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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kendre Jones v. Vieanna Jones (3/4/2022) sp-7586

Kendre Jones v. Vieanna Jones (3/4/2022) sp-7586

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

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

KENDRE  JONES,                                                )  

                                                              )    Supreme  Court  No.  S-17977  

                               Appellant,                     )  


                                                              )    Superior Court No. 3AN-18-07745 CI  

          v.                                                  )  


                                                              )    O P I N I O N  


VIEANNA JONES,                                                )  


                                                              )    No. 7586 - March 4, 2022  

                               Appellee.                      )  




                    Appeal from the Superior Court of the State of Alaska, Third  


                     Judicial District, Anchorage, Andrew Guidi, Judge.  


                    Appearances: Kendre A. Jones, pro se, Hephzibah, Georgia,  


                    Appellant.           Roberta  C.  Erwin,  Palmier  ~  Erwin,  LLC,  


                    Anchorage, for Appellee.  


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


                     Justices. [Carney, Justice, not participating.]  


                     BORGHESAN, Justice.  



                     Federallawprohibits statecourts fromdividingmilitarydisabilitypaywhen  


equitably dividing marital property upon divorce. In  this case a divorcing couple's  


property settlement agreement required the husband to pay the wife $1,200 per month  


fromthe non-disability portion of the husband's military retirement. The agreement also  


provided  that  if  the  husband  took  any  action  that  reduced  the  wife's  share  of  this  

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


payment, the husband would directly pay the wife so as to indemnify her against the  


reduction. After the husband's retirement was converted to disability pay and the wife  


stopped  receiving  her  monthly  payment,   she  moved  to  enforce  the  settlement  


agreement's  indemnity  provision.  The  superior  court  initially  concluded  that  the  


indemnity provision was unenforceable because it violated federal law.  But when the  


wife then moved to set the settlement agreement aside, the court decided to enforce the  


indemnity  provision  and  ordered  the  former  husband  to  make  the  monthly  $1,200  


payment  and to  pay  arrears.  We  affirm, holding  that  federal  law  does not  preclude  


enforcing one spouse's promise to pay another a sum of money each month even if the  


source of the money is military disability pay.  



          A.        Facts  


                    Vieanna and Kendre A. Jones were married in October 1993 and separated  


in June 2018. After working with a mediator, Vieanna and Kendre reached an agreement  


to  divide  their  property.             They  then  filed  for  divorce  in  July  2018.   Vieanna  filed  


proposed orders reflecting the parties' mediated agreement in superior court.  One of  


these orders set forth the terms for dividing Kendre's military retirement pay.  It stated  


that Vieanna was awarded "$1,200.00 per month from the non-disability portion [of Mr.]  


Jones'[s] military retirement monthly benefit."  It then defined "military retirement" as  


including "all amounts of retired pay HUSBAND actually or constructively waives or  


forfeits in any manner and for any reason or purpose, including but not limited to any  


post-divorce waiver made in order to qualify for Veterans Administration benefits . . . .  


It  also  includes  any  sum  taken  by  Husband  in  addition  to  or  in  lieu  of  retirement  


benefits."  Paragraph 12 of the order contained an indemnification provision:  


                    If HUSBAND takes any action that prevents, decreases, or  


                    limits  the  collection  by  WIFE  of  the  sums  to  be  paid  

                                                               -2-                                                         7586

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                    hereunder   (by   application   for   or   award   of   disability  


                    compensation, combination of benefits with any other retired  


                    pay,  waiver  for  any reason,  including  as  a result  of  other  


                    federal service, or in any other way), he shall make payments  


                    to WIFE directly in an amount sufficient to neutralize, as to  


                    WIFE,  the  effects  of  the  action  taken  by  HUSBAND.  


                    HUSBAND shall indemnify WIFE as to any sums paid to  


                    HUSBAND that this court order provides are to be paid to  


                    WIFE so she will not suffer a reduction in her share of the  


                    retired pay as a result of any of his post-divorce actions.  


After a hearing at which the superior court received testimony from the parties, the court  


signed all the proposed orders and granted the parties' divorce.  

          B.        Proceedings  


                    1.        Motion to enforce  


                    Almost  a  year  later  Vieanna  filed  a  motion  to  enforce  the  property  


settlement and related orders.  She claimed that she had stopped receiving her monthly  


share  of  Kendre's  retirement  because  Kendre  was  now  receiving  100% veterans'  


disability pay in lieu of retirement pay.  


                    The  court held a hearing  on Vieanna's  motion  in July  2019.   Vieanna  


testified  that  since the  divorce  she had been receiving  $1,200 a month, but  that  the  


payments stopped in June 2019.  Kendre presented evidence that in May 2019 he began  


receiving 100% disability benefits instead of retirement benefits. He testified that he had  


not "tr[ied] to change anything so that Ms. Jones wouldn't get money."  Rather, he had  


been determined unemployable after a physical exam.  


                    The superior court entered what it first described as "preliminary thoughts"  


and then ultimately described as a "partial ruling" on the record.  The court invoked our  

                                                               -3-                                                         7586

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decision in              Guerrero v. Guerrero,  which recognized that federal law prevents a state                                                                                    

court from awarding military disability pay to the non-military spouse as part of a                                                                                                           

property division incident to divorce.                                               We also ruled in                       Guerrero  that when a property                    

settlement agreement awards the non-military spouse a share of military retirement pay                                                                                                    

and then the military spouse elects to receive disability pay in lieu of retirement pay -                                                                                                   

cutting off the non-military spouse's ability to receive the payments provided for in the                                                                                                  

settlement   agreement   -   "extraordinary   circumstances"   may  exist   to   set   aside   the  

                                                                                              2  In light of this decision, the superior court  

agreement under Alaska Civil Rule 60(b).                                                                                                                                              

reasoned that federal law precluded it from enforcing Vieanna's right to the $1,200 per  


month provided for in the settlement agreement because the money would be coming  


from Kendre's disability benefits.  


                              But the court noted  that if Vieanna had  entered  the  settlement on  the  


assumption  that  she  would  receive  $1,200  a  month,  she  "may  be  entitled  to  a  re- 


evaluation and a re-jiggering, if you will, of the overall settlement that [she] entered  


into."  Accordingly the court said that it would treat Vieanna's motion "as a request for  


Rule 60(b) relief, and a reconfiguration of the original property settlement."  Vieanna  


responded by telling the court that she would attempt to work out an agreement with  


Kendre. The court suggested that Vieanna confer with Kendre's attorney and "if you're  


not able to work something out, you file a motion . . . setting forth how you think the  


property settlement should be re-done."  


                              3.             Motion for Rule 60(b) relief  


                              In  August  2020  Vieanna  moved  to  set  aside  the  property  settlement  


agreement under Rule 60(b).   She claimed that "extraordinary circumstances" were  


               1              362  P.3d  432,  440-41  (Alaska  2015).  

               2              Id.  at  444  (discussing  Rule  60(b)).  

                                                                                              -4-                                                                                             7586  

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 present sufficient to justify relief because the fundamental underlying assumption of the                                                                                                                                                                                                                                   

 dissolution agreement had been destroyed.                                                                                                                                Kendre opposed the motion, presenting                                               

 evidence that after Vieanna's motion to enforce had been denied in July 2019, she had                                                                                                                                                                                                                                     

 filed   a   similar   pleading   in   Tennessee,   which   had   been   dismissed.     He   argued   that  

 Vieanna's motion was barred by the law of the case and res judicata; that Rule 60(b)                                                                                                                                                                                                                              

 relief was inappropriate because too much time had expired since the parties' divorce;                                                                                                                                                                                   

 and that he could not afford to pay the $15,600 in accumulated back payments that                                                                                                                                                                                               

 Vieanna claimed he owed her.                                                                        

                                                    The superior court ruled that it was unnecessary to set aside the settlement                                                                                                                                                                  

 agreement under Rule 60(b) because the agreement could be enforced:                                                                                                                                                                     

                                                    The   terms   of   the   parties'   agreement   contemplate[]   the  

                                                    eventuality   that   has   transpired   (i.e.,   the   elimination   of  

                                                    [Kendre]'s   non-disability   retirement)   and   requires   him   to  

                                                    indemnify [Vieanna]. Therefore, the issue is not one of 60(b)                                                                                                                                                 

                                                   relief   but   rather   of   enforcement.     The   undisputed   facts  

                                                    establish [Vieanna]'s right to indemnity in the amount of                                                                                                                                                                

                                                    $1200/mo. from [Kendre].                                                                              

 The court denied Kendre's subsequent motion for reconsideration and then issued its                                                                                                                                                                                                                                           

judgment requiring Kendre to pay Vieanna $1,200 per month going forward and to pay                                                                                                                                                                                                                                         

 her $16,800 in arrears, with interest accruing.                                                                                                                                Kendre appeals.   

 III.                      STANDARD OF REVIEW                                                    

                                                    "We   construe   property   settlement   agreements   in   divorce   actions   in  

 accordance with basic principles of contract law"; "[q]uestions of contract interpretation                                                                                                                                                                                           

                                                                                        3      "We review de novo whether the trial court applied the correct  

 are reviewed de novo."                                                                                                                                                                                                                                                                                       

 legal rule," including whether a court order concerning payment of federal benefits is  


                          3                        Id. at 437 (quoting Glover v. Ranney, 314 P.3d 535, 539 (Alaska 2013),  


 overruled on other grounds by Howell v. Howell, 137 S. Ct. 1400 (2017)).  


                                                                                                                                                                -5-                                                                                                                                                   7586  

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consistent with federal law.                   4  We review the superior court's decision to apply the law                                     

of the case doctrine for abuse of discretion.                             5  

IV.	        DISCUSSION  


           A.	         The   Superior   Court   Correctly   Interpreted   And   Applied   The  


                       Indemnity Clause In The Parties' Property Settlement Agreement.  


                       Kendre argues that the superior court improperly interpreted the indemnity  


provision of the parties' agreement, which requires him to "make payments to [Vieanna]  


directly in an amount sufficient to neutralize . . . the effects of" any action by Kendre that  


"prevents,  decreases,  or  limits  the  collection  by  [Vieanna]  of  the  sums  to  be  paid  


hereunder (by application for or award of disability compensation . . . )." Kendre claims  


that paragraph 12 applies only if he "takes any action" to reduce the sums owed to  


Vieanna and that he did not do so; rather, "the government independently determined  


that Kendre was 100% disabled and unable to work and the government awarded him  


disability pay."   Kendre also argues that the language of the indemnity provision is  


ambiguous, so it should be construed against Vieanna because "[s]he, presumably with  


the  assistance  of  an  attorney,  on  her  own  letterhead,  presented  the  court  with  the  


proposed [o]rder," while Kendre "was pro se and did not prepare any of the settlement  


paperwork."  We reject these arguments.  


                       First,  the  meaning  of  the  indemnity  provision  is  not  ambiguous.                                                   It  


expressly provides for indemnification in the event that Kendre's retirement benefits are  


affected by his receipt of disability pay.  Paragraph 12 of the court order incident to the  


final  settlement  agreement  begins:  "If  HUSBAND  takes  any  action  that  prevents,  


decreases,  or  limits  the  collection  by  WIFE of  the  sums  to  be  paid  hereunder  (by  

            4	         Glover,  314  P.3d  at  539.  

            5          Hallam  v.  Holland  Am.  Line,  Inc.,   180  P.3d  955,  958  (Alaska  2008).  

                                                                        -6-                                                                      7586  

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

application  for  or  award  of  disability  compensation,  combination  of  benefits  with  any  

other  retired  pay,  waiver  for  any  reason,  including  as  a  result  of  other  federal  service,  or  

in  any  other  way)  .  .  .  ."   The  order  thus  defines  "takes  any  action"  to  include  receiving  

an  "award of disability compensation."  Under this clear language, Kendre's receipt of  

an   "award   of   disability   compensation"  triggers  his   duty  to   indemnify  Vieanna  to  the  

extent  her  $1,200  monthly  payment  is  reduced.   

                 Second,  Kendre's  argument  that  he  did  not  "take  any  action"  to  trigger  the  

indemnity  provision   is  not  persuasive.    He  testified  that  his  retirement pay  had  been  

converted  to  disability  pay  after  he  had  been  found  unemployable  following  a  doctor's  

appointment.     Attending   a   doctor's   appointment   at   which   one's   disability  rating   is  

assessed is taking action; the government does not change a veteran's  disability rating  

without   input   about   the   veteran's   health   status.     So   putting  aside   the   fact   that   the  

agreement's  terms  define  "takes  any  action"  to  include  receiving  an  award  of  disability  

pay,  Kendre's  visiting  a  doctor  and  having  his  disability  assessed  counts  as  taking  action  

that  led  to  the  reduction  of  Vieanna's  payments.   

                 The  purpose   of   the   indemnification  provision   in   Kendre   and   Vieanna's  

agreement is to protect  Vieanna's right to receive the benefits that  were  bargained  for.  

The  total  conversion  of  Kendre's  retirement  benefits  to  disability  benefits  is  precisely  the  

type  of  situation  the  provision  was  designed  to  protect  against.   

         B.	     The  Superior  Court  Did  Not  Err  By  Ruling  The  Indemnity  Clause  Is  

                 Enforceable  Under  Federal  Law.  

                 Kendre  argues  that  enforcing  the  indemnity  provision  violates  federal  law.   

He  claims  that  after  he  was  found   100%  disabled,  the  superior  court  required  him  "to  

continue  to  pay  the  exact  same  amount,  $1,200  per  month,  directly  from  his  only  source  

of   income,   i.e.   his   disability   pay."     Kendre   argues  that   "[t]his   dollar   for   dollar"  

replacement  of  retirement  pay  with  disability  pay  is  prohibited  by  federal  law.   

                                                     -7-	                                               7586

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                       Although military retirement pay is considered marital property that may                                                

be divided between the spouses upon divorce, in                                      Mansell v. Mansell                 the United States   


Supreme   Court   held   that   state   courts   may   not   divide   veterans'   disability   benefits.   


Because a military retiree "may receive [VA] disability benefits only to the extent that  

                                                                                                                 7  a veteran's decision  


he waives a corresponding amount of his military retirement pay," 

to waive retirement pay and receive disability benefits instead creates problems for the  


division  of  marital  property.                         In  Clauson  v.  Clauson  we  held  that  it  would  be  


"unacceptable" for a court to "simply shift an amount of property equivalent to the  


waived retirement pay from the military spouse's side of the ledger to the other spouse's  


side" to balance the military spouse's receipt of disability benefits.8   "Disability benefits  


should not, in either form or substance, be treated as marital property subject to division  


                                                          9  Yet courts neednot"completely ignore the economic  

upon the dissolution ofmarriage."                                                                                                     


consequences of a military retiree's decision to waive retirement pay in order to collect  


            6          Mansell  v.  Mansell,  490  U.S.  581,  594-95  (1989)  (holding  that  dividing  

military  disability  benefits  violates  the  Uniformed  Services  Former  Spouses'  Protection  

Act  (USFSPA)).  





(quoting  Mansell,  490  U.S.  at  583).  

            8          Clauson  v.  Clauson,  831  P.2d   1257,   1264  (Alaska   1992).  

            9          Id .  

                                                                        -8-                                                                  7586

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disability pay."              The superior court may consider the economic consequences of this  

decision in deciding upon an equitable division of the marital property that remains.                                                     11  

                      Both  the  U.S.  Supreme  Court  and  our  court  have  also  addressed  the  


problem of enforcing the parties' obligations to one another if the military retiree elects  


to waive retirement pay that has already been divided in divorce, thereby reducing  


benefits that the other spouse was entitled to receive under the property division order.  


In  Young v. Lowery we held  that "the trial court may  expressly  order  [the  service  


member] not to reduce his disposable retired pay and require [him] to indemnify [the  


former spouse] for any amounts by which her payments are reduced below the amount  


set" in the qualified order.12                   However, in Howell v. Howell the U.S. Supreme Court  


rejected this approach.13 After a veteran had elected to receive disability pay in lieu of  


retirement, the Arizona SupremeCourt upheldatrial court's decision to order the veteran  


to "reimburse" his former spouse for the amount her share of his retirement pay had been  


              14  TheU.S. SupremeCourt reversed, statingthat courts may not avoid Mansell 's  


holding "by describing the family court order as an order requiring [the veteran spouse]  


           10         Guerrero  v.  Guerrero,  362  P.3d  432,  440  (Alaska  2015)  (quoting  Clauson,  

831  P.2d  at   1262).  

           11         Id .  

           12         221  P.3d   1006,   1012  (Alaska  2009),  abrogated  by  Howell  v.  Howell,   137  

S.   Ct.   1400   (2017),  as  recognized   in   Gross  v.   Wilson,  424  P.3d   390,  400-01   (Alaska  


           13         137 S. Ct. at 1405-06.  


           14         Id. at 1405.  


                                                                     -9-                                                              7586

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

to 'reimburse' or to 'indemnify' [the other spouse], rather than an order that divides                                                                  


property" because "[t]he difference is semantic and nothing more."                                                                   

                         Although  Howell  makes  clear  that  state  courts  cannot  simply  order  a  


military spouse who elects disability pay to reimburse or indemnify the other on a dollar  


for dollar basis, Howell does not preclude one spouse from agreeing to indemnify the  


other as part of a negotiated property settlement. Nor does Howell preclude courts from  


enforcing such an agreement.  In Gross v. Wilson we held that courts may enforce a  


negotiated settlement agreement in which a military spouse promised to pay another a  


share of the military spouse's disability benefits.16                                              When the military spouse stopped  


making the payments, arguing that they were improper under federal law, the superior  


court ordered the payments to continue, and we affirmed.17                                                         We concluded:  


                         Under Howell a state court may not circumvent Mansell by  


                          ordering a service member to "indemnify" a former spouse  


                          for retirement benefits waived to receive disability pay.  But  


                         Howell  does  not  hold  that  a  state  court  cannot  enforce  a  


                         property  division  by  ordering  a  service  member  who  


                         unilaterally stops making payments the service member was  


                          legally obligated to make to resume those payments and pay  




             15          Id.  at   1406.  

             16           424  P.3d  at  401.   

             17          Id.  at  394.   

             18          Id.  at  401.  

                                                                               -10-                                                                         7586

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

A treatise on military divorces concurs, observing that "[i]t's one thing to argue about   

a judge's power to require . . . a duty to indemnify," but "another matter entirely to                                                                   


require a litigant to perform what he has promised in a contract."                                                        


                        Only the latter is at issue here.  The superior court did not divide Kendre's  


disability pay.  It merely required him to keep the terms of his promise:  to indemnify  


Vieanna should he take any action that caused her to receive less than $1,200 per month  


from his military retirement pay.  An indemnity provision like the one in Kendre and  


Vieanna's negotiated property settlement agreement is a bargained-for termthat "take[s]  


account of the contingency that some military retirement pay might be waived," which  

                                                                                                                                          20   Neither  


is a proper consideration in arriving at an overall division of marital property. 

federal law nor our own precludes the superior court from enforcing this contract term.  


            C.	         The Superior Court's Order Granting Vieanna Relief Did Not Violate  


                        The Law Of The Case Doctrine.  


                        Kendre claims that the law of the case doctrine precluded the superior court  


from enforcing the indemnity provision in 2020 because it had already denied Vieanna's  


motion to enforce a year earlier. But the superior court did not abuse its discretion when  


it decided to grant Vieanna relief.  


                        The law of the case doctrine "limits redetermination of rulings made earlier  


in the same lawsuit."21   It applies both to issues that have been "adjudicated in a previous  


            19          SULLIVAN,  supra  note 7,  at  691 (explaining that  Howell  decision  "magnifies  

the   importance   of  using   an   indemnification  provision   in  the  property   settlement"   for  

parties  negotiating  division  of  marital  property).  

            20          See Howell, 137 S. Ct. at 1406 ("[A] family court, when it first determines  


the value of a family's assets, remains free to take account of the contingency that some  


military retirement pay might be waived . . . .").  


            21          Robert A.  v.  Tatiana D., 474 P.3d  651, 654-55 (Alaska 2020)  (original  



                                                                           -11-	                                                                   7586

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

appeal in the same case" and to "issues that have been fully litigated in the superior court                                           

and as to which no timely appeal has been made."                                   22                             

                                                                                       The doctrine is " 'not an absolute  

                                                                                                      23  providing that "issues  



rule of law' but rather 'a matter of sound judicial policy' " 

previously  adjudicated  can  only  be  reconsidered  where  there  exist  exceptional  


circumstances presenting a clear error constituting a manifest injustice."24  


                      Kendre is correct that the superior court essentially granted Vieanna's  


motion to enforce over a year after denying this same relief.  Its October 2020 order  


denied Vieanna's Rule 60(b) motion because "the issue is not one of 60(b) relief but  


rather of enforcement." The court interpreted the parties' agreement as requiring Kendre  


to indemnify Vieanna for her monthly payments and ordered that Kendre indemnify  


Vieanna "in the amount of $1200/mo. "- exactly the relief Vieanna sought in her initial  


motion to enforce in 2019.  


                      To begin, it is not clear that the law of the case doctrine applies here.  The  


 superior court described its comments on the record both as "preliminary thoughts" and  


then as a "partial ruling" denying the motion to enforce, which was "without prejudice  


to [Vieanna's] re-filing . . . another motion."   On one hand, we have held that "[a]  


judgment of dismissal without prejudice is considered a final judgment for purposes of  


           21         (...continued)

emphasis r  emoved)  (quoting  Rekhi  v.   Wildwood  Indus.,  Inc.,  61  F.3d   1313,   1317  (7th

Cir.   1995)).   

           22         Id.  (quoting Barber v. State, Dep't  of Corr., 393 P.3d 412, 419 (Alaska  




           23         Id. (quoting Hallam v. Holland Am. Line, Inc., 180 P.3d 955, 958 (Alaska  



           24         State, Com. Fisheries Entry Comm'n v. Carlson, 270 P.3d 755, 760 (Alaska  


2012)  (quoting State,  Com. Fisheries  Entry  Comm'n v.  Carlson,  65  P.3d  851,  859  


(Alaska 2003)).  


                                                                    -12-                                                               7586

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


appeal."              On the other hand, a fair reading of the decision indicates the superior court's                                                             

expectation that the parties would file something further for its consideration, so the                                                                                    

decision might be better characterized as tentative.                                                    It therefore is questionable whether                     

the issue of enforcing the settlement agreement was "fully                                                                     litigated in the superior        

             26   and entitled to the presumption of finality that the law of the case doctrine  




                           But even assuming the doctrine applies, it was not an abuse of discretion  


to revisit the issue of enforcement because doing so was necessary to correct "a clear  


error constituting a manifest injustice."27  The superior court's initial ruling on Vieanna's  


motion to enforce in 2019 briefly acknowledged the indemnity provision in the parties'  


settlement agreement, but assumed without analysis that it did not apply.  In 2020 the  


court recognized that the indemnity provision "contemplates the eventuality that has  


transpired (i.e., the elimination of [Kendre]'s non-disability retirement)" - in other  


words, the provision was designed for this situation exactly - and gave effect to it so  


that Vieanna would not be deprived of a valuable asset that was a core element of the  


parties' bargain.  In fact, by enforcing the indemnity provision, the court obviated the  


need to consider setting aside the property settlement entirely due to negation of its  


              25           Farrell  ex  rel  Farrell  v.  Dome  Labs.,  a  Div.  of  Miles  Labs.,  Inc.,  650  P.2d  

380,  383  (Alaska   1982).  

              26           Robert  A. ,  474  P.3d  at  655.  

              27            Carlson,  270  P.3d  at  760  (quoting  Carlson,  65  P.3d  at  859).  

                                                                                    -13-                                                                               7586

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

underlying assumptions.28  It was appropriate not to apply the law of the case doctrine   


                       D.	                     It Was Not Unconscionable To Enforce The Indemnity Clause                                                                                                                                                                             .  

                                              Kendre argues that it would be unconscionable to enforce the terms of the                                                                                                                                                                           

settlement documents against him.                                                                                         We disagree.                                      

                                              Kendrefirst argues that thesettlement agreementwasunconscionablewhen                                                                                                                                                                         

it was signed because of his disability.                                                                                                He points to the fact that he "has suffered from                                                                                                    

a 90% disability rating since 2014," and argues that "the complexity of the language" in                                                                                                                                                                                                              

thesettlement                                    documents indicates that Vieanna"hadan                                                                                                        attorneyassisting                                            her in drafting       

the documents."                                               He asks only                                         for   paragraph   12 of the agreement to                                                                                                     be   set aside,   

claiming that he "arguably did not understand the implications of the provision that                                                                                                                                                                                                           

Vieanna drafted . . . which addressed disability payments."                                                                                                          

                                              We described our approach to unconscionability in                                                                                                                             Askinuk Corp. v. Lower                                     

 Yukon School District                                                       :   

                                              A   contract   or   a   contractual   term   is   "not   unconscionable  

                                              merely because the parties to it are unequal in bargaining                                                                                                                

                                              position,   nor   even   because   the   inequality   results   in   an  

                                               allocation    of    risks    to    the    weaker    party."       But    .    .    .  

                                              unconscionability may exist if the circumstances indicate a                                                                                                                                                 

                                               "vast   disparity   of   bargaining   power   coupled   with   terms  

                                              unreasonably favorable to the stronger party."                                                                                                                   [29]  

                       28                      Cf.  Guerrero  v.  Guerrero,  362  P.3d  432,  445  (Alaska  2015)  (reasoning  that  

setting   aside   property   settlement   agreement   pursuant   to   Civil   Rule   60(b)(6)   may   be  

warranted   when  military   spouse's   election   of   disability   pay   eliminates   non-military  

spouse's   share   of  retirement  pay  promised   in  property settlement   agreement  because  

"fundamental  underlying  assumption"  of  the  agreement  was  destroyed).  

                       29                      214 P.3d 259, 268 (Alaska 2009) (first quoting Vockner v. Erickson, 712  


P.2d 379, 382 (Alaska 1986); and then quoting OK Lumber Co. v. Alaska R.R., 123 P.3d  



                                                                                                                                                -14-	                                                                                                                                       7586

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Kendre fails to show either a vast disparity of bargaining power or terms unreasonably                                                                                                                                                                                                                                                                                                                              

 favorable to Vieanna.                                               

                                                                          The indemnification provision protecting Vieanna's interest in the $1,200                                                                                                                                                                                                                                                                                                     

payments is not unreasonably favorable to her.                                                                                                                                                                                                                     It merely protects the division of assets                                                                                                                                                  

that the parties agreed on from the risk that Kendre's circumstances might change and                                                                                                                                                             

result in his receiving disability pay in lieu of retirement. Although Kendre emphasizes                                                                                                                                                                                                                                                                                                                                      

his modest financial circumstances, he does not claim that he is now receiving                                                                                                                                                                                                                                                                                                                                                                                         less  

money from disability benefits than he previously received from military retirement                                                                                                                                                                                                                                                                                                                                                


                                                                          Nor does therecord support Kendre's argument that because the agreement                                                                                                                                                                                                                                                                                     

is   sophisticated,   Vieanna   must   have   prepared   it   with   a   lawyer   while   Kendre   went  

unprotected.   The parties reached their property settlement through mediation, and each                                                                                                                                                                                                                                                                                                                                                                             

party initialed a provision confirming that they had the opportunity to consult with an                                                                                                                                                                                                                                                                                                                                                                                         

 attorney. Vieanna also testified at the August 2018 hearing that the mediator had helped                                                                                                                                                                                                                                                                                                                                                                

prepare the parties' final divorce settlement agreement for them.                                                                                                                                                                                                                                                                   

                                                                          Kendre's   disability   is   not   grounds   for   a   finding   of   unconscionability.   

Kendre maintains on appeal that he "arguably did not understand the implications of the                                                                                                                                                                                                                                                                                                                                                                                       

 [indemnity] provision."                                                                                                             But there is no evidence in the record to conclude that Kendre                                                                                                                                                                                                                                                  

 did not understand the parties' property division.                                                                                                                                                                                                                                  At the August 2018 hearing on the                                                                                                                                                       

 settlement agreement,Kendre answered "yes"                                                                                                                                                                                                                 when the court asked himif he was "clear-                                                                                                                                                     

headed today, able to think." Although the record indicates that Kendre was disabled in                                                                                                                                                                                                                                                                                                                                                                                             

2018 as a result of a severe head injury, and the superior court noted at the July 2019                                                                                                                                                                                                                                                                                                                                                                          

hearing that Kendre may not have "full capacity," the effect of Kendre's disability on his                                                                                                                                                                                                                                                                                                                                                                                     

                                     29                                   (...continued)  


  1076, 1081 n.17 (Alaska 2005)).  

                                                                                                                                                                                                                                     -15-                                                                                                                                                                                                                           7586  

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

ability to comprehend the settlement was never litigated before the superior court.                                                                    For  

that reason            there is no           factual record             for   us to        conclude that              his  disability   renders  

enforcement of the parties' settlement agreement unconscionable.                                                              To challenge the   

enforceability of the settlement agreement due to lack of capacity, Kendre would have                                                                 

had to seek relief from the court on that basis.                                   30  

                        Kendrenext argues that thepropertysettlementhasbecomeunconscionable  


due to changed circumstances because he is "now 100% disabled" and "cannot afford  


to pay Vieanna ongoing payments of $1,200 per month in addition to judgment for  


$16,800."  But enforcing a contractual provision that was designed for precisely this  


change in circumstances - Kendre receiving 100% disability pay in lieu of retirement  


pay - is not unconscionable.31  


            E.	         Kendre Waived His Laches Argument By Failing To Raise It In The  


                        Superior Court.  


                        Kendre  argues  that  Vieanna's  Rule  60(b)  motion  was  barred  by  the  


equitable doctrine of laches. He claims that after the superior court told Vieanna that she  


            30          See  Alaska R. Civ. P.  60(b)(6)  (allowing  court  to  set aside judgment "for  

any  other  reason").  It  is  worth  noting  that  if  Kendre  proved  that h                                           e  lacked  capacity  to  

enter    into    the    property    settlement    agreement,    the    entire    agreement    would    be  

unenforceable  -  not  just  the  agreement's  indemnity  provision.  

            31          Kendre  asserts  that  the  covenant  of  good  faith  and  fair  dealing  bars  


enforcement of the  indemnity provision.   The  covenant, which  is  included  in  every  


contract, concerns parties' duty not to act in a way "which will injure the right of the  


other to receive the benefits of the agreement," Guin v. Ha, 591 P.2d 1281, 1291 (Alaska  


 1979),  and  is  intended  to  require  the  parties  "to  do  everything  that  the  contract  


presupposes will be done in order to accomplish the purpose of the contract," Arizona  


v. Tohono O'odham Nation, 818 F.3d 549, 562 (9th Cir. 2016) (quoting Sessions, Inc.  


v.  Morton,  491  F.2d  854,  857  (9th  Cir.  1974)).                                                Kendre's  arguments  concern  


enforcement of the contract terms themselves, not anything Vieanna has done to deprive  


him of the benefit of the contract. The covenant does not apply to this case.  


                                                                           -16-	                                                                    7586

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could   move   for   the   court   to   reassess   the   property   division,   "she   filed  a   lawsuit   in  

Tennessee asking for the same relief she asked for in Alaska" and ultimately "waited                                                                                                                   

over a year to file her Civil Rule 60(b) motion in Alaska."                                                                                           After the court's ruling on                                   

Vieanna's motion to enforce,                                             Kendre stopped paying Vieanna $1,200 amonth in reliance                                                                       

on the ruling.                       He implies that were it not for Vieanna's delay, he would not now be                                                                                                           

faced with an order to pay arrears of $16,800.                                                                         

                                  But Kendre failed to argue laches to the superior court when opposing                                                                                            

Vieanna's Rule 60(b) motion or when seeking reconsideration.                                                                                                    "A party may not raise                         

                                                                                          32  Because Kendre did not raise his laches argument  

an issue for the first time on appeal."                                                                                                                                                            

to the superior court, the superior court made no findings on this point, and there is no  


ruling for us to review.  The laches argument is therefore waived.  


                 F.               The Superior Court Did Not Rely On An Unpled Legal Theory.  


                                  Kendre argues that the superior court relied on the indemnity provision of  


the parties' settlement agreement without giving the parties an opportunity to present  


argument about it.  He claims that when the court denied Vieanna's Rule 60(b) motion,  


it "inserted . . . a ruling on an [unpled] legal theory . . . without giving notice that the new  


theory would be used and without affording either party an opportunity to present any  


evidence and arguments relevant to it."  Kendre argues that this lack of notice "caused  


 [him] prejudice."  


                 32               Brandon  v.  Corr.  Corp.  of  Am. ,  28  P.3d  269,  280  (Alaska  2001);  see  also  

B.B.  v.  D.D.,  18  P.3d  1210,  1214  (Alaska  2001)  ("Matters  not  made  issues  or  tried  before  

the [superior] court will not be considered  on appeal.").  Kendre also failed to include  

laches  in  his  statement  of  points  on  appeal;  we  ordinarily  decline  to  "consider  issues  that  

are   not   included   in   the   appellant's   statement  of   points  on   appeal."     Mullen   v.  

 Christiansen,  642  P.2d   1345,   1350  (Alaska   1982).  

                                                                                                        -17-                                                                                                  7586

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

                        We have held that superior courts should avoid deciding cases on                                                 an unpled   


theory and that, when they do so, they should provide appropriate notice to the parties.                                                                    

But the superior court in this case did not rely on an unpled legal theory.   In fact,  


Vieanna originally moved to enforce the settlement agreement, and it was only after the  


superior court suggested that the agreement was unenforceable that Vieanna moved for  


relief under Rule 60(b).  And although Vieanna then filed a motion seeking relief under  


Rule 60(b), it was clear from the content of her motion that she was seeking to enforce  


the indemnity provision in the settlement agreement:  


                        The  parties'  settlement  agreement  stated  that  the  $1,200  


                        could not be modifiable by either party. . . . It clearly states  


                        that if Mr. Jones takes any action to decrease or waive his  


                        retirement pay, . . . he would still owe [Vieanna] the same  


                        amount.  It specifically states that Mr. Jones will indemnify  


                        Ms. Jones against reduction of her monthly payment.  This  


                        was an integral part of the parties' agreement.  


Vieanna went on to "ask[] the court to enforce the parties' settlement agreement and  


order [Kendre] to resume paying the $1,200 that the parties agreed he would pay."  


Kendre was on notice that Vieanna sought to enforce this aspect of the agreement, so it  


was incumbent on him to raise any arguments against that provision when opposing  


Vieanna's motion. In fact, Kendre did raise a number of arguments - including the law  


of the case doctrine and arguments based on Mansell - and fails to explain how he was  


            33          State  v.  First  Nat'l  Bank  of  Anchorage ,  660  P.2d  406,  423  (Alaska   1982)  

(holding  court  has  authority  to  decide  case  on  unpled  legal  theory  only  "when  the  new  

theory   applies   to   the   transaction   in   issue,   is   related   to   the   theories   presented   by   the  

parties,  and  is  necessary for a  proper  and  just  disposition  of  the  case"  but  court  must  

"take  steps  to  eliminate  the  prejudice  by  giving  notice  that  the  new  theory  will  be  used  

and  affording  an  opportunity  to  the  parties  to  present  evidence  and  arguments  relevant  

to  it").  

                                                                         -18-                                                                    7586

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

prejudiced by the court's ruling on the argument presented in Vieanna's motion. We see                                                                                                                                                                                                                                                                                                                                             

no abuse of discretion in the superior court's ruling.                                                                                                                                                                                                                   

V.                                CONCLUSION  

                                                                   We AFFIRM the superior court's order.                                                                                                                                        

                                                                                                                                                                                                                                -19-                                                                                                                                                                                     7586

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