*1 I reverse the For these reasons would and remand
judgment of the or for a deter- to arbitration for submission appropriate rent mination of the by the Be- superior court. renewal correctly sug- declines appellant cause a determina- entitled both to gest that he is an increase tion of rental value and fair clause, I escalation intimate rent under the of Part III opinion no as to correctness concerning opinion the esca- majority of the lation clause.5 BROOKS, Appellant, BROOKS, Appellee.
No. 6714. Alaska. Supreme Court of Jan. 1984. upwardly seem unconscionable to renewal rent would have been established would gener- adjust upon rents renewal to reflect a there be no that fact and would occasion prices al in land and rents then to increase remedy, speak or its either arbitration again in rent raise them because of However, explained for the reasons waiver. underlying lease which reflective place. above clear that did not take it is general price trends. same
OPINION WITZ,
RABINO Justice. In appeal, Robert Brooks challenges division made in conjunction with a divorce proceed- ing.
Robert and Iris Brooks were married on 26, 1957, December Kingston, Jamaica. 31, Iris was They Robert 39. have lived in Alaska since marriage and Kodiak twenty years. for the last There are no children of marriage. carpenter
Robert is a by trade. He worked out of the union in Kodiak until opened when he a tool and auto rent- al business which has current value of $70,000. generally The business shows an operating loss for tax purposes, because of depreciation and Operat- other allowances. ing the requires a substantial amount of time. According to his attorney, eligible Robert security will be for social years. undetermined rate in about three He also has an annuity pay which will $64 per beginning month in 1984. Iris has worked as a civil servant since early 1960’s. Her current income is $22,000. approximately govern- Iris has a pension ment pay which will an undeter- mined amount on retirement.
In knowledge without the or con- wife, sent of his to his prior children from a parcels two property acquired during the marriage but own proper- held name. These ties, the Martin and the Bells together ap- were worth $106,000. proximately The assets held prior Brooks pieces their divorce included four of real estate with a total net $70,000. and business worth Their land holdings break down as follows: Kodiak, George Vogt Associates, F. appellant. Nelson, Dennis L. Sterbick-Nelson & Nel- Property Net Value son, Kodiak, appellee. (Lots Street 19) & Spruce Cape (Lot 6) 51,400 BURKE, C.J., Before and RABINOW- property (Lot 21) 42,000 ITZ, MATTHEWS, COMPTON, JJ. (Lot Toltec property 8,500 funds pension addition, her fa- Iris had received from savings accounts lent $24,500 respectively. interest in Jamaican real a one-third following superior court made $15,000. was valued at Her share estate. roughly equiva- held property: Iris and Robert Both To Iris: To Robert: *3 Property Property Value Net Net Value SpruceCape Street 40,800 51,400 $ Property Tool&Auto Rental 42,000 70,000 Property Property Other Toltec 8,500 24,5001 - 2 Property Other 29,500 Promissory Note 50,0003 $170,800
$145,900
(6)
parties
Iris
for the division between the
decree indicated that
divorce
joint
sepa-
in
property,
credited with her interest
the
their
whether
or
“should be
coverture,
rate,
and
one-half
the
property
only during
in
acquired
Jamaica
prop-
and Bells Flats
values of the Martin
may
just,
and without
the manner
with
Robert should be “credited
fault;
erties.”
parties
the
is in
regard to which of
separate
property
in
court,
however,
making
in
the divi-
marriage
the ex-
brought
into the
and
sion,
either
may
property
invade the
he has incurred in
amount of
penses
acquired
marriage when
spouse
before
$19,500.”
balancing
equities
between the
it;
accomplish
requires
and to
Thus,
parties
during marriage
Robert’s conduct
judgment may require that
by treating
into
him as
this end the
taken
account
was
deliver,
parties assign,
worth of
he had received
one or both of the
if
already
per-
estate which he had
convey any
real
his or her real or
or
(the
marriage
former
his children of a
property
party.
the other
sonal
properties);
and
and Bells Flats
Martin
A superior court has broad latitude
removing
name from
Iris’ act of
Robert’s
v.
Bussell
making property
divisions.
was
into
policy
insurance
taken
her health
Bussell,
(Alaska 1981).
P.2d
1222
623
subtracting
account
“will not be disturbed
Such divisions
expense from his share
uncovered
appeal unless an
of ... discretion is
abuse
property.
an abuse of discretion
shown. To establish
25.24.160(6) (formerly
09.55.-
AS
AS
aggrieved party
must show that
210(6)),
disposition
providing
clearly unjust.”
property
marital
states:
Crume,
(Alas
v.
Crume
186
judgment
in an
for divorce or
a
action
(footnotes
omitted).
Wanberg
See
ka
or at
declaring
action
a
void
(Alaska 1983).
v.
Wanberg,
(Alaska 1962), following fac- delineates the promissory is from Robert and se- Robert's retirement fund 3.The note 1. This consists of Spruce Cape ($10,500), deed trust on the bank his name and the cured a accounts in ($14,000), property. bears interest at a rate of 12% and and miscellaneous business name monthly payable $800. installments personalty. $50,000 represents have been Iris' what would of the Martin Bells ($10,500), share This retirement fund included Iris’ unilaterally conveyed to his chil- ($19,000), which Robert in her the bank accounts name dren. personalty. miscellaneous 1233 argues tors which trial court should take into that the residential property making account division: given has an “established” rental value, respective ages parties; whereas the awarded [T]he him, their earning ability; business, the duration and depends upon marriage; conduct of each produc business activities for income life; their station circumstances points tion. These allegedly demonstrate each; necessities their health and adequately court failed to condition; physical their financial circum- consider certain of the factors articulated stances, including time and manner Merrill P.2d acquisition question, 1962), specifically, respective ages its value at time pro- and its income physical their health and condi ducing capacity any. tion, circumstances, financial in (citations omitted). n. 4 P.2d 547-48 cluding the time acquisition and manner of *4 This is enumeration not exhaustive and the the property question, of its value at the superior findings per- court need not make time, and its income producing capacity. factor, taining each to n. id. but secondary argument Robert’s is that findings superior provide court’s must superior unfairly penalized court him for a sufficient basis conclusion conveyances his property unilateral of real Id. reached. his to children. argues On appeal, Robert Brooks that We have concluded that a remand is superior give court fhiled to sufficient short, .In necessary. we are unable to re weight to certain factors relevant to the view the merits the superior court’s divi an appropriate determination of division. parties’ properties sion because primary point that, given is age His his inadequacies superior certain in the health, earning capacity his income alleged findings nothing of fact. There in this ly significantly impaired.” “is He claims weight, any, record to indicate what if longer energy can no devote to his superior gave apparent court to Robert’s rental to necessary tool auto physical problems. Related to this Brooks, issue its profitability. by maintain challenge superior to contrast, sign being shows no of not to able producing treatment the income present her charac employment continue until superior ter thé divided. The complains retirement. Robert also that the superior explicitly court did not this aspect court failed to take consider into account making the fact its The that much resi parties’ properties dential to allegedly was awarded Iris have es improvements to prop due which resulted tablished rental values. These rental from labors, any significant physical generated positive without erties have cash flow Additionally, contribution Iris. from 1973-79.4 Street, erty on two houses as showed combined cash flow follows (in dollars): property, Spruce Cape prop- and a trailer on the thousands of Iris will derive a substantial means appears point appeal in this is that the superior even carried out his of income from these sources court amount hardship an undue choose to live in intention worked assume that she will we receives, him. rather the residences she one of that a remand is rent it. We believe than superior aspects of Three specific findings as to the necessary for regard to court’s action the unilateral capacities. This
parties’ earning as- future First, conveyances require examination. necessarily encompass- pect our remand valuing supe Bells Flats producing income es consideration post-subdivision rior court used the resale properties. Fur- potential of these price parcel of the tax as instead with re- necessary findings are also -stipulated which had been figure sessment eligibility for income gard to Robert’s by the had acceptable been security. to received social valuing parties’ used in each of the other parcels of real estate. resale value argues it constitut Robert also significantly higher than the earlier ed for the an abuse of discretion challenges tax the use assessment. Robert the values fail consider operates resale value that it “sanc times, acquisi properties at the various appellant’s tion unilateral sub silentio present tion in relation values. conveyance property.” We conclude factor, ap does This delineated court did not abuse its pear here. The to be relevant *5 using higher figure. discretion in The acquired less than were worth far when by not superior necessarily court is bound present. at Much of the increase they are stipulated by to the tax assessment values to im allegedly attributable value stipulation parties. The alluded to was the Yet, by provements carried out Robert. not state does ambiguously worded and pro and used parties the both borrowed Bells Flats and it includes the whether pay to the costs ceeds from their business is confined the properties or Martin The of the real of this construction. value property at comprising marital properties years over the appreciated estate has Ros time the the physical effort to Iris did contribute some Rostel, tel v. improvements. of the superi- Our review 1981), upheld we decision superior persuaded indefinitely has us that the an disregard record or court case, scope stipulation. of its discretion In that phrased court was within verbal need not awarding superior in value court not the increases that the we stated should stipulations but solely by Robert. such parties’ investments be bound equitable divi a “fair and to achieve strive superior that Robert also asserts property.” sion of Id. penalized him for his unilat- unfairly court $71,500 evidence that There is no joint- conveyance parcels the two eral present represent fairly not does in his ly purchased real held Although it is true of Bells Flats. the su- does not claim that name. Robert the land after value occurred ignored those perior court should have develop- think this conveyed, we had been Clearly, per- trial court is transfers. court superior The is irrelevant. ment during the to take Robert’s conduct mitted all, Robert for was, seeking to assess after including consideration into have marital would been what the value .properties the value of disposed of previously he not property had property division. Robert’s half of the should It be noted that the Spruce Cape thousand dollars to rewire it.” The $5,000 improvements trailer, Robert, needed some worth only negligible awarded to a order to be made habitable the time of trial. part of the overall cash flow. couple One Street houses needed "a no new tax assessment marital asset. find no it. There has been We merit in this major change The superior the subdivision. contention. The since did take place regard took to this Iris’ which actions into account in reaching its estate, ready availability combined with decision giving Robert a credit for his valuation, justified a reliable means expenses. medical This treatment was price of resale superior court's use analogous to the treatment the Martin There- lieu of tax assessment valuation. and Bells were lost fore, superior we court’s hold through as marital assets unilateral actions was not errone- choice of valuation method part of Robert.
ous. decree VACATED and the case is superior A aspect second REMANDED for reconsideration and fur convey- regard action in to these unilateral findings by court in con mentioned. We think ances also should'be formity opinion.6 with this $50,000 promissory repayment note problematic schedule to be in view of Rob-
ert’s projected The promissory income. MOORE, J., participating. not monthly payments note calls $800 MATTHEWS, Justice, concurring. According par- Robert to Iris. to the In this case the court intended to divide returns, ties’ tax Robert’s tool and auto the property of parties equally, treating positive generated cash the property Robert- had surreptitiously period 1973-79, flow of in the given to his though children as it were still average per year.5 Our marital allocating it to Rob- review of the record reveals that this was ert. object Robert does not treating so income onj/y this property, and majority opinion has potential income only anticipated. approved of it. Therefore this property order require would division should be considered as one in payments that he to Iris make Brooks total- which the parties assets of the were divid- ling per year. appears from this *6 ed substantially equally. equal An division ruling evidence of marital presumptively assets is just. effectively Robert with zero leaves income. Jones, Jones 1031, (Alaska v. 666 P.2d 1034 1983); Wanberg Wanberg, 568, v. contends Robert further that the su (Alaska 1983). 574-75 perior failing to treat Iris’ erred husband’s coverage cancellation her suggested We in Wanberg that the fac- policy her as the insurance destruction tors first set forth in Merrill v. returns, joint tool According tax to Brooks’ 5. following shows the and auto rental business dollars): (in thousands cash flow following receipt of memoranda with this court appeal retained for the of this Jurisdiction ap- findings. if further purpose permitting additional sought, supplemental pellate to file review is n. 4 P.2d 647-48 appropriately utilized trial
could be most FORQUER, Harry Appellant, equal as a would use an division courts v. starting review the factors point and they required a devia- determine whether Alaska, COMMERCIAL STATE equality: tion ENTRY COMMIS FISHERIES will be of increased The Merrill criteria SION, Appellee. a trial court its determi- usefulness to proper- equitable an nation of BELLAMY, Appellant, Raymond begins its consideration ty if the court presumption with the the Merrill factors v. equitable division of the the most Alaska, COMMERCIAL STATE equal This start- property is an ENTRY COMMIS provide ground- FISHERIES ing point is intended SION, Appellee. ing point by the relevance determined. may factors Merrill 574-575.
Id. at DeVANEY, Appellant, Max above, Here, explained in the sense division, equal but the judge trial made that he reviewed the does not reflect record Alaska, COMMERCIAL STATE to determine whether some Merrill factors ENTRY COMMIS FISHERIES adjustment necessary order SION, Appellee. join in I justice. For this reason achieve remanding and 5931. opinion this case the court’s Nos. findings to those of the Mer- additional Alaska. Court of Supreme arguably are relevant. rill factors which reaching conclusion I do not wish 10, 1984. Feb. any the merits of suggest view on is whether the question, which ultimate just. reached is
property division