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M. Brosnan v. J. Brosnan (10/4/91), 817 P 2d 478
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
MARTA BROSNAN, )
) Supreme Court No. S-3629
) Trial Court No.
) 3KN-88-874 Civil
) O P I N I O N
JOSEPH BROSNAN, )
) [No. 3757 - October 4, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston,
Appearances: Allan Beiswenger,
Robinson, Beiswenger & Ehrhardt, Soldotna,
for Appellant. William T. Ford, Anchorage,
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Appellant Marta Brosnan challenges several aspects of
the superior court property division in the divorce proceeding
between her and appellee Joseph Brosnan. Marta's main objection
concerns the court's decision to value the marital property at
the time of separation rather than the time of divorce. She also
challenges the court's valuation of certain property and the
exclusion of certain property from the division of assets.
Finally, Marta claims that the court erred in not awarding her
full costs and attorney's fees.
Marta and Joseph were married in Costa Rica in 1966.
They moved to Alaska permanently in the late 1960's, and built a
house for the family in Homer in 1971. During the marriage,
Marta devoted most of her time to raising the couple's four
children. Joseph worked at various jobs, though his primary job
was as a commercial fisherman in Bristol Bay.
The family moved back to Costa Rica in October 1986 due
to the illness of Marta's father. They had purchased a half
interest in a ranch there several years earlier. The parties had
experienced marital problems for several years at this point, and
they separated in Costa Rica in April of 1987.
In addition to the Homer residence, the couple had
acquired several other large assets by the end of the marriage.
In 1977, Joseph was awarded a Limited Entry Permit for the
Bristol Bay Drift Fishery. At the time of separation the permit
was worth about $140,000. By the time of the divorce in 1989,
its value had appreciated to roughly $240,000. In 1980, Joseph
had bought a fishing boat called "The Judgment." Unlike the
fishing permit, the value of the boat decreased between the time
of separation and the time of divorce, going from $90,000 to
$80,000. After the separation, Joseph sold some herring nets and
a skiff associated with the boat for $10,000.
In approximately 1983, Joseph had lent $5,000 to Mario
Torres, Marta's brother-in-law. At the time of the trial, the
loan had not been repaid. Marta testified that she had advised
Joseph against making the loan and that she had no expectation
that the loan would ever be repaid. Joseph's testimony was
somewhat contradictory on this point. At one point he testified
that the note "wasn't collectible." Later, he testified that his
chances of recovering on the loan were zero, but Marta's chances
were "much better." The highest quantified estimate he ever gave
on Marta's chances of recovering on the loan was 10%.
In making its division of the property, the trial court
valued the property as of the time of separation rather than
divorce, concluding that there had been no sharing of assets and
no "joint enterprise"between the parties since the separation.
The trial court awarded to Marta the property in Homer ($90,000),
the Costa Rica ranch ($7,000),1 and the outstanding Torres loan
($5,000). To Joseph, the court awarded the Limited Entry Permit
($140,000) and "The Judgment"and gear ($90,000). The court also
required Joseph to assume roughly $83,000 of the couple's debts.
Since the court divided the property on a 55-45 basis, with 55%
going to Marta, Joseph was ordered to pay Marta approximately
$39,000 over five years. Finally, the court ordered Joseph to
pay $2,092.75 of Marta's costs and fees. This amounted to
slightly over 50% of her total costs and fees of $3,885.50
A. Valuation of the Marital Assets
Marta argues that the trial court erred by valuing the
marital assets as of the time the parties separated instead of at
the time of divorce. The main significance of this difference is
the appreciation of the Bristol Bay fishing permit, which
amounted to roughly $100,000 between the separation in April of
1987 and the divorce in June of 1989.
At the time the superior court issued its decision, it
did not have the benefit of our recent decision in Ogard v.
Ogard, 808 P.2d 815 (Alaska 1991). In Ogard, the trial court
awarded the husband a four-plex valued as of the date of
separation. On appeal, the husband argued that this was unfair
since the property had fallen in value by the time of trial. We
agreed that the interests of accuracy and fairness require that
"[o]rdinarily . . . the date of valuation [of marital assets]
. . . should be as close as practicable to the date of trial."
Id. at 819. Ogard is directly on point.2 We therefore reverse
the trial court's valuation of the marital assets and remand with
directions that the marital property be valued as of the time of
B. The Torres Note
Marta contends that, given the evidence at trial, the
superior court erred in assigning a value of $5,000 to the Torres
note. This is a factual determination which will be disturbed
only if there is clear error. Nelson v. Jones, 781 P.2d 964, 970
(Alaska 1989) (citing Moffitt v. Moffitt, 749 P.2d 343, 346
(Alaska 1988), cert. denied, 111 S. Ct. 44 (1990)). We deem a
factual finding to be clearly erroneous "when we are left with a
definite and firm conviction on the entire record that a mistake
has been made, even though there may be evidence to support the
finding." Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979).
From the evidence in the trial record, it is highly
unlikely that the Torres note will ever be repaid. Marta
testified that she had no expectation that the loan would ever be
repaid. Joseph's testimony was not consistent on this point, but
the most favorable estimate he gave was that Marta had a 10%
chance of recovering the loan.4 From the record, we are firmly
convinced that the note's actual value is significantly less than
its face value. Hence, assigning the note its face value was
clear error. On remand, the court should assign the Torres note
a value no greater than 10% of its face value.5
C. Other Property
Marta next argues that the trial court erred in not
including certain other items in the property division.
Specifically, Marta claims that herring nets, a skiff, a set of
walrus tusks, and various other items of personal property were
omitted from the property division. We review a trial court's
determination of what property is available for distribution for
abuse of discretion. Moffitt 749 P.2d at 346.
The trial court valued the boat at $90,000 at the time
of separation, and did not mention the nets and skiff although
they may have been encompassed within that figure. The boat
should have been valued as of the time of trial. The $10,000 for
which Joseph sold the nets and skiff between the date of
separation and time of trial should have been included in the
court's disposition. On remand, the court should clarify these
aspects of the property division.
As for the trial court's omission of the value of the
walrus tusks and the items of personal property from the
distribution, we find no error. Although Joseph initially valued
the tusks at $2,000, this was before he learned that he could not
sell them. It was not clearly erroneous to assign the tusks a
value of zero. Nor did the trial court err in omitting various
items of personal property from the property division. The net
marital assets totalled roughly $250,000. The trial court has
broad discretion in determining the appropriate property
division, and failure to include $1,000 worth of assets out of
net marital assets of $250,000 was not clearly unjust. Hunt v.
Hunt, 698 P.2d 1168, 1171 (Alaska 1985) (per curiam).
D. Attorney's Fees
Marta's costs and fees totalled $3,885.50. The court
ultimately awarded her $2,092.75 as partial compensation for
these expenses. She contends that the court erred by not
awarding her full costs and attorney's fees. We will not disturb
the trial court's award of attorney's fees absent an abuse of
discretion. See Nelson, 781 P.2d at 971.
Marta correctly points out that the parties' relative
economic situations and earning capacities are relevant
considerations in awarding attorney's fees. Streb v. Streb, 774
P.2d 798, 803 (Alaska 1989). Nevertheless, we cannot say that
the court's award of over 50% but less than 100% of Marta's
actual costs and fees was "arbitrary, capricious, manifestly
unreasonable, or [the result of] an improper motive." Lone Wolf
v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987) (quoting Brooks
v. Brooks, 733 P.2d 1044, 1058 (Alaska 1987) (quoting Tobeluk v.
Lind, 589 P.2d 873, 878 (Alaska 1979))). There was no abuse of
discretion. Nelson, 781 P.2d at 971. We therefore affirm the
trial court's award of costs and fees.
The decision of the superior court is AFFIRMED in part,
REVERSED in part, and REMANDED.
1 The ranch was sold in 1987, and Marta had kept the
2 The fact that Ogard involved depreciation as opposed to
appreciation as in this case is irrelevant.
3 As a result of using the time-of-trial values, the
superior court may find it necessary to make changes in the
distribution of the marital property in order to ensure that the
55-45 division is maintained.
4 Joseph's testimony about Mario's alleged statement that he
would repay Marta, when viewed in context, does not provide
strong support for assigning the Torres note its face value:
Q Well, let's talk about the
$5,000 loan. You've admitted that the
chances of recovering that are virtually
A I don't know.
Q Well, didn't you testify that
for you it's zero, for her it's
something less than 5% or something to
A She called Mario, and Mario said
that he would pay the loan to her. I don't
know whether that means that he will or he
won't, but that's--I don't know that.
(Emphasis added). From this exchange, it appears that even
Joseph did not place much hope on Mario's statement. In light of
this and all the other evidence in the record, repayment seems
5 The 10% figure mentioned by Joseph at trial presumably
referred to Marta's chances of recovering the loan as of the time
of trial. Thus, the 10% figure is in accordance with Ogard.