Hammer v. Hammer

use, required their and since had been the lease lot that had been pre-approved by original agreement, under Romann’s lease DOT. There was thus no need for an inde- improvements pendent these had enabled him to oc- committee review appli- of the lease cupy the leasehold for the duration of the cations. original lease. Romann thus had no reason- Romann’s contention that this meth ground able demanding past that his qualification od of bidder provide failed to improvements again credited toward the adequate public proposed notice of the lease requirements of a new lease. is likewise complied meritless. DOT with contrast, In reasonably could DOT statutory requirements airport notice decided, policy, as a matter of to disallow by lease providing public auctions with a prior improvements credit for in order to summary of all relevant terms and conditions place all equal footing bidders on an of the auctioned lease.33 DOT also held a

respect Accordingly to the new lease. DOT pre-bid conference prospective to allow bid did not lack a reasonable basis for disallow- a opportunity ders further to review both the ing credit. proposed terms and conditions of the lease procedures and the governing the auction. luith, compliance 5. qualifi- DOT’s bidder sum, we hold that DOT acted well with- public cation and requirements notice conducting its discretion in disputed argues by Romann further fail auction. ing to award the lease to either Remaklus or himself, 40.340(d)(3)’s DOT violated AAC IV. CONCLUSION “qualified requirement. bidder” Romann Because reasonably we conclude that DOT maintains that he and Remaklus were the regulations require public construed its only “qualified only they bidders” since had public auction this case and conducted the “qualified” through been the Review Com properly, auction we AFFIRM its order de- process. mittee’s established review nying appeals. Romann’s But DOT had established Review Com- 40.320(c)(8)’s implement mittee to 17 AAC

provisions governing applica- review of lease (c)(8) speak

tions. Subsection does not

qualifications public auction, to bid at a

subject 40.340(d)(3). addressed 17 AAC regulation gives

The latter DOT broad dis- qualifications

cretion to determine for bid- ders in each sale it conducts: HAMMER, Appellant, J. Kenneth by sale shall be conducted the de

partment may by be either sealed bids HAMMER, Appellee. Katherine F. both, public outcry, or or after the manner by department determined in each in No. S-8415. public stance to be interest. The Supreme Court of Alaska. highest sale shall qualified be made departm bidder as determined Nov. ent.[32] Here, required register DOT all bidders auction; completed,

before the submit

signed, notarized bidder’s affidavit and a bid

deposit; and receive a card. bidder’s

addition, sample provided contract non-

negotiable and terms conditions for use of 40.340(d)(3) added). 40.340(d)(1). (emphasis

32. 17 AAC See AAC Guss, Ketchikan, Appellant.

Mary E. Domke, Domke, P.C., Loren Ju- Loren neau, Appellee. MATTHEWS, Justice,

Before Chief COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

OPINION BRYNER, Justice.

I. INTRODUCTION long-term The ali- awarded spouse, mony to Kenneth Hammer’s former (Kathi), light physical Katherine of her skills, employment min- disability, lack of job prospects. imal ordered court also pay child for the Hammers’ son, resides with Kathi. Ken contends who permit long-term not that Alaska law does justify and that evidence did awarding alimony here. contends He also establishing court erred support obligation his calculat- without ing adjusted annual affirm his income. We alimony, concluding award of long-term alimony law awards and allows the award the evidence establishes that actually necessary. establishing support payment, entered was Ken’s But that a remand is the court noted that his we hold court erred in exceeded But it did not because the calculate Instead, income. evi- calculate Ken’s annual income—an dently assuming that a potentially gross income that affecting error its child high precise left no need for more calcula- alimony and decisions. tion, simply concluded that Ken’s AND II. FACTS $72,000— PROCEEDINGS annual income exceeded cap the income established Alaska Civil Ken and Kathi Hammer married in Pe- 90.3(c)(2) Rule calculating of 1973; tersburg in Kathi filed for divorce support payments. child Accordingly the married, July had three While court ordered monthly Ken to make Jens, Only youngest, children. was still $1,200 support payments to Kathi of —the a minor at the time of trial. 90.3(a)(2) payment specified under Rule for a forty-five years Kathi was old at the time parent non-custodial with one child whose infancy. of trial. has been deaf since She equals annual income or exceeds the high Her education school includes and book- $72,000 cap. keeping training. primary employ- Kathi’s The court went on to find that “Kathi’s ment was as a homemaker and mother. Al- unique circumstances and the illiquidity of skills, though employment Kathi had few she justify most marital assets the award occasionally bookkeeper, spend- worked aas long-term alimony.” of specifically, More ing years a total of about four and one-half of long-term court found that Kathi’s need for twenty-three-year marriage bookkeep- her alimony disability, resulted from her lim- her ing jobs. divorce, At the time of she was job experience prospects, ited work and her $15,000 capable earning annually. of about continuing parental obligations, and the lack forty-six years Ken was old at the time of readily of available marital funds to meet her trial and had worked for the Alaska Marine ongoing needs: Highway System since 1974. He had re- very job Her circumstances include little steady salary position ceived increases in this experience gained during marriage of by enjoyed and the time of trial earn- long duration while she for [three] eared $91,000. ings permitted, of As time Ken also children, (deafness) physical impairment worked as a commercial fisherman and diver. severely which her income-earning limits Although his income from these activities potential and necessitates medical bills and annually, gross earnings varied from fish- services, the need to travel for medical and $9,600. ing year for the before trial totaled responsibility provide single parent- her to primary The Hammers’ marital assets in- parties’ ing to the child for three more residence, family Petersburg cluded the years. great The bulk of the marital as- adjacent property, warehouse with tidelands up in sets are tied retirement accounts and and five retirement to accounts related Ken’s parties’ home. highway employment.

marine The court Relying findings, on these the court ordered family awarded the residence to Kathi and $1,400 pay per Ken to Kathi of the warehouse to Ken. It awarded the bene- July month until when Jens reaches fits from two of the five retirement accounts $1,600 age eighteen, per and month thereaf- Kathi, to ordered Ken and Kathi to share begins ter until Kathi remarries or to receive proceeds equally in the from two other ac- payments from Ken’s retirement accounts. counts, jurisdiction and retained over the court based amount of this award account, remaining yet which had not vested. on its estimate of Kathi’s financial needs and total, In the court awarded valued employment prospects. began by It deter- $148,720 $148,574 Ken, at to Kathi and mining monthly that Kathi’s reasonable ex- exclusive of the two retirement accounts that $2,600 penses would total and that her equally. Kathi and Ken will share monthly earning capacity after taxes would primary Kathi also awarded But the court concluded that physical custody required and ordered Jens Ken to Kathi “should not be to seek em- support ployment responsibility payments make child to Kathi. while she has the long-term of alim Thus, setting alimony permits at Alaska law awards by caring for Jens.” period, $1,400 per during plain this of AS ony.1 language month But supplemented Kathi’s child 25.24.160(a)(2) expressly authorizes courts yielded pay- in an amount that total come alimony “for a limited or indefinite award monthly equaling needs. And ments Kathi’s necessary.”2 period may be ... as $1,400 increasing alimony from Kathi’s usage, an award is ordinary “indefinite” birthday, the eighteenth after Jens’s one “continu one of “unlimited” duration or payments sought maintain commen- must ing no immediate end.”3 We needs, since Kathi would surate with Kathi’s according interpret statutory language $1,200 monthly lose then acquired meaning to its unless it has common free to payments but would be work particular meaning legislative defi through $1,000 in expect approximately to gain could prior judicial nition or construction.4 monthly earnings. has suggests Ken that our law recent case appeals, contending that award of Ken the 25.24.160(a)(2) applied narrowly, defining AS legally improper and long-term alimony is only alimony— permissible categories two of factually of unwarranted and amount alimony— rehabilitation and reorientation based on a flawed the child award is involving each awards of brief duration.5 of income. calculation But Ken is mistaken. have acknowl- We long-term alimony in a edged concept of the III. THE SUPERIOR COURT PROPER- Thus, keeping number with AS of cases.6 in LY ALI- AWARDED LONG-TERM 25.24.160(a)(2), alimony our case law allows THE MONY TO KATHI BUT BASED “just of and AMOUNT THE CHILD indefinite duration when it is OF SUP- AN PORT ON AWARD INCORRECT necessary.”7 OF IN- DETERMINATION KEN’S

COME. Did Not Abuse Its Discre- B. Court Alimony Finding Long-Term tion in Long-Term, A. Permits Ali- Law Necessary. and Just mony Necessary.” and When “Just Ken next asserts that an extended challenging In the court’s al order, questions any justified in imony alimony first whether award is event (E) including question parties, is a law that we de the conduct of 1. This of review the Puddicombe, Fitzgerald depletion novo. See v. 918 P.2d there has been unreasonable whether 1017, (Alaska 1996). assets; 1019 of marital (F) (4) division of under of this tire 25.24.160(a)(2) 2. AS states: subsection; and (a) judgment In a in an action for divorce or (G) factors the to be other court determines declaring marriage any void or at action time relevant in each individual case.... judgment, may provide after (2) recovery by party for the one the from Dictionary 3. New Third International Webster's maintenance, money an other of amount of (1967). 1147 time, period in limited or indefinite of installments, may just or in as and Salvucci, Corp. 4. Fin. v. 950 P.2d Alaska Hous. regard par- to which without of the 1116, 1997). (Alaska 1121 fault; an of maintenance ties is fairly award must allocate economic effect of divorce the proposition 5. v. Ken cites Davila Davila for the being following based of the on a consideration "[tjhere continuing types that are two distinct of factors: alimony spousal support[,] ... ... rehabilitative (A) marriage length the of the and station in alimony.” P.2d [and] [r]eorientation See 908 parties during marriage; of the the life 1027, (Alaska 1995) (citations n. 9 and 1033 (B) age parties; the the health of and omitted). quotations internal (C) earning capacity parties, backgrounds, cluding their educational train- See, 795, Gallant, e.g., 6. 801 Gallant v. 945 P.2d skills, employment ing, experiences, work 1173, (Alaska Jones, 1997); Jones 835 P.2d market, job length of absence from the and Hilliker, 1992); (Alaska 755 1178-79 Hilliker v. during responsibilities custodial for children (Alaska 1988). P.2d marriage; (D) parties, condition of the financial Hilliker, including insurance; availability (quoting at AS and cost of health Gallant, 25.24.160(3)); accord 945 P.2d at present nearby family. under the facts of the case. lack of The difficulties Kathi will face in assertion, attempting to be self-sufficient he at of this reviews consequence long-term are a of her marriage. length position. the evidence favors his Furthermore, as the court accurate- appeal reweigh Yet our function on is not to observed, ly Kathi’s work the home al- evidence; alimony we review awards for produce lowed Ken to the wealth that is the abuse of discretion and will reverse an award current source of the marital estate’s eco- only definitely when firmly and convinced nomic value. court made a mistake.8 short, our review of the record discloses carefully Here the trial court considered supporting substantial evidence the court’s light statutory the evidence factors persuades findings and us that the court’s governing alimony.9 awards alimony award did not amount to an abuse of justified long-term part award based discretion. thus affirm We the court’s find- ings respect to Kathi’s economic needs experience, on Kathi’s lack of work re- her earning potential. also affirm We its sponsibilities par- primary as Jens’s custodial long-term conclusion that a award of ent, deafness, job prospects, and her lack of necessary. is both ability employment. and limited to retrain for severely It found that all of these factors C. The Court Erred in Computing Ken’s

impaired employability. Kathi’s Income. also found that could not Kathi’s needs through met an uneven division of marital superior Ken maintains that the court assets. determining erred in the award of his child support obligation on gross the basis of his argues While Ken that the record does not adjusted annual income than rather his annu support findings, disagree. the court’s we al income. He also maintains that the court’s analyze Ken asks us to each of Kathi’s cir- gross unfairly mistaken focus on his income isolation, in cumstances but we believe the ruling influenced its alimony. on the issue of approach court’s cumulative is more argument Ken’s has merit. Civil Rule appropriate.10 We note that Kathi will be 90.3(a) requires sup- courts to calculate child raising single parent, Jens as a undergoing port “adjusted awards on the basis of annual job retraining, coping prob- thyroid with her income”; the rule defines that term as travel, undertaking lem and associated as “parent’s total income mi- from all sources supervising repairs well as to the marital mandatory nus” various deductions and ex- demands, facing residence. all of these penses, tax, including “federal income social deafness, challenged by she will be her limit- tax, security mandatory [and] retirement de- education, Here, experience, ed work limited ductions.” court did Dodson, (Alaska disputed any 8. Dodson v. record whether the have accounts 1998). present income-producing potential; we note parties disagree concerning the ac- availability. superi- counts’ current Because the 9. These factors are set out in AS 25.24.160(a)(2)(A)-(G). or supra court will discretion to reconsider the See 2. Ken note remand, property may argues part division on Ken ask the in did not give adequately income-producing poten- court to this issue further consideration. address the proper- tial of retirement accounts and other ty that it awarded to Kathi. But the income- Gallant, (awarding 10. See 945 P.2d at 801-02 producing capacity statutory is long-term alimony spouse managed home who deciding factor that the court must consider in during marriage, possessed ence, experi- limited work equitable property on an division. See AS problems). and suffered from health 25.24.160(a)(4)(I) (providing that courts must ex- income-producing capacity prop- amine "the [of 90.3(a) provides: Rule Civil estate). erty]” dividing in a marital That factor (a) directly apply alimony, does not to decisions on A child award in a case in which which, (cid:127) above, governed by parent primary physical one awarded sole or as noted are subsec- is Moreover, 160(a)(2). custody tion it is unclear from the ... will be calculated as an amount mandatory retire- withholdings are akin to adjusted annual income calculate Ken’s 90.3(a)(1)(A)spe- expenses, Rule ment which establishing his child concluded, cifically as deductible.14 lists based on payment; simply it income, that $95,000-plus gross annual Ken’s findings court’s questions Ken further Rule 90.3’s adjusted income would exceed his earnings as a commer- concerning gross his 90.3(a)’s $72,000 Rule cap. income Given Noting that his annual cial fisherman. adjusted to calculate annual express directive commercially fluctuated from come income, using gross Ken’s the court erred trial, drastically years over the three before sup- as the basis for its income used he contends that the court should have port award.12 average of his three-year income instead future year’s earnings predict his prior Nevertheless, given the sizeable argues Ken the court income. also gross Ken’s annual income amount which self-employment to deduct erred $72,000 cap exceeds the expenses from his out-of-pocket taxes and income, inquire whether appropriate it is it calculated his gross fishing income when regard, Ken this error was harmless. income. components significant contends that several gross income would have been deduct of his averaging approved income This court has actually calculated ible had parent’s undergoes yearly where a income First, correct Moreover, annual income. Commentary fluctuations.15 ly should have deduct practice appropri- asserts that permits to Rule 90.3 Furthermore, the more than Commentary ed from his ate cases.16 with taxes that the state from federal Rule 90.3 makes clear that income prior year’s wages; Rule self-employment “gross receipts held from his mi- includes 90.3(a)(1)(A) expenses expressly requires ordinary this deduct and re- nus the quired produce Ken next asserts that the court the income.”17 The Com- ion.13 Supple mentary provides that courts have mandatory further should have deducted (SBS) withholdings. which business ex- System Benefit discretion to determine mental Nevertheless, correct, penses may mandatory be deducted.18 Again, he is since these 1235, 1989) (Alaska (recognizing the equal adjusted of the P.2d 1236 to the annual income mandatory-deductions Rule clause parent multiplied by percent- non-custodial 90.3(a)(1)(A)). (a)(2). age specified subparagraph in (1) Adjusted income as used in this 11; 90.3(a)(1)(A) supra note see parent’s from all 13. Rule is set out rule means the total income Neilson, (ruling at 1275-76 also 914 P.2d sources minus: obligor’s deduct State of lower court's failure to (A) mandatory federal deductions such as calculation California income taxes from income tax, tax, security mandatory re- social error). was clear mandatory tirement deductions and dues; union supra note 11. (B) See alimony support payments and child arising prior relationships re- which are from Zimin, 118, quired by pro- n. 9 other court or administrative 15. See Zimin v. 837 P.2d 123 (Alaska 1992). ceedings actually paid; and (C) support prior children from relationships living parent, Commentary the calculated R. III.E. 16. See Alaska Civ. P. 90.3 rule; by using provided by this the formula and Commentary R. Civ. P. 90.3 III.B. (D) expenses for the work related child care sup- subject the of the child children who are id.; Renfro, v. 848 P.2d 18. See see also Renfro port order. 830, (Alaska (internal 1993) quotations omit 833 921, ted) Coghill, (quoting Coghill P.2d v. 836 Neilson, v. 1275-76 (Alaska 1992)) Neilson (holding that the trial court 12. Cf. 1996) (Alaska (failure obligor’s discretion, State of presented, to deduct has on the evidence earning taxes from income calculation ... future California income choose "the best indicator of Lindback, error); Bergstrom capacity”). was clear superior acknowledge excluding the court did not the Even per Ken’s taxed diem as a permissible option averaging findings gross income, of income in nor deduction from its potential impact explain cumulative relying did it its reasons for on Ken’s other al- lowable deductions casts addition, upon serious doubt year of earnings. most recent superior court’s conclusion that Ken’s any fishing-relat- the court failed to mention adjusted annual income exceeds If expenses taxes or in findings. ed its This mistaken, this conclusion was the mistake findings precludes lack of accurate review of might impact have had a direct on the court’s the court’s decision to attribute to Ken order; might mistake also as annual income.19 indirectly have influenced its decision on ali- mony. circumstances, Under these the fail- Finally, argues that adjusted ure to calculate Ken’s annual in- $11,533.25 erred to deduct in state come cannot be deemed harmless. per highway employees diem. Marine re per out-of-pocket ceive diem for expenses, IV. CONCLUSION generally for meals lodging and when Accordingly, we AFFIRM items, foreign ports. are For certain such court’s long-term alimony award of RE- but meals, as and employees hotels some must adjusted MAND for calculation of Ken’s an- provide receipts compensation. to receive nual income. If the calculation establishes expenses These are not taxed. For other adjusted that Ken an has annual income of expenses, employees receive a contractual $72,000, less than court will be daily rate and need receipts. not submit required to recalculate Ken’s child expenses These are taxed. obligation and should orig- also reconsider its trial, At suggested inal award of to determine whether only per Ken’s untaxed it necessary.22 diem would be de- continues to and ductible from income for FABE, Justice, concurring part income; computing dissenting part. implied per court’s comments that his taxed non-necessary expenses diem covers agree I with the court that the judge trial should therefore be counted in in- properly long-term alimony awarded to Ka- come.20 Ken ruling contends that is agree thi. And I trial court should per mistaken and that all of his diem must be performed adjust- the calculations and adjusted excluded from annual income. But precise ments needed to reach a figure for superior we find the reasoning court’s sound adjusted Ken’s annual income. But its fail- and conclude that it did not err distin- require ure to do so does not a remand of guishing per between taxed and untaxed findings. this case for further gross Ken’s adjusted diem $100,000 for of calculated an- per year. income exceeds Even nual income.21 taking arguably proper after into account all Davila, 1089, separately See Davila v. 1094-95 22.Ken claims error in the value the (Alaska 1994) (holding that the trial court must court the attributed to warehouse and adequate findings, particularly regarding make adjacent family tidelands lot to the residence in parties); the financial needs and abilities of both Petersburg. property The court valued the at Renfro, accord 848 P.2d at 834. $29,300 parties agree and awarded it to Ken. The that the court erred in to deduct from this trial, suggested 20. At Ken's counsel that the $5,422.26 value the current debt of owed on the (cid:127) per deduct court both taxable and non-taxable remand, property. On the court should revalue diem, "[i]t because reimburses him for what property change this and determine whether this spend....” replied, he had to The court “I don't adjustment an of the overall warrants government Why think the federal believes that. division. him, taxing would then?” findings We also note that the in the written incorrectly parties Though point record four, state that the the became moot at the end of three, actually rather than children. This mistake trial because the court did not calculate income, judgment adjusted Ken's annual it will have has no effect on the but should be re- accuracy. newed relevance on remand. corrected on remand in the interest of any significant deductions, adjusted tops did the trial miss gross income Nor court his $72,000. fishing expenses that cap or taxes. testified income of Because Rule 90.3’s correct, only fishing for 1996 expenses were $400- bottom line was the trial court’s its outlays” out-of-pocket in “actual includ- perform necessary $500 the calculations failure clothes, groceries, of fuel and ing his “share is I would therefore affirm the harmless. lost, gear that was hooks and share obligation established testimony And no ganions.” there was or superior court. “fishing argument at trial about taxes” specific finding court The made Thus, apparently the court.3 that concern $100,000 gross that Ken’s income exceeded fishing address trial court’s failure to figure comprised of “[t]o- 1996. This was error, resulting at expenses was most a $500 earnings ferry system tal gross from the [of] $9,100. Indeed, fishing of in a 1996 income $91,391.05; [of] Permanent Fund dividend lawyer at trial that Ken’s Ken’s conceded $1,131; fishing income [of] commercial [and] 1996, out-of-pocket income fishing after $9,600,” $102,122.05. totaling net.” expenses, approximately “was $9000 identifies three deductions that trial Thus, (Emphasis supplied.) if trial even in- judge gross should have Ken’s made to neglected fishing-related court to consider determining adjusted annual come in Ken’s expenses, this would not affect the conclusion purposes: Rule 90.3 federal income for adjusted that Ken’s annual income exceeded $17,000; mandatory come taxes of SBS of $72,000. $3,843; per of and non-taxable diem sum, I do not remand is believe $27,298 and, adjustments when These total in this case. income, gross from Ken’s render subtracted findings gross err in on Ken’s did not its $74,824.05. an income of appropriate income for and after the Thus, majority appro- give if the were adjustments figure income are priate trial level of deference to the court’s made, Ken’s income still ex- findings, only it income could conclude that Thus, cap. ceeds Rule 90.3’s income adjust- the trial court’s conclusion that Ken’s perform the trial failure to all neces- court’s $72,- ed annual income exceeded Rule 90.3’s sary determining sup- calculations in cap was correct. reason, port I was harmless. For re- question Yet the court the trial chooses to spectfully dissent. finding fishing in- judge’s regarding Ken’s ac- judge come because the trial “did not

knowledge option” averaging Ken’s years over income several and “failed any ex- fishing-related mention” taxes or penses findings.1 doing, in its In so ROLLINS, Elizabeth d/b/a ignores the fact that neither Rule 90.3 1910, Appellant, compels averaging. nor our case law income commentary recognizes, As the to Rule 90.3 Alaska, DEPARTMENT STATE OF averaging mere- required is is—it REVENUE, BEVER- ALCOHOLIC ly “may the trial a tool that choose” to BOARD, Appellee. AGE CONTROL past employ when income has been erratic.2 No. S-8601. While the trial court the choice of has income cases, averaging in such it need not exercise Supreme of Alaska. Court option express findings need it nor make 12, 1999. Nov. when it elects not to so. It was do thus wholly appropriate rely the trial

on Ken’s 1996 in determining income year. for that Op. Op. at 200. at 200. Commentary

2. Alaska R. Civ. P. 90.3 III.E.

Case Details

Case Name: Hammer v. Hammer

Court Name: Alaska Supreme Court

Date Published: Nov 12, 1999

Citation: 991 P.2d 195

Docket Number: S-8415

Court Abbreviation: Alaska