433 P.3d 1121
Alaska2018Background
- Skylar Burns-Marshall and Victoria Krogman married in 2007, had one child (born 2011), separated in 2016, and disputed custody and property in divorce proceedings.
- Krogman raised allegations at trial that Burns-Marshall committed multiple acts of domestic violence (including sexual assault) and had substance abuse problems; she requested application of the statutory domestic-violence custodial presumption.
- The superior court found Krogman credible, concluded Burns-Marshall engaged in a pattern of domestic violence, applied the statutory presumption, and awarded Krogman sole legal and primary physical custody.
- The court ordered Burns-Marshall to obtain substance-abuse and domestic-violence treatment, limited contact pending compliance, and awarded Krogman rehabilitative alimony and attorney’s fees.
- For property division, the court divided the marital estate 60/40 in Krogman’s favor, awarded both real properties (Anchorage condo and Homer lot) to Burns-Marshall, and required an equalization payment of $73,266.29 from Burns-Marshall to Krogman.
- Burns-Marshall moved post-trial to reopen the record (arguing surprise and lack of notice regarding domestic violence/substance-abuse claims) and for reconsideration of the property division; the court denied both. He appealed.
Issues
| Issue | Burns-Marshall's Argument | Krogman's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion by denying post-trial motion to reopen the record | He lacked notice of domestic-violence and substance-abuse allegations and could not present rebuttal evidence; movant should be allowed to reopen | Krogman contended he had actual/constructive notice and waived rights by not conducting discovery or timely seeking relief | Denial affirmed: Burns-Marshall waived by failing to pursue discovery, failing to request a continuance, and declining to seek timely reopening; trial court did not abuse discretion |
| Whether the court erred by failing to account for costs/risks of selling real property when valuing assets | Court should have considered sale costs and market risk because equalization likely required sale, reducing his effective share | Krogman argued sale was not forced; Burns-Marshall, as economically advantaged party, could choose whether to sell | Affirmed: court need only account for sale costs when sale is inevitable or compelled; here sale was not certain and awarding property to Burns-Marshall was reasonable given earnings disparity |
| Whether due process required reopening because domestic-violence presumption was raised late | He argued late invocation deprived him of opportunity to prepare | Krogman argued evidence and allegations were present pretrial and he could have sought continuance/discovery | Court did not reach separate due-process claim because it found no abuse in denying reopening; same result affirmed |
| Whether property division (60/40) was an abuse of discretion | He argued division failed to address liquidity and sale expenses, producing an unjust result | Krogman argued award accounted for income disparity and that Burns-Marshall received the real property so sale costs were not the court’s burden | Affirmed: division supported by findings on earning capacity, health-insurance loss, and discretionary award of real property to Burns-Marshall; not clearly unjust |
Key Cases Cited
- Snider v. Snider, 357 P.3d 1180 (Alaska 2015) (standard of review for reopening evidence)
- Fortson v. Fortson, 131 P.3d 451 (Alaska 2006) (sale costs required when party is forced to sell)
- Tollefsen v. Tollefsen, 981 P.2d 568 (Alaska 1999) (court must provide for costs of sale when sale is compelled)
- Beal v. Beal, 88 P.3d 104 (Alaska 2004) (consideration of sales costs in property division)
- Wright v. Black, 856 P.2d 477 (Alaska 1993) (waiver of objections where party fails to timely object or seek relief)
- Dundas v. Dundas, 362 P.3d 468 (Alaska 2015) (tax consequences and inevitability of sale may require consideration in division)