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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Troy A. Rohde v. Annette L. Rohde (4/15/2022) sp-7590

Troy A. Rohde v. Annette L. Rohde (4/15/2022) sp-7590

           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  

                                                                                                                             

           corrections@akcourts.gov.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



TROY  A.  ROHDE,                                                   )  

                                                                   )    Supreme  Court  No.  S-17876  

                                 Appellant,                        )  

                                                                                                                                    

                                                                   )    Superior Court No. 3AN-19-07529 CI  

           v.                                                      )  

                                                                                             

                                                                   )    O P I N I O N  

                          

ANNETTE L. ROHDE,                                                  )  

                                                                                                            

                                                                   )    No. 7590 - April  15, 2022  

                                 Appellee.                         )  

                                                                   )  



                                                                                                                 

                                    

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

                                                                                                               

                      Judicial District, Anchorage, Herman G. Walker, Jr., Judge.  



                                                                                                                           

                      Appearances: Troy A. Rohde, pro se, Anchorage, Appellant.  

                                                                                                      

                      Robin A. Taylor, Law Office of Robin Taylor, Anchorage,  

                             

                      for Appellee.  



                                                                                                      

                      Before:   Winfree, Chief Justice, Maassen and Borghesan,  

                                                                          

                      Justices.  [Carney, Justice, not participating.]  



                                             

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      In a property division following divorce, the superior court determined that  



                                                                                                                                

the marital estate should be divided 60/40 in the husband's favor because of his lower  



                                                                                                                                      

earning potential. But the court then considered the husband's sale of the marital home;  



                                                                                                                           

it found there were remodeling expenses and financial dealings that were inadequately  



                                                                                                                                            

explained and contributed to a loss of marital equity, and it decided to offset that loss by  



                                                                                                                                          

dividing  the  wife's  retirement  savings  plan  70/30  in  her  favor.                                          And  because  the  


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retirement  savings  plan  was  the  most  significant  marital  asset,  this  allocation  of  it  

                                                                                                                                 



resulted in a property division that highly favored the wife.   The husband appeals,  

                                                                                                                       



alleging errors in the property division, in the child support order, and at trial.  

                                                                                                                



                    We  conclude  that  the  property  division  failed  to  follow  the  proper  

                                                                                                                         



procedure for addressing the post-separation dissipation of marital assets:  first valuing  

                                                                                                                        



the dissipated asset at the time of separation and then crediting that amount to the  

                                                                                                                               



responsible spouse in the property division.   We also conclude that a figure for the  

                                                                                                                               



amount of lost marital equity used in the property division was clearly erroneous.  We  

                                                                                                                               



therefore vacate the property division and remand for further consideration.  In all other  

                                                                                                                            



respects we affirm the superior court's judgment.  

                                                                              



II.       FACTS AND PROCEEDINGS  

                                  



                    Troy and Annette Rohde married in 1994 and have three daughters, one of  

                                                                                                                                 



whom was still a minor at the time of trial.  Annette worked as a physical therapist and  

                                                                                                                              



Troy worked part-time in the construction industry.  They separated in June 2018.  

                                                                                                                     



          A.        Division of Property  

                                        



                    In December 2018 Troy asked Annette to quitclaim her interest in the  

                                                                                                                               



marital home to him so that he could sell the house to an investor for $146,000. Annette  

                                                                                                                        



complied, but the deal fell through when the investor learned that the septic system  

                                                                                                                         



needed to be replaced at an estimated cost of $35,000.  

                                                                      



                    In January 2019 Troy talked to his friend and sometime employer Yaroslav  

                                                                                                                      



"Slavik" Lund about remodeling the home to prepare it for sale.  According to Troy,  

                                                                                                                           



Lund's business was "flip[ping] houses"; that is, he would buy a dilapidated property  

                                                                                                                       



and then "basically strip[] the house down to its skeleton and rebuild[] it."  Troy gave  

                                                                                                                             



Lund a power of attorney to manage the remodel and arrange for the home's sale.  But  

                                                                                                                              



the two men had no written contract or explicit agreement about specific renovations  

                                                                                                                  



other than, as Troy described it, to "put as much money as we need to into it to get as  

                                                                                                                                



                                                               -2-                                                         7590
  


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much money as we can out of it."                                                                                                                                                        At trial Troy confirmed that he left decisions on the                                                                                                                                                                                                                     



house up to Lund's discretion.                                                                                                                                                The remodel was financed by a man named Thomas                                                                                                                                                                                                          



Tyler; Troy gave no details of that arrangement.                                                                                                                                            



                                                                         Troy and Lund first agreed to a sale that would have netted only about                                                                                                                                                                                                                                                                                                    



 $10,000 to the marital estate.                                                                                                                                The settlement statement for that proposed deal shows a                                                                                                                                                                                                                                                      



 sale price of $364,500, a first mortgage balance of $88,040, a contractor's lien in Lund's                                                                                                                                                                                                                                                                                                                                                  



name of $45,000, and a second mortgage in Tyler's name of $186,339.                                                                                                                                                                                                                                                                                                                              When Annette   



learned   of   this   arrangement   she   demanded   documentation   justifying   such   a   small  



recovery of equity.                                             



                                                                        Lund provided a list of expenses totaling $137,984, a spreadsheet showing                                                                                                                                                                                                                                                                                    



that $175,000 was borrowed to finance the project, and a proposal that Lund would be                                                                                                                                                                                                                                                                                                                                                                                 



paid $45,000 to manage the project. Another spreadsheet listing expenses on the project                                                                                                                                                                                                                                                                                                                                                      



 showed that Lund was paid $2,000 a month for five months as an "[a]dministration                                                                                                                                                                                                                                                                                                   



 [s]alary" and was entitled to "25% for [p]rofit and [o]verhead" - a total of $40,873 in                                                                                                                                                                                                                                                                                                                                                                                



 addition to the $10,000 in salary payments.                                                                                                                                                                                                       Lund sent Annette a number of receipts                                                                                                                                              



 showing payments to subcontractors and suppliers, but she protested that they did not                                                                                                                                                                                                                                                                                                                                                                           



 add up to the amounts of the liens against the property and that some appeared to be for                                                                                                                                                                                                                                                                                                                                                                          



non-project-related expenses.   



                                                                         The house eventually sold for $364,500, but Lund's payout was reduced                                                                                                                                                                                                                                                                                         



to $36,500 and Tyler's to $175,000.                                                                                                                                                                   The marital estate ultimately received $35,000.                                                                                                                                                                   



                                                                        When   the   superior   court   divided   the   marital   estate,   it  considered   the  

                                                                                                                                                                                                                                                                                                                       1 and concluded that, because  

 so-called "  Merrill  factors" codified in AS 25.24.160(a)(4)                                                                                                                                                                                                                                                                                                                                                                          



Annette's future earning potential was higher than Troy's, the marital estate should be  

                                                                                                                                                                                                                                                                                   



                                     1                                   The statute lists factors a superior court should consider to ensure that "the                                                                                                                                                                                                                                                                                                      



 division of property . . . fairly allocate[s] the economic effect of divorce."                                                                                                                                                                                                                                                                                                                                  The factors  

were drawn from                                                                                Merrill v. Merrill                                                                               , 368 P.2d 546, 547 n.4 (Alaska 1962).                                                                                                                                                                               



                                                                                                                                                                                                                                   -3-                                                                                                                                                                                                                   7590
  


----------------------- Page 4-----------------------

divided 60/40 in Troy's favor.                                                                                                                                  But the superior court was not satisfied with Troy's                                                                                                                                                                                          



explanation of why the marital estate received only $35,000 from the sale of the home.                                                                                                                                                                                                                                                                                                                                                              



Therefore, "to account for [Troy]'s handling of the house sale," the court distributed                                                                                                                                                                                                                                                                      



Annette's 401(k) - the marriage's only other sizable asset - 70/30 in favor of Annette.                                                                                                                                                                                                                                                                                                                                                              



                                                                   Troy moved for reconsideration.                                                                                                                                         The superior court denied his request,                                                                                                                        



finding explicitly that Troy had "dissipated the marital home and deprived the marital                                                                                                                                                                                                                                                                                                                       



estate   of   that   asset"   and   that   it   was   equitable   to   offset   the   dissipation  by  a   70/30  



allocation of the 401(k).                                                                                                   



                                  B.                               Income Imputation   



                                                                   The superior court granted sole legal and physical custody of the couple's                                                                                                                                                                                                                                                          



minor child to Annette.                                                                                                  For purposes of calculating child support, the superior court                                                                                                                                                                                                                                



imputed income to Troy, whose annual earnings as a self-employed construction worker                                                                                                                                                                                                                                                                                                                          



had recently hovered between $30,000 and $50,000.                                                                                                                                                                                                                        The court found that he had been                                                                                                                



underemployed during themarriageand remained voluntarily underemployed following                                                                                                                                                                                                                                                                                                                  



the parties' separation.  The court imputed income to Troy at a "yearly gross salary of   



 $66,248" based on an hourly wage of $31.85 - the average wage for a carpenter as                                                                                                                                                                                                                                                                                                                                                     



 shown by data from the Alaska Department of Labor.                                                                                                                                                                                        



                                                                   Troy appeals the superior court's decisions on property distribution and                                                                                                                                                                                                                                                                                   



child support.                                                          He also contends that several of the court's procedural and evidentiary                                                                                                                                                                                                                                         



rulings at trial deprived him of due process.                                                                                                                                                                                



III.                              STANDARD OF REVIEW                                                                          



                                                                   We review the superior court's distribution of marital assets for abuse of   

discretion.2  

                                                                                                                                                                                                                                                                                                                                                                                                                                      

                                                                 The court abuses its discretion if it "considers improper factors, fails to  



                                  2                                Ethelbah v. Walker                                                                               , 225 P.3d 1082, 1086 (Alaska 2000) ("We review the                                                                                                                                                                                                           



trial court's equitable distribution under an abuse of discretion standard, and will reverse                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                                                                                   -4-                                                                                                                                                                                                    7590
  


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                                                                                                                                   3  

consider statutorily mandated factors, or gives too much weight to some factors."                                                     We  



                                                                                                    4  

review   the   superior   court's   findings   of   fact   for   clear   error.                                                  

                                                                                                         "A  finding  is  clearly  



                                                                                                                                    

erroneous if we are 'left with a definite and firm conviction that the trial court has made  

                     5  We review the superior court's decision to impute income for abuse of  

                                                                                                                                         

                    

a mistake.' " 

discretion6  and the amount of income imputed for clear error.7  

                                                                                           



                      As for the "separate question . . . whether the trial court applied the correct  

                                                                                                                                 



legal standard in the exercise of its broad discretion . . . [w]ith respect to legal analysis  

                                                                                                                               

employed at the trial court level, review is based upon our independent judgment."8  

                                                                                                                     



                      We review alleged due process violations using our independent judgment  

                                                                                                                              



and adopt "the rule of law that is most persuasive in light of precedent, reason, and  

                                                                                                                                      

policy."9  



           2          (...continued)  



only  if  the  division  is  clearly  unjust.").  



           3          Thompson  v.  Thompson,  454  P.3d  981,  995  (Alaska  2019)  (quoting  Long  



v.  Long,  816  P.2d   145,   150  (Alaska   1991)).  



           4         Aubert  v.   Wilson,  483  P.3d   179,   186  (Alaska  2021).  



           5         Fredrickson  v.  Button,   426   P.3d   1047,   1052   (Alaska   2018)   (quoting  



Heustess  v.  Kelley-Heustess,  259  P.3d  462,  468  (Alaska  2011)).  



           6         Id.  



           7         Id.  



           8          Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).  

                                                                                                       



           9         Martinez v. Gov't Emps. Ins. Co., 473 P.3d 316, 321 (Alaska 2020).  

                                                                                                                          



                                                                    -5-                                                             7590
  


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

IV.         DISCUSSION  



                                                                                                                                   

            A.           The Property Distribution Must Be Reconsidered On Remand.  



                                                                                                                                                            

                         1.          There was error in the superior court's dissipation analysis.  



                                                                                                                                                           

                         Troy challenges the superior court's distribution of marital property on the  



                                                                                                                                                

grounds that the superior court erred in using "different distribution rates" for different  



                                                                                                                                               

parts of the marital estate and in its valuation of the equity in the marital home. Applying  



                                   10  

                                                                                                                                                            

the Merrill  factors,                  the superior court divided all marital assets except the 401(k) in  



                                                                                                                                                       

Troy's favor, 60/40. The 401(k) - the marriage's largest asset at $301,244 - the court  



                                                                                                                                               

divided 70/30 in favor of Annette. The court justified this different division by reference  



                                                                                                                                                           

to Troy's "handling of the house sale," which it described as "suspect." But because the  



                                                                                                                                                 

value of the 401(k) dwarfs the value of the estate's other assets, the result of the division  



                                                                                                                                                

was an asset split that is essentially 70/30 in favor of Annette, a result much different  



                                                                                                                      11  

                                                                                                                           

from the one the court reached by analyzing the Merrill factors. 



                         The  superior  court  initially  declined  to  make  a  "specific  finding  of  

                                                                                                                                                           



dissipation" because "[n]either party argued" the issue. Troy asked the court to "clarify"  

                                                                                                                                                



this aspect of the property division, pointing out thedifference between the Merrill factor  

                                                                                                                                                      



analysis and the case's actual result.  He also contended that the court "ha[d] not made  

                                                                                                                                                      



any findings or reached any conclusions that support such a distribution of the marital  

                                                                                                             



assets."  



            10           See  AS 25.24.160(a)(4).                      



            11           The 60/40 distribution of all marital assets other than the 401(k) resulted   



in a net credit to Annette of $1,492 and a net credit to Troy of $2,237. The court's 70/30                                                            

division of the 401(k) - $210,871 to Annette and $90,373 to Troy - resulted in net  

                                                                                                                                                          

credits of $212,363 to Annette and $92,610 to Troy, a split of 69.6% (Annette) to 30.3%                                                             

(Troy).  

                



                                                                             -6-                                                                      7590
  


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

                                                    The court's follow-up order clarified its reasoning.                                                                                                                                                         This time the court                                       



made an explicit "finding that [Troy] dissipated a marital asset, the marital home."                                                                                                                                                                                                                                          The  



court subtracted the $88,000 mortgage from the home's $364,000 sale price to conclude                                                                                                                                                                                                                        



that there was "approximately $276,000 in equity that should have been part of the                                                                                                                                                                                                                                                 



marital estate."                                            And because the marital estate received only $35,000 from the sale, the                                                                                                                                                                                                 



court concluded that the equity must have been dissipated due to Troy's mismanagement                                                                                                                                                                                            



and poorly explained dealings with Lund and Tyler.                                                                                                                                                            We conclude that it was error to                                                                                          



follow this analytical process instead of our precedent on the recapture of dissipated                                                                                                                                                                                                                  



value; we also conclude that it was clear error to use the house's final sale price -                                                                                                                                                                                                                                                



following an extensive remodel - as its value at separation.                                                                                                                                    



                                                                              a.                        The proper remedy for dissipation is recapture.                                                                                                           



                                                    "[T]he question of wasted marital assets arises when a marital asset is lost                                                                                                                                                                                                  



                                                                                                                                                                                                                                 12  

or diminished after separation but before the time of trial."                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                           "The party [who] controls  



                                                                                                                                                                                                                                                                                                                                  

a marital asset during separation may have to compensate the other party if he or she  



                                                                                                                                                                                                                                                                  13  

                                                                                                                                                                                                                                                                                                                               

dissipates or wastes the asset and converts it to non-marital form."                                                                                                                                                                                                         "The spouse who  



                                                                                                                                                                                                                                                                                                                                    

asserts dissipation must first prove two things:  (1) that the asset existed and (2) that the  

                                                                                                                                                                                                                      14   "[T]he burden [then] shifts to  

                                                                                                                                                                                                                                                                                                                                        

asset 'was lost during or after the marital breakdown.' " 

the [other] spouse to show that he or she did not dissipate the asset."15  

                                                                                                                                                                                                                                                                                   



                          12                       Aubert  v.  Wilson,  483  P.3d  179,  189  (Alaska  2021)  (alteration  in  original)  



(quoting  Jones  v.  Jones,  942  P.2d   1133,   1139  (Alaska   1997))  .  



                          13                       Id.   



                          14                       Id.  (quoting  Ethelbah  v.   Walker,  225  P.3d   1082,   1090  (Alaska  2009)).  



                          15                       Id.  (third  alteration  in  original)  (quoting  Ethelbah,  225  P.3d  at   1090).   



                                                                                                                                                                   -7-                                                                                                                                                       7590
  


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                                                                                                                                                    16  

                               If dissipation is found, the remedy is "recapture."                                                                       To recapture an asset                   



the court values it at the time of separation - not the time of trial - and credits that                                                                                                           

value to the spouse who dissipated the asset.                                                            17  



                                                                                                                                                

                               We have treated this issue inconsistently in the past.  Notably, the statute  



                                                                                                                                                                                               

codifying the Merrill factors,AS25.24.160(a)(4), mandates distribution ofmarital assets  



                                                                                                                                                                                                     

"without regard to which of the parties is in fault."  In Oberhansly v. Oberhansly we  



                                                                                                                                                                                      

observed that the "fault" referenced in the statute is fault for the failure of the marriage,  



                                                                                                                                                   

not fault for the dissipation of marital assets; we held that the latter type of fault could  

                                               18  We therefore upheld the unequal property division in Oberhansly  

                                                                                                                                                                                 

fairly be considered. 



in part because "the superior court properly considered [one party's] fault in allowing  

                                                                                                                                                                                       



most of the household debts to fall in default and in paying personal debts out of marital  

                                                                                                                                                                                            



                  19  

assets."               



                               But in Jones v. Jones  we clarified how courts should treat one party's  

                                                                                                                                                                                           

                                                                                                                                                       20  Jones concerned the  

alleged financial misconduct consistent with AS 25.24.160(a)(4).                                                                                                                                     

                                                                                                                 

                                                                                                                                          21   We held that "a court may  

depletion of assets by illegal gambling during the marriage.                                                                                                                                      

                                                                                                                    



take into account economic misconduct . . . , but it may not consider a party's moral or  

                                                                                                                                                                                                       



                16             Id.
  



                17             Day v. Williams                       , 285 P.3d 256, 264 n.27 (Alaska 2012).
                                        



                18              798 P.2d 883, 885 (Alaska 1990).                                                 



                19             Id.  



                20              942 P.2d 1133, 1137-41 (Alaska 1997).                                         



                21             Id.  at 1138.   



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

                                                                                                                                                22  

legal   marital   failings   which   do   not   amount   to   economic   misconduct."                                                                  And   we  



concluded that the remedy for economic misconduct was not an ad hoc increase in the                                                                                



other party's share of the marital estate, but rather a recapture of "the proven losses by                                                                          



adding their value to the marital estate before making the equitable division and then                                                                          



crediting   that   part   of   the   value   to   the   account   of   the   party   responsible   for   the  

                                                23    We also cautioned the superior court not to "double count"  

unreasonable depletion."                                                                                                                                    



by both recapturing dissipated assets and separately favoring the non-dissipating spouse  

                                                                                                                                                            

in the property division.24  

                                                     



                          In sum, courts may properly consider  dissipation in the Merrill  factor  

                                                                                                                                                             



analysis when weighing "the conduct of the parties, including whether there has been  

                                                                                                                                                       

unreasonable  depletion  of  marital  assets."25                                              But  if  the  superior  court  does  find  

                                                                                                                                                                



"unreasonable depletion" - i.e., dissipation -the proper remedy is to recapture the lost  

                                                                                                                                                                  



asset by valuing it at separation and crediting that value to the responsible party.  The  

                                                                                                                                                                 



property division in this case was inconsistent with that procedure.  

                                                                                                              



                                       b.	          The amount of lost equity the superior court attributed to  

                                                                                                                                                                     

                                                    dissipation is clearly erroneous.  

                                                                                                



                          We also conclude that it was clear error to value the dissipated equity at  

                                                                                                                                                                     



$276,000.   The superior court described in its clarifying order  how it  reached this  

                                                                                                                                                                 



amount: "At the time of separation there was $88,000 owed on the mortgage. The home  

                                                                                                                                                              



sold for $364,000.  That means there was approximately $276,000 in equity that should  

                                                                                                                                                            



have been part of the marital estate."  As explained above, however, it is the time of  

                                                                                                                                                                    



             22           Id.  at 1139.   



             23  

                                      

                          Id. at 1141.  



             24           Id.  



             25  

                                  

                          AS 25.24.160(a)(4)(E).  



                                                                                 -9-	                                                                          7590
  


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

                                                                                                                                

separation, not the time of sale, that is relevant to the dissipation analysis.  Because the  



                                                                                                                       

parties did not expressly argue dissipation at trial, there was no evidence admitted  



                                                                                                                                

expressly for the purpose of determining the home's value at separation.   What the  



                                                                                                                           

record does show, however, is that the value of the house at separation was well below  



                    

its final sale price.  



                                                                                                                                

                    Annette testified that the house was a "fixer-upper that did not get fixed up"  



                                                                                                                              

and  was  "probably  not"  in  rentable  condition  when  the  parties  separated.                                            She  



                                                                                                                               

acknowledged that the septic system needed replacing, there was a hole in the roof, and  



                                                                                                                              

the home's overall condition was worse at separation than when they bought it.  And  



                                                                                                                            

although  Troy  failed  to  fully  account  for  the  amount  of  money  spent  on  the  post- 



                                                                                                                         

separation remodel, the fact that there was an extensive remodel is undisputed.  Annette  



                                                                                                                            

does not contend that nothing was spent on fixing up the house, but rather that too much  



                                                                     

was spent without being properly accounted for.  



                                                                                                                                 

                    Troy suggests that the home's value at separation could be determined by  



                                                                                                                             

reference to the 2018 tax-assessed value of $211,500, assuming the house was "in good  



                                                                                                                                

condition," then subtracting the $35,000 cost of the septic system replacement and the  



                                                                                                                                 

June 2018 mortgage balance of $90,849.  These calculations yield an equity value of  



                                                                                                                                

$85,651, less than a third of the $276,000 found by the court.  Also relevant may be the  



                                                                                                                              

$146,000 offer Troy testified he received on the house before the remodel began.  



                                                                                                                           

                    We leave it to the superior court to determine whether the existing record  



                                                                                                                                

is sufficient to determine the home's value at separation or whether it should invite the  



                                                                                                                          

parties to submit evidence focused on that issue. But because the record does not support  



                                                               -10-                                                         7590
  


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

an equity value at separation of $276,000, we vacate the court's property division and                                                                   

remand for reconsideration of the dissipation issue consistent with this opinion.                                                                                                                                   26  



                                                                                                                                                                                                                                  

                                    2.	               The superior court did not clearly err or abuse its discretion in  

                                                                                                                                                            

                                                      its distribution of the life insurance policies.  



                                                                                                                                                                                                                               

                                    Troy also argues that the superior court erred in its distribution of three life  



                                                                                                                                                                                                                 

insurance policies, one for each of the Rohdes' daughters.   Both Troy and Annette  



                                                                                                                                                                                                                          

testified it had always been their intent for the policies to benefit the children. The court  



                                                                                                                                                                                                                              

found that the life insurance policies belonged to the daughters and ordered that the two  



                                                                                                                                                                                            

"adult children shall have control of their own policies" to do with as they wished and  



                                                                                                                                                                                                                    

Annette should control the minor daughter's policy and "make the payments."  



                                                                                                                                                                                                                                          

                                    Troy contends that the court's ruling was improperly based on ex parte  



                                                                                                                                                                                                                     

allegations that Troy wanted to cash in one of the policies and buy a car. But the court's  



                                                                                                                                                                                                                            

decision to award the policies as it did is supported by the testimony of both parties, who  



                                                                                                                                                                                                                                  

testified that the policies were intended as gifts to the daughters.  Property belonging to  

                                                                                                                   27      And giving control of the minor child's  

                                                                                                                                                                                                  

a couple's children is not marital property. 



insurance policy to Annette, the parent with sole legal and physical custody, was clearly  

                                                                                                                                                                                                                     



appropriate.  The court did not clearly err in finding that the policies were not marital  

                                                                                                                                                                                                                    



property  or  abuse  its  discretion  in  awarding  control  of  the  minor  child's  policy  to  

                                                                                                                                                                                                                                 



Annette.  



                  26                Troy also argues that the superior court erred by failing to consider the                                                                                        



quitclaim deed by which Annette signed over to him her interest in the marital home.                                                                                                                                                      

But legal title is not a determinative factor in an equitable distribution.                                                                                                                  See Wanberg v.                        

 Wanberg, 664 P.2d 568, 572 (Alaska 1983) (holding that "[a]lthough [appellant's] name                                                                                                                                   

never appeared on the title . . . it was an abuse of discretion . . . to shield the property                                                                                                                    

from equitable distribution");                                                  cf. Stanhope v. Stanhope                                            , 306 P.3d 1282, 1287 (Alaska                                 

2013)   ("[H]olding   joint   title   is   not   determinative   of   intent  to  treat   property   as  

marital . . . ." (quoting                                    Johns v. Johns                          , 945 P.2d 1222, 1225 (Alaska 1997))).                                             



                  27               Beal v. Beal, 88 P.3d 104, 119 (Alaska 2004).  

                                                                                                                                              



                                                                                                              -11-	                                                                                                       7590
  


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

                                   3.	              The remaining claims of error in the property distribution may                                                                                                     

                                                    be decided on remand.                   



                                   Troy    alleges    several    other    errors    in    the    superior    court's    property  



distribution.  He asserts that he made a $5,000 payment at closing to facilitate the sale                                                           



of   the   marital   home   and   this   amount   should   be   credited   to   him   in   the   property  



distribution table. Relatedly, he argues that the insurance and escrow refunds following                                                                                                                 



the sale should be considered his separate property because they accrued from his post-                                                                                                                              



separation mortgage payments.                          



                                   Troy is correct that the court must "consider payments made to maintain                                                                                                 



                                                                                                                                                                                                          28  

marital property frompost-separation income when dividing marital property."                                                                                                                                               

                                                                                                                                                                                                                But the  



                                                                                                                                                                                                                    

court retains the discretion to decide whether such payments should be credited to a party  



                                                                                                                                                        29  

                                                                                                                                                                                                                    

in the property division (as a so-called "Ramsey  credit").                                                                                                      Thus, although the court  



                                                                                                                                                                                                                           

should consider Troy's post-separation payments on remand, it is not bound to adjust the  



                                                                                                    30  

                                                                                      

property distribution because of them. 



                  B.               The Superior Court Did Not Err By Imputing Income To Troy.  

                                                                                                                                                                                                     



                                   Troy argues that the superior court erred when it imputed income to himfor  

                                                                                                                                                                                                                           



purposes of determining his child support obligation. The court fixed his annual income  

                                                                                                                                                                                                               



at $66,248, an amount Troy characterizes as far above his historical average of $35,258.  

                                                                                                                                                                                                                                     



                  28               Hall v. Hall                  , 446 P.3d 781, 783 (Alaska 2019) (quoting                                                                      Ramsey v. Ramsey                                ,  



834 P.2d 807, 809 (Alaska 1992)).                                                             



                  29	              Id.  

                                               



                 30                Troy also argues that a television in Annette's possession was erroneously  

                                                                                                                                                                                                    

credited to him instead.  We agree with Annette that this complaint is de minimis given  

                                                                                                                                                                                                                    

the asset's $100  value; however,  our  remand  focused on  the value of the  home at  

                                                                                                                                                                                                                             

separation does not preclude the court from reconsidering this and other, more minor  

                                                                                                                                                                                                                  

aspects of the property division.  

                                                                                        



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

                             Under Alaska Civil Rule 90.3(a)(4), the superior court may base child                                                                              



support payment amounts on the "potential income of a parent who voluntarily and                                                                                                   



unreasonably is unemployed or underemployed." The court should impute income if "a                                                                                                     



parent's current situation and earnings reflect a voluntary and unreasonable decision to                                                                                               

                                                                                                     31   Imputing income is appropriate when  

earn less than the parent is capable of earning."                                                                                                                               



the  parent's  earnings  are  depressed  due  to  "purely  personal  choices"  rather  than  

                                                                                                                                                                                 

uncontrollable "economic factors."32  

                                                          

                             We recently described two scenarios for the imputation of income.33                                                                                  The  

                                                                                                                                                                                   



first "scenario is when [one spouse] points to [the other spouse's] previous employment  

                                                                                                                                                                 



and related income as a prima facie case for underemployment," and the court relies on  

                                                                                                                                                                                      

that earnings history to impute income.34                                                      The second scenario requires the court to  

                                                                                                                                                                                       

                                                                                                                                                                                35    In  

evaluate a spouse's earning potential in the absence of a relevant earnings history.                                                                                                  

                                                                                                                                                                 



this  second  scenario  we  require  "specific  findings  on  the  particular  skills  or  

                                                                                                                                                                                     

qualifications" and "the availability of jobs matching those qualifications."36  

                                                                                                                                 



                             Troy disputes that he was voluntarily underemployed, contending that he  

                                                                                                                                                                                      



worked fewer hours during the marriage and the two years following separation because  

                                                                                                                                                                           



              31             Fredrickson  v.  Button,  426  P.3d   1047,   1059  (Alaska  2018).  



              32             Id.  



              33             Vogus  v.   Vogus,  460  P.3d   1220,   1222  (Alaska  2020).  



              34             Id.  



              35             Id.  



              36             Thompson  v.   Thompson,  454  P.3d   981,   993   (Alaska  2019)   (vacating   an  



order imputing   income   above   historical   earnings   where   "the   court   made   no   specific  

findings  on  the  particular  skills  or  qualifications  [a  party's]  degree  and  experience  gave  

her,  or  on  the  availability  of  jobs  matching  those  qualifications").  



                                                                                         -13-                                                                                   7590
  


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

 of family responsibilities, including the needs of his ailing parents. But the court did not                                                                                                                                                                                                                                                                                                                                                                   



 credit his arguments with respect to his childcare duties, and while recognizing that he                                                                                                                                                                                                                                                                                                                                                                           



had commitments to his parents, it did not find them so onerous as to preclude him from                                                                                                                                                                                                                                                                                                                                                                



 full-time work.                                                                    These findings are not clearly erroneous.                                                                                                                                                                                          



                                                                        As for Troy's skills and qualifications, he                                                                                                                                                                               argues that much of the carpentry                                                                                            



work in Alaska requires either a license or union membership, and he has neither.                                                                                                                                                                                                                                                                                                                                                                         But  



he had a carpentry contractor's license in the past; he does not suggest that he could not                                                                                                                                                                                                                                                                                                                                                                      



get one again. The court found that Troy's "whole career ha[d] been in the construction                                                                                                                                                                                                                                                                                                                       



business."   The court found that he knew "all facets of the business," had "the skills and                                                                                                                                                                                                                                                                                                                                                                  



 opportunity to work for several different operators in the construction industry," and was                                                                                                                                                                                                                                                                                                                                                                  



qualified to be "a project manager that should be earning more than $25 per hour."                                                                                                                                                                                                                                                                                                                                                                                                     



These findings were supported by the testimony of Annette, Troy himself, and a real                                                                                                                                                                                                                                                                                                                                                                  



 estate agent who regularly used Troy's services to fix up properties for sale.                                                                                                                                                                                                                                                                                                                                                                  Troy  



described his past work as a carpenter and confirmed that he was qualified to work as a                                                                                                                                                                                                                                                                                                                                                                                    



 construction project manager (and in fact was managing a project at the time of trial).                                                                                                                                                                                                                                                                                                                                                                                               



The court was presented with the average wage for a project manager ($55.57 an hour)                                                                                                                                                                                                                                                                                                                                                               



 and the average wage for a carpenter ($31.85 an hour) and chose the lower of the two,                                                                                                                                                                                                                                                                                                                                                                   



 finding that Troy's skills "could earn him at least carpenter's wages."                                                                                                                                                                                                                                                                                                                 



                                                                        We have vacated income imputation orders that lacked well-supported                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                  37                 In  Thompson v. Thompson, for  

 findings of work experience and job availability.                                                                                                                                                                                                                                                                                                                                                                                                             



 example, we addressed the income imputed to a former stay-at-home parent with a  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 college degree.38   The superior court imputed income to her but did not make findings  

                                                                                                                                                                                                                                                                                                                                                                                                                                    



 about her work experience, job qualifications, or the availability of jobs where she  

                                                                                                                                                                                                                                                                                                                                                                                                                                                             



                                    37                                  See  id.  



                                    38                                 Id.  at  993-94.  



                                                                                                                                                                                                                               -14-                                                                                                                                                                                                                                              7590  


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

                   39  

lived.                    In this case, on the other hand, the court made extensive findings about Troy's                                                                                                                                                                  



experience and qualifications.                                                                            And although the court did not specifically identify                                                                                                        



available   jobs,   there   is   support   in   the   testimony   for   its   finding   that   he   had   the  



"opportunity to work for several different operators in the construction industry," and                                                                                                                                                                                              



Troy does not directly attack this finding.                                                                     



                                             Weconcludethat                                           the superior court did not abuse its discretion by                                                                                                           imputing  



income to Troy.                                        And given the extensive evidence that Troy should be able to earn "at                                                                                                                                                           



least" as much as an average carpenter, the superior court did not clearly err by imputing                                                                                                                                                                         



income at that level.                            



                       C.	                   The Superior Court Did Not Err In Its Ruling On Child Support                                                                                                                                                        

                                             Arrears.  



                                             The court ordered that Troy's child support obligation begin on July 1,  

                                                                                                                                                                                                                                                                                          



2018, the month after the parties separated.                                                                                                        Troy challenges this aspect of the court's                                                                            



order on several grounds.                                                                First, he argues that he should not be required to pay child                                                                                                                           



support for the first two months of separation because Annette was still living in the                                                                                                                                                                                                



marital home and he was making the mortgage payments.                                                                                                                                                But "[w]e have repeatedly                               

                                                                                                                                                                                                                                                                               40  the  

recognized that child support should be calculated from the date of separation";                                                                                                                                                                                                      



superior court properly applied this rule. Troy argues that this means he "essentially paid  

                                                                                                                                                                                                                                                                                   



twice, through the mortgage payment on the marital house and again with the child  

                                                                                                                                                                                                                                                                               



support ordered."  But whether Troy is entitled to a "Ramsey credit" for post-separation  

                                                                                                                                                                                                                                              



mortgage payments is something for the court to consider in its property division, as  

                                                                                                                                                                                                                                                                                          



discussed above; it has nothing to do with Troy's independent obligation to support his  

                                                                                                                                                                                                                                                                                       



                      39                    Id.  



                      40                     Christopher  D.  v.  Krislyn  D.,  426  P.3d   1118,   1123  (Alaska  2018).  



                                                                                                                                          -15-                                                                                                                                                 7590  


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

 children in an amount determined under Civil Rule 90.3.                                                                                                                            Child support is based on the                                                       



 obligor parent's income, not on where the custodial parent is living with the children.                                                                                                                                                          



                                           Troy makes a related argument about payments he made to Annette shortly                                                                                                                                          



before trial, which he argues were intended as child support. The court chose to treat the                                                                                                                                                                              



majority of those payments as reimbursement for Annette's post-separation payment of                                                                                                                                                                                       



 some of Troy's expenses, including the costs of medical and car insurance, leaving the                                                                                                                                                                                 



remainder to go toward child support. Troy contends this was error because he intended                                                                                                                                                                



the payments to be for child support in their entirety and the court's redirection of them                                                                                                                                                                       



meant he had more child support arrears and thus owed more interest.                                                                                                                                                           



                                                                                                                                                                                                                                                                             41  

                                           "Trial courts have broad discretion in fashioning property divisions."                                                                                                                                                                    



When the property division involves the allocation of post-separation payments, we  

                                                                                                                                                                                                                                                                       



review the allocation for an abuse of discretion, reversing only if "the reasons for the  

                                                                                                                                                                                                                                                                       

 exercise of discretion are clearly untenable or unreasonable."42                                                                                                                                             Here, given the other  

                                                                                                                                                                                                                                                                 



 outstanding obligations between the parties, the superior court was not obliged to accept  

                                                                                                                                                                                                                                                              



Troy's characterization of his post-separation payments.  Because the court's exercise  

                                                                                                                                                                                      



 of discretion was not "clearly untenable or unreasonable," we affirm it.  

                                                                                                                                                                                                                           



                                          Finally,  Troy  argues  that  the  superior  court  erred  by  applying  its  

                                                                                                                                                                                                                                                                       



 determination of his imputed income "to the arrearages" rather than just his future  

                                                                                                                                                                                                                                                             

 support obligations.43                                                 But the court found that Troy "had the opportunity to work full- 

                                                                                                                                                                                                                                                                    



                     41                   Edelman  v.  Edelman,  3  P.3d  348,  351  (Alaska  2000).  



                     42                   Hall  v.  Hall,  446  P.3d  781,  783  (Alaska  2019)  (quoting  Jensen  D.  v.  State,  



Dep't  of  Health  &  Soc.  Servs.,  424  P.3d  385,  387  (Alaska  2018)).   



                     43                   We  note that  there  is  no  issue  here  of  retroactive  modification  of arrearages,  



prohibited  by  Civil  Rule  90.3(h)(2).   "The  rule  against  retroactive  modification  .  .  .  only  

prohibits   modifying   'arrearage'   already   due   under   a   'final  child   support   award'   in  

                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                   -16-                                                                                                                           7590
  


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

time during the marriage and after the date of separation."                                       "The obligation of parents to                



                                                                                                                                   44  

support their children 'begins . . . on the date the parents stop living together.' "                                                   Based  



                                                                                                                                      

on its factual finding that Troy was underemployed from the onset of his child support  



                                                                                                                                               

obligation, the court did not abuse its discretion when it applied the imputed income to  



              

all past amounts.  



                                                                                                        

           D.          Troy's Due Process Arguments Are Without Merit.  



                                                                                                                                             

                       Troy also argues that he was denied due process.   He claims  that the  



                                                                                                                                         

superior  court  gave  more  time  to  Annette's  witnesses,  applied  hearsay  and  other  



                                                                                                                                            

evidentiary rules inconsistently, considered Annette's health restrictions but not his,  



                                                                                                                                              

denied him the opportunity to call his father as a witness, and substantively relied on an  



                                                                                                                                               

exhibit that had been admitted for demonstrative purposes only.  But even if we were to  



                                                                                                                                               

find due process violations, they would be harmless error absent "a plausible claim of  

prejudice."45  



                       Troy does not explain how any time imbalance at trial caused him harm.  

                                                                                                                                                    



He testified, called his own witnesses, and cross-examined Annette's witnesses, and he  

                                                                                                                                               



never suggested he needed more time to present his case.  The court denied his request  

                                                                                                                                      



to call his father because it had already found his sister credible on the issue he wanted  

                                                                                                                                      



           43          (...continued)  



                                                                                                                                     

existence when a motion to modify is filed." Duffus v. Duffus, 72 P.3d 313, 320 (Alaska  

                                                                                                                                    

2003). "When there is no child support order covering the relevant time period, applying  

                                                                                                                                             

the methodology of Rule 90.3 'does not modify an existing arrearage.' "  Christopher D.,  

                                                                                                                                            

426 P.3d at 1123 (quoting Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997)).  The  

                                                                                                                   

order here on review was the case's first final child support award.  



           44          Christopher D., 426 P.3d at 1123 (alteration in original) (quoting Alaska  

                                                                                                                       

R. Civ. P. 90.3 cmt. I.B).  

                                            



           45         Amy S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 440  

                                                                                                                                            

P.3d 273, 282 (Alaska 2019).  

                                                     



                                                                     -17-                                                                7590
  


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

 his father to testify about - that Troy had helped care for his parents.                                                                                                                          The court   



 accepted                   that          fact           as        true,           though                 deciding                   that          it       did          not          excuse                Troy's  



 underemployment.    Troy   does   not   explain   how   his   father's   testimony   would   have  



 advanced his argument.                                        



                                   The improper admission of evidence is reversible error "only if . . . we are                                                                                                       



 left with a definite and firm conviction that the trial court erred in its ruling and the error                                                                                                                 

                                                                                                          46   Troy does not explain how his substantial  

 affected the substantial rights of a party."                                                                                                                                           



 rights were affected by the court's alleged errors in the application of the hearsay rule.  

                                                                                                                                                                                                                                



 We also see no disadvantage to Troy in the court's consideration of the parties' relative  

                                                                                                                                                                                                          



 health constraints. The court considered the parties' age and health as one of the Merrill  

                                                                                                                                                                                                            

 factors, as it was required to do by statute,47  implicitly weighed the factor in Annette's  

                                                                                                                                                                    

                48  but ultimately found   that Annette had a higher future earning capacity that  

 favor,                                                                                                                                                                                                            



justified an initial 60/40 property division in Troy's favor.  

                                                                                                                                                       



                                   Finally, as for the court's reliance on an exhibit that was admitted only for  

                                                                                                                                                                                                                      



 demonstrative purposes, there is no error. In the court's discussion of the Ramsey credit  

                                                                                                                                                                                                               



 it cited Annette's exhibit listing expenses she claimed to have paid on Troy's behalf.  

                                                                                                                                                                                                                                



 Although the exhibit had been "admitted for demonstrative purposes only," Annette  

                                                                                                                                                                                                         



 testified extensively about the listed expenses at trial, and the court's reference to the  

                                                                                                                                                                                                                      



                  46              Dobos v. Ingersoll                              , 9 P.3d 1020, 1023 (Alaska 2000).                                        



                  47               AS 25.24.160(a)(4) (requiring court to "fairly allocate the economic effect                                                                                                  



 of divorce" by considering "the age and health of the parties" among other factors).                                                                                                            



                  48               The superior court found that Annette's "health will limit her ability to  

                                                                                                                                                                                                                        

 work in the future" but that "there is no evidence that [Troy's] ability to work is limited  

                                                                                                                                                                                                            

by his [health issues]."  

                                                             



                                                                                                          -18-                                                                                                   7590
  


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

demonstrative exhibit as a convenient summary was consistent with the purpose of its                                                                                 

admission.49  



V.               CONCLUSION  



                                                                                                                                                                                                                  

                                  The   superior   court's   property   division   order   is   VACATED   and  



                                                                                                                                                                                                             

REMANDED for further proceedings consistent with this opinion. The superior court's  



                                                         

child support order is AFFIRMED.  



                 49               "Physical evidence that one can see and inspect (i.e. an explanatory aid,                                                                                                          



such as a chart, map, and some computer simulations) and that, while of probative value                                                                                                                          

and usu[ally] offered to clarify testimony, does not play a direct part in the incident in   

question."   Evidence - demonstrative evidence                                                                             , BLACK 'S  LAW  DICTIONARY  (11th ed.   

2019).  



                                                                                                          -19-                                                                                                    7590
  

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