that he received basically nothing in the dissolution agreement. Juan also explained that
he received a 70% Army medical retirement ($4,445 monthly) and a 100% VA
retirement benefit ($3,213 monthly). Juan stated that approximately $1,450 was waived
from his Army medical retirement but that he would eventually receive that money from
the VA. Juan's lawyer explained that the VA disability pay was not divisible by a
QMRO but that 100% of the Army retirement was divisible. And Juan explained that
his 70% Army disability rating entitled him to 70% of his $6,444 base pay but that if he
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had retired based on years of service alone and without the disability he would only have
been entitled to 50% of his base pay. Thus Juan asserted that only 50% of his base pay
was divisible under a QMRO.
After the hearing the parties submitted competing QMRO's. Pamela's
QMRO included a provision providing:
If the Service Member takes actions that reduce[] his
disposable retired pay and thereby reduces payments to the
Former Spouse by the Designated Agent, the Service
Member shall make direct payments to the Former Spouse in
an amount sufficient to compensate the Former Spouse for
such reduction immediately upon notice of such reduction,
and shall also make up any arrearages in installments not less
in amount or longer in term than the period over which the
arrearages accrued.
Juan's QMRO did not contain this provision, and he argued:
At the time of the dissolution, it was never agreed to
by Juan that any changes in his disability pay would
automatically be translated into additional pay for Pamela. It
was never negotiated, is a new argument, and it is not
conceded to now. In fact, Pamela already will receive a
greater percentage of Juan's retirement pay since his
disability raised his retirement pay amount from the normal
50% of base pay, to 70% of base pay.
In July 2012 Pamela, once again pro se, submitted notice to the court
alleging that Juan "unilaterally converted all remaining disposable retirement pay to
disability following the April 24th hearing." Pamela supported her assertion with a letter
from DFAS explaining that "[t]he entire amount of [Juan's] retired/retainer pay is based
on disability, thus there are no funds available for payment." In response Juan claimed
that he took "no such action to convert or change any portion of his military benefits."
In November 2012 the parties again appeared before the master. The
master explained that he was confused because Juan's retirement order stated that Juan's
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disability rating was 70% but the letter Pamela received from DFAS explained that Juan
was "a hundred percent disabled." Juan explained that the Army rated him at 70%
disability and that the VA rated him at 100% disability. Juan further explained the Army
rating meant that the Army had concluded Juan was entitled to 70% of his "base pay at
the time of medical retirement" and that the VA rating meant that Juan qualified for
"whatever the amount is that they give for a hundred percent." And Juan asserted that
all of the money he received, from the Army and from the VA, was disability pay.
Pamela insisted that Juan had elected to waive retired pay and that this decision
prevented DFAS from sending her a portion of Juan's retirement.
The master issued a report recommending that the superior court require
Pamela to refinance the marital home and deny her motion to divide the retirement. The
master explained that Juan's retirement "is completely classified as disability pay.
Disability pay is not dividable by the court as it is not a marital asset."
Pamela objected to the master's report and subsequently moved for
permanent alimony and survivor benefits. The superior court issued an order treating
Pamela's motion as "a motion for [Alaska Civil Rule] 60(b)(6) relief from judgment."
The court explained that the parties had intended to split Juan's retirement, but because
Juan's retirement pay was entirely disability pay it was not subject to division. The court
found that the retirement pay was a fundamental underlying assumption of the
dissolution that had been destroyed. The court also found that the property division was
poorly thought out, that the dissolution was not reached with the help of counsel, and that
the retirement was the parties' principal asset. The court therefore granted Rule 60(b)(6)
relief from the original property distribution and ordered the parties to submit briefing
to help the court equitably divide their marital property.
Pamela argued that Juan chose a disability retirement and unilaterally
destroyed the portion they had agreed she would receive. Pamela requested that the
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court consider issuing a qualified order or awarding her permanent alimony. Pamela also
argued that the dissolution agreement required only that she refinance, it did not require
that she sell the marital home. Pamela further asserted she was unable to refinance the
home because she did not receive adequate child support, the home had no equity upon
dissolution, and selling the home would "force both parties to incur additional financial
distress at this time." Pamela finally submitted a list of marital assets and debts at the
time of the parties' dissolution.
Juan acknowledged that he received disability retirement pay instead of
regular retirement pay. He argued that he should be required to pay Pamela only a
portion of the amount of money he would have received if he had retired based on years
of service. But he asserted that for purposes of the marital property distribution the
superior court should have recognized the parties' original divorce and calculated the
marriage as only 41 months long. Juan also argued that the 18 months Pamela received
to remove his name from the marital home had expired and that Pamela's inability to
refinance the marital home and remove his name had negative ramifications for his
credit. Juan also submitted a property spreadsheet, valuing the marital estate at the time
of the parties' dissolution.
In August 2013 Pamela and Juan appeared before the superior court. The
court explained that if it could determine Pamela's retirement entitlement based on the
original agreement then it was inclined to reverse its decision to reopen the property
distribution. Pamela agreed that she was only asking the court to address Juan's military
retirement and that she was not asking the court to reopen the property distribution.
Shortly after the hearing the superior court issued an order, concluding that
federal law "expressly excludes from [divisible] disposable retirement pay VA disability
compensation and retirement for a physical disability" and that Juan's "military
retirement pay consists entirely of VA disability compensation and retirement for
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physical disability, leaving $0 of marital property for a state court to divide." The court
reversed its Rule 60(b)(6) ruling, finding that no fundamental underlying assumption of
the property division had been destroyed. The court noted the parties had agreed Pamela
would receive a portion of Juan's retired pay, but due to his injuries his retirement pay
was all disability pay and not divisible. The court rejected granting Pamela alimony
because "calculating what [Juan] may have received in retirement had he not been
disabled and couching it as spousal support is not only speculative but also violates the
spirit of federal law." Finally, the court gave Pamela 60 days after the evidentiary
hearing to refinance the marital home "and remove [Juan's] name from the mortgage or
list the property for sale with a licensed realtor." The court ordered Juan to "motion the
court for a clerk's deed" conveying the property to him to market and sell if Pamela
failed to comply.
Pamela moved for reconsideration and for a quitclaim deed from Juan
releasing his interest in the marital home. She argued that "the only blockade to
removing [Juan's] name is [Juan's] un-cooperation in signing the Quit Claim Deed."
Juan opposed, arguing that "there is no court order in existence requiring Juan to sign a
quitclaim deed" and that "signing a quitclaim deed would not improve the current
situation with the . . . property, in fact the result would be to give total autonomy over
the . . . property to Pamela, . . . she has already defied a court order requiring her to sell
[the property] for over three years and counting." Juan then moved for a clerk's deed so
he could sell the property, and the superior court granted his request. Pamela moved
again to revisit the military retirement, and the superior court denied this motion.
The superior court awarded Juan Alaska Civil Rule 82 prevailing party
attorney's fees. First, the court awarded Juan 20% of his reasonable attorney's fees for
litigation through the evidentiary hearing and the court's subsequent order. Then, after
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denying Pamela's final motion to revisit the military retirement, the court awarded Juan
full fees for responding to that motion.
III. STANDARD OF REVIEW
"We construe property settlement agreements in divorce actions in
accordance with basic principles of contract law. Questions of contract interpretation are
2
reviewed de novo." "We review factual findings supporting a property division for
clear error. We review de novo whether the superior court applied the correct legal
rule."3
We review a trial court's decision to divide marital property through a
4
qualified order for abuse of discretion. But we review a trial court's attempts to
effectuate a settlement agreement under "the same review principles we apply to contract
5
disputes." We therefore review the superior court's refusal to issue a qualified order de
6
novo.
2 Glover v. Ranney, 314 P.3d 535, 539 (Alaska 2013) (quoting Hartley v.
Hartley , 205 P.3d 342, 346 (Alaska 2009)).
3 Id. (footnote omitted) (citing Young v. Lowery, 221 P.3d 1006, 1010
(Alaska 2009)).
4 See Tillmon v. Tillmon, 189 P.3d 1022, 1031-32 (Alaska 2008) ("The trial
court did not abuse its discretion in entering [the] proposed [qualified order]. . . . The
court did not abuse its discretion by using the [qualified order].").
5 Krushensky v. Farinas , 189 P.3d 1056, 1060-61 (Alaska 2008).
6
See id. ("Likewise, in entering the bench order that approved inclusion of
[qualified pre-retirement survivor annuities] in QDROs, it appears the superior court was
attempting to give effect to the parties' agreement as memorialized in the final property
order. We therefore give that bench order de novo rather than deferential review.").
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7
"We review for abuse of discretion an order denying a Rule 60(b) motion."
And "[w]e review a superior court's issuance of an order permitting the sale of property
using the . . . abuse of discretion standard."8
"An award of attorney's fees, including a superior court's prevailing-party
determination, is also reviewed for abuse of discretion. We review de novo whether the
9
superior court applied the law correctly in awarding attorney's fees."
IV. DISCUSSION
A. The Military Retirement Decisions
Military retirement benefits may be available for distribution as marital
property under a complex federal framework. Because the parties' various arguments
to the superior court were not always consistent with the applicable federal law, we
provide legal background before analyzing their dispute.
1. Military retirement pay and disability
Generally a uniformed service member may request to retire and receive
longevity retirement benefits after completing 20 years of creditable service.10 Longevity
7 Young v. Kelly, 334 P.3d 153, 157 (Alaska 2014) (citing Frost v. Ayojiak ,
957 P.2d 1353, 1355 (Alaska 1998)). But see Heber v. Heber , 330 P.3d 926, 930
(Alaska 2014) (explaining denials of Rule 60(b)(4) motions seeking relief from void
judgments are reviewed de novo because "validity of a judgment is strictly a question of
law" (quoting Leisnoi, Inc. v. Merdes & Merdes, P.C. , 307 P.3d 879, 884 (Alaska
2013))).
8 Watega v. Watega, 143 P.3d 658, 663 (Alaska 2006).
9 Lee v. Konrad , 337 P.3d 510, 518 (Alaska 2014) (footnote omitted).
10
See 10 U.S.C. § 3914 ("[A]n enlisted member of the Army who has at least
20, but less than 30, years of service . . . may, upon his request, be retired.").
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11
retirement benefits awards are a function of retired base pay and 2.5 times the
12
But if a member suffers a physical disability
member's creditable years of service.
during service and as a result is unfit to perform Army duties, the Army may retire the
13
member with disability retirement pay. We refer to this latter form of retirement as
Chapter 61 disability retirement.14
When a member receives a Chapter 61 disability retirement, the disability
15
rating is stated as a percentage - e.g., 70% disabled. A member retired from the Army
for permanent physical disability may determine monthly retirement as a function of
retired base pay and either the disability rating percentage or the creditable years of
11 Retired base pay is the member's average monthly salary earned during the
member's highest 36 months. See 10 U.S.C. § 1407(b) ("[T]he retired pay base or
retainer pay base of a person under this section is the person's high-three average.");
10 U.S.C. § 1407(c) ("[T]he total amount of monthly basic pay to which the member was
entitled for the 36 months . . . for which the monthly basic pay to which the member was
the highest, divided by . . . 36 . . . .").
12
The member's high 36 month salary is multiplied by a percentage - 2.5
times the member's creditable years of service stated as a percentage - in order to
determine monthly retired pay. See 10 U.S.C. § 1401(a);10 U.S.C. § 1409(b) ("[T]he
percentage to be used . . . is the product (stated as a percentage) of . . . [2.5] and . . . the
member's years of creditable service . . . .").
13
See 10 U.S.C. § 1201(a) ("Upon a determination . . . that a member . . . is
unfit to perform the duties of the member's office, grade, rank, or rating because of
physical disability incurred while entitled to basic pay . . . , the Secretary may retire the
member with retired pay computed under [10 U.S.C. § 1401] . . . .").
14 See 10 U.S.C. ch. 61 §§ 1201-1222.
15 See 10 U.S.C. § 1216a.
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16
service percentage. The member "is entitled to be paid under the applicable formula
17
that is most favorable."
Chapter 61 disability retirement is not the only form of disability payment
available to veterans. Members who are disabled as a result of an injury suffered or
aggravated in the line of duty also are entitled to Department of Veteran Affairs disability
18
(VA disability). A member's entitlement to VA disability does not depend on a
19
Unlike the
Chapter 61 decision to retire the member for permanent physical disability.
member's Chapter 61 disability rating - a rating based on the member's ability to
perform Army duties20 - the member's VA rating covers all disabilities suffered in the
21
A member's VA disability
line of duty and may differ from the Chapter 61 rating.
16 10 U.S.C. § 1401(a) ( citing 10 U.S.C. §§ 1201, 1204). When computing
retirement as a function of the member's disability rating, the disability percentage used
may not exceed 75%. Id.
17 10 U.S.C. § 1401(b). For example, a member retiring after 22 years of
service would be entitled to 55% of the member's retired base pay (22 x 2.5 = 55). If
that member had been retired by the Army due to a permanent physical disability and had
received a 60% disability rating, then the member would be entitled to receive 60% of
retired base pay. See 10 U.S.C. § 1401(a) (citing 10 U.S.C. §§ 1201, 1204). And if that
same member were retired by the Army due to a permanent physical disability with a
40% disability rating, then the member would still be entitled to 55% of retired base pay
because payments are calculated using the formula that is most favorable to the member.
See 10 U.S.C. § 1401(b).
18 38 U.S.C. § 1110 (2012).
19
See id. See also 38 U.S.C. § 1114 (compensation table).
20 10 U.S.C. § 1201.
21
38 U.S.C. § 1110. See also Myers v. United States, 50 Fed. Cl. 674, 690
n.41 (Fed. Cl. 2001).
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payment is a function of the member's VA disability rating and the member's number
and type of dependents.22
Historically a member's receipt of VA disability payments was contingent
on the member waiving an equal amount of retired pay.23 But two programs now provide
24
for concurrent receipt or repayment of waived retired pay. Combat-related special
compensation (CRSC) allows veterans disabled in combat to receive compensation in
25
lieu of retirement payments up to the amount waived to receive VA disability benefits.
Concurrent retirement and disability pay (CRDP) is a phase-in program allowing
qualifying disabled veterans to receive VA disability pay while waiving incrementally
smaller amounts of retirement pay and providing for receipt of full retirement for all
26
qualified disabled veterans pay by 2014. Both programs include exceptions for
22 38 U.S.C. §§ 1114-1115.
23 38 U.S.C. §§ 5304-5305. Members have incentive to waive retired pay for
VA disability payments because VA disability payments are not taxed. 26 U.S.C.
§ 104(a)(4).
24 See 10 U.S.C. §§ 1413a-1414.
25 See 10 U.S.C. § 1413a(a) ("The Secretary concerned shall pay to each
eligible combat-related disabled uniformed services retiree who elects benefits under this
section a monthly amount for the combat-related disability of the retiree determined
under subsection (b)."); § 1413a(b) ("[T]he monthly amount to be paid an eligible
combat-related disabled uniformed services retiree under subsection (a) for any month
is the amount of compensation to which the retiree is entitled under title 38 for that
month, determined without regard to any disability of the retiree that is not a combat-
related disability. . . . The amount paid to an eligible combat-related disabled uniformed
services retiree for any month . . . may not exceed the amount of the reduction in retired
pay that is applicable to the retiree for that month under sections 5304 and 5305 of title
38.").
26
See 10 U.S.C. § 1414(a) ("[A] member or former member of the uniformed
(continued...)
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members retired by the Army under Chapter 61, limiting CRSC to an amount equal to
27
the member's longevity retirement or requiring waiver of concurrent retired pay
exceeding the amount the member would have received from a longevity retirement.28
2. Equitably dividing military retirement pay
The Uniformed Services Former Spouses Protection Act (USFSPA)
provides that state courts "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
29
USFSPA defines disposable
accordance with the law of the jurisdiction of such court."
retired pay:
26 (...continued)
services who is entitled for any month to retired pay and who is also entitled for that
month to veterans' disability compensation for a qualifying service-connected disability
. . . is entitled to be paid both for that month without regard to sections 5304 and 5305
of title 38. During the period beginning January 1, 2004, and ending on December 31,
2013, payment of retired pay to such a qualified retiree is subject to [a phase-in schedule]
. . . .").
27
See 10 U.S.C. § 1413a(b)(3)(A) ("In the case of an eligible combat-related
disabled uniformed services retiree who is retired under chapter 61 of this title, the
amount of [CRSC] . . . for any month may not, when combined with the amount of
retired pay payable to the retiree after any such reduction under sections 5304 and 5305
of title 38, cause the total of such combined payment to exceed the amount of retired pay
to which the member would have been entitled under any other provision of law based
upon the member's service in the uniformed services if the member had not been retired
under chapter 61 of this title.").
28
See 10 U.S.C. § 1414(b)(1) ("The retired pay of a member retired under
chapter 61 of this title . . . is subject to reduction under sections 5304 and 5305 of title
38, but only to the extent that the amount of the member's retired pay under chapter 61
of this title exceeds the amount of retired pay to which the member would have been
entitled under any other provision of law based upon the member's service in the
uniformed services if the member had not been retired under chapter 61 of this title.").
29 10 U.S.C. § 1408(c)(1) (emphasis added).
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[T]he total monthly retired pay to which a member is entitled
less amounts which -
. . . .
(B) are deducted from the retired pay of such member
as a result of forfeitures of retired pay ordered by a court-
martial or as a result of a waiver of retired pay required by
law in order to receive compensation under title 5 or title 38;
(C) in the case of a member entitled to retired pay
under chapter 61 of this title, are equal to the amount of
retired pay of the member under that chapter computed using
the percentage of the member's disability on the date when
[30]
the member was retired . . . .
In Mansell v. Mansell the United States Supreme Court applied USFSPA
to retired pay waived in order to receive VA disability benefits, holding that USFSPA
"does not grant state courts the power to treat as property divisible upon divorce military
31
We
retirement pay that has been waived to receive veterans' disability benefits."
applied Mansell in Clauson v. Clauson, noting that state courts do not have any power
to "equitably divide veterans' disability benefits received in place of waived retirement
32
pay." But we clarified that "neither the USFSPA nor prior Supreme Court decisions
require our courts to completely ignore the economic consequences of a military retiree's
33
We therefore
decision to waive retirement pay in order to collect disability pay."
considered "the economic consequences of a decision to waive military pay in order to
receive disability pay" - in Clauson the member's former spouse was barred from
30 10 U.S.C. § 1408(a)(4) (emphasis added).
31 490 U.S. 581, 594-95 (1989).
32 831 P.2d 1257, 1262 (Alaska 1992).
33 Id. at 1263.
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receiving an agreed upon share of the military retirement benefits - and affirmed the
superior court's decision to grant the spouse's Rule 60(b)(6) motion reopening the
34
We finally explained that when reopening a
parties' property settlement agreement.
property distribution trial courts may not "simply shift an amount of property equivalent
to the waived retirement pay from the military spouse's side of the ledger to the other
spouse's side. . . . Disability benefits should not, in either form or substance, be treated
as marital property subject to division upon the dissolution of marriage."35
In Young v. Lowery we affirmed our Clauson decision and held that "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
36
purchasing survivor benefits." We also held that "the trial court may expressly order
[the service member] not to reduce his disposable retired pay and require [him] to
indemnify [the former spouse] for any amounts by which her payments are reduced
37
below the amount set on the date the amended qualified order is entered."
3. Unraveling Juan's retirement pay
In the superior court the parties may have been confused about the nature
of Juan's retirement benefits and whether they were divisible in whole or in part. The
undisputed evidence in the record establishes the following: Juan was Chapter 61 retired
for permanent physical disability under 10 U.S.C. § 1201; the Army rated Juan's
permanent disability at 70%; because Juan's 70% disability rating exceeded his
34 Id. at 1261-64.
35 Id. at 1264.
36 221 P.3d 1006, 1011 (Alaska 2009).
37 Id. at 1012-13.
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38
retirement pay multiplier Juan was entitled to have his Chapter 61 disability retirement
39
pay calculated using his disability rating; Juan's retirement base pay was $6,355, and
40
his gross Chapter 61 retirement pay was $4,449. Juan also received at least $3,213 in
monthly VA disability payments, and his monthly VA waiver was $1,424.41
4. The superior court's retirement benefits rulings
The master's report explained that Juan's retirement "is completely
classified as disability pay. Disability pay is not [divisible] by the court as it is not a
marital asset." And the superior court explained that "[b]ecause of [Juan's] disability,
the government classifies all of his retirement as disability pay, leaving zero disposable
retirement pay for a state court to distribute in a divorce."
Pamela asserts that the superior court is incorrect because "based on Juan's
own pay statement, it appears that at least a portion of Juan's pay was divisible and that
38 Juan's exact retirement pay multiplier is not clear from the record, but based
on 23 years of service it could not have exceeded 57.5%. And Juan testified that he took
a career service bonus in 2004 that paid him $30,000 but decreased his retirement pay
multiplier by 10% to 47.5%.
39
See 10 U.S.C. § 1401(b) ("If a person would otherwise be entitled to retired
pay computed under more than one formula . . ., the person is entitled to be paid under
the applicable formula that is most favorable to him."). Based on approximately 23 years
of service Juan's longevity-based retirement pay multiplier could not have exceeded
57.5%, but Juan's 70% disability rating provided for his receipt of 70% of his retired
base pay. See 10 U.S.C. § 1401(a).
40
Juan's Chapter 61 pay was based on his 70% disability rating - $6,355 x
.70 = $4,449.
41
Juan had to waive a portion of his Chapter 61 disability because Chapter 61
payments may only be received concurrently with VA disability payments up to "the
amount of retired pay to which the member would have been entitled under any other
provision of law based upon the member's service in the uniformed services if the
member had not been retired under chapter 61 of this title." 10 U.S.C. § 1414(b)(1).
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Pamela would be receiving some of these funds if the trial court had issued a qualifying
42
order." Pamela specifically argues that Juan received CRDP and that "CRDP is
divisible upon divorce."
But CRDP does not change the nature of Juan's Chapter 61 retirement
benefit. Juan's benefits come from two sources - Chapter 61 disability retirement and
VA disability payments. Neither source is divisible upon divorce. USFSPA excludes
from disposable retired pay all Chapter 61 retirement benefits "equal to the amount of
43
And as we
retired pay . . . computed using the percentage of the member's disability."
held in Clauson v. Clauson, state courts have no power to equitably divide VA disability
44
benefits. VA disability benefits are not retired pay and do not fall within USFSPA's
45
definition of disposable retired pay.
Juan's Chapter 61 retirement payments were computed using the percentage
of his disability rating and are not divisible: Juan was 70% disabled, and his gross
retired pay was 70% of his retired base pay. And contrary to Pamela's assertion that
"CRDP is divisible upon divorce" - Juan was receiving $1,789 CRDP - the CRDP
46
portions of Juan's Chapter 61 payments are not divisible. CRDP provides for
47
If the
concurrent receipt of VA disability benefits and military retirement pay.
concurrently received retirement payments are disposable retired pay under USFSPA,
42 See supra note 26 (explaining CRDP).
43 10 U.S.C. § 1408(a)(4)(C).
44
831 P.2d 1257, 1264 (Alaska 1992).
45 Id. at 1262-64; 10 U.S.C. § 1408(a)(4)(B).
46 See 10 U.S.C. § 1408(a)(4)(C).
47 10 U.S.C. § 1414.
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then the retirement payments are divisible. Chapter 61 disability retirement payments
computed based on a member's disability percentage are not disposable retired pay under
48
DFAS recognized
USFSPA - even when received concurrently with VA disability.
that Juan received no disposable retired pay and notified Pamela that "[t]he entire amount
of the member's retired/retainer pay is based on disability, thus there are no funds
available for payment under the USFSPA."
Because Juan's military benefits consist entirely of Chapter 61 retirement
and VA disability, the superior court did not err when concluding that none of Juan's
military benefits were disposable retired pay.
5. Pamela's requested presumption
Pamela argues that we "should establish a presumption that military
qualifying orders shall contain indemnity provisions, to protect the former spouse from
a post-decree waiver of military retired pay." Pamela correctly notes that we have
49
approved the use of indemnity clauses in QMROs. But we have only approved the use
of indemnity clauses to reimburse spouses for reductions in disposable retirement pay
48 10 U.S.C. § 1408(a)(4)(C).
49 See Glover v. Ranney, 314 P.3d 535, 543 (Alaska 2013) ("Rather than
improperly dividing waived benefits, the order awards [the wife] her time rule percentage
of disposable retirement pay while requiring [the husband] to indemnify [her] for any
subsequent unilateral actions to decrease the total monthly pension payout amounts. The
superior court did not err - the order complies with [USFSPA] and our precedent.");
Young v. Lowery, 221 P.3d 1006, 1012-13 (Alaska 2009) ("But the trial court may
expressly order [the husband] not to reduce his disposable retired pay and require [him]
to indemnify [the wife] for any amounts by which her payments are reduced below the
amount set on the date the amended qualified order is entered.").
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due to members' unilateral waiver of disposable retirement benefits in exchange for VA
50
disability payments.
In this case, despite Pamela's contrary assertions, Juan did not unilaterally
waive any disposable retired pay. Juan asserted that he took "no such action to convert
or change any portion of his military benefits." The record supports Juan's assertion.
When Juan was Chapter 61 retired by the military, the military had to find that Juan was
"unfit to perform the duties of [his] office, grade, rank, or rating because of physical
51
disability." Juan was retired with a 70% disability rating and was awarded 70% of his
retirement base pay despite Juan's years of service otherwise entitling him to no more
than 57.5% of his base pay. As explained above, the entirety of Juan's retirement pay
was based on his Chapter 61 disability rating and on his VA disability, and under
52
USFSPA this money is not considered disposable retired pay. Unlike VA disability
53
which a member may elect, a member does not unilaterally choose to become Chapter
61 retired. Rather, Chapter 61 retirement for permanent disability is based on the
Army's determination that the member's permanent injuries are so severe that the
54
member is unfit to perform Army duties. And when a member waives a portion of
Chapter 61 disability pay to receive VA disability, it is not a waiver of disposable retired
50 See Glover, 314 P.3d at 543; Young, 221 P.3d at 1012. And in Clauson v.
Clauson, we focused on t he "military retiree's decision t o waive retirement pay in order
to collect disability." 831 P.2d 1257, 1263 (Alaska 1992).
51 10 U.S.C. § 1201(a).
52
See supra Part IV.A.4.
53
See 38 U.S.C. § 5100 ("[T]he term 'claimant' means any individual
applying for, or submitting a claim for, any benefit under the laws administered by the
Secretary.").
54 10 U.S.C. § 1201(a).
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pay. Rather it is a waiver of one type of payment that is not considered disposable
retired pay - Chapter 61 disability - in exchange for another - VA disability.
Pamela fails to recognize the distinction between a member unilaterally
deciding to waive disposable retired pay in exchange for VA disability benefits, and a
member receiving only two types of nondisposable retired pay after the member is
Chapter 61 retired by the Army. The majority of cases Pamela cites supporting her
indemnification argument explicitly address waiver of disposable retired pay for VA
disability - as opposed to a member receiving and waiving a Chapter 61 disability
retirement - and they assert that indemnification is proper because it would be unfair
to let the member unilaterally waive disposable retired pay.55
55 See, e.g., Danielson v. Evans , 36 P.3d 749, 751, 755 (Ariz. App. 2001)
(addressing "non-disability retirement" pay "waived in order to receive disability
benefits"); Surratt v. Surratt, 148 S.W.3d 761, 767 (Ark. App. 2004) ("[The member]
could not, by later waiving those benefits in order to receive disability payments,
unilaterally deprive [his former spouse] of her property."); Blann v. Blann , 971 So. 2d
135, 137 (Fla. App. 2007) ("[T]he trial court erred in concluding that there was no
authority to enforce the consent final judgment by ordering the former husband to
indemnify the former wife after he waived a portion of his military retirement pay so that
he might receive veteran's disability benefits."); In re Marriage of Neilsen & Magrini ,
792 N.E.2d 844, 849 (Ill. App. 2003) ("Based on the foregoing persuasive authority, we
believe that a party's vested interest in a military pension cannot be unilaterally
diminished by an act of a military spouse . . . ."); Bandini v. Bandini , 935 N.E.2d 253,
264 (Ind. App. 2010) ("For the foregoing reasons, we hold that a military spouse may
not, by a post-decree waiver of retirement pay in favor of disability benefits or CRSC,
unilaterally and voluntarily reduce the benefits awarded a former spouse in the
dissolution decree."); Dexter v. Dexter , 661 A.2d 171, 175 (Md. Spec. App. 1995) ("We
hold that the voluntary waiver of appellant's Army retirement pension was under
Maryland law a breach of contract, for which the measure of past damages is the amount
the receiving spouse would have received had the appellant not committed the breach.");
Krapf v. Krapf , 786 N.E.2d 318, 325 (Mass. 2003) ("While not dispositive on this matter
of first impression in Massachusetts, we note that many other State appellate courts have
(continued...)
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We do not adopt an indemnification presumption in this case because
waiver of Chapter 61 retirement benefits is not waiver of disposable retired pay.
Requiring indemnification when a member is Chapter 61 retired is akin to an
unacceptable division of retirement benefits which are not disposable retired pay - a
56
division foreclosed by USFSPA, Mansell , and Clauson.
6. The superior court's QMRO ruling
Pamela argues that "the trial court erred when it declined to enter a
qualif[ied] order apportioning Juan's military retirement benefits." She notes that
granting a QMRO is a ministerial act that gives effect to a court-approved property
settlement. Pamela also argues that if the court had issued a QMRO then she might have
received retirement payments. She finally argues that even if the court correctly
55 (...continued)
ordered similar relief against military retirees who waive the military retirement benefits
pledged to a former spouse under a separation agreement in order to obtain VA disability
payments."); Megee v. Carmine , 802 N.W.2d 669, 682 (Mich. App. 2010) ("We hold
that a military spouse remains responsible to compensate [a] former spouse . . . when the
military spouse makes a unilateral and voluntary postjudgment election to waive the
retirement pay in favor of disability benefits contrary to the terms of the divorce
judgment."); Shelton v. Shelton, 78 P.3d 507, 508 (Nev. 2003) ("Roland elected to waive
all his military retirement benefits for an equivalent amount of tax-exempt disability pay
as federal law allows."); Hisgen v. Hisgen , 554 N.W.2d 494, 496 (S.D. 1996) ("We
consider whether a court may require a former spouse to pay as part of a property
division an amount equivalent to one-half of a military retirement entitlement when such
spouse has waived retirement benefits to receive a corresponding sum in veteran's
disability payments."); Johnson v. Johnson , 37 S.W.3d 892, 897 (Tenn. 2001) ("We
hold that when an [agreement] divides military retirement benefits, the non-military
spouse has a vested interest in his or her portion of those benefits . . . . That vested
interest cannot thereafter be unilaterally diminished by an act of the military spouse.").
56
10 U.S.C. § 1408(a)(4); Mansell v. Mansell , 490 U.S. 581, 594-95 (1989);
Clauson v. Clauson, 831 P.2d 1257, 1264 (Alaska 1992).
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concluded that she would receive no direct payments from DFAS, the failure to issue a
QMRO was still reversible error.
We have explained that a qualified order "simply enforces a court order
57
calling for division of retirement benefits." As Juan notes, the record establishes that
a QMRO would not have resulted in any payments to Pamela directly from DFAS
because Juan's benefits were entirely based on his disability. And as explained in the
previous subsection, requiring Juan to directly indemnify Pamela because he was
58
We therefore
Chapter 61 retired by the Army violates USFSPA, Mansell , and Clauson.
conclude that the superior court did not err when refusing to issue an ineffectual order.59
7. The superior court's Rule 60(b) ruling
Pamela argues that the superior court "erred when it declined to provide
[her] with any offset for the benefits she lost due to Juan's receipt of disability benefits."
Although she asserts that this case is not governed by Rule 60(b) because she "was still
seeking . . . issuance of the qualifying military order," she also argues that she was
entitled to an "adjustment to the property division, following Juan's waiver of retirement
pay" and that the "failure to address Pamela's loss of all interest in the retirement benefits
constituted an abuse of discretion." At one point Pamela had asked the superior court
for a spousal support award in lieu of Juan's military benefits. Pamela, at the time
57 Zito v. Zito, 969 P.2d 1144, 1146 (Alaska 1998).
58 10 U.S.C. § 1408(a)(4); Mansell , 490 U.S. at 594-95; Clauson, 8 31 P.2d
at 1264.
59 The provision t hat Pamela requested below required indemnification when
"the Service M ember t akes a ctions t hat reduce[] his di sposable r etired pay and thereby
reduces payments to the Former Spouse." But Juan's Chapter 61 retirement is a result
of the Army's determination regarding his ability to perform his duties, and not based
on any unilateral waiver of retired pay. Thus the specific QMRO Pamela sought would
not have resulted in her receipt of any of Juan's military retirement benefits.
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litigating pro se, thus appears to have attempted to request a modification of the parties'
dissolution agreement, and we consider this a request for Rule 60(b)(6) relief from
60
judgment.
Rule 60(b)(6) is a catch-all provision, justifying relief from property
settlement agreements under extraordinary circumstances.61
In the context of a property division pursuant to a divorce,
four "extraordinary circumstances" may justify relief under
Rule 60(b)(6): (1) the fundamental, underlying assumption
of the dissolution agreement has been destroyed; (2) the
parties' property division was poorly thought out; (3) the
property division was reached without the benefit of counsel;
and (4) the property in dispute was the parties' principal
[62]
asset.
The four factors "are not strictly necessary conditions but, rather, are particular
instantiations of the equitable factors required to overcome the principle that, at some
60 See O'Link v. O'Link, 632 P.2d 225, 227-28 (Alaska 1981) (treating request
to modify divorce decree "as requests for relief from judgment under Civil Rule 60").
We consider Pamela's request for spousal support a Rule 60(b)(6) motion in spite of
Pamela's own lawyer's contrary assertions on appeal and Pamela's statements to the
superior court. Pamela was pro se when she requested spousal support, and she was pro
se when she informed the superior court that she did not want to "reopen the entire
property." We interpret the pleadings of pro se litigants leniently. DeNardo v. Calista
Corp., 111 P.3d 326, 331 (Alaska 2005). It is clear that Pamela requested spousal
support in the event she was unable to receive her agreed upon share of Juan's military
retirement. It is not clear that Pamela understood her statements to the superior court to
mean she was relinquishing her request for spousal support in lieu of Juan's military
retirement.
61 Sandberg v. Sandberg, 322 P.3d 879, 888-89 (Alaska 2014).
62 Cook v. Cook, 249 P.3d 1070, 1084 (Alaska 2011).
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63
point, litigation must be brought to an end." "Trial courts should use these factors
when appropriate, but should also bear in mind the flexible nature of Rule 60(b)(6),
keeping in mind that '[t]he broad power granted by clause (6) is not for the purpose of
64
relieving a party from free, calculated, and deliberate choices he has made . . . .' "
The superior court applied the Rule 60(b)(6) factors and initially
concluded that relief was warranted because:
(1) [Juan's] retirement was a fundamental, underlying
assumption of the Guerreros' dissolution agreement and it is
destroyed, (2) the parties' property division was poorly
thought out because it entirely failed to dispose of [Juan's]
retirement, (3) neither party had legal counsel when they
entered into the dissolution agreement, and (4) [Juan's]
retirement was the parties' principal asset.
But the superior court later reversed its initial Rule 60(b)(6) ruling "because upon further
review [the court] does not find that a fundamental underlying assumption of the
dissolution agreement is destroyed." The superior court noted "had the Court not
reversed its [Rule] 60(b) order, the Court would have reconsidered the entire 2009
property distribution."
The record establishes that both parties believed Pamela was entitled to
receive some portion of Juan's military benefits. While Juan disputed the total amount
of his benefits Pamela would receive, Juan consistently recognized Pamela should
receive some portion of his military benefits. Thus it was error to determine that a
fundamental underlying assumption of the parties' agreement had not been destroyed.
Due to Juan's Chapter 61 retirement by the Army he received no disposable retired pay,
63 Sandberg, 322 P.3d at 889 (quoting Clauson, 831 P.2d at 1261).
64 Id. (alteration in original) (quoting O'Link, 632 P.2d at 229-30).
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and this destroyed the parties' expectation that Pamela would receive some portion of
Juan's military benefits.
The superior court's earlier analysis of the other factors also is persuasive.
The property division was poorly thought out. Despite knowing that Juan was seriously
injured in 2007, the parties failed to recognize the possibility that Juan would receive no
disposable retired pay, operating under the assumption that Pamela would be able to
receive Juan's military benefits. And neither party was represented by counsel when
they dissolved their marriage and settled their property. Finally, Juan's retirement was
the parties' principal asset.65
Juan argues that the superior court concluded "that the property distribution
was still equitable, despite the non-divisibility of retirement pay, considering that the
2009 dissolution was exceptionally favorable to Pamela." But as Pamela correctly notes,
the superior court "never engaged in an equitable division analysis," and without taking
additional testimony regarding marital property and property values the court had
insufficient evidence to conduct such an analysis.
Because it was an abuse of discretion to refuse to reopen the property
settlement agreement and conduct a full equitable division analysis, we reverse the
Rule 60(b)(6) decision and remand for further proceedings and a marital property
distribution. We reiterate our Clauson holding that on remand the superior court may
not "simply shift an amount of property equivalent to the . . . retirement pay from the
66 But we note that Juan's
military spouse's side of the ledger to the other spouse's side."
and Pamela's financial conditions, including Juan's receipt of his military disability
65 The parties' 2009 dissolution agreement was not detailed and did not reveal
the equity, if any, in their real property. But in 2009 Juan was very close to 20 years of
service and a guaranteed Army retirement, a valuable asset.
66 Clauson, 831 P.2d at 1264.
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retirement benefits, must be considered when equitably dividing the marital estate and
67
when deciding whether to require alimony.
B. The Forced Sale Of The Marital Home
1. The superior court's refusal to require Juan to sign a quitclaim
deed
Under the dissolution agreement Pamela received the jointly owned marital
home. At their dissolution hearing Juan and Pamela agreed that she would refinance the
home and remove Juan's name from the mortgage. Pamela asserts that "[a]s part of the
property division, Juan was to quitclaim the property." She argues that the superior court
erred by refusing to force Juan to sign a quitclaim deed. And she further argues that
Juan's failure to provide her a quitclaim deed made it impossible for her to refinance the
home and remove his name from the mortgage.
But Pamela fails to point to any agreement or any statement of law
supporting her position that a quitclaim deed was a condition precedent to her removing
Juan's name from the mortgage. And Pamela's own trial theory and testimony provided
the superior court with extrinsic evidence that the parties did not intend that a quitclaim
68
deed was a condition precedent. Pamela's lawyer first mentioned the lack of a
quitclaim deed in April 2012, far past the 18-month deadline that the parties agreed to
in 2009. But even then her lawyer did not assert that a quitclaim deed was a condition
precedent to her obligation to refinance. The lawyer instead agreed with the court that
"one way in procedure" is to deliver the quitclaim deed "at closing of the refinance, not
67 AS 25.24.160(a)(2)(D), (a)(4)(D).
68 Hartley v. Hartley , 205 P.3d 342, 347 (Alaska 2009) ("A court must resolve
any ambiguity in contract language by determining the reasonable expectations of the
contracting parties in light of 'the language of any disputed provisions, other provisions,
relevant extrinsic evidence, and case law interpreting similar provisions.' " (quoting
Keffer v. Keffer , 852 P.2d 394, 397 (Alaska 1993))).
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----------------------- Page 29-----------------------
before, to protect [Juan's] interest." And when questioned at that hearing regarding her
failure to remove Juan's name, Pamela testified that the house would not sell and that she
could not refinance due to her "debt to income ratio."
Because the property settlement did not explicitly require Juan's quitclaim
as a condition precedent to Pamela's obligation to refinance the house, because extrinsic
evidence establishes that Pamela did not consider Juan's quitclaim obligation a condition
precedent, because the quitclaim deed could have been tendered at a closing, and because
there is evidence that Pamela was simply unable to refinance the home, we conclude the
superior court did not abuse its discretion when refusing to require Juan to sign a
quitclaim deed.
2. The superior court's forced sale of the home
Pamela argues that the superior court erred when providing for the forced
home sale "because it was Juan - and the trial court itself - that had created the
putative need for the sale." She asserts that the court's refusal to order a quitclaim deed,
the court's decision on Juan's retirement benefits, and Juan's alleged child support
arrears prevented her from refinancing the home. Pamela's assertions do not establish
that the superior court erred.
In her brief Pamela notes that "the forced sale of a home is within the trial
69 She nonetheless
court's power, in order to effectuate the terms of a property division."
argues that such an extreme step was not appropriate in this case. But Pamela's
argument does not address her failure to refinance the home or request any form of relief
within the agreed upon 18 months. She only sought the court's help in 2011 while the
parties were litigating the military retirement benefit issue.
69 See Worland v. Worland, 240 P.3d 825, 829 (Alaska 2010).
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After more than four years Pamela had failed to refinance the home, and the
superior court provided her with a final 60 days. Regardless of Pamela's later-asserted
reasons for her failure to refinance, Pamela had not fulfilled her contractual obligation
and had not initially justified her failure to perform. And as explained above, Juan was
not obligated to provide a quitclaim deed; nor did the superior court's military retirement
decision, after Juan was Chapter 61 retired in 2012, prevent Pamela from refinancing the
home between 2009 and 2011.
Because Pamela failed to seek any relief within the 18 months provided
under the property settlement agreement, we conclude that the superior court did not err
when ordering the forced sale of the home.
C. The Attorney's Fees Awards
Because we reverse the superior court's Rule 60(b)(6) decision, we vacate
the attorney's fees awards. The superior court may make a new prevailing party
determination and attorney's fees calculation at the conclusion of the proceedings on
remand.
V. CONCLUSION
We AFFIRM the superior court's decision not to divide Juan's military
disability retirement pay and not to issue a QMRO. We AFFIRM the superior court's
decision to force the sale of the marital home. Because exceptional circumstances justify
reopening the marital property agreement, we REVERSE the superior court's
Rule 60(b)(6) decision and REMAND for an equitable marital property distribution; and
we VACATE the attorney's fees awards.
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