*1 rejected liability judgment jury implicitly has or instructed the on his inno- legislature gradations misrepresentation of fault. cent claims on lesser See must fail. based State, Sprague Amyot points appeal amended his on 1979) (in statutory scheme the exclusion superior include the issue of whether remedies is to be inferred absent attorney’s court’s fees award was error. He remedies). specified inclusion among also listed it the “Issues Presented opening For Review” in his brief. Neverthe- Similarly, requirement that sell less, Amyot failed to discuss the issue his faith,” good make disclosures “in AS ers opening appellees brief. The noted this fail- 34.70.060, legislature indicates that in reply Amyot in their ure brief. his brief liability no to attach for an inaccurate tended explanation offered neither for his failure nor form if made in statement on the disclosure argument attorney’s on the fees issue. He good By plain language, provi faith. has waived the issue. See Adamson v. Uni- of conduct to sion establishes the standard Alaska, versity 889 n. 3 making must con which those disclosures legislature include a form. The did not defi “good chapter faith” in nition of 70. See AS IV. CONCLUSION chapter dealing In the with resi 34.70.200. relations, leg superior landlord and tenant court is AF-
dential good “honesty has defined faith as in FIRMED. islature
fact in the conduct of the transaction con 34.03.360(5). In cerned.” AS the adverse RABINOWITZ, J., participating. context, good
possession we have defined faith as “an honest and reasonable belief.” State,
Ault v. definition, precise it Whatever the misrepresentations
clear that innocent do not good By
violate the faith standard. defini
tion, liability repre such standard liability.
sentations can offend is strict HARRELSON, Appellant, Kenneth good Consistent with the faith standard of 34.70.060, AS the disclosure form established Commission,
by the Real Estate see AS HARRELSON, Appellee. 34.70.050, responses seeks made “[t]o No. S-7141/7462. knowledge.” “good of [the seller’s] best Like faith,” language is not consistent with a Supreme Court Alaska. liability misrep- strict standard for innocent resentations. 14, 1997. Feb. superior correctly concluded precludes 34.70 claims of innocent
misrepresentation as to residential
concerning included in the manda- conditions actionable,
tory disclosure form. To be mis-
representations in the disclosure form must negligently
at least be made.
D. Other Issues
Based on our conclusion that AS 34.70
precludes misrepresenta- a claim of innocent
tion, Amyot’s arguments superior granted summary him
court should have *2 Knutson, reconciled, Bledsoe, separate Bledsoe & An- sold their resi- Mark S. dences and retained the in their chorage, Appellant. They individual accounts. bank married on Vitale, Anchorage, Appellee. Vincent 3,1992. January COMPTON, C.J., and Before *3 they About the time last reconciled MATTHEWS, RABINOWITZ, EASTAUGH 1991, they had a condominium built on Brit- FABE, JJ. tany residence, Drive. It was their marital
and Barbara still resided there at the time OPINION solely Larry’s of trial. Title is name. parties dispute the extent of Barbara’s EASTAUGH, Justice. financial contribution to the construction ex- I. INTRODUCTION penses. Both testified that the con- (Larry) appeals Harrelson the tri- Kenneth solely Larry’s dominium was name be- al court’s division of and award of impaired rating. of Barbara’s cause credit spousal support to Barbara parties permanently separated in Oc- part Harrelson. We affirm in and reverse tober 1994. part. Proceedings B. II. FACTS AND PROCEEDINGS Following trial in the court issued A. Facts findings of fact and conclusions of law and a Relying final decree of on divorce. the dis- Larry legally Barbara and Harrelson were parity earnings parties, between the thirty-four for the last married months unequal the court held that an distribution twelve-year relationship. They began their the marital spousal assets and award of living together in the fall of and resided support were warranted. The court found in Barbara’s California home until 1985. estate, the value of the marital which includ- They began holding themselves out as hus- anticipated ed the net sale from the band and wife 1985. condominium, $196,554. Brittany Drive to be Larry job In 1985 obtained a with an An- $135,657 The court awarded assets worth chorage dealership couple automobile and the Barbara, and the remainder of the marital currently moved to Alaska. is em- estate, $60,897, Larry. worth ployed dealership, at the where he is now the $1,200 per spous- awarded Barbara month in manager. finance Barbara worked as a wait- support long al “as as she is a full time quit working ress and a bartender. She student, dies, marries, through until she spring employed 1991 and was June, 1999,whichever first occurs.” outside the home for the remainder of their 60(b) Larry filed a Rule motion for Civil trial, relationship. At Barbara testified that judgment, requesting relief from the credit University currently she was enrolled at the post-separation payments for his on the con- Anchorage of Alaska and intended to earn a dominium and Barbara’s car. The court de- degree journalism public relations payments nied a condominium credit June granted Larry’s payments on but credit through From 1987 filed Larry’s the car loan. The court denied sub- joint though federal income tax returns as sequent 77 motion for Civil Rule reconsidera- In were married.1 1989 the tion. were owners of a home. The separated from October 1989 to June 1990 III.DISCUSSION and from October 1990 to December 1990 or A. Review Standard of January During when reconciled. 1994), separation, purchased separate P.2d 909 each Cox v. After summarized the standards of review for
residence with his or her own funds.
we
$69,551
ranged
period,
ranged
Larry's
from
earned income
Barbara’s earned income
$14,445
In that same
zero to
in 1990.
1988 to
in 1993.
time
Property Division
proceedings
B.
divorce
elements of
the various
follows:
regarding
Larry raises a number of issues
These issues
property division.
the court’s
court has broad discretion
The trial
categories: dura-
following broad
fall into the
in a divorce
fashioning
division
proper-
marriage; classification of
tion of the
trial court’s
reviews the
action. This court
ty;
party’s contribution to the
each
available
of what
determination
estate;
commingling
question of
of discre-
under an abuse
for distribution
or source
application
rescission
course of deter-
If in the
tion standard.
division;
approach
of funds
property is available the
mining what
post-separation house
of credit for
denial
determinations,
such
legal
court makes
injustice
allegedly
clear
payments;
reviewable under the
are
determinations
*4
award.
All
judgment” standard.
“independent
de novo with
questions of law are reviewed
marriage
1. Duration of
that is
adopting the rule of law
this court
conflicting
trial court made
statements
precedent,
persuasive
light
in
rea-
most
findings
fact and conclusions of law
in its
However,
court’s
policy.
the trial
son and
marriage.
It
regarding the duration of the
parties
to treat
findings that the
intended
by
parties
holding
“were
found that
1985
only if
as marital are disturbed
wife” and’
out as husband and
themselves
avail-
clearly
The valuation of
erroneous.
in
together
lived
what
that “[t]he
property is a factual determination
able
a common law
believed to be
only
clearly
if
that should be reversed
3,
January
1985 until
1992.”
least
equitable allocation of
erroneous. The
that
Although the court found
under an abuse of
property is reviewable
3, 1992,
January
it also
were married on
will not be re-
discretion standard and
parties were married for
found that
clearly unjust.”
it is
versed “unless
Additionally,
“Mr.
“eight years.”
it stated
parties were mar-
Harrelson admits that the
(citations omitted).
Id. at 913
However,
for the
ried in Mexico
that
were married
first time he denies
of a Civil Rule
We review a denial
ceremony_”2
prior to the 1992 Mexican
60(b)
from a
for
motion for relief
Morris,
Morris v.
an abuse of discretion.
recognize common
Alaska does not
(Alaska
Likewise,
425, 427
908 P.2d
25.05.011;3
marriages.
Serradell v.
law
of a
Rule 77 motion
we review a denial
Civil
Co.,
Accident
Indem.
843 P.2d
&
Hartford
for an abuse of discretion.
for reconsideration
1992)
(Alaska
(“There
639,
is no
n. 5
641
Village
v.
Council
Neal & Co. Association
Alaska.”)
common law
Auth.,
P.2d
Regional Hous.
895
Presidents
(Alas
Franke,
60,
364 P.2d
63-64
Edwards v.
(Alaska 1995).
497,
We will find
506
1961)).
held, however,
ka
We have
that “the
only
a
when “left with
of discretion
abuse
court is free to consider the
trial
conviction,
reviewing
firm
after
definite and
relationship, including any period(s) of
entire
record,
that the trial court erred
cohabitation,
the whole
making
prop
its
premarital
Gale,
837,
25.24.160(a)(4),
ruling.”
v.
866 P.2d
841 erty
Buster
so
division under AS
1994)
Corp.
(quoting
long
Dura
v.
the distinction
n. 9
as the court observes
1985)).
Earned,
draws between as-
which AS
703 P.2d
409
part,
suspect
inconsistency
In relevant
AS 25.05.011 states:
that this
is the result
2. We
findings
adoption
and conclu
of the court’s
(a)
requiring
Marriage is a civil contract
both
adopting
prepared
counsel. While
sions
and solemnization ...
license
prepared by
findings
counsel is
and conclusions
only
permissible,
appropriate
when the
(b)
it "is
may
joined marriage
person
A
not be
findings
conclusions 'reflect the court’s in
for
state until a
has been obtained
license
this
"
weight
dependent
purpose
provided
chapter.
view of the
of the evidence.’
as
in this
A
Smith,
(Alas
marriage performed
1093
3
is not valid
v.
n.
in this state
Smith
1993)
provided
(quoting
v.
in this
Industrial Indem. Co. Wick
without solemnization
ka
Co.,
(Alaska 1984)).
chapter.
1108
Constr.
prior
prior
parties’ marriage,
cover-
acquired
sets
was the sole
titleholder,
Murray,
dues,
Murray
paid
all condominium
ture.”
(Alaska 1990).
taxes, insurance,
utility
Because the
were le-
expenses. Larry
months,
thirty-four
gally
only
married for
it
argues
further
should not
find that the
had
was clear error to
be deemed
be marital asset because
eight years
for
and to other-
been married
Barbara
not
did
show intent
to treat
imply marriage
longer
joint asset,
duration.
wise
as a
as the
placed
ownership
and Barbara
stating
In
that Barbara was married
substantially
managing,
was not
involved
eight years,
may
trial court
have meant
maintaining,
improving
marriage-like relationship
had a
eight years. That would
with
have We have held that “[i]n limited circum-
permissible characterization of the
spouse’s property
been a
stances invasion of one
parties’ relationship.
language acquired
Other
before coverture
implies
of fact and conclusions of law
Wanberg Wanberg,
as a matter of law.”
what
trial court
have been
That
not what
premarital property
meant.
court summarized when
said,
expressly
Nor
it
however.
did make
becomes
as matter of law:
Murray
might
reference to
have
Separate property
becomes marital
*5
helped confirm that was what
it meant.
upon
showing
parties
a
that the
intended
inferring
finding
Rather
than
the trial
property
to treat the
as marital. Chotiner
intended,
might
prefer
court
not have
we
to
Chotiner,
(Alaska
[v.
(or
clarify
that it can
if
remand so
correct
1992)].
proper
The
standards for deter-
necessary)
finding
marriage
that the
last-
mining
property
whether real
should be
eight years.
ed
because it is un-
characterized as marital
are set forth
clear to what extent the court’s treatment of
such cases as
and
Chotiner
McDaniel v.
the duration of the
influenced the
McDaniel,
2.
joint
property
ownership
title of the
Classification of
(4)
.
using the credit of the non-titled owner
trial
“[t]he
The
court held that
condomini-
Chotiner,
improve
property.
to
um is
a marital asset
deemed
because
P.2d at 833.
portion
pre-
substantial
of Mrs. Harrelson’s
money
purchase
it and
was used to
properly, joint separate, ... ac- whether Murray to or a "formalis- “talismanic” reference quired only during marriage, in a manner particular language, tic invocation" of Dissent at regard and without to which of the is in 20, but because we cannot determine whether fault; however, court, making the. the divi- division. error influenced sion, may property, invade the ... of either of Barbara’s payments and most mortgage Bar- testified that Both to its construction. Moreover, living expenses. of her the title because was not on bara “glaring disparity” between stressed Additionally, ac- impaired credit. funda- earning capacities was the parties’ agent as his knowledges that Barbara acted unequal proper- supporting the mental factor condominium, making building of the for the ty We hold division. decorating gen- decisions all the interior respective properly considered hold erally supervising the construction. We not abuse its discretion and did contributions to show the facts are sufficient these unequal property holding that an distribu- parties’ intent to hold tion was warranted. not err in that the trial court did asset and treating such. it as commingling 4. Substantial application a rescission or source to the mari- The contributions approach in the divi- funds tal estate sion that Barbara contrib- trial court found court found that “[f]rom the sale of her proceeds of uted the entire par through [the least 1985 October home, $81,923, “joint expenses” California They commingled assets. had their ties] The court stat- enterprise.” “marital They spent joint checking accounts. their segregate these that Barbara “did ed family expenses.” earnings on individual Larry ar- estate.” funds from the marital finding Larry argues that the court erred holding court erred gues that substantially commingled the marital Barbara contributed refusing and thus erred their assets Larry’s fi- failing to consider estate and Rose, theory Rose v. apply a rescission under marriage.6 nancial contributions to the (Alaska 1988), or a source of *6 Zimin, proceeds the theory
Barbara received
837 P.2d
under Zimin v.
funds
(Alaska 1992).
in 1990 and
her
home
the sale of
California
118
money
the
the use of this
before
testified to
together
approxi-
for
parties
lived
marriage in
to the
parties’
years.
heard testi-
mately twelve
The court
Barbara’s
the trial court characterized
extent
living expenses,
mony
they
shared
filed
$82,000 as a contribution
contribution of the
(and
years
joint federal tax returns for six
estate, the trial court erred.
to the marital
liabilities),
joint
expense of
tax
shared the
however, that
recognized,
chil-
supported each other’s
and raised and
par
the entire
contributed
marrying,
owned and sold
dren. Before
enterprise.
the
Because
ties’
economic
together. The trial court did
a home
parties’
trial court was free to consider
clearly
finding
parties
in
had
err
determining
equita
relationship in
entire
substantially commingled their assets.
division, Murray, 788 P.2d at
ble
marriages
that for
We held
Rose
42,
characterizing
Barbara’s con
any error
assets have not been
short duration which
marital was harmless.
tributions as
may,
abus-
commingled a “trial court
without
discretion,
property division
ing its
treat the
trial court also made other find
rescission,
in the nature of
aimed
bearing
parties’ relative contribu
as an action
ings
on the
in,
closely
possi-
as
placing
marital estate.
It noted the
tions to the
ble,
incomes,
position
financial
would have
explicitly listing their
parties’ past
place.” 755
occupied had no
taken
from 1987 to 1993.
It
respective incomes
apply Rose
at 1125.
have refused to
unemployment
P.2d
We
also noted Barbara’s
commingled assets.
relationship,
have
years
when
the later
Zimin,
121;
Cox,
914;
P.2d at
separated,
Because we
commingling of as-
finding
(holding
payment
substantial
that while
of fair
err
market
sets,
no
in its decision not to
we find
error
rental value for the use of marital
circumstances,
apply
Rose.
under some
give
courts have discretion whether to
Zimin,
upheld
In
837 P.2d at
we
post-separation payments
credit for
to main-
approach
in a
divi-
source of funds
divisions).
property in property
tain marital
any
present
failed to
sion when
explicitly
Larry’s
The trial court
addressed
disputed
present
evidence of the
value of the
request
post-separation
credit for
house
In
clarified that
we
payments.7
parties’ highly dispa-
Given the
only appropriate
approach
of funds
source
incomes,
rate
the trial court did not abuse its
circumstances:
under limited
denying
discretion
the credit.
Zimin,
essentially
the trial court was
approach
forced into a source of funds
regarding
because there was no evidence
6. Division
present
disputed proper-
value of
Larry argues
division
ty....
holding was thus limited to
Our
clearly unjust
because it awarded Bar
ap-
approval
of the source of funds
assets,
bara two-thirds of all of the
proach in the limited context of determin-
including premarital assets. We have held
current value in the absence of
trial courts
have broad discretion
other evidence.
dividing property and that such decisions will
(citation omitted).
Cox,
regarding disputed the current value of the 1986) Hunt, (citing Hunt v. property, inappropriate Zimin is (Alaska 1985)). declining adopt trial court did not err approach. Alaska Statute mandates that, divisions, making property courts post-separation 5. Denial credit fairly must allocate the economic effects payments house following consider divorce and must fac- Larry argues that tors: denying modify erred his motion to (A) length and station give post-sepa final him decree to credit for *7 parties during marriage; in life of the the payments. ration house asserts that possession Barbara’s exclusive of the house (B) age parties; the and health of the given post- mandates he be credit for (C) earning capacity parties, the of the separation payments made to maintain the including backgrounds, their educational Brittany Drive residence. skills, training, employment experi- work have that trial courts consid- “We ences, length job from the mar- of absence payments prop- er made to maintain marital ket, responsibilities and for chil- custodial erty post separation from income when divid- during marriage; dren the not, however, We have (D) parties, the financial condition of the spouse pay- held that the who makes such including availability the and cost of health necessarily given ments must be credit for insurance; property them the final division.” Ram- (E) sey Ramsey, parties, including v. the conduct of the 1992) (citing Doyle Doyle, v. whether there has been unreasonable de- assets; 1991)); Rodriguez pletion 369 n. 5 of marital see also over, Larry's argument granted Larry that the court failed to con- some relief request expenses sider his for a credit is without merit. from the maintenance minium, for the condo- explicitly Not did the court consider this any ordering parties evenly split request in its of fact and conclusions of expenses April repair after the incurred law, it also the addressed issue its order re- date of the final divorce decree. sponding Larry’s post to trial motions. More- (F) desirability family judgment, the court awarding of the time after the home, provide in it right the to live for a reason- time, party who has period able of children; custody
primary physical of (2) by recovery party one the (G) circumstances and of the necessities money the other an amount of for main- of party; each tenance, period for a limited or indefinite time, installments, may gross of or in (H) of of acquisition the time and manner necessary regard and without property question; the and fault; which of is in the award (I) capacity income-producing of the the fairly of must maintenance allocate value of the property and the by being of divorce based economic effect the time of division. following on a of the factors: consideration above, As noted court’s treatment (A) length of the and sta- parties’ marriage of the duration of the during tion of the mar- life implicates clear error. Because this error riage; (A) (H) factors under AS (B) parties; age and health of decision, have influenced the court’s (C) earning capacity parties, of remand and reconsideration including backgrounds, their educational remand, necessary. division are On skills, training, employment experi- work must first determine what is ences, job length of absence from mar- Only subject marital. the marital is ket, responsibilities chil- custodial unless the court inva- division finds that marriage; dren separate property is required sion of (D) of parties, the financial condition equities.” “balancing AS availability including and cost of health 25.24.160(a)(4). insurance; (E) parties, the conduct of the in Spousal Sup- C. Award Rehabilitative cluding whether there has been unreason port assets; depletion able of marital Larry argues that it was an abuse of dis- (F) (4) the division under cretion court to award for the subsection; spousal support given the short duration (G) other factors the court determines parties’ marriage sufficiency to be relevant in each individual case. in the marital estate cover Bar- expenses. Larry bara’s educational alterna- Spousal support supported must be awards tively argues that he entitled to credit by specific findings consider statuto- against spousal support obligations his be- Gallant, ry and law factors. Gallant v. case part represented housing cause of that award (Alaska 1994) actually costs Barbara has not in- which Messina, 25.24.160(a)(2); Messina *8 Larry that the curred. asserts trial court’s (Alaska 1978); Merrill 805 v. Mer- grant refusal to such a credit cleat- rill, 1962)). 547-48 n. abuse of discretion. However, “a court need not make find- trial Gallant, ings regarding every factor.” spousal support “An award of is within the P.2d at 1255. trial and will court’s discretion be set aside unjust unnecessary.” if or it is Rich- 1. duration on re- Effect of of Richmond, mond spousal support habilitative issue to award its decision rehabilita 25.24.160(a)(2)provides Alaska Statute the spousal support, explicitly tive spousal support may grant- test for when be upon disparity relied the between the ed: earning capacities, age incomes the and
(a) judgment in parties, In a an action for divorce health of the the nature of mari declaring property, tal action void or the reasonableness necessi- costs, ty of the educational duration periods consideration the for which Barbara relationship.8 it of the Because is unclear to housing has not had to incur costs.10 respect what extent court’s error with parties’ marriage of the influ- duration IV. CONCLUSION award, spousal support enced its it is neces- part We AFFIRM in and REVERSE and sary to remand this issue for clarification. part. REMAND in Because we hold that note, however,
We
that on remand the trial
the trial
finding
par-
court erred in
court has the
to consider “other
discretion
ties
prior
were married
we RE-
factors the court determines to be relevant in
MAND
spousal
division and
25.24.160(a)(2)(G).
each individual case.” AS
support
light
award for reconsideration in
of
Therefore, the court is free to consider the
holding.
our
Additionally, we REVERSE
relationship, including periods
entire
the trial court’s denial of a
against
credit
premarital
cohabitation and
economic
Larry’s spousal support obligations for Bar-
enterprise,
analyzing
the issue of rehabili-
bara’s rent-free use
Brittany
of the
Drive
spousal support.9
tative
condominium and REMAND for determina-
tion of
proper
amount of credit. We
against
2. Denial
Larry’s
credit
AFFIRM the trial court’s decision in all oth-
spousal support obligations due to
respects.
er
housing
Barbara’s rent-free
Larry asserts that he is entitled to a de-
RABINOWITZ, Justice, with whom
spousal support obligations
duction from his
FABE, Justice, joins, dissenting
part.
per
in the amount of
month while Bar-
$750
Central
prop-
to the court’s
reversal
Brittany
bara resides rent free in the
Drive
erty
spousal support
division and
award is its
residence.
assertion that
trial court
“[t]he
made conflict-
justified
spousal sup
findings
statements
of fact and
award,
port
part, by
the estimated cost of
conclusions of
regarding
law
the duration of
housing
Receipt
Barbara’s
needs.
of the full
marriage.” Op.
view,
my
at 250. In
award, therefore,
amount of this
is neither
study
superior
findings
court’s
of fact
necessary
nor
when Barbara does not
entirety
and conclusions of law in their
re-
Consequently,
incur this cost.
we hold that
veals that whatever “conflict”
be found
it was an abuse of discretion to refuse to
superior
description
court’s
modify
provide
for a reason
marital status of Barbara
simply
Larry’s spousal support
able deduction from
ambiguity
reflects the
that characterized
obligation to reflect Barbara’s
use
rent-free
relationship.
their
of the marital residence.
if on
remand
ambiguity
court awards
This
is well documented
spousal support,
throughout
the award must
superior
take into
court’s
Ulsher,
(Alas-
Schanck,
Relying
on Ulsher v.
fact
between
whole,
or court observed
distinction
findings
fact and conclusions
these
of
prior
during
to
acquired
assets
support
superior court’s determi-
law
of
that such
existed.
Larry and.
to
extent
distinction
that from 1985 until
nation
out as husband and
Barbara held themselves
rightly
superior
that a
notes
wife,
sharing
they considered to be
what
premari-
court
to consider the
is free
marriage.
law
In 1992 the'
common
Murray and AS
relationship pursuant
tal
They
legally
in Mexico.
com-
were
married
25.24.160(a)(4).
superior
The
court did
through
mingled their assets
October
dividing
that
the Harrelsons’
findings
clearly
erroneous.
These
are
and,
view,
satisfy
my
its conclusions
Murray.
requirements of
should not
Courts
possibility
court
that “[i]n
The
admits.the
effectively
equitably
foreclosed
dis-
be
eight
that
married for
stating
Barbara was
commingled
property that
tributing
that
have meant
years, the
court
relationships. Ar-
“quasi-marital” premarital
relationship
marriage-like
had a
guably,
relationships
that such a
it is
these
years_
lan-
eight
with
Other
just. This result is not
distribution is most
fact and
guage in the
conclusions
and, moreover,
Murray
by
effective-
dictated
implies
may have been
of law
what
ly
premise.
undermines its basic
Op. at 251.
trial court meant.”
Yet
divi-
court
to reverse
disagree with
conclu-
Because I
the court’s
spousal support
award because the
sion
sion that “it is unclear
what extent the
“expressly”
this
superior court did not
state
[superior]
duration
court’s treatment of the
Murray
any explicit
reference to
or make
marriage”
judgment,
its
I
influenced
(Alaska 1990), despite
Murray,