*1 V. CONCLUSION supe- the record shows
Review of judg- correctly granted summary
rior court Differing on Site Con-
ment NCI its points appeal, NCI’s other
ditions claim. amend, to
rеgarding motions to continue trial, judge, are to recuse the trial rulings supe- merit.
also without AF- Judge Michalski are
rior court and respects.
FIRMED in all C.J.,
MOORE, participating. Appellant GARDNER,
Joanne Cross-Appellee, Wayne HARRIS, Appellee
Lee Cross-Appellant. S-6648,
Nos. S-6677. Alaska.
Supreme Court of
Sept. *2 gas exploration industry
and and each earned $80,000 approximately year. per Shortly marriage, before the Harris invest- $63,000 (VMT) ed in Valdez Marine Terminal bonds, maturity. worth Harris held these bonds ac- Lynch count at Merrill until the summer of 1987, when he transferred them into the couple’s joint Merrill Manage- “Cash ment Account.” Harris and Gardner held Management the Cash Account as ten- a right survivorship. ants with The cou- ple’s Lynch stockbroker, Merrill Kenneth Jones, testified at trial that both Harris and possessed independent authority Maryann Foley, Anchorage, Appel- E. account, over including this individual discre- Cross-Appellee. lant and tion over whether to trade or cash in the Carey, Anchorage, Appellee William B. VMT bonds. Cross-Appellant. and bonds, Concurrent with the transfer of the RABINOWITZ, MATTHEWS, Before Management the Cash Account became the COMPTON, EASTAUGH, JJ., couple’s primаry joint financial account. CARPENETI, J. Pro Tern.* Harris and Gardner made credit card trans- account; actions and wrote checks OPINION they paychecks each contributed their to the CARPENETI, Justice Pro Tem. account; they applied the bond’s interest I. INTRODUCTION income, which was rolled into the ac- This is an from the court’s count at approximately per year, to- property division in a divorce case. Joanne joint expenses. ward Harris and Gardner challenges the trial finding also used the bonds to refinance real estate purchased by prior Lee Harris Monterey, owned in Califor- marriаge their faded to transmute into mari- nia, sailboat, and a both of which the trial purposes equitable tal distri- court later found to be marital assets. cross-appeals bution. Harris the trial court’s immediately December 1993 and before the require refusal to por- trial, February 1994 divorce the VMT bonds by of loans collateralized the bonds were called. When the bonds were all paid which were off when the bonds were by loans collateralized challenges called. Gardner also the trial remaining off. The cash balance the cou- court’s amended that she owes Harris ple’s Management Cash Account totalled an additional post- her share of $29,120. separation expenses. evidence, considering We affirm the trial court’s determination court found that marital assets as to the bonds and remand the order to equally. should be divided The court set post-separatiоn expenses for additional find- aside balance of the ings. Management finding that it was the separate property of Hands. The court II. AND FACTS PROCEEDINGS found that the VMT bonds had largely undisputed. facts are Joanne been into the account and had Gardner and Lee Septem- jointly Harris married in against, borrowеd and that the separated ber 1985 and in December 1992. interest income from the bonds had been During marriage, expenses, party worked the oil exhausted for marital neither * Sitting by assignment IV, pursuant made to article section 16 of the Alaska Constitution. in, them, already or if the bonds traded amendment not clеar cashed corpus: parties, earnings “The
added additional bonds to the to the [found] corpus throughout the mar- parties. remained intact Mr. Harris shall riage, earnings matured as it have even if would retain the but are *3 married; parties the had never nor ever property,” “marital and thus deemеd were in a account.” The court during them spent expenses on marital mar- gave weight testimony to that “at no Harris’s riage. The bonds themselves were used these time did Ms. Gardner consider simply parties’ joint to the collateralize anything than his.” conclud- loans, other The court and both were been ed that the bonds had repayment of such loans money Harris retain “the left from the would bonds, of the Mr. Harris’ separate property.1 bonds” as his post-separa-
The trial court also addressed specifically language court The deleted expenses, finding spent that Harris had proposed Harris’s which would order have joint post- than more Gardner on required Harris to expenses. separation The court therefore partially pre- restore the full worth of his fifty percent found that owed Gardner Harris asset. $2,019. figure, of this appeal cross-appeal This followed. Harris thеreafter moved amend the to or, findings judgment alternatively, to III. DISCUSSION First, explained obtain trial. a new Property division at divorce a involves findings pertaining post- that the court’s to “‘First, three-step process. the trial court expenses separation expendi- were to limited specific property must determine what tures made out Harris’s account. Second, available for distribution. the court expenses paid Harris documented additional Third, find the must value of this Management out of it must decide how an can allocation be made and noted that Gardner’s de- ” Chotiner, equitably.’ most v. Chotinеr 829 posits account far into that had been less 1992) 829, (Alaska (quoting 831 P.2d Wan accepted
than Harris. those of The court (Alaska 568, v. berg Wanberg, 664 P.2d 570 an Harris’s new and entered amend- 1983)). ed owed Harris an addi- tional for her share reviewing When a decision under joint post-separation expenses out step, applies first this court the abuse of couple’s however, of the account. standard; legal if a discretion de involved, termination is exercise our we inde argument The second which Harris Lewis, pendent judgment. v. Lewis 785 P.2d pressed upon the focused VMT bonds. Har- (Alaska 550, 1990); Moffitt, 552 749 Moffitt urged having ris found the bonds (Alaska 1988). 343, 346 P.2d We will not separate property, his the trial court should a disturb trial court’s valuation additionally have found Gardner step assets under two in the absence of clear approximately for her share an Lewis, Finally, error. 785 P.2d bonds, is, “devaluation” trial court’s step allocation of under reрaid amount which to Merrill subject three is to discretion abuse of review. out of the bond to loans the Id. couple had taken out to refinance Monte- rey property and the boat. court The A. VMT Bonds disagreed. commenting In on the status of noted: challenges On the tri
Having found Mr. bonds] Harris’ al court’s rеsolution of the first task: [VMT have prop the court isolation of marital non-marital versus concluding eaming capacities, 1. In that the bonds were Harris’s no need there was to invade separate property court further observed Harris's order to balance enjoyed equal partiеs’ equities. because and Gardner
99
(Alaska
1994);
erty
purpose
equitable
distribution.
867 P.2d
Wanberg,
Gardner contends that the trial court erred
present
requires
P.2d at 571. The
case
setting
as
aside
VMT bonds
the court
to consider whether
the bonds
themselves have transmuted in character be
original
cause the
owner
chosen
to treat
asserts that a series of
clear-
acts
joint holding.
as a
ly
evidenced Harris’s intent
donate the
marriage.
bonds to the
Gardner em-
VMT
previous
cases we have identi
phasizes Harris’s decision to transfer
fied several factors that can assist the trial
primary
bonds into thе
account
in determining
spouse
whether a
in
party possessed
authority
full
where each
separate property
tended to treat his or her
urges
over their use. Gardner
this court to
significant
as marital. One
indication is evi
*4
account,
recognize the marital nature of the
spouses
аctively partici
dence that both
have
only
which not
held the bonds but was used
pated
ongoing
in the
maintenance and man
by
parties
depository
paychecks
as a
Rhodes,
agement
property.
867 P.2d
joint expendi-
and as a source of funds for
(noting
804 & n. 5
that
at
this factor
Finally,
tures.
notes that Harris
traditionally
applied
to cases involv
testified that he transferred the
into
bonds
ing
might
real
“it
also be relevant
joint
community
account for “the
bene-
personal property”).
In the ease of real
fit,”
parties
and that
in fact
used the
estate, this court has looked to whether the
to, among
things,
bonds
other
refinance mar-
property
used the
as a marital resi
property.
ital
dence and whether the credit of the non-
acknowledges
that the bonds were
improve
proper
titled owner was used to
use; however,
joint
put to
Harris contends
(Alaska
Cox,
909,
ty. Cox v.
882 P.2d
916
that when he transfеrred the bonds into the
1994).
addition,
In
evidence of an oral or
account,
joint
keep
he intended to
the asset
agreement
pre-marital
written
to convert
give marriage
but to
the benefit
to,
from,
property
keep
or
it
financing
strategic
of better
which
use of the
Chotiner,
property
probative.
829 P.2d at
explains
bonds would allow. Harris
Finally, although
833.
we have stated that
joint
of
transfer
the VMT bonds into the
itself,
commingling,
“the act of
in
does not
convenience,
account was an administrative
automatically
jointly
establish intent to
hold
they
and that Gardner understood that
re-
Carlson,
222,
prоperty,” Carlson v.
722 P.2d
mained his
Harris cites
(Alaska 1986),
224
“placing
we have held that
testimony
spot”
it
during
that was a “sore
separate property
ownership
is re-
marriage
that Harris refused to cash in buttable evidence that
the owner intended
testimony
the VMT
and he refers to
Chotiner,
to be marital.”
829
in which the
stockbroker observed
833; Lewis,
P.2d at
that the bonds would be called the credit entitled to he was presented. used. Until credit was used remained Harris’s When cannot on We determine this record the called, however, ex- basis the award lost, thаt was for credit and the penses.3 Accordingly, we must remand this remaining proceeds sepa- remained Harris’s specific entry issue to the trial rate findings supporting the basis award to Harris. See Merrill Mer- Expenses B. Post-Separation (Alaska 1962) (this rill, 368 P.2d requires “sufficiently detailed and ex- also challenges thе trial plicit findings” understanding for a clear amended that she must decision), quoted the basis for trial court’s Harris an additional share Chotiner, 829 P.2d post-separation ex penses. IV. CONCLUSION originally The trial court found that Harris court did not abuse its discretion by $4,037.52 had overspent concluding purchased that the VMT bonds post-separation expenses. In a motion to prior marriage to the remained his *5 findings, amend the Harris that stated the separate We therefore AFFIRM finding only upon court’s had been based holding the re- bonds payments of made out Harris’s ac- separate property. mained Harris’s that On requеst count. for an Harris’s amendment basis, deny cross-appeal. we Harris’s Final- post-separation was based on the additional ly, we challenge REMAND Gardner’s re- expenses paid Manage- from the garding post-separation expenses addi- ment and the difference between findings. tional post-separation deposits their that into ac- granted count. court The trial motion to MOORE, C.J., participating. not amend and awarded Harris amount re- RABINOWITZ, J., with whom quested, finding: EASTAUGH, J., joins, part. dissents $11,054.65 The paid defendant a total of Justice, RABINOWITZ, with whom plaintiffs ex- EASTAUGH, Justice, joins, dissenting in penses $14,925.53 plaintiffs and share of part. рarties’ joint post-separation expenses. Plaintiff post-separation deposits made that VMT were payments into the account from which the response Harris’s and in $4,479.44 were made in the sum of to Harris’s motion amend findings to given against should credit be above judgment, superior court observed Plaintiff, deposits. amounts for these simply bonds themselves were [t]he defendant, Joanne Gardner therefore owes loans, parties’ to collateralize the Harris, $21,500.74 Wayne Lee the sum of were for the re- post-separation expenses her share of payment against of such loаns paid Manage- for out of the [Cash separate proper- Mr. Harris’ ment] [A]ccount. ty. superior contends court language then deleted amount proposed awarded erroneous because it Harris’s order which would have upon pay $20,000 was based Harris’s required which con- Harris to рartially sepa- tained inaccuracies and mathematical errors. restore the full worth of his disagrees, pre-marital arguing cross-appeal trial court rate asset. presented parties’ joint post-separa- 3. Reference to the exhibits at trial does Gardner's share of the expenses, post-separa- reveal how the trial court its reached conclu- tion or that Gardner made $11,054.65 deposits sions that Harris of Gardner’s which she should post-separation personal expenses, credit. receive superior superior Hams asserts that the erred сalled. The court found no such requiring as agreement. in not portion of loans made
bonds. disposes cross-appeal
The court of Harris’s
point following in the manner: into the ac-
Once
count, Harris ran the risk that the bonds
would be called and the credit used. Until
the credit was used the bonds remained SMITH, Appellant, Barbara L. When the called, however, bonds were lost, that was used for credit was and the THOMPSON, Appellee. John A. remaining proceeds remained Harris’s No. S-5633. added). Op. (emphasis at 9 Supreme Court of Alaska. argues should have found Sept. an-approximate her share of “devalu- bond, ation” of the the amount which was
repaid to Merrill out of the bond loans the had taken Monterey property
out to refinance the In my opinion,
the boat. Harris’s cross- meritorious,
appeal point and I would hold superior requiring in not erred pay portion her of the loans made
against the bonds.
I superior think it determinative that the
court ruled that Harris and Gardner “were repayment against principal such loans of the ” agreement
bonds.... In the absence of an responsi- Harris that he would bear sole
bility if for the loans the bonds should be given superior repay- equally
that both were
ment of the loans of the I conclude requiring in not
erred
portion repaid upon of the loans the call of
the bonds.
If, concludes, portion as this court proceeds repay loans then
remains
what transforms the of the proper-
used to the loans into marital
ty? perceive principled way I of no to distin-
guish parts between the two of the bonds type
used as collateral other than some
agreement regarding repayment contingency
loans