Berry v. Berry
978 P.2d 93
Alaska
1999
Check Treatment

*1 order in which establish the various questions should be considered and deter-

mined. forced on sum- Shook’s dismissal

mary judgment more will do little than com-

plicate procedurally action class remaining

cause class members to sustain expenses. encourage added also case-by-case assertion of additional offset strategy delay motions as a tactical progress defeat in the class action. Since the trial court can address offset issues in indi- vidual cases after the merits of the AWHA determined,

class action are I find no error.

Accordingly, I dissent. BERRY, Appellant,

Lora M. BERRY, Appellee. No. S-8258. Supreme Court of Alaska.

April

OPINION

EASTAUGH, Justice.

I. INTRODUCTION Berry

Lora claims she have been of her ex-husband’s retire- awarded more mortgage and ment to repair payments she on the marital made parties separated. Because home after the findings on court made no pay- for a those credit for ments, does and because evidence permit as a of law that us to hold matter Lora is entitled to reverse the findings. But we affirm the and remand for (1) require court’s decisions not to Berry carry Lora on his survivor Samuel (2) expense, require benefit at his couple’s bear' half the tax debt they years separated. the seven before II. AND PROCEEDINGS FACTS Berry in and Lora married Geor-

Samuel Army gia joined in March 1973. Samuel May and retired in December 1993. agree they apart Samuel and Lora lived They for much career. of Samuel’s moved to Alaska but Samuel variety aat of locations thereafter stationed elsewhere, in Alaska while remained family ap- home. lived pears to have visited Alaska and Lora only about fifteen weeks total between parties sepa- when December rated. November 1994 filed for In divorce in Alaska. Their children were divorce entered adults when their decree was in 1997. hearing court held a in Janu-

ary date-of-separation and 1997 to resolve property-division issues. conclud- The court ed that the ended as a enter- prise in re- December when Samuel Pharr, C. Law Offices John C. John turned to Lora the Colorado. awarded Pharr, Anchorage, Appellant. equity associ- and debt ated with it. It also Lora her Indi- awarded Eschbacher, Law Office of G.R. Eseh- G.R. Account, profit vidual Retirement shar- bacher, Appellee. Anchorage, for debt,

ing plan parties’ and associated MATTHEWS, Justice, vehicles, percent Before: Chief COMPTON, EASTAUGH, FABE, gross military effective De- BRYNER, the mili- Justices. cember when he retired from tary only clearly supe- service. The court awarded Samuel versed erroneous.5 The seventy-five gross military equitable of his re- rior allocation of require him pay, tirement and did not “is reviewable under the abuse of discretion carry plan. standard, Lora on the survivor benefit and we will not disturb the trial split equally court also ordered the clearly court’s allocation ‘unless it un- *3 ”6 just.’ tax their tax refunds and debts from 1987 to Finally, parties 1993. the court ordered the We review for abuse of discretion a fees, their own costs and but ordered court’s decision whether to $1,102 Lora to for costs and fees spouse credit to a for made to paternity testing associated with for a child maintain property, family such as the 1994; previous- born to Lora the court had home.7 Whether it was error not to make ly found that the child was not Samuel’s. particular on disputes legal is a reconsideration, challeng- Lora moved for question which we review de novo.8 ing the court’s treatment of retire- Samuel’s pay, ment for a credit for her B. Posiy-Separation Mortgage and post-separation mortgage payments and Home-Repair Payments and Samu- repair expenses, the survivor benefit Military Pay el’s Retirement plan,' tax debt. The court denied the Finding that Samuel’s motion. $200,000 present had a net value of at the trial, time appeals. concluding of and that all of property,

retirement benefit was marital seventy-five percent court awarded III. DISCUSSION of the retirement benefit to Samuel and A. Review Standards of so, twenty-five percent doing to Lora. In admirably court came achieving close to court has broad discre equal division of marital dividing assets: it awarded property tion when in a divorce act $150,000 Samuel marital property ion.1 worth commingled When the (consisting exclusively duration, of share long in a their assets of benefit) “(1) and it mar- property steps: of awarded Lora division consists three $150,703. property ital worth determining property what The marital is available for (2) distribution; property awarded to Lora included the house placing prop on that value (valued (3) erty; at the difference allocating property between its market equitab owing value at time of trial and the ly.”2 debt then it), twenty-five on percent of Samuel’s retire- We review a trial court’s determi benefit, ment and other items. property of nation available division that it was error to award her for abuse of discretion.3 If the fifty percent less than of Samuel’s retire- any legal court reaches conclusions while de $58,000 ment. She reasons that she available, termining which is $8,000 mortgages for home review those conclusions de novo.4 parties separated between the time the trial, The valuation of available is the’time of and that those a factual determination twenty-five that should be re- exceeded the value of her Cox, 25.24.160(a)(4); 1. See AS Cox v. 882 P.2d 5. See id. at 913-14. 909, (Alaska 1994). 913 (quoting Moffitt, 815 P.2d at 368 749 366, (Alaska 1991) Doyle Doyle, v. 815 P.2d 368 346; Wanberg Wanberg, P.2d at v. 664 P.2d (Alas- (citing Moffitt, v. 749 P.2d 346 Moffitt (Alaska 1983)). 570 1988)). ka Rodriguez Rodriguez, 7. See Jones, 3. See Jones v. (Alaska 1995). Cox, Cox,

4. See 882 P.2d at 913. 8. See 882 P.2d at 913. equal of marital An division retirement. She percent share Samuel’s just.10 is fifty An division percent of for an award of asks application retirement, starting point [AS “the for consideration or for remand “weight” given mortgage to her factors the court must consider.” 25.24.160] However, up unequal “[a]n repair justified by held it is relevant factors ‘when arguments Although parties’ fo ”12 the court.’ identified retirement, really this is cus on Samuel’s it was error not to about whether may give one Courts post-separation mortgage credit Lora made to spouse post-separation payments repair payments. Lora’s claim that she assets, preserve marital but are not receive another explained: *4 to do so. As we have simply retirement identifies requiring that no rule [I]t is our view fixed only marital whose division would be asset imposed. In in all cases should be credit granted.9 if the affected credit were stead, made party fact that one has argues of pre division payments from non-marital income He fair. contends serve marital be consid . should give are credit for that courts not ered as one circumstances post-separation payments to maintain marital weighed dividing the by the trial court in says may he fac- property; a court consider property.[13] marital party as “which benefitted from the tors such required trial to make factual We have courts during separation and of the asset use findings appropriate.14 on whether credit is capable was one of whether or the asset post- Although Lora testified about her generating argues He that Lora income.” separation payments, did court home, from the use of the that he benefitted expressly in its resolve credit issue home, effectively excluded from the and was findings oral in its written comments or repairs payments that the and maintenance findings fact and of law. The conclusions $8,000 may necessary have been due necessarily denied “neglect failure to maintain the credit, request for the but no property.” explain why it was denied. reimbursing Samuel also must therefore determine Lora for award fifty percent supported than of the marital estate. whether the record more did, irrelevant for a If it cannot be That consideration is the evi credit. this issue law, justifies failure to giving a credit to Lora for her decided as a matter of dence preserve or make cannot be personal use of assets to enhance fact the issue property. the value of marital considered harmless. 807, (Alaska Ramsey, undisputed military Ramsey 13. v. 834 P.2d 809

9. It is property subject can be marital considered equitable divorce division in settlements. Chase, 944, (Alaska 1983); Chase v. 662 P.2d 946 Brotherton, Compare 14. Brotherton v. 941 P.2d (upholding also P.2d at 370 award see 815 1997) (Alaska (remanding for consid- 1246 wife of one-half of nineteen-twentieths of hus- "preservation husband’s eration of former par- band's because the by debt marital estate reduction of the marital were married about nineteen of hus- ties Cox, income”), 882 post-separation with service). twenty years band’s (noting findings on P.2d at absence of 919-20 post-separation ex- whether of marital Brown, (Alas- v. 10. See Brown 914 P.2d 209 distribution, penses change property 1996); Wanberg, at 574-75. ka findings), remanding v. for such with Harrelson Harrelson, P.2d & n. 7 Brown, 1997) 914 P.2d at 209. (affirming trial court’s decision not post-separation where house Id, explicitly (quoting Hayes Hayes, trial in its find- addressed issue motions). (Alaska 1988)). ings resolving post-trial of fact and in remodeling expenses. We conclude that the record contains evi- Lora for the Alterna- genuine, to create a material tively, may dence sufficient the court have reasoned that dispute, and that we cannot hold as a improvements did not substantial- matter of law that Lora was entitled to no ly change the market value of the house as of $58,000 credit. Lora testified that she accepted time of trial —or Samuel’s claim on the home loans between the time the that Lora failed to during maintain the house parties separated began, time trial depleted and wasted or thirty-six Any months later. benefit Lora assets. by living received in the house have compel any But the evidence does not poor been offset its condition. Lora testi- findings, these and the absence of fact find- fied that the house was “total wreck” ings consigns specu- on the credit issue us to left; November 1993 when Sam there prevents applying lation and us from damage everywhere; was water and that it “clearly deferential erroneous” standard of “depressing” was to enter the house. She review.15 We therefore remand for consider- that, implied although the house worth ation of Lora’s claim that she should receive trial, at the time of no one would credit for these it rented before she remodeled and that Lora received the repaired testimony supported it. Lora’s *5 post-separation claiming benefit of a deduc- finding disrepair that the home’s state of mortgage tion for the Although interest. value, significantly depressed its rental thus might justify that circumstance reducing or (but permitting compelling) finding a that credit, denying a it is a matter for the trial mortgage payments the the exceeded value explain. court to consider and That circum- living of the benefit Lora received from justify any stance cannot affirmance absent genuine the house. therefore raised a findings on the issue. dispute about whether Lora should have re- a ceived credit for her debt C. Survivor Plan Benefit testimony paid Lora’s that she Lora that the court erred genuine was also sufficient to create a require Lora, failing carry Samuel to at given about whether she should be expense, plan his on the survivor benefit credit for those because that evi- securing retirement benefit supported finding dence that she used her against recognizes the risk of his death. She personal resources to maintain marital as- that, although parties agreed supe- the in the improvements sets. Even if the enhanced rior court that Lora would be carried on the the point rental value to the that the benefit plan, they disagreed pay. about who should living equivalent there whs to the debt payments, the use of non-marital assets to objected in the court to justified potentially enhance the rental value carry paying Lora on the survivor benefit a credit. plan, object carrying but did not her on plan if expense. the she the attendant many why

But there are reasons the court appeal He may oppose on that he does not requested have denied the credit for the awarding plan, Lora an interest in the mortgage payments. example, might as For it long as her interest is limited to have that mortgage payments found Lora’s pays and she roughly equaled it. the benefit she received living from in a three-bedroom home. hearing, At the court an- Further, “[ujnder some of Lora and Samuel’s testi- nounced that the circumstances es- mony imply proceeds seems to that from a survivorship tablished this case no benefit mortgage loan were used to for the awarded should be to the defendant.” This so, remodeling. If ruling implicitly the court have decid- declined to make Samuel inequitable ed that it would be carrying to reimburse bear the cost of Lora on the surviv- ("[T]he explicit sufficiently 815 P.2d at 368 trial court be detailed to support understanding must render of ultimate fact that court a clear of the basis of the division; decision.”) (citations omitted). any decreed must trial court's that prevent plus penalties. He asserts plan, did not Lora interest and or benefit but file he filed because failed to accepting carry offer to her on from Samuel’s separately The returns. expense. at her written conclu- of law state that Samuel “shall not sions assign blame The court refused to required. cany on [Lora] Survivor filing; it the tax late concluded that Plan.” Benefit were “a debt and refund circumstance monetary reject implicit argument impact the economic [had] marriage,” and parties’ “agreement.” unit while it functioned as a enforce the we should agreement they equally. shared no about who should be reached pay. arguments that Samuel com ' economically reject claim mitted act or wast [12] We also that be- senseless unconvincing. Her ac than half of ed marital assets are cause she awarded less benefit, they agreed knowledgment that to file she should not had forms, jointly, expense. her premium to bear She that he sent his W-2 file, covering simply her inter- that she failed undermines does not state the cost est, engaged provide any support litigation claim in a other for her that Samuel unreasonably strategy depleted Her argument. unsupported assertion does Jones,16 Nor assets. relies on but not demonstrate an abuse discretion. Jones any why distinguishable. question in she reason that case is has demonstrated Samu- securing ille inter- Jones was whether the former husband’s el should the cost assets, gal gambling benefit. If Lora wants losses wasted marital est so, plan, carried on she should how much value the trial protection. expense of that If on she should have added to marital estate remand expense, agrees to bear that Samuel should misconduct.17 Samuel *6 covering engaged comparable to in no be facilitate her under misconduct. plan to the her the survivor benefit extent of by superior clearly did court err interest. finding consequence that the tax debt was a parties marriage. do D. Tax Debt and Refund that arose the debt before December separated. parties when the It was not an Finally, argues that the party to abuse of discretion to order each fifty to requiring court erred during bear half a debt that the arose percent of Samuel’s tax debt calendar marriage, especially the because years through She that contends court that was not the decided debt “economically Samuel committed an sense- party result of misconduct. The fairness by amassing unnecessary less act” “an tax dividing by superi- the debt is confirmed litigation strategy.” debt as a She asserts equal division of marital the entire separate April Samuel returns in that filed estate. years previous support for the six to marriage court contention that years ended several before December 1993. IV. CONCLUSION. parties implies by causing that file She to any findings resolving Given the absence returns,

separate increased the cou- Samuel that she was entitled to a credit claim liability ple’s tax wasted marital assets. post-separation mortgage origi- repair payments, and RE- had REVERSE returns, nally proceedings. MAND further leave it decided file that he forms, sent Lora his W-2 and that failed to the court to she discretion to file on time. He maintains that learned decide to make on the he whether those August permit had not 1993 that Lora filed basis of the evidence before it or to the. AF- returns and that he owed the submission of additional evidence. We IRS (Alaska 1997). P.2d 16. 942 id. at 1140-41. rulings authority

FIRM as to the on the survivor recapture bene- had the previously dissipated assets. Because of this incor fit and tax debt. conclusion,

rect we reverse the court’s property division and remand the issue to MATTHEWS, Justice, concurring. Chief allow the opportunity trial recapture any dissipated assets and then fully agree majority opin- I While with appropriate determine the prop division of ion, separately I write to make one additional factors.[1] erty using the Merrill doing In observation. so, the court should take care that it does count, is, not double recapture dissi recognizing pated preferential assets and make a separate property made from her award to Patricia because assets have been preserve separation after house but dissipated. unequal before the divorce would result in an This, property. argues, division of he Expenditures separate proper- made from equal run counter to the ty preserve rule property are the oth- er They side of the property “waste” coin. can presumptively is fair. I be believe recognized by making deductions from the argument fundamentally this flawed. party award to the expendi- who made the equal The rule that an division of assets of adjustment tures. The regarded can be as is fair is more representing property what the on which the money complicated adjust- spent than it sounds. would be worth if Often the ex- value, penditures had not been made. Once this ments to must be made before the rule adjustment made, is property all the marital applied. can examples Obvious are that can be divided. And the division is gross value of must be reduced adjustment made, after the the rule of debt, involving period- for secured and assets presumptive fairness will be satisfied. present ic must be reduced to val- ue. reason, For giving recognition expenditures need not violate the When marital is wasted one equal division rule. party separation divorce, after but before “recaptured” by giving can be it a *7 pre-waste crediting value and that value to wasting party. award to the Once this

adjustment made, the whole of the marital property can be divided accordance with See Hartland v. Hart principles.

the usual land, (Alaska 1989): sought

The trial dissipated Patricia for the giving assets larger percentage her a remaining marital estate because it did not believe it Merrill, 1. Merrill v.