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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. David Sean Pasley v Cynthia Deneen Pasley (6/7/2019) sp-7373

David Sean Pasley v Cynthia Deneen Pasley (6/7/2019) sp-7373

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

DAVID  SEAN  PASLEY,                                                  )  

                                                                      )     Supreme  Court  No.  S-16612  

                                 Appellant,                           )  


                                                                      )     Superior Court No. 4FA-14-01549 CI  

           v.                                                         )  


                                                                      )     O P I N I O N  


CYNTHIA DENEEN PASLEY,                                                )  


                                                                      )     No. 7373 - June 7, 2019  

                                 Appellee.                            )  




                         ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      FourthJudicial District, Fairbanks, Bethany Harbison, Judge.  


                      Appearances: Kristin J. Farleigh, Gazewood & Weiner, P.C.,  


                      Fairbanks, for Appellant.  Margaret O'Toole Rogers, Foster  


                      & Rogers, LLC, Fairbanks, for Appellee.  


                      Before:         Stowers,  Chief  Justice,  Winfree,  Maassen,  and  


                      Bolger, Justices.  [Carney, Justice, not participating.]  


                      STOWERS, Chief Justice.  



                      A husband appeals multiple aspects of a divorce order.  He argues that his  


wife's bank accounts, personal leave fromher job, and house should be treated as marital  


property; that he should be reimbursed for damage his wife allegedly caused to his  


separate property and to marital property he received (which he also alleges the superior  


court over-valued); that he and his wife should share legal and physical custody of their  


children; and that the conditions placed on his unsupervised visitation with the children  

----------------------- Page 2-----------------------

were unwarranted.                                                                              We affirm the court's decisions for the most part; however, we                                                                                                                                                                                                                                     

vacate and remand on the classification of the wife's bank accounts and the valuation of                                                                                                                                                                                                                                                                                                                

the husband's damaged property.                                                                                                                               

II.                            FACTS AND PROCEEDINGS                                               

                               A.                             Background Facts   

                                                              Cynthia Deneen Pasley (Cindy) and David Sean Pasley (Sean) married in                                                                                                                                                                                                                                                                     

August 2005.   They separated in February 2014 and Cindy filed for divorce in March.                                                                                                                                                                                                                                                                                                                                

A divorce trial was held across 11 days spanning May through October 2016.                                                                                                                                                                                                                                                                                                                 The  

 superior court issued an order after trial in December 2016 and an order after a motion                                                                                                                                                                                                                                                                                   

 for   reconsideration   in   January   2017.     Sean   appeals   multiple   aspects   of   the   court's  

decision, which are summarized in the next section.                                                                                                                                                                                                   Part IV presents additional facts                                                                                                    

relevant to his appeal in further detail.                                                                                                           

                               B.                              Summary Of Sean's Arguments                                                                           

                                                               1.                            Cindy's bank accounts                                                

                                                              Cindy had a checking account which existed prior to the marriage. During                                                                                                                                                                                                                                         

the marriage Cindy deposited her paychecks in the checking account.                                                                                                                                                                                                                                                                 Sean cashed his                                                

paychecks and provided cash to Cindy.                                                                                                                                                      Cindy deposited these funds in her checking                                                                                                                                

account, and she paid the marital bills from this account.  Cindy testified that, out of a   

balance of over $15,000, $2,000 belonged to her adult son, Robert, and another $10,000                                                                                                                                                                                                                                                                                     

consisted of child support payments held for her adult children.                                                                                                                                                                                                                                       1  

                                                              Cindy also had a savings account with a balance of about $22,000 at the  


time of separation.  Cindy claimed that $10,000 in that account belonged to Robert and  


                               1                              Cindy testified her children from other fathers were adults at the time of                                                                                                                                                                                                                                                               

trial,   but   their   fathers   had   been   in   arrears   on   child   support   payments.     Arrearage  

payments automatically deposited into the checking account, and Cindy spent the funds                                                                                                                                                                                                                                                                                                   

as needed on behalf of her adult children.                                                                                                             

                                                                                                                                                                                                   -2-                                                                                                                                                                                     7373

----------------------- Page 3-----------------------

the remainder was comprised of child support payments held for her children.                                                                                                                                                 

                                           The superior court valued the marital portion of the checking account at                                                                                                                                

$3,559.33.    It valued the marital portion of the savings account at $11,652.60.                                                                                                                                                                                     The  

court's only finding with respect to Cindy's bank accounts was that "$12,000 of the . . .                                                                                                                                                                                               

accounts belongs to Cindy's son, Robert, and therefore the value of those accounts is                                                                                                                                                                                           


                                           Sean   argues   that   both   accounts   should   be   viewed   as   entirely  marital.  

                                           2.                   Cindy's personal leave                                      

                                           Fromprior to the marriage until March 2013, Cindy accrued personal leave                                                                                                                                                  


through her employer.                                                    When Cindy married Sean, she had 483 hours of accrued leave.                                                                                                                                                   


Her "balance" of hours available changed as she earned and expended leave during the  


marriage, never falling below 438 hours.  When the parties separated in February 2014,  


Cindy had 534 hours of leave available.  She "cashed out" these hours in June 2014.  


                                           The parties disagreed over how to "trace" this asset. Sean proposed a first- 


in, first-out method while Cindy argued for a last-in, first out approach.  Under Sean's  


proposal, Cindy consumed all her premarital leave hours, and her entire balance at  


separation was marital property.   Using Cindy's approach, leave earned during the  


marriage was used whenever it was available, preserving most of her premarital leave  


as separate property. The superior court rejected Sean's first-in, first-out method and  


equally divided the small portion of Cindy's leave that it designated as marital property.  


                                           On appeal Sean recapitulates his argument for first-in, first-out tracing.  

                     2                     Cindy asserts in her brief that she had 483 hours available when the parties                                                                                                                                         

married, while Sean maintains that Cindy had only 475.57 hours at that time.                                                                                                                                                                            We note   

that the superior court used 438 hours, which suggests a transposition error. The record                                                                                                                                                                         

supports the 483 number.  As we explain, this dispute is irrelevant to the classification                                                                                                                                                  

analysis.   See infra                                        note 56.                     

                                                                                                                                      -3-                                                                                                                             7373

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                    3.        Cindy's house  


                    Cindy owned a house prior to the marriage, which she and Sean used as the  


marital home.   Cindy retained exclusive title to the house throughout the marriage,  


including when she refinanced it.   Cindy asserted that Sean's credit was not used to  


improve  the  property.               Sean  testified  he  remodeled  parts  of  the  house,  but  Cindy  


maintained she paid him for this work.  The superior court found Cindy more credible  


on this point and found Sean did not conduct ongoing maintenance of the property.  


                    Sean gave Cindy part of his paychecks in cash, which she then deposited  


in the bank account that she used to pay the mortgage on the house; Sean testified he  


believed he was contributing to the mortgage, but Cindy maintained she alone paid that  


expense.  Sean argued that Cindy's house had transmuted into marital property, but the  


court found that the house remained Cindy's separate property.  


                    Sean appeals this finding.  


                    4.        Sean's possessions  


                    Sean was arrested on February 13, 2014, for fourth-degree assault, and on  


February 14 Cindy filed for and received an ex parte domestic violence protective order.  


Under  the  protective  order's  terms  Sean  did  not  have  access  to  the  marital  home  


throughout the divorce case.  


                    In April Sean obtained a writ of assistance to retrieve his possessions from  


the home.  Cindy had packed his belongings and left them either in the front yard or in  


Sean's van, which had been parked on the premises.  Sean was only allowed a limited  

amount  of  time  to  retrieve  his  possessions,  and  he  ended  up  leaving  with  some  


possessions still in the yard and without his van.  A few weeks later a mutual friend of  


Sean's and Cindy's retrieved the van. Sean's possessions left in the yard remained there  


until September, when a moving company retrieved them for Sean.  


                    Sean alleged that many ofhis possessions wereruined either becauseCindy  


                                                               -4-                                                         7373

----------------------- Page 5-----------------------

damaged them while packing or because they remained outside for so long.  He also  


claimed that Cindy was responsible for his delay in retrieving the possessions that had  


been left outside.  Cindy countered that Sean's possessions were damaged before they  


separated,  and  she  introduced  photographs  showing  the  general  state  of  Sean's  


possessions during the marriage.  She testified she exercised reasonable care in packing  


them and Sean was responsible for the delays in retrieving his possessions.  


                    Sean also argued that the damaged items should be valued at replacement  


cost and these amounts should be assigned to Cindy because she damaged them. On his  


property spreadsheet Sean listed his estimates of replacement costs for the damaged  


items.  In the alternative, he requested that the property be valued at zero.  


                    The court awarded the items to Sean and assigned non-zero values for this  


property.  Sean appeals, arguing both that Cindy's conduct was not reasonable and that  


the court over-valued the damaged items.  


          C.        The Children  


                    Sean and Cindy have two boys.  Both are in elementary school and have  


special needs.  Cindy requested sole legal and primary physical custody, while Sean  


requested joint legal and shared physical custody.  


                    The superior court found that Sean had a history of perpetrating domestic  


violence against Cindy.  This was apparently based on a separate domestic violence  


protective order that concluded Sean committed two or more acts of domestic violence  


                                                               -5-                                                        7373

----------------------- Page 6-----------------------

                             3                                                                                                                4  

 against Cindy.                  Sean completed an intervention program for batterers.                                      


                           Both parties used illegal drugs in the past.  During an altercation shortly  


before the parties separated, Sean told Cindy that he was using methamphetamine.  He  


testified he believed she was using methamphetamine and he wanted her to admit it.  


Both parties testified they found what they believed to be methamphetamine in the house  


 and  they  believed  the  other  party  was  using  it.                                                   Cindy  introduced  into  evidence  


photographs  of  what  she  believed  to  be  drugs  and  drug  paraphernalia.                                                                            In  results  


 submitted to the court, both parties' hair samples tested negative for all drugs.  


                           The court heard testimony from three individuals regarding the parties'  


 emotional  and  psychological  profiles.  Kevin  Lankford  completed  psychological  


 evaluations for both Sean and Cindy.   Lankford had no concerns about Cindy's test  


results, but he diagnosed Sean with unspecified personality disorder with paranoid and  


narcissistic tendencies.  He recommended that Cindy be given final authority regarding  


the children's mental and academic needs.  He also recommended that both Sean and  

              3            See   AS 25.24.150(h) ("A parent has a history of perpetrating domestic                                                          

violence . . . if the court finds that, during one incident of domestic violence, the parent                                                                      

 caused serious physical injury or the court finds that the parent has engaged in more than                                                                           

 one incident of domestic violence.").              

              4            See AS 25.24.150(g) ("There is a rebuttable presumption that a parent who  


has a history of perpetrating domestic violence against the other parent, a child, or a  


 domestic living partner may not be awarded sole legal custody, sole physical custody,  


joint legal custody, or  joint physical custody of a child."); AS 25.24.150(h)  ("The  


presumption may be overcome by a preponderance of the evidence that the perpetrating  


parent  has  successfully  completed  an  intervention  program  for  batterers,  where  


reasonably available, that the parent does not engage in substance abuse, and that the best  


 interests of the child require that parent's participation as a custodial parent because the  


 other parent is absent, suffers from a diagnosed mental illness that affects parenting  


 abilities, or engages in substance abuse that affects parenting abilities, or because of  


 other circumstances that affect the best interests of the child.").  


                                                                                     -6-                                                                            7373

----------------------- Page 7-----------------------


Cindy participate in therapy.  


                    Sean's counselor, David Bates,disagreedwithLankford anddid not believe  


that Sean had a personality disorder.   On cross-examination, he conceded he relied  


almost solely on Sean's self-reporting for the assessment.  


                    Jocelyn Bowman was appointed as child custody investigator for the case.  


Bowman's report noted that the children were reluctant to separate from Cindy, and  


Bowman ascribed this to their shared trauma.  She said that Sean lacked self-awareness  


about how his emotional outbursts affected his family and he had not been accountable  


for the distress he caused.  But she wrote that the children value their relationship with  


Sean and want to "experience his positive attention" for more than four hours of weekly,  


supervised visitation. Bowman recommended that Cindy receive sole legal and physical  


custody of the children.  Shared legal custody would be proper if Sean could overcome  


the domestic-violence presumption barring custody, and Bowman suggested that shared  


physical custody might be appropriate if Sean could additionally demonstrate he was  


drug-free and otherwise fit.  Bowman recommended that Cindy retain final decision- 


making authority if custody were shared.  


                    The superior court awarded Cindy sole legal and primary physical custody,  


relying  mainly  on  the  testimony  of  Lankford  and  Bowman.                                          It  allowed  Sean  


unsupervised visitation as long as a list of conditions were met.  Among these were that  


Sean would obtain a hair follicle test for controlled substances every week for six months  


following  the  court's  final  custody  order.                        And  if  Sean's  latest  substance  abuse  


evaluation was completed more than six months before the order, he would have to  


obtain an updated substance abuse evaluation.  


                    Sean moved for reconsideration, arguing that the requirements of weekly  


testing and a new substance abuse evaluation were unduly burdensome.  He explained  


that each hair follicle test costs $230 and his most recent substance abuse evaluation was  

                                                               -7-                                                         7373

----------------------- Page 8-----------------------

 one week too old, requiring a new one.                                                  Cindy responded by recommending that the                                                   

number  of drug tests be reduced to one per month, and the court adopted Cindy's                                                                                        

recommendation in its order on reconsideration.                       

                             Sean   appeals   both   the   superior   court's   custody   award   and   these   two  

visitation conditions.   

 III.          STANDARD OF REVIEW                      

                             "There are three basic steps in the equitable division of marital assets:                                                                             (1)  

 deciding what specific property is available for distribution, (2) finding the                                                                                  value of the       


property, and (3) dividing the property equitably."                                                                                                        

                                                                                                                     The first step - characterizing  


property as either marital or separate - " 'may involve both legal and factual questions.'  


Underlying factual findings as to the parties' intent, actions, and contributions to the  

                                                                              6   We review factual findings for clear error, which  



marital estate are factual questions." 

 exists "only when we are left with a definite and firm conviction based on the entire  


record that a mistake has been made."7                                                   "[W]hether the trial court applied the correct  


 legal  rule . . . is a question of law that we review de novo using our independent  


judgment."8                  "The second step, the valuation of property, is a factual determination that  


we review for clear error."9                                      "We review the third step, the equitable allocation of  


               5             Beals  v.  Beals,  303  P.3d  453,  458  (Alaska  2013).  

               6             Id .  at  459  (quoting  Odom  v.  Odom,   141  P.3d  324,  330  (Alaska  2006)).  

               7             Hockema  v.  Hockema,  403  P.3d  1080,  1088  (Alaska  2017)  (quoting  Urban  

 v.   Urban,  314  P.3d  513,  515  (Alaska  2013)).  

               8             Beals,  303  P.3d  at  459.  

               9             Hockema,  403  P.3d  at   1088.  

                                                                                          -8-                                                                                  7373

----------------------- Page 9-----------------------

property, for an abuse of discretion, reversing only if it is 'clearly unjust.' "                                                  10  



                       "Thesuperior court has broaddiscretion in childcustodydeterminations." 

Custody and visitation decisions "will be set aside only if 'the record shows that [the]  



controlling findings of fact are clearly erroneous or the court abused its discretion.' "                                                               


"An abuse of discretion is found 'if the superior court's decision is clearly unreasonable  


under the totality of the circumstances' or 'if the superior court considered improper  


factors in making its custody determination, failed to consider statutorily mandated  


factors,  or  assigned  disproportionate  weight  to  particular  factors  while  ignoring  


others.' "13  


IV.         DISCUSSION  

            A.         Cindy's Bank Accounts  


                        1.         The law of classification of secondary assets  


                       In  order  to  review  the  superior  court's  classification  of  Cindy's  bank  


accounts, we must first describe the process of tracing a secondary asset.  


                                   a.          Tracing generally  


                       "Assetsacquiredduring marriage'as compensation for maritalservices' -  


most commonly salaries earned by either spouse during marriage - are considered  


            10          Grove v. Grove             , 400 P.3d 109, 112 (Alaska 2017) (quoting                                       Hansen v.   

Hansen, 119 P.3d 1005, 1009 (Alaska 2005)).                          

            11         Schaeffer-Mathis v. Mathis, 407 P.3d 485, 490 (Alaska 2017).  


            12         Id.at490-91(alterationinoriginal) (quoting Borchgrevinkv. Borchgrevink,  


941 P.2d 132, 134 (Alaska 1997)).  


            13         Id . at 491 (first quoting Meier v. Cloud, 34 P.3d 1274, 1277 (Alaska 2001);  


then quoting Borchgrevink, 941 P.2d at 134).  


                                                                         -9-                                                                  7373

----------------------- Page 10-----------------------


primary marital assets."                           Assets acquired by one spouse before marriage, property                                      


acquired by gift, and property acquired by inheritance are primary separate assets.                                                                              

Assets acquired "through exchange, appreciation, or income" are secondary assets, and  


their classification as marital or separate depends on their source asset.16  


                         Tracing is the process of classifying a secondary asset by identifying its  


source asset.17             If a source asset is primary marital property, then the secondary asset is  


secondary marital property, while a source asset that is a primary separate asset yields  


a secondary separate asset.18  However,  


                         if  the  source  asset  itself  is  secondary  property,  tracing  


                         continues until either a primary separate or primary marital  


                         source asset is found.  "The process of tracing can therefore  


                         be simply described as a search of sources backward through  


                         time until every asset is linked to primary marital or primary  


                         separate property."[19]  


Because a secondary asset can have more than one primary asset, it is possible to have  


            14           Schmitz v. Schmitz                , 88 P.3d 1116, 1127 (Alaska 2004) (quoting 1 BRETT  

R.   TURNER,   EQUITABLE   DISTRIBUTION   OF   PROPERTY      5:23   at   263   (2d   ed.   1994)  

[hereinafter 1 T             URNER  (1994)]).  

            15          Id .  

            16          Id. (quoting 1 TURNER (1994),  supra,  5:23 at 263).  "Property which is  


owned   by   third   parties   was  not   acquired   by   the   parties,   and   thus   is   not   subject   to  

                           RETT  R. T        URNER, E          QUITABLE  DISTRIBUTION OF                           PROPERTY    5:14 at 298  

division."  1 B 

                                                                             URNER  (2017)]. This includes the property of                                  

(3d ed. Nov. 2017 update) [hereinafter 1 T 

children   of   the   parties.     See   Beal   v.   Beal,   88   P.3d   104,   119   (Alaska   2004).    For  

simplicity, this tracing discussion refers only to marital and separate property.                                               

            17           Schmitz, 88 P.3d at 1127.  


            18          Id. at 1128.  


            19          Id . (quoting 1 TURNER  (1994), supra,  5:23 at 264).  


                                                                            -10-                                                                      7373

----------------------- Page 11-----------------------


mixed secondary assets.                                           To characterize a mixed secondary asset,                                                    

                                  the superior court must know the character of each source                                                                              

                                  feeding into the mixed asset and the amount of value each                                                                                    

                                  source contributed to the mixed whole.                                                                The court can then           

                                  determine the ratio between the sources.                                                                   "The marital and                    

                                  separate interests in a mixed secondary asset are ordinarily in                                                                                     

                                  the same ratio as the marital and separate contributions used                                                                                

                                  to acquire the asset."                               [21]  

The tracing process stops once it is not possible to further trace a secondary asset back  


to its primary sources.22   Because the party seeking to establish that property is separate  


bears the burden of proof, untraceable assets are marital property. Furthermore, an asset  


is marital even if its sources are known but the ratio of marital to separate property in the  


source is unknown.23   In such a case, the unknown contribution from the separate source  


is said to transmute by commingling to become marital property.24  


                                                   b.               Multiple destination tracing  


                                  If the source of a secondary asset is some, but not all, of a mixed asset,  


tracing becomes more complicated.  The secondary asset that is being traced could be a  


marital asset if it came from the marital portion of the source asset, a separate asset if it  


came from the separate portion, or a mixed  asset if it came from both marital and  


                 20               See   id.   (citing   Carlson   v.   Carlson,   722   P.2d   222,   224   (Alaska   1986);   1  

TURNER  (1994),  supra  note   14,    5:23  at  266  n.591).  

                 21               Id .  (quoting   1  TURNER  (1994),  supra  note   14,    5:23  at  266).  

                 22               Id .  

                 23               Id .  

                 24               Id.  at   1128-29.  

                                                                                                         -11-                                                                                                   7373

----------------------- Page 12-----------------------


separate portions of the source asset.                                     This also affects the classification of the source                             

asset: deductions of marital or separate property may change the ratio of marital to                                                               

                                                                             26   The process of determining the final ratio in  

separate property remaining in the asset.                                                                                                                          

these situations is called "multiple destination tracing."27  


                          If funds were withdrawn from a mixed secondary asset and "sufficient  


marital and separate funds were available [in that asset] to cover [the] withdrawal, the  


classification of the funds withdrawn depends upon the intent of the spouse who made  


the withdrawal, determined as of the time the withdrawal was made."28                                                                     In making this  


determination, the following principles should guide the court.  


                          "The most powerful type of evidence used to show the contemporaneous  


intent of the withdrawing spouse is a close equivalence between the amounts of specific  


                                                     29    In these situations, "[t]he commingled account is being  

withdrawals and deposits."                                                                                                                                  


used as a mere conduit to move separate funds from one place to another."30                                                                              Strong  


evidence for this are transactions with an "exact equivalence in amounts and [a] close  


                                        31   "If the original deposit is proven to consist of separate funds, the  

equivalence in time."                                                                                                                                            


             25          Id.  at 1128.

             26          Id.



                          See  1 TURNER  (2017), supra note 16,  5:62 at 623.

             28          Id.  at 628.   



                         Id. at 629.  

             30          Id.  

             31          Id.  

                                                                               -12-                                                                          7373

----------------------- Page 13-----------------------

withdrawal would likewise be separate."                            32  


                      Contemporaneous records may also support a finding of intent behind  

                                     33   "If the records were prepared at the time when the various  



withdrawals of funds. 

deposits and withdrawals were made, and if the records are generally found credible by  


the trial court, the court is permitted to accept the accuracy of the records."34  


                      When determining the intent of the transferring spouse, "[i]t is essential to  


understand . . . that there is a major distinction between the contemporaneous intent of  


the spouse who made the withdrawal and that spouse's trial testimony.  The relevant  


issue is intent at the time of the withdrawal, not intent at the time of the divorce trial."35  


The inquiry into a spouse's contemporaneous intent presents the same type of problem  


as contract interpretation:  "While we are endeavoring to give effect to the intention of  


the parties, looking to their testimony as to their subjective intentions or understandings  


will normally accomplish no more than a restatement of their conflicting positions."36  


A court must instead try to determine the reasonable expectation or understanding of the  


                        37   Because a spouse's actual intent at the time of the withdrawal may  

relevant party.                                                                                                                         


conflict with the spouse's interests at the time of the divorce trial,38  "the trial testimony  


           32         Id.  

           33         Id.  at 631.   

           34         Id.  

           35         Id. at 629 (emphasis in original).  


           36         Day v. A & G Constr. Co., 528 P.2d 440, 444 (Alaska 1974).  


           37         See id.     at 444-45.   

           38         See  1 T    URNER  (2017),  supra  note 16,  5:62 at 629.                     


                                                                    -13-                                                              7373

----------------------- Page 14-----------------------

of the parties must be viewed with careful skepticism."                                                   39  


                                       c.          Evidence to establish tracing generally  


                          Because of the need for such "careful skepticism," a party attempting to  


trace property has the burden of proving specific facts to establish each link in the tracing  



                  If a party attempts to prove a link in the chain solely through testimony, the  



superior  court  should  generally  ask  three  questions.                                                       First,  with  what  degree  of  


specificity would the party ordinarily be expected to remember such a transaction? What  


documentation ofsuch atransaction would ordinarily beavailabletotheparty attempting  


to prove its existence?  Finally, is the testimony neutral or self-serving?  In answering  


these questions, courts must take the parties - and the available evidence - as they are:  


                                      While . . . precise requirements for non-marital asset  


                          tracing may be appropriate for skilled business persons who  


                          maintain  comprehensive  records  of  their  financial  affairs,  


                          such may not be appropriate for persons of lesser business  


                          skills or persons who are imprecise in their record-keeping  


                          abilities.   This problem is compounded in a marital union  


                          where one spouse is the recorder of financial detail and the  


                          other is essentially indifferent to such matters.   Moreover,  


                          such  a  requirement  may  promote  marital  disharmony  by  


                          placing a premium on the careful maintenance of separate  

             39          Id .  

             40           See Bilbao v. Bilbao                     , 205 P.3d 311, 313-15 (Alaska 2009); 1 T                                             URNER  

(2017),  supra  note 16,  5:59, 5:62-63.                    

             41           See   1 TURNER (2017),  supra note 16,  5:63 at 639-43.  The court may   


also consider factors such as the credibility of the testimony, whether it is controverted  

by other evidence, and whether it is corroborated by admissions by the opposing party;                                                                      


the degree of documentation available and which party would control any such records;  


and other circumstances surrounding the transaction, including its remoteness in time.  


See id.  

                                                                               -14-                                                                          7373

----------------------- Page 15-----------------------


Ultimately, whether each link in the tracing chain has been established is a question of                                                          

fact best left to the superior court.                     43  


                       2.	         The  findings  with  respect  to  Cindy's  bank  accounts  are  


                                  insufficient for appellate review.  


                       Atrial courtis required "to articulate the reasons for its holding wherethose  



reasons are not apparent from the record."                                  "[T]he trial court must provide '[a]dequate  


findings of fact . . . so that a reviewing court may clearly understand the grounds on  



which  the  lower  court  reached  its  decision.'  "                                       Otherwise,  "the  order  becomes  



essentially unreviewable by this court."                                   "Whether there are sufficient findings for  



informed appellate review is a question of law." 


                       At the time of separation, Cindy's  checking account had a balance of  


$15,559.33 and her savings account had a balance of $22,652.60.  Cindy testified that  


$2,000 in the checking account belonged to her adult son, Robert, and she said that "over  


$10,000" in the account consisted of child support payments held for her adult children.  


She testified that she was holding another $10,000 for Robert in the savings account and  


that the remainder of that account was marital property.  

            42         Id.    5:59  at  610  (quoting  Chenault  v.  Chenault,  799  S.W.2d  575,  578  (Ky.  


            43         See  id.    5:63  at  638.  

            44         Bird  v.  Starkey,  914  P.2d   1246,   1249  (Alaska   1996).  

            45         Id.  (second  and  third  alterations  in  original)  (quoting  Waggoner  v.  Foster,  

904  P.2d   1234,   1235  (Alaska   1995)).  

            46         Id.  

            47         Horne  v. Touhakis, 356 P.3d 280, 282  (Alaska  2015)  (quoting  Hooper  v.  

Hooper,   188  P.3d  681,  685  (Alaska  2008)).  

                                                                       -15-	                                                                7373

----------------------- Page 16-----------------------

                                                                                 But during closing arguments, Cindy's attorney asserted that the checking                                                                                                                                                                                                                                                                                                                        

 account contained $12,000 held for Robert and that the savings account was entirely the                                                                                                                                                                                                                                                                                                                                                                                                                               

property of Cindy's adult children. Sean asked for both accounts to be viewed as entirely                                                                                                                                                                                                                                                                                                                                                                                                  

marital.    In its order after trial, the superior court valued the marital portion of the                                                                                                                                                                                                                                                                                                                                                                                                                          

 checking   account   at   $3,559.33   and   the   marital   portion   of   the   savings   account   at  

 $11,652.60. Its only relevant finding of fact was that $12,000 belonged to Cindy's adult                                                                                                                                                                                                                                                                                                                                                                                                                  

 son, Robert.   

                                                                                 In his motion for reconsideration, Sean noted the deduction of $11,000                                                                                                                                                                                                                                                                                                                              

 from the savings account in addition to the offset for Robert's funds: "It is unclear if this                                                                                                                                                                                                                                                                                                                                                                                                                     

is a mistake[] or if there is other reasoning for the court's valuations."                                                                                                                                                                                                                                                                                                                                                                   Cindy insisted   

that the court was correct, offering a revised property spreadsheet adopting the court's                                                                                                                                                                                                                                                                                                                                                                                                      

 $11,652.60 value for the savings account.                                                                                                                                                                                                                       The court used Cindy's proposed order on                                                                                                                                                                                                               

reconsideration, which stated that Cindy's final property spreadsheet "contains both the                                                                                                                                                                                                                                                                                                                                                                                                                              

parties' arguments and the fair and equitable distribution of the marital estate reached by                                                                                                                                                                                                                                                                                                                                                                                                                              

this Court."   

                                                                                 We are unable to determine the reasoning of the superior court. The court's                                                                                                                                                                                                                                                                                                                                   

 only finding does not lead to its ultimate valuation:                                                                                                                                                                                                                                                                                Cindy testified Robert's funds                                                                       

 consisted of $2,000 in her checking account and $10,000 in her savings account, which                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                                                                                                                                                    48               We have  

would leave account balances of $13,559.33 and $12,652.60, respectively.                                                                                                                                                                                                                                                                                                                                                                                                                                   

 found   no   testimony   or   evidence   supporting   the   superior   court's   decision   on  


                                        48                                       It is possible the superior court took Cindy's testimony that $12,000                                                                                                                                                                                                                                                                                                                                                      total  

belonged to Robert and mistakenly subtracted all of this from the $15,559.33                                                                                                                                                                                                                                                                                                                                                                                                     checking  

 account balance, producing a difference of $3,559.33 that the court found to be marital                                                                                                                                                                                                                                                                                                                                                                                                      

property.   This was also the exact amount Cindy had proposed as the marital property                                                                                                                                                                                                                                                                                                                                                                                               

 component of the checking account. But this does not account for or explain the court's                                                                                                                                                                                                                                                                                                                                                                                                       

 decision to treat $11,000 in the $22,652.60                                                                                                                                                                                                                savings  account as non-marital, and it ignores                                                                                                                                                                          

 Cindy's testimony that $10,000 of Robert's funds were held in the savings account.                                                                                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                         -16-                                                                                                                                                                                                                                               7373

----------------------- Page 17-----------------------

reconsideration   apart   from   Cindy's   revised   property   spreadsheet   submitted   in   her  

response to Sean's motion for reconsideration.                                                                                                                                                                                                                      As explained, that spreadsheet merely                                                                                                                                          

adopted the court's original determination in its first property order. Therefore, we must                                                                                                                                                                                                                                                                                                                                                                       

remand for the court to make additional factual findings.                                                                                                                                                                                                            

                                                                          It is also unclear from the court's order whether it properly applied the                                                                                                                                                                                                                                                                                                                     

tracing analysis; there is no mention of tracing in its decision.                                                                                                                                                                                                                                                                                        To the extent the court                                                                             

failed to attempt to trace Cindy's accounts, this was error.                                                                                                                                                                                                                                                                  On remand the court should                                                                                              

engage in a tracing analysis as outlined in this opinion and explain its findings.                                                                                                                                                                                                                                                                                                               

                                                                         Finally, we caution trial courts that the intent and actions of the parties in                                                                                                                                                                                                                                                                                                                        

handling   finances   during   the   marriage   are   only   relevant   to   certain   inquiries.    For  

example, the superior court here commented:                                                                                                                                                                                                                 

                                                                          [T]he parties in this case made significant and unusual efforts                                                                                                                                                                                                                                     

                                                                         to keep their finances separated during the marriage.                                                                                                                                                                                                                                                     As a   

                                                                         result, the parties' finances are much less commingled than                                                                                                                                                                                                                                                     

                                                                         those of most married couples, and premarital property that                                                                                                                                                                                                                                                        

                                                                         most couples would have transmuted to marital property did                                                                                                                                                                                                                                                             

                                                                         not transmute in this case.                                                                                        

While engaging in a tracing analysis, trial courts may consider the parties' financial                                                                                                                                                                                                                                                                                                                                                   

habits when determining their intent.                                                                                                                                                                      However, courts should be careful not to rely too                                                                                                                                                                                                             

heavily   on   the   parties'   financial   habits   when   characterizing   property   as   marital   or  

 separate. Most assets acquired by either party during the marriage will be marital assets,                                                                                                                                                                                                                                                                                                                                                             

regardless of the intent or habits of the parties.                                                                                                                                                                                                              49  

                                     49                                  Schmitz v. Schmitz                                                                                      , 88 P.3d 1116, 1127 (Alaska 2004) ("Assets acquired  

during marriage 'as compensation for marital services' - most commonly salaries                                                                                                                                                                                                                                                                                               

earned by either spouse during marriage - are considered primary marital assets."                                                                                                                                                                                                                                                                                                                                                              

 (quoting 1 T                                                       URNER  (1994),  supra  note 14, 5:23 at 623));                                                                                                                                                                                                      Lewis v. Lewis                                                                    , 785 P.2d 550,                                        

 558  (Alaska   1990)   ("[A]ll   property   acquired   during   the   marriage   is   available   for  

distribution,   excepting only                                                                                                                                inherited   property and property                                                                                                                                                        acquired  with separate   


                                                                                                                                                                                                                                   -17-                                                                                                                                                                                                                          7373

----------------------- Page 18-----------------------

                                We vacate the superior court's order regarding Cindy's bank accounts and                                                                                               

remand for the court to engage in a tracing analysis and make additional factual findings.                                                                                                                       

On remand the superior court may, in its discretion, take additional evidence.                                                                                                           50  


                B.              Cindy's Personal Leave  


                                In Schober v. Schober we held that unused personal leave accrued during  


a marriage is a marital asset, explaining such leave "is akin 'to pension or retirement  



benefits, another form of deferred compensation.' "                                                                              This case requires us to consider  


what portion of unused personal leave is marital and what portion remains separate when  


a party enters a marriage with accumulated personal leave. We apply the same tracing  


principles discussed above to this analysis.  


                                Leave is like money:  it may be accumulated or spent.  Each hour of leave  

                                                                                       52  Thus leave can be treated like money in a bank  

is worth a certain amount of money. 

account.   Cindy's leave "account" was a mixed secondary asset because it had both  


marital and separate sources. The separate source asset was the leave Cindy had already  


                49              (...continued)  


property which is kept as separate property." (emphasis in original)).  

                50              On the record before us, we are not prepared to say that the superior court's                                                                                  

findingthat $12,000 in Cindy's bank accounts belonged to Robertwas clearly erroneous.  


But to the extent the court decides to evaluate additional evidence on remand, it is free                                                                                                             

to reconsider this finding.                

                51              692 P.2d 267, 268 (1984) (quoting Suastez v. Plastic Dress-Up Co., 647  


P.2d 122, 125 (Cal. 1982)).  


                52              In Martin v. Martin we treated Alaska Airlines "frequent flyer" miles as  


marital property.  52 P.3d 724, 731 (Alaska 2002).  The husband argued that the parties  


could not actually sell the mileage, but we explained that "market transferability is not  


a prerequisite to determining value for property division purposes.  Fair market value is  


defined as the price a willing buyer would pay to purchase the asset on the open market  


from a willing seller."  Id.  


                                                                                                   -18-                                                                                            7373

----------------------- Page 19-----------------------

accrued when she married Sean; the marital source asset was the leave she accrued                                                                                                

during the marriage. The question is whether the leave "withdrawn" during the marriage                                                                                          

was marital or separate leave. We conclude that a party who uses accrued personal leave                                                                                                 

during a marriage first uses marital leave if such leave is available; only after all marital                                                                                      

leave has been exhausted does the party start using separate leave.                                                                                     This conclusion is                     

                                                                                                                                                                            53   and  the  

consistent   with   the   rule   that   leave   earned   during   the   marriage   is   marital                                                                                            

presumption that expenditures during a marriage are marital.54                                                                                   This is also consistent  


with the general rule that "only marital property is subject to division upon divorce"  


while separate property "is subject to 'invasion' only 'when the balancing of the equities  


between the parties requires it.' "55   Here, the superior court was not faced with the need  


to invade any separate property for purposes of equitable distribution.  


                              Cindy had 483 hours of leave on August 14, 2005 when she and Sean  


married.   She earned these hours prior to the marriage and therefore they were her  


separate property; by contrast, hours earned after August 14 were marital leave.  The  


lowest amount of leave Cindy had during the marriage was 438 hours on September 1,  


2005.   At that point, Cindy had used all accrued marital leave plus 45 hours of her  


separate leave; the remaining 438 hours of leave were still separate.  Thereafter Cindy  


continued to accrue and use marital leave, but her total leave "balance" never fell below  


438 hours; she did not use any more separate leave.  When the parties separated, Cindy  


had 534 hours in her leave "account."  This total, less the 438 hours of premarital leave  


               53             See  Schober,  692  P.2d  at  268.  

               54             See   1  TURNER  (2017),  supra  note   16,    5:62  at  634  n.21.  

               55             Kessler  v.   Kessler,   411   P.3d   616,   618   (Alaska   2018)   (first   quoting  

Nicholson                   v.      Wolfe,             974          P.2d          417,           423          (Alaska               1999);             and         then          quoting  

AS  25.24.160(a)(4)).  

                                                                                             -19-                                                                                       7373

----------------------- Page 20-----------------------

Cindy retained, left 96 hours of marital leave - the same balance calculated by the                                                                                                                                                  

superior court.                         56  

                                     We affirm the superior court's classification of Cindy's personal leave.  


                   C.                Cindy's House  


                                     1.                The law of transmutation by implied interspousal gift  


                                     We recently clarified the law of transmutation by implied interspousal gift  



in Kessler v. Kessler .                                               Transmutation "occurs when one spouse intends to donate  


separate  property  to  the  marital  estate  and  engages  in  conduct  demonstrating  that  


intent."58   In Kessler we cautioned that the so-called "Cox factors" are relevant but not  


dispositive.59   These factors "are merely specific facts that may, in particular cases, serve  


as evidence of the owning spouse's donative intent."60   The outcome of any one factor  


                  56                 Simply   classifying   the   lowest   balance   of   the   leave   "account"   during  

marriage as separate property yields the same result as the last-in, first-out rule which                                                                                                                                    

Cindy argues, and we agree, should apply.  That rule has been adopted by at least one  

court,  see Abdnour v. Abdnour, 19 So. 3d 357, 359-60 (Fla. Dist. App. 2009), and has                                                                                  

been approved by the treatise Equitable Distribution of Property for the reasons outlined                                                                                                                               

in this opinion.                            See   1 T             URNER  (2017),  supra  note 16,  5:62 at 634-35 n.21.                                                                             

                                     Sean's proposed first-in, first-out rule goes too far toward favoring the                                                                                                                       

marital estate "at the expense of content-neutral rules for untangling mixtures of marital                                                                                                                                 

and separate property."                                           Id.  at 635. Sean's argument that State of Alaska employees use                                                                                                    

leave on a first-in, first-out basis under 2 Alaska Administrative Code 08.045(d) does not                                                                                                                                            

persuade us otherwise; this regulation was not adopted for the purpose of untangling                                                                                                                            

commingled property.   

                  57                 411 P.3d at 616.  


                  58                Id. at 619.  


                  59                Id. at 619-20 (quoting Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994)).  


                  60                Id. (emphasis in original) (quoting Cox, 882 P.2d at 916).  The factors are  



                                                                                                                  -20-                                                                                                          7373

----------------------- Page 21-----------------------

is "not a proxy for the ultimate question:                               did the owning spouse intend to donate his or                                 

her separate property to the marital estate?"                                 61  

                        "The burden of proving an implied gift lies upon the party who claims  


          62   "Whether a spouse intended to donate his or her separate property to the marital  


estate is a factual finding that we review for clear error."63  



                        2.	        It  was  not  clearly  erroneous  to  find  Cindy's  house  did  not  


                                    transmute into marital property.  


                        The superior court found that Cindy did not intend to donate her premarital  


house to the marital estate.  Evidence in the record supports this finding.  Cindy owned  


the house when the parties married.  Cindy never placed title to the property in joint  


ownership.  Cindy testified that, when she refinanced the home loan after the parties  


married, Sean signed a document to reverse the erroneous addition of his name to the  


title and mortgage.   Sean did not dispute he signed a document at Cindy's direction  


during the refinancing process.  While neither party produced this document at trial, the  


undisputed testimony regarding its existence supports the court's conclusion.  At trial,  


Sean even complained of being "denied the opportunity" to manage the mortgage and  


related affairs.  Sean's credit was not used to improve the property, and nothing in the  

            60          (...continued)  

"   '(1)   the   use   of   property   as   the   parties'   personal   residence,   .   .   .   (2)   the   ongoing  

maintenance and managing of the property  by both parties,' . . . (3) placing the title of  

the  property   in  joint   ownership[,]   and   (4)  using  the   credit   of  the  non-titled   owner to  

improve  the  property."  Id .  at  620  (quoting  Cox,  882  P.2d  at  916)  (all  alterations  but  last  

in  original).  

            61         Id.  

            62          1 T 

                             URNER  (2017),  supra  note  16,    5:69  at  665;  see  also  Kessler,  411  P.3d  

at  621.  

            63         Kessler,  411  P.3d  at  621.  

                                                                         -21-	                                                                   7373

----------------------- Page 22-----------------------

record suggests that Cindy made any statement that she intended to give Sean an interest                                                                                                    

in the property.                     64  

                                Sean argues he and Cindy lived in the home throughout the entirety of their  


marriage. But we have held "the mere use of a separate asset for marital purposes cannot  


transform the separate asset into a marital asset."65  In Kessler we stated: "Given the lack  


of further evidence of donative intent, we conclude that the couple's use of the property  


as  the  marital  residence  shows  only  that  the  [home]  served  an  important  marital  



                                Sean also claims that he contributed to mortgage payments becausehe gave  


cash to Cindy that she put in the bank account from which she paid the mortgage.  Sean  


testified these payments were to cover his share of marital responsibilities, which he took  


to include the mortgage.  Cindy testified she did not view the payments as including  


support on the mortgage.  In Kessler the superior court found the husband "would not  


have  been  able  to  [pay  the  mortgage  or  condominium  fees]  without  the  financial  


contributions" of the wife, yet we concluded,  


                                [N]either [the wife] nor the superior court ever explained how  


                                [the  wife's]  contributions  to  other  parts  of  the  marriage  


                                demonstrated  that  [the  husband]  intended  to  donate  the  


                                condominium to the marital estate, and we see no obvious  


                64              See Sparks v. Sparks                              , 233 P.3d 1091, 1096 (Alaska 2010),                                                       overruled on   

other grounds by Engstrom v. Engstrom                                                          , 350 P.3d 766, 771 (Alaska 2015) (alterations                                     

in original) (quoting 1 B                                RETT  R. T            URNER, E               QUITABLE  DIVISION OF                                PROPERTY   5:69 (3d                      

ed. 2005)) ("In evaluating and determining the intent of the alleged donor, '[t]he best                                                                                                            

proof of intent to transmute is . . . an express statement by the owning spouse that he                                                                                                                

intended to give the other spouse an interest in the property.' ").                                                                               

                65             Kessler, 411 P.3d at 622 (quoting  Odom v. Odom, 141 P.3d 324, 333  


(Alaska 2006)).  


                66             Id.  

                                                                                                  -22-                                                                                           7373

----------------------- Page 23-----------------------

                      reason why this would be the case.                          This fact is therefore of   

                      little    relevance    to    determining    whether    [the    husband]  

                      possessed donative intent.                 [67]  

Similarly, the fact that Sean contributed cash to the bank account that was used for  


paying the mortgage and other martial expenses is of little relevance to determining  


whether Cindy possessed donative intent.  Further, Cindy's gross income of more than  


$2,000 biweekly was sufficient for her to meet the mortgage obligation of less than $900  


each month.  


                      Finally,  Sean  challenges  the  superior  court's  finding  that  he  did  not  


maintain  or  contribute  to  the  house.                          He  notes  his  testimony  that  "he  installed  a  


ban[n]ister, carpeted the stairs, installed vinyl in the kitchen and the bathroom, painted  


the bathroom, worked on creating an egress point for the basement, and redid the front  


wall and resinsulated it." But Cindy testified she paid Sean for his remodeling work, and  


the court credited this testimony.  


                      In its order the superior court stated transmutation "occurs when a married  


couple  demonstrates  an  intent  to  treat  one  spouse's  separate  property  as  marital  


property." This is incorrect. Transmutation "occurs when one spouse intends to donate  


separate  property  to  the  marital  estate  and  engages  in  conduct  demonstrating  that  


intent."68  At all times the relevant inquiry is whether the spouse who owned the property  


(Cindy) intended to donate it to the marital estate.   Sean's intent when signing the  


refinancing document, giving Cindy cash,living inthehouse, and making improvements  


to the home is only relevant to the extent it illuminates Cindy's intent whether to donate  


the house to the marital estate.  


                      The  superior  court  issued  its  order  before  we  clarified  the  law  of  


           67         Id .  at  621.  

           68         Id.  at  619.  

                                                                    -23-                                                                   7373  

----------------------- Page 24-----------------------

transmutation by interspousal gift in                         Kessler . The court's analysis therefore contains the                              

same errors we made in some of our past cases on the subject, which we corrected in                                                               



Kessler .         We do not fault the court for these errors but wish to highlight the importance  


of accurately framing the transmutation analysis.  


                       Despite its framing error, the superior court reached the correct result,  


largely through the correct analysis.  We conclude that the court did not clearly err in  


finding the marital home was not transmuted. We affirm the superior court's finding that  


transmutation of Cindy's house did not occur.  


            D.	        Sean's Possessions  


                       1.	        It was not clear error to find Cindy exercised reasonable care  


                                   handling Sean's possessions.  


                       Sean was arrested and then barred by a domestic violence protective order  


from  returning  to  the  marital  home.                               He  therefore  could  not  easily  retrieve  his  


possessions from the home during the pendency of the divorce case, and he alleges  


Cindy damaged his possessions during this time.  Sean obtained a writ of assistance to  


retrieve some of his possessions, and Cindy placed his items either in the front yard or  


in his van parked on the premises for him to retrieve. Sean argues Cindy damaged some  


of his property while packing and placing it in the van.   Some items sat outside for  


months and, according to Sean, several were damaged; Sean argues Cindy should be  


responsible for this damage.  Cindy responds Sean kept his possessions in a disheveled  


state before he left, she tried to be careful in packing and moving Sean's possessions, and  


Sean was responsible for his delay in retrieving his remaining items.  


                       Both parties testified and introduced evidence to support their positions.  


Sean testified to and showed video depicting the state of smaller possessions that Cindy  



                       See id. at 618-20.  

                                                                       -24-	                                                                     7373  

----------------------- Page 25-----------------------


packed and placed inside his van. According to Sean, the van was packed "chaotically."  


Cindy testified Sean kept his belongings in a disorganized state to begin with, a claimshe  


supported with photographs of Sean's belongings before she packed them. Sean argues  


Cindy willfully damaged his model-boat collection. He testified that he stored the boats  


on a shelf and kept them in good condition, yet each item in the collection was damaged  


when he finally retrieved them. Cindy testified she did not break anything of Sean's and  


her fear of Sean would have prevented her from damaging his belongings intentionally.  


                     Sean also testified to and showed video depicting the state of his van when  


he executed the writ of assistance and the damage to the van when his friend later  


retrieved  it.        There  were  dents  and  scratches  on  the  van's  body,  including  some  


consistent with damage from a board left resting on the vehicle. Sean acknowledged that  


some of the damage already existed and pointed out damage he alleged had been caused  


after his arrest.  Cindy testified the only damage she caused to the van was accidentally  


pulling off the front license plate.  She suggested that the rest of the damage already  


existed when Sean was arrested.  


                    With respect to the items left in the front yard, Sean testified Cindy would  


not work with him to arrange for them to be retrieved.  By contrast, Cindy testified she  


talked with Sean's lawyer repeatedly and asked that Sean retrieve his belongings.  


                    The superior court found that "[s]ome of the damage to Sean's property  


occurred prior to Sean's departure from the house because the items were not stored  


proper[l]y," while "[s]ome of the damage occurred when the items were put into the van  


by Cindy and while they were stored and transported to Sean's residence."  But it found  


that  "Cindy  acted  reasonably  and  with  due care  when  she  stored  the  items  on  her  


property and when she packed them up for Sean to retrieve them" and, "[a]lthough some  


of the items may have been damaged after Sean left the residence, Cindy's conduct was  


not negligent or willful."  It also found "that Sean could have taken steps to obtain his  

                                                               -25-                                                         7373

----------------------- Page 26-----------------------

belongings earlier than he did and that Cindy did not want to keep Sean's belongings."                                                                                     

                          The superior court's findings, based in part on its observation of the parties                                                     

                                                                               70   Where the trial court makes factual findings  

as they testified, are due great deference.                                                                                                               


that, as here, are supported by the record, we do not reweigh the conflicting evidence.                                                                                    


The court's findings were not clearly erroneous. We affirm the superior court's decision  


not to hold Cindy responsible for the damage to Sean's property and not to assign the  


value of these damaged items to Cindy.  


                          2.	          The valuation of at least some of Sean's damaged items was  


                                       clearly erroneous.  


                          Sean argues the superior court over-valued certain items it awarded to him.  


At trial Sean testified many of his possessions had been ruined and were worthless  


because of Cindy's actions.   Cindy did not contest that these items were ruined and  


instead argued she was not responsible for the damage.   Thus, Sean argues, it was  


uncontested that certain items were worthless.  


                          On his property spreadsheet at trial, Sean used the replacement value for  


these items and proposed they be awarded to Cindy to hold her responsible for allegedly  


damaging them.  But he explained both in notes in the property spreadsheet and in his  


testimony at trial that the items were worthless. He requested that the property be found  


to have zero value if the court decided not to assign the replacement value of the property  


to Cindy.  


                          The superior court assigned non-zero values for these items and awarded  


them to Sean.  For example, Sean testified that a carpet roll appeared to have been "in  


the weather for quite a while," was "damp to the touch," and was "basically ruined." But  


             70           See Olivera v. Rude-Olivera                             , 411 P.3d 587, 593 (Alaska 2018).                      



                          See Kylie L. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 407 P.3d 442, 450-51 (Alaska 2017).  

                                                                                 -26-	                                                                          7373

----------------------- Page 27-----------------------

the court valued the carpet roll at $500. And two vinyl rolls left on their sides "out in the                                                                                                                                       

weather" were "ruined" due to moisture.                                                                          The court valued the vinyl rolls at $100.                                                       

                                     On appeal Sean argues it was clear error to assign non-zero values to his   

damaged possessions.                                          Cindy responds that Sean's possessions, "damaged or not, . . .                                                                                                           

have a value."                          We agree with Sean that in the face of undisputed testimony that certain                                                                                                          

items of his property were ruined, assigning any value to the ruined property was clearly                                                                                                                                 

erroneous. Alaska law directs trial courts to consider "the value of the [parties'] property                                                                                                                          

                                                                72     In Ogard v. Ogard we specified the valuation date should be  

at the time of division."                                                                                                                                                                                                             

"as close as practicable to the date of trial."73                                                                                     Limited exceptions to this approach  


include cases where one spouse is responsible for a change in the asset's value.74  Absent  


such circumstances, the court should not assign any value to assets that no longer exist  


or have no value due to their damaged condition.  


                                    We vacate the superior court's valuation with respect to the damaged items  


Sean has identified and remand for the court to reconsider its valuation.75  


                  E.	                The Children  


                                     1.	               It was not an abuse of discretion to award Cindy sole legal and  


                                                       primary physical custody.  


                                     The superior court must determine custody in accordance with the best  


                  72                AS  25.24.160(a)(4)(I).   

                  73                 808  P.2d  815,  819  (Alaska   1991).  

                  74                See,  e.g.,  Sandberg  v.  Sandberg,  322  P.3d  879,  890  (Alaska  2014);  Beals  

v.  Beals,  303  P.3d  453,  461-62  (Alaska  2013);  Ogard,  808  P.2d  at  820.  

                  75                 On  remand,  the   court   should   determine   and  make   findings  whether   any  

items  were  ruined  or  damaged  and,  if  neither  party  was  at fault in causing  the  damage,  

assign  an  appropriate  value  for  each  item  consistent  with  this  opinion.  

                                                                                                                 -27-	                                                                                                         7373

----------------------- Page 28-----------------------


interests   of   the   children,   guided  by  the   factors   listed   in   AS   25.24.150(c).                                                                                                         It   has   

                 76              AS 25.24.150(c) provides:                   

                                 The court shall determine custody in accordance with the best

                                 interests   of   the   child   under   AS   25.20.060-25.20.130.    In

                                 determining   the   best   interests   of   the   child  the   court   shall


                                                  (1)  the   physical,   emotional,   mental,   religious,   and  

                                 social needs of the child;                       

                                                  (2)   the capability and desire of each parent to meet

                                 these needs;

                                                  (3)  the child's preference if the child is of sufficient

                                 age and capacity to form a preference;

                                                  (4)  the love and affection existing between the child                                                                  

                                 and each parent;        

                                                  (5)  the length of time the child has lived in a stable,                                                           

                                 satisfactory environment and the desirability of maintaining                                                             



                                                  (6)  the  willingness  and  ability  of  each  parent  to  


                                 facilitate and encourage a close and continuing relationship  


                                 between the other parent and the child, except that the court  


                                 may not consider this willingness and ability if one parent  


                                 shows that the other parent has sexually assaulted or engaged  


                                 in domestic violence against the parent or a child, and that a  


                                 continuing relationship with the other parent will endanger  


                                 the health or safety of either the parent or the child;  


                                                  (7) any evidence of domestic violence, child abuse, or


                                 child neglect in the proposed custodial household or a history


                                 of violence between the parents;


                                                  (8) evidence that substance abuse by either parent or


                                 other members ofthehouseholddirectlyaffects theemotional


                                 or physical well-being of the child;


                                                                                                       -28-                                                                                                 7373

----------------------- Page 29-----------------------

discretion in making this determination, and we will reverse only if "the record shows                                   

that   [the]   controlling   findings   of   fact   are   clearly   erroneous  or  the   court   abused   its  



discretion."           "An abuse of discretion is found 'if the superior court's decision is clearly  


unreasonable under the totality of the circumstances' or 'if the superior court considered  


improper  factors in making  its custody  determination,  failed  to consider  statutorily  


mandated  factors,  or  assigned  disproportionate  weight  to  particular  factors  while  



ignoring others.' "                 The superior court considered the statutory factors and awarded  


sole legal and primary physical custody to Cindy. The court's findings were not clearly  


erroneous and its custody award was not an abuse of discretion.  


                      Sean argues the superior court should have awarded him joint legal and  


shared physical custody of the children. He argues he successfully completed the LEAP  


batterers' intervention program, two comprehensiveparenting classes,asubstanceabuse  


evaluation, and both individual and family counseling.  He claims that there were no  


incidents of inappropriate behavior on his part after the parties separated.  He cites his  


testimony that LEAP taught him how his actions and choices impacted others.  


                      But at trial when Sean was asked about his history of domestic violence, he  


testified he had "been found guilty of kicking a door" and this was the only incident of  


domestic violence in his past. When asked if he understood that Cindy might have valid  


reasons for not wanting to communicate with him, he responded Cindy had "a right to  


believe whatever she want[ed]." Given this testimony, the superior court did not clearly  

           76         (...continued)  


                                 (9) other factors that the court considers pertinent.  

           77         Schaeffer-Mathisv.Mathis                   , 407    P.3d 485,      490-91 (Alaska2017) (alteration       

in original) (quoting             Borchgrevink v. Borchgrevink                     , 941 P.2d 132, 134 (Alaska 1997)).             

           78         Id. at 491 (footnote omitted) (first quoting Meier v. Cloud, 34 P.3d 1274,  


 1277 (Alaska 2001); then quoting Borchgrevink, 941 P.2d at 134).  


                                                                    -29-                                                              7373

----------------------- Page 30-----------------------

err in finding that Sean had not internalized the lessons the LEAP program taught, did           

not acknowledge his wrongdoings, and was "unable to take responsibility for his actions                                                                                                                                                           

in any meaningful way."                                                      It was not an abuse of discretion for the court to weigh these                                                                                                             

facts against Sean in its custody decision.                                                        

                                         Sean argues the superior court should have followed the recommendations                                                                                                  

ofcustody                       investigator Bowman who"very                                                                       strongly"recommendedsharedcustody. But                                                                                    

Bowman's report stated that the court "might consider shared physical custody."                                                                                                                                                                         And  

Bowman had considerable reservations about Sean as a parent.                                                                                                                                     Furthermore, "custody   

investigators are simply expert witnesses and . . . their recommendations should be                                                                                                                                                                            

evaluated on a case-by-case basis, in the same manner as testimony presented by other                                                                                                                                                                   

                                   79  "[C]ourts are free to reject those opinions provided that 'the evidence as  


                                                                                                                          80       The court did not abuse its discretion by not  

a whole supports the court's decision.' "                                                                                                                                                                                                                     


following this qualified recommendation of the custody investigator.  


                                         Finally, Sean argues the superior court "completely disregarded the drug  

tests [he] presented . . . to show his sobriety."  But there was significant testimony that  


suggested Sean was using drugs.  And Bowman testified if Sean was not using drugs,  


that  would  be  more  concerning  because  drug  use  provided  an  explanation  for  his  


behavior.  The court did not clearly err in finding Sean used methamphetamine during  


the marriage, and it did not abuse its discretion in considering this in its custody award.  


                                         The  superior  court  appropriately  considered  the  factors  set  out  in  


AS 25.24.150(c); in light of evidence in the record, it did not abuse its discretion.  We  


affirm the court's custody award.  


                    79                  Matthew P. v. Gail S.                                            , 354 P.3d 1044, 1049 (Alaska 2015) (quoting                                                                                              Ebertz  

v.  Ebertz, 113 P.3d 643, 647 (Alaska 2005)).                                                                      

                    80                  Id.  (quoting  Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska  



                                                                                                                              -30-                                                                                                                       7373

----------------------- Page 31-----------------------

                                          2.	                  The conditions set onSean's                                                                  unsupervisedvisitationwere                                                                     not an  

                                                               abuse of discretion.          

                                          The superior court permitted Sean unsupervised visitation, provided he                                                                                                                                                        

 satisfy   multiple   conditions.     On   appeal,   Sean  challenges   two:   undergoing   a   new  

 substance   abuse   evaluation   and   monthly   drug   testing   for   six   months.     Regarding  

visitation decisions, we have said:                                                          

                                          "[T]he best interests of the child standard normally requires                                                                                                      

                                          unrestricted visitation with the noncustodial parent."                                                                                                                         We  

                                          have   held   that where a court deviates from this norm by                                                                                                                        

                                          requiring    supervised    visitation,   the    decision    "must    be  

                                          supported    by    findings    that    'specify    how    unsupervised  

                                          visitation                          will               adversely                            affect                  the             child's                     physical,  

                                          emotional, mental, religious, and social well-being.' "                                                                                                                [81]  

                                          The superior court found "Sean's use of methamphetamine[] and alcohol  


ha[d] directly affected the boys' emotional or physical well-being" and "[w]hen the  


parties  first  separated,  visitation  between  Sean  and  the  boys  would  have  been  


inappropriate and unsafe due to Sean's methamphetamine use and his erratic behavior."  


These findings are supported by the evidence, and given these findings, it was reasonable  


 for the court to place conditions related to Sean's drug use on his unsupervised visitation  


with the children.  


                                           Sean argues the condition requiring him to undergo a new substance abuse  


evaluation was an abuse of discretion. Sean notes that his prior evaluation occurred one  


                     81                    Yelena R. v. George R.                                                   , 326 P.3d 989, 1002 (Alaska 2014) (alteration in                                                                                                     

original) (first quoting                                                J.F.E. v. J.A.S., 930 P.2d 409, 413 (Alaska 1996); then quoting                                                                                                                 

Fardig v. Fardig                                     , 56 P.3d 9, 14 (Alaska 2002)).                                                                   We have used the same standard when                                                                     

 (as here) reviewing conditions on a parent's exercise of unsupervised visitation.                                                                                                                                                                               See,  

e.g.,  Sagers v. Sackinger                                                     , 318 P.3d 860, 866-67 (Alaska 2014) (affirming trial court's                                                                                                              

requirement that father undergo a psychological evaluation before having unsupervised                                                                                                                                                  

visitation);  Curgus v. Curgus                                                             , 514 P.2d 647, 649 (Alaska 1973) ("The trial court is given                                                                                                        

broad discretion in fashioning suitable visitation rights and support obligations.").                                                                                                                                

                                                                                                                                  -31-	                                                                                                                          7373

----------------------- Page 32-----------------------


week outside the order's six-month time frame and there were significant delays in the  


trial. Sean argues the court's order was unnecessarily punitive and burdensome. But the  


relevant concern is the children's best interests. Given the negative impact of Sean's past  


drug use on the children, it was not an abuse of discretion for the court to require an  


updated assessment of Sean's status.  


                    Sean  also  complains  that  the  superior  court's  order  after  trial  was  


unnecessarily punitive and burdensome because it required weekly hair follicle tests at  


his considerable expense. But on reconsideration the court reduced the test requirement  


to monthly testing.  And the court only required testing for the limited time period of six  


months. Requiring monthly hair follicle testing for six months was justified by the same  


concerns discussed above and therefore was not an abuse of discretion.  


                    We affirm the conditions the superior court placed on Sean's unsupervised  


V.        CONCLUSION  


                    We VACATE the superior court's order with respect to Cindy's bank  


accounts and REMAND for a tracing analysis and additional findings. We AFFIRM the  


classification of Cindy's personal leave.  We AFFIRM the court's finding that Cindy's  


house did not transmute into a marital  asset.  We AFFIRM the court's decision not to  


assess Cindy the value of Sean's damaged possessions, but we VACATE the court's  


valuation of these items and REMAND for reconsideration consistent with this opinion.  


We AFFIRM the court's award of sole legal and primary physical custody to Cindy and  


its conditions on Sean's unsupervised visitation.  


                    Because we vacate and remand on issues relating to the first two steps of  


equitable distribution - classification and valuation of property - the superior court  


may need to reconsider its ruling on the third step - equitable allocation - as well. We  


do not retain jurisdiction.  

                                                              -32-                                                        7373

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