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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tamra Faris v Gordon Taylor (7/12/2019) sp-7385

Tamra Faris v Gordon Taylor (7/12/2019) sp-7385

           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                                       

TAMRA  FARIS,                                                     )  

                                                                  )    Supreme  Court  No.  S-16762  

                                 Appellant,                       )  


                                                                  )    Superior Court No.  1JU-13-00757 CI  

           v.                                                     )  


                                                                  )    O P I N I O N  


GORDON TAYLOR,                                                    )  


                                                                  )    No. 7385 - July 12, 2019  

                                 Appellee.                        )  




                         ppeal from the Superior Court of the State of Alaska, First  


                      Judicial District, Juneau, Louis J. Menendez, Judge.  


                      Appearances:   Tamra Faris, pro se, Portland, Oregon, and  


                      Fred W. Triem, Petersburg, for Appellant.   Paul H. Grant,  


                      Juneau, for Appellee.  


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


                      and Carney, Justices.  


                      BOLGER, Chief Justice.  



                      A couple divorced after over 40 years of marriage.  Although the wife had  


moved to a different state several years prior, the superior court determined that their  


date of separation was in 2014.  The court also recaptured pension payments the two  


received after this date.  The wife appeals, arguing that these and various other aspects  


of the superior court's property division were erroneous.  

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                                             The    superior   court    neither    erred    nor    abused    its    discretion    in    its  

 determination of the date of separation.                                                                                           And most of the wife's other challenges to the                                                                                                 

 property division are without merit.                                                                                 But we reverse the superior court's failure to make                                                                                                  

 specific factual findings in its recapture analysis.                                                                                                              

 II.                   FACTS AND PROCEEDINGS                            

                       A.                    Facts  

                                             Gordon Taylor and Tamra Faris were married in 1973.                                                                                                                                   For most of their  

 marriage, they lived in Juneau.                                                                          Faris spent her entire career working for the federal                                                                                                      

 government, earning a Civil Service Retirement System (CSRS) pension. In 2004 Faris                                                                                                                                                                                         

 accepted a promotion and moved to Honolulu, Hawaii. She moved to Portland, Oregon,                                                                                                                                                                               

 also for work reasons, in 2006 and currently resides there.                                                                                                                                      She retired from her career             

 with the federal government in 2010.                                                                                        

                                             When Faris moved, Taylor remained in Juneau.  Taylor held a variety of                                                                                                                                       

jobs during his marriage to Faris, including various positions with the State of Alaska                                                                                                                                                                               

 that made him eligible for Public Employees' Retirement System (PERS).                                                                                                                                                                            He retired in                       

 2011 and now draws from a PERS annuity and Social Security.                                                                                                                                                        

                       B.                    Proceedings  


                                             1.                    The divorce trial  


                                             In  2013  Taylor  filed  for  divorce.                                                                                   He  and  Faris  reached  a  settlement  


 agreement in February 2014 and the court entered a divorce decree at that time.  Three  


 days  later,  however,  Faris  sought  to  withdraw  distribution  of  property  from  that  




                                             The superior court held five days of trial on the couple's property division  


 in late 2015 and early 2016, after the settlement agreement had broken down. The court  

                                                                                                                                          -2-                                                                                                                                7385

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issued an order dividing the marital estate in May 2017. It concluded that the parties had                                                                       

not separated until 2014, when they divorced.                                              

                          To   divide   the   marital   estate,   the   superior   court   first   determined   the  

properties available for distribution.                                 These included two marital properties:                                       a home in       

                                                                                             1  The court valued the Juneau home at  

Juneau and a second home in Portland, Oregon.                                                                                                                        

$450,000 and awarded it to Taylor. It found that the Portland home was worth $580,000  


and awarded the home to Faris.  


                          The court then valued and distributed the remaining property, finding it  


"equitable to divide the estate with 50% of the assets awarded to each party."  This split  


required dividingtheparties' pension paymentsbetween themso that each would receive  


the same monthly income. The court heard expert testimony on the value of each party's  


pensions, but the testimony conflicted.  The court elected to split the monthly pension  


payments in half, using a qualified domestic relations order (QDRO).  


                          The court also considered the pension payments the parties had received  


since the date of separation in 2014.  The court calculated the total benefit each party  


received from this income and credited that benefit against each party's award, thereby  


"recapturing" the parties' post-separation pension payments.  


                          2.           Post-trial motions  


                          After the trial Faris filed several motions for reconsideration, arguing in  


relevant part that the court erred when it (1) recaptured the CSRS payments received  


between the date the divorce was granted and the close of trial and (2) determined that  


the date of separation was in 2014.  




                          A third property, a cabin in Juneau, was also determined to be marital  


property and was awarded to Taylor.  It is not at issue on appeal.  

                                                                                 -3-                                                                                7385  

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                           Thesuperior              court denied reconsiderationoftheseissues. Itfound                                                     that both  

parties had "treated the [post-separation] PERS and CSRS payments as separate assets,"                                                                        

                                                                                                     2  and declined to revisit its decision  

effectively converting them to a non-marital form,                                                                                                    

to recapture.   The court also declined to revisit its date of separation determination,  


noting that social relations had continued between the parties after 2004.  


                           Faris appeals the superior court's order dividing the marital estate.3  




             A.	           The  Superior  Court  Correctly  Determined  That  The  Date  Of  


                           Separation Was In 2014.  


                           The  superior  court  determined  that  the  date  of  Faris's  and  Taylor's  


separation was February 11, 2014, the date on which the court issued their divorce  


decree.  Faris argues that the court erred in two ways.  First she argues that the court  

                                                                                                                                          4   She claims that  


"selected the wrong legal rule" when determining the separation date. 

the superior court used "a legal rule that adopts the bright-line convenience of date of  


trial instead of the more equitable date of separation."  (Emphasis in original.)   But  


Faris's argument incorrectly characterizes the superior court's analysis.  The superior  


             2             See Day v. Williams                    , 285 P.3d 256, 260 (Alaska 2012) (noting that a court                                          

may only issue an order of recapture if assets at issue were "wasted, dissipated, or                                                                                    

converted to a non-marital form").                     

             3             On appeal Faris alleges that the superior court failed to award her $100,000  


in attorney's fees resulting from "procedural delay[s] and time-wasting actions."  Yet  


Faris raised this argument only in her reply brief.  "[W]e deem waived any arguments  


raised for the first time in a reply brief." Barnett v. Barnett, 238 P.3d 594, 603 (Alaska  




             4             "[W]hether the trial court applied the correct legal rule in exercising its  


discretion is a question of law that we review de novo using our independent judgment."  


Richter v. Richter, 330 P.3d 934, 937 (Alaska 2014) (alteration in original) (quoting  


Stanhope v. Stanhope, 306 P.3d 1282, 1286 (Alaska 2013)).  


                                                                                   -4-	                                                                           7385

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court did not rely solely on the date the divorce was granted to determine the date of                                                                                                                                                                                                            

separation.    Instead, it analyzed the facts of the case to determine when the marriage                                                                                                                                                                                   

functionally terminated.                                                              This was consistent with our precedent:                                                                                                         we have expressly                  

rejected defining the date of separation as a matter of law, and have instead granted the                                                                                                                                                                                                      

superior court the discretion to identify the date of separation according to the facts                                                                                                                                                                                                  

                               5      The superior court did not commit legal error in its analysis.  

before it.                                                                                                                                                                                                             

                                              Faris also argues that the court abused its discretion when it determined that  


the separation date was in 2014 because she contends that the parties separated in 2004  


when she moved to Hawaii.  "Alaska law has defined [the separation date] as the point  


at which 'the marriage has terminated as a joint enterprise' or when a couple is no longer  


                                                                                                                                                                  6       Identifying this termination requires  

 'functioning economically as a single unit.' " 


considering whether the parties have objectively separated and "live physically apart  


from one another."7  It also requires evaluating whether at least one party subjectively  


                       5                      See Schanck v. Schanck                                                               , 717 P.2d 1, 3 (Alaska 1986) ("We decline to                                                                                                                  

specify, as a matter of law, that the effective date when . . . earnings become severable                                                                                                                                                                                

from marital property is at separation or at filing for divorce.                                                                                                                                                Each case must be judged                                          

on its facts to determine when the marriage has terminated as a joint enterprise.");                                                                                                                                                                                                         see  

also Dundas v. Dundas                                                          , 362 P.3d 468, 472 (Alaska 2015) ("Determining 'the separation                                                                                                                         

date is a               fact-specific inquiry.' " (quoting                                                                                Tybus v. Holland                                           , 989 P.2d 1281, 1285 (Alaska                                             

 1999)));  Hanlon v. Hanlon                                                                  , 871 P.2d 229, 231 (Alaska 1994) ("Determining the cutoff                                                                                                                              

date for distinguishing marital from non-marital property is a matter for resolution by the                                                                                                                                                                                                     

trial court on a case-by-case basis; we have declined to treat the matter as an issue of                                                                                                                                                                                                          

law.").   We review the date of separation determination for an abuse of discretion.                                                                                                                                                                                                      See,  

e.g.,  Dunmore v. Dunmore                                                                     , 420 P.3d 1187, 1195 (Alaska 2018);                                                                                                Dundas, 362 P.3d at                                              

473;  Tybus, 989 P.2d at 1284-85;                                                                                   Hanlon, 871 P.2d at 231.                                                 

                       6                      Fletcher v. Fletcher, 433 P.3d 1148, 1152 (Alaska 2018) (alteration in  


original) (quoting Tybus, 989 P.2d at 1285).  


                       7                      Id. at 1153 (quoting Dundas, 362 P.3d at 472 n.2).  


                                                                                                                                                -5-                                                                                                                                      7385

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intended   to   separate.     A   superior  court  abuses   its   discretion   if   its   separation   date  

determination lacks sufficient evidentiary support.                             9  

                     Here the evidence suggests that Faris and Taylor objectively separated in  


2004,  but  they  lacked  the  subjective  intent  to  separate  until  2014.                                        Faris  moved  


physically apart from Taylor in 2004.  But the superior court found that "the parties'  


marriage . . . would have continued if Mr. Taylor did not file for divorce."  There is  


ample evidence in the record to support the superior court's finding, as Faris made  


repeated statements after 2004 demonstrating an intent not to separate.  In 2013 she  


wrote a letter explicitly stating that she did "not want a divorce."  And in January 2014  


she wrote an email stating that she "would have never filed for divorce, no matter what,  


ever.  That is still true.  I do not want divorce."  Even after the superior court issued its  


divorce decree in February 2014, Faris claimed in an affidavit that the "divorce was  


entirely [Taylor's] idea" and reiterated that she did "not want to be divorced."  


                     Faris claims that her move to Hawaii evinced a declaration of "financial  


separation," yet the record indicates that a financial entanglement continued until 2014:  


Faris and Taylor filed joint tax returns until 2014.  They also held properties jointly in  


a living trust.  Faris's own words and actions undermine her argument that she intended  


to separate in 2004.  The superior court did not abuse its discretion in determining that  


the date of separation was in 2014.  


           B.	       The Superior Court Did Not Clearly Err When It Determined That  


                     The Portland Home Was Marital Property.  


                     It is uncontested that the parties' Portland, Oregon property was purchased  


in 2006. "Generally, 'all assets acquired by the parties during their marriage are marital  


           8         Id .  (quoting  Dundas,  362  P.3d  at  472  n.2).  

           9         Id .  

                                                                   -6-                                                                7385  

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property' except for gifts and inheritances."                                                                                                                                      10  Faris sets the date of separation in 2004                                                                                                          

and argues that consequently the Portland home cannot be marital property. But because                                                                                                                                                                                                                                          

we have upheld the superior court's finding that the date of separation was in 2014, the                                                                                                                                                                                                                                                           

home was purchased during the marriage.                                                                                                                                    The superior court thus did not clearly err in                                                                                                                              

determining that the home was marital property.                                                                                                                                                        

                            C.	                        The Superior Court Did Not Clearly Err In Its Valuation Of The                                                                                                                                                                                                                        

                                                      Juneau Home.   

                                                      At trial Faris argued that the parties' Juneau property could be subdivided,                                                                                                                                                                              

and thus it had a higher value than the $450,000 submitted by Taylor.                                                                                                                                                                                                                       The court found                             

this suggestion to be "purely speculative."                                                                                                                                  It reasoned that "[s]ince Mr. Taylor has not                                                                                                                         

 subdivided the land, built the necessary driveway, or otherwise taken any concrete action                                                                                                                                                                                                                                             

to solidify this intention, the court cannot accept Ms. Faris's $505,000 valuation for the                                                                                                                                                                                                                                                         

 [Juneau] property."                                                             The court rejected Faris's valuation and adopted Taylor's.                                                                                                                                                                                        

                                                      Faris argues that the court erred in its valuation of the property because it                                                                                                                                                                                                                       


failed to consider evidence of Taylor's intention to subdivide the lot.                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                       This evidence  


included an application for a driveway permit, a plat showing a second driveway, the  


confirmed legality of a subdivision, Faris's own testimony, and letters from Taylor  


indicating a desire to "split the land" and "build a small efficient home."  


                                                      We  have  instructed  trial  courts  to  avoid  property  valuations  based  on  


 speculative improvements to property. In Edelman v. Edelman, we held such a valuation  


to be clearly erroneous, in part because of the unknown expenses that might be required  

                            10                        Beals v. Beals                                            , 303 P.3d 453, 460 (Alaska 2013) (quoting                                                                                                                                       Johns v. Johns                                               ,  

945 P.2d 1222, 1225 (Alaska 1997)).                                                                                                                      We review the superior court's determination of                                                                                                                                               

what property is available for distribution for clear error.                                                                                                                                                                             Dunmore, 420 P.3d at 1190.                                                                     

                            11                        We review the valuation of property for clear error.   Wagner v. Wagner,  


386 P.3d 1249, 1251 (Alaska 2017) (citing Limeres v. Limeres, 320 P.3d 291, 296  


(Alaska 2014)).  


                                                                                                                                                                           -7-	                                                                                                                                                             7385

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to complete a subdivision on which the valuation was based.                                                                                                                             The superior court heeded                                

that precedent here: it declined to use a higher valuation for a hypothetically subdivided                                                                                                                                           

plot when neither the subdivision nor the necessary construction of a driveway had                                                                                                                                                                        

occurred.   It did not err in adopting the lower valuation for the unsubdivided plot.                                                                                                                                                                    

                    D.	                  The Superior Court Did Not Err By Awarding Faris Half Her Pension.  

                                        Faris argues that the superior court erred by not awarding her 100% of the                                                                                                                                           

payments from her CSRS pension.                                                                            She contends that the parties' 2014 divorce decree                                                                                     

incorporated a settlement agreement that made such an award.                                                                                                                                     She contends that the                                      


terms of the settlement are still effective.                                                                                      


                                        But Faris unilaterally sought withdrawal from that settlement.  And the  


superior court later vacated the property distribution order and findings that had been  


based  on  the settlement.                                                        The superior  court did  not revive  the settlement when it  


determined that the date of separation was in 2014.  Accordingly the superior court did  


not err by distributing Faris's pension payments between Taylor and herself.  


                    E.	                  The Superior Court Did Not Abuse Its Discretion When It Used A  


                                         QDRO To Divide Future Pension Income.  


                                         The superior court divided the parties' pensions evenly, using a QDRO, so  


that both parties would have the same monthly income.   When explaining how this  


income  would  be  divided,  the  court  referenced  the  parties'  expert  witnesses,  who  


assigned conflicting valuations to each of the pensions.  The court concluded "that the  


equities in this case necessitate the equalization of income between the parties."  

                    12                   3 P.3d 348, 352-53 (Alaska 2000).                                                    

                    13                  Whetherasettlementagreementremains binding on thepartiesis aquestion  


of law, reviewed de novo.                                                      See Calais Co. v. Ivy                                          , 303 P.3d 410, 414 (Alaska 2013) ("We                                                                 

interpret settlement agreements as contracts.  The interpretation of contractual terms is  


a question of law, which we review de novo.").                                                                         

                                                                                                                               -8-	                                                                                                                    7385

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                                   Faris argues that the court's division is incorrect because the court treated                                                                                                  

the pension income separately from the estate.                                                                             She contends that the court should have                                                      

instead determined the present value of the pension plans and included this within the                                                                                                                                      

estate.   We review allocation of property for abuse of discretion; "[w]e will not disturb                                                                                                                        


the [superior] court's allocation unless it is clearly unjust."                                                                                                  

                                   We have stated that it is not an abuse of discretion for a superior court to  


use a QDRO when the evidence does not permit an accurate valuation of the pensions.15  


Here the parties presented conflicting evidence on the value of their retirement benefits.  


It was within the superior court's discretion to divide the income with a QDRO because  


the true value of the pensions was unclear.  


                  F.	              The  Superior  Court  Did  Not  Perform  An  Adequate  Recapture  



                                   Parties who control a marital asset during separation may be required to  


compensate the other party if they dissipate or waste the asset or convert it to non-marital  


form.16   A superior court may effect this compensation by ordering "recapture" of such  


assets, i.e., crediting them against the responsible party's property distribution award.17  


                                   Here the superior court recaptured the total reduced retirement pay Faris  


received between the date of her separation from Taylor and the marital estate's final  


                  14	              Partridge v. Partridge                                      , 239 P.3d 680, 685 (Alaska 2010).                                         

                  15               See id          . at 687;             see also Nicholson v. Wolfe                                              , 974 P.2d 417, 425-26 (Alaska                                

 1999) ("Trial courts have discretion to distribute retirement benefits to a non-employee                                                                                                     

spouse through either a qualified domestic relations order (QDRO) or through a lump  


sum payout.").   

                  16               Ethelbah v. Walker, 225 P.3d 1082, 1090 (Alaska 2009).  


                  17               See id.  


                                                                                                                -9-	                                                                                                   7385

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division in May 2017.                                         The court reasoned that recapture of these marital assets was                                                                                    

warranted because "neither party shared either of the [retirement] payments with the                                                                                                              

other."   Faris argues that the superior court erred because the recaptured payments were                                                                                                                    

notwasted,dissipated,or converted to non-maritalform,                                                                                    but rather spent onher legitimate                      

living expenses.                          

                                                                                                                                                                              19  We have stated  

                                 We review an order of recapture for an abuse of discretion.                                                                                                               

that a superior court abuses its discretion when, absent specific evidentiary findings of  


dissipation, waste, or conversion to a non-marital form, it orders recapture of marital  


assets no longer existing at the time of trial.20                                                                      We have also instructed that "findings  


cannot be merely conclusory, but must be based on evidence."21  


                                 Here the superior court did not make "any findings about what [the parties]  


                                                                                                              22     Furthermore the court failed to consider  

actually did with [their] pension income[s]."                                                                                                                                                      


whether the funds "still existed at the time of trial."23                                                                                    And if they did not exist, the  


superior court cited no evidence that the funds had been converted "with the intent to  


                 18              The superior court reduced its calculation of Faris's pension income to                                                                                                         

account for mortgage payments she made for the Portland home as well as state and                                                                                                                            

federal income taxes.                                  

                 19              Day v. Williams, 285 P.3d 256, 260 (Alaska 2012).  


                 20              See, e.g., id.; Ethelbah, 225 P.3d at 1090; Foster v. Foster, 883 P.2d 397,  


399-400 (Alaska 1994).  


                 21              Day, 285 P.3d at 260 (quoting Ethelbah, 225 P.3d at 1091).  


                 22              Ethelbah, 225 P.3d at 1091.  


                 23              Partridge v. Partridge, 239 P.3d 680, 692 (Alaska 2010).  


                                                                                                       -10-                                                                                               7385

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deprive the marital                              estate."                It was an abuse of discretion for the court to order a                                                                            

recapture of those funds absent such specific findings.                                                                                 We therefore remand so the                                     

superior court has an opportunity to complete a full recapture analysis.                                                                           

IV.             CONCLUSION  

                               We  VACATE  the  superior  court's  decision  on  the  recapture  of  the  


retirement pay received between the date of separation and the final property division  


order and REMAND for clarifying findings on this issue. Based on its recapture decision,  


the court is authorized to modify the property division order to the extent necessary to  


effect an equitable division. We AFFIRM on all other issues raised in this appeal.  



                24             Brandal v. Shangin                             , 36 P.3d 1188, 1194 (Alaska 2001).                                    

                                                                                                  -11-                                                                                           7385  

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