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L. Johnson v. S. Johnson (7/17/92), 836 P 2d 930
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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
L. DONALD JOHNSON, )
) Supreme Court No. S-4218
Appellant, ) Superior Court No.
) 3AN-86-1298 Civil
v. )
)
SYLVIA M. JOHNSON, ) O P I N I O N
)
Appellee. )
) [No. 3867 - July 17, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Robert C. Erwin, Erwin &
Smith, Anchorage, for Appellant. Donna C.
Willard, Law Offices of Donna C. Willard,
Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
Donald Johnson appeals a Final Decree of Divorce
claiming the superior court erred in its award of
interim spousal maintenance, its division of the
property and its allocation of costs. We affirm in
part and remand in part for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Donald and Sylvia Johnson were married in 1946. Both
were employed for a period of time. Sylvia's
employment ended when she began raising children.
In 1948 the family moved to Fairbanks. Donald worked
for the Alaska Road Commission, the Army Engineers and
later became a partner in a water delivery service. In
1951 the family returned to Iowa for one year where
they assisted Sylvia's father with his farm. They
returned to Alaska and after a brief stay in Fairbanks
they moved to Kenai.
In 1952, through a veterans' lottery, the family
received a homestead on which they built the family
residence. Sylvia has occupied the home from the time
it was constructed until the present. Because of his
occupations Donald spent relatively little time at
home.
In 1952 Sylvia and the Johnson's oldest son were
involved in an automobile accident. The child died and
Sylvia suffered severe injuries including permanent
partial hearing loss. The $15,000 settlement from the
accident was used to start Kenai Float Plane Service,
Inc. in 1957. Donald held 51% of the stock while
Sylvia held 49%. Donald flew the planes and Sylvia ran
a refueling service and kept the books. Donald also
worked as a carpenter and a commercial fisherman in the
summers between 1955 and 1962. Sylvia assisted by
setting and mending nets and by keeping records.
As Kenai Float Plane Service became viable, the
Johnsons became licensed guides and began conducting
big game hunts. They developed Bear Lake Lodge on a
parcel of land near Port Moller on the Alaska
Peninsula. This facility began as a small cabin, but
as the guiding operation flourished it evolved into a
compound which included a main lodge of more than 5,000
square feet, a bunkhouse of more than 4,000 square
feet, a substantial workshop and many other facilities.
Donald flew clients to the lodge and guided them on
hunts. Sylvia assisted by maintaining the books of the
Bear Lake operation, cooking, cleaning and serving as
an assistant guide.
In 1971 Donald sold an interest in the Bear Lake
operation to Gene Kulyan and the operation was
incorporated. In 1985 Donald purchased Mr. Kulyan's
interest and became the sole owner of Bear Lake Lodge,
Inc. Throughout these changes in ownership, Sylvia
continued to assist with the operation of the lodge.
Meanwhile, the Johnsons constructed a hangar to serve
Kenai Float Plane Service on part of the Kenai
homestead. An airstrip and other improvements were
added to the property.
In 1983 Donald suffered a heart attack which left him
unable to pilot commercial aircraft or guide hunters.
Donald transferred his 51% interest in Kenai Float
Plane Service to his son Warren. Since the transfer,
Warren has operated the flight service.
By 1986 the Johnsons had accumulated a large gun
collection and a large number of animal trophies and
skins. They also had acquired interests in land
including property at Cold Bay, some aircraft, several
antique cars, coins and other collectibles. Both
Donald and Sylvia had received inheritances. Of the
original 160 acre homestead, there remained about 120
acres. This acreage was composed of 102 acres on which
the flying service facilities were located, 15 acres
around the family residence, and a separate two and one
half acre parcel.
The circumstances which led to the divorce are in
dispute. When Sylvia filed for divorce on February 6,
1986, she requested a restraining order against Donald
to prevent harm to herself and to prevent dissipation
of marital assets. The superior court entered a
temporary restraining order, followed by a preliminary
injunction, restricting Donald's access to the family
residence and forbidding the parties from dissipating
assets. Upon Sylvia's motion, Judge William Fuld
entered an order in July 1986 awarding Sylvia interim
spousal maintenance in the amount of $1,000 per month.
The maintenance award remained in effect through the
remainder of the divorce proceedings.
The marriage was ended in August 1987. Issues of
support and property division were reserved for trial.
Because insufficient evidence existed concerning
values, the trial court appointed a master to oversee
property identification and valuation. After the trial
court received the Master's Report and supplemental
pleadings of the parties, it entered Findings of Fact
and Conclusions of Law and a Final Decree of Divorce.
On appeal, Donald asserts that the trial court erred in
its valuation and division of property, its assessment
of costs and in its award of spousal maintenance.
II. STANDARD OF REVIEW
The determination of an award of interim spousal
maintenance under AS 25.24.140(a)(2), like the
determination of an award for interim attorney's fees
and costs under AS 25.24.140(a)(1), is committed to the
sound discretion of the trial court. See Burrell v.
Burrell, 537 P.2d 1, 7 (Alaska 1975). We review an
award of interim spousal maintenance for an abuse of
discretion.
Property divisions are reviewed to
determine "whether the trial court abused the
broad discretion given it under
AS 25.24.160(a)(4)." Moffitt v. Moffitt, 749
P.2d 343, 346 (Alaska 1988). The trial court
must use a three-step process in dividing
property: First, the trial court is to
determine what property is available for
division; this determination is reviewed
under an abuse of discretion standard
"although it may involve legal
determinations, which this court reviews
independently." Id. Second, the trial court
is to value the property; this is a factual
inquiry to be reversed only if clearly
erroneous. Id. Third, the trial court is to
equitably allocate the property; this
determination is reviewed applying an abuse
of discretion standard and set aside only if
clearly unjust. Id.
Richmond v. Richmond, 779 P.2d 1211, 1213 (Alaska 1989).
III. DISCUSSION
A. The Award of Interim Spousal Maintenance.
Judge Fuld entered an order awarding Sylvia interim
spousal maintenance of $1,000 per month on July 7,
1986. With the exception of one $900 payment, Donald
failed to pay the maintenance. On Sylvia's motion, the
delinquent maintenance through September 2, 1987, along
with interest and costs, was reduced to judgment in the
amount of $14,993.17 in December 1987. Sylvia executed
against Donald's bank accounts and recovered most of
the judgment. As part of the Final Decree of Divorce,
Donald was ordered to pay the unpaid spousal
maintenance which had accrued from October 2, 1987
through August 29, 1990.
Donald contends that the award of "temporary alimony
against a spouse who was permanently and totally
disabled and unable to pay because he had no income"
was clearly erroneous.1 Donald asserts that Sylvia had
employment income of $12,000 to $14,500 per year and
could have liquidated assets in the event she required
further funds. Further, Donald contends that because
the trial court did not articulate the basis for the
maintenance award, the award was erroneous.
We are hampered in our review of this issue because the
record contains no findings in support of the interim
maintenance order entered by Judge Fuld.
We have often commented on the requirement in Alaska
Civil Rule 52(a) that trial courts make findings in
support of their decisions in non-jury cases.
The trial court thus has a duty "by
sufficiently detailed and explicit findings
`to give [this] court a clear understanding
of the basis of the trial court's decision,
and to enable it to determine the ground on
which the trial court reached its decision.'"
Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987) (quoting Merrill
v. Merrill, 368 P.2d 546, 548 (Alaska 1962)). See
Ogard v. Ogard, 808 P.2d 815, 816 (Alaska 1991)
(remanding where we were "unable to determine whether
[an interim child support award was] appropriate
because the court ha[d] not made findings of fact and
conclusions of law in support of the award"); Lewis v.
Lewis, 785 P.2d 550, 554 (Alaska 1990) (remanding where
"the court provided no explanation for treating interim
spousal maintenance as a distribution of marital
property").
Without an understanding of the basis for the order, we
cannot determine whether the trial court abused its
discretion in awarding Sylvia interim spousal
maintenance. Therefore, we must vacate the award2 and
remand the issue for specific findings.
In remanding the issue we note that the legislature has
provided trial courts with little guidance regarding
how they are to identify the "appropriate
circumstances" which justify an interim spousal
maintenance award. See AS 25.24.140(a).3 We make the
following observations to assist in that regard.
We have previously distinguished the purposes of
spousal maintenance and the distribution of marital
property. See Lewis v. Lewis, 785 P.2d 550, 553-54
(Alaska 1990). In conjunction with an interim award of
attorney's fees and costs, an award of interim
maintenance provides for reasonable and necessary
living expenses while divorce litigation is pending and
insures that neither spouse is disadvantaged in
presenting their claims. See Cooper v. State, 638 P.2d
174, 181 (Alaska 1981).
Because the purpose of interim spousal maintenance is
different from the purpose of a property settlement, a
court awarding interim spousal support need not
consider all of the factors articulated in Merrill v.
Merrill, 368 P.2d 546, 547-48 n.6 (Alaska 1962).
Rather, the primary factors which should be considered
in awarding interim spousal maintenance are the
relative economic circumstances and needs of the
parties and the ability to pay the maintenance. See
Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975).
B. The Kenai Homestead.
Without citing supporting authority, Donald argues that
he should have been awarded a portion of the Kenai
homestead. He contends that "basic fairness" requires
that he should receive some portion of the homestead
because it was "obtained by him solely as a result of a
land lottery for veterans"and because it was "the base
upon which he built his life."
This court has frequently stated that a trial court's
equitable allocation of property "is reviewed purely
under the abuse of discretion standard and _will not be
disturbed unless it is clearly unjust._" Moffitt v.
Moffitt, 749 P.2d 343, 346 (Alaska 1988) (quoting
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)).
When the trial court's property division is viewed as a
whole, we cannot say that the award of the homestead to
Sylvia is "clearly unjust"in light of the award to
Donald of all the animal trophies and the entire Bear
Lake Lodge operation. The manner in which the parties
obtained the homestead and the notion that it was a
base of operations do not require a different
allocation.
C. The Valuation of the Cold Bay Property.
Donald contends that when the trial court valued the
Cold Bay property at $30,000 and awarded it to him, the
court failed to recognize that Donald "still owed
$17,000 for the lot and that he had paid some $7,000 to
$8,000 per year for the lot during the period after the
Decree of Divorce and before the Final Judgment
herein." Donald asserts that the court abused its
discretion when it ignored his testimony regarding the
amount of the debt and the payments.4
Donald's testimony at trial regarding the Cold Bay
property was imprecise. Donald stated, "I paid the --
I think it was $5,000 down. And then I've been paying
roughly, I think, $7,000 or $8,000 a year. That's on
the interest and principal. And I just found out the
other day, I believe I owe $17,000 or something on it
yet." In contrast, Appendix "A" to Donald's Trial
Brief values the Cold Bay lot at $30,000 without
disclosing any related encumbrance.
A trial court's determination of the value of property
and the existence and amount of encumbrances is a
factual inquiry and should be reversed only if clearly
erroneous. Richmond v. Richmond, 779 P.2d 1211, 1213
(Alaska 1989). The court's findings regarding the
valuation of the lot are supported by evidence. We
will not say that the trial court "clearly erred"when
it adopted one of Donald's representations over the
other.
D. The Cost of the Second Appraisal of Bear Lake Lodge.
Donald contends that Sylvia incurred unnecessary costs
by ordering a second appraisal of Bear Lake Lodge after
he had already obtained an adequate appraisal which was
ultimately accepted by the Master. Donald emphasizes
that the trial court established that appraisal costs
were to be split between the parties unless a party
incurred unnecessary costs. Donald argues that the
court erred when it failed to order Sylvia to pay the
entire cost of the second appraisal.
Donald's argument lacks merit because Donald has not
persuasively demonstrated that the second appraisal was
unnecessary.5
E. Other Issues.
After Sylvia filed her appellee's brief, Donald filed a
Motion to Amend Statement of Points on Appeal. In his
memorandum in support of the motion, Donald conceded
that two of the issues he argued in his brief could "be
reasonably construed as being outside the original
statement of points on appeal." These issues are: 1)
the "trial court erred by its failure to assign a value
of personal property award [sic] to Sylvia;"and 2) the
"trial court erred in determining that the hangar on
the homestead was the property of Kenai Float Plane
Service."6 We denied Donald's motion to amend his
Points on Appeal.
Generally, we "will consider nothing but the points"in
an appellant's statement of points on appeal. Alaska
R. App. P. 210(e). Therefore, we will consider neither
of these two issues which Donald concedes are outside
the original points.
Donald raises two issues in his Statement of Points on
Appeal relating to valuation of collectible coins.
However, he concedes in his reply brief that, by
stipulation of the parties, the trial court was not to
consider the coins.
Donald also contends, in point number six, that the
court erred in finding that Donald had taken a gun from
the custody of Sylvia and requiring him to replace the
gun. However, Donald does not argue this point in his
briefs. Because Donald has abandoned the issue, we
will not consider it. Wetzler v. Wetzler, 570 P.2d
741, 742 n.2 (Alaska 1977).
IV. CONCLUSION
The trial court did not make findings of fact or
conclusions of law explaining the basis of the award of
interim spousal maintenance in the amount of $1,000 per
month. Because we cannot determine the grounds on
which the award rests, we cannot determine whether the
court abused its discretion in entering the award.
Therefore, the maintenance award must be VACATED and
the case REMANDED for an explanation of the grounds for
the award. In all other respects, the judgment of the
court is AFFIRMED.
_______________________________
1. Sylvia disputes this characterization of Donald's
financial condition.
2. We are not persuaded by Sylvia's contention that Donald
has waived any claim of error regarding that portion of
the interim spousal maintenance award that was reduced
to judgment on December 2, 1987. The order of the trial
court directing Donald to pay Sylvia maintenance during
the pendency of the divorce proceeding was
interlocutory in nature. The judgment supporting the
maintenance order disposed of less than all of the
claims in the action and resolution of the matter was
subject to revision before entry of the Final Decree of
Divorce. Unless certified in accordance with Alaska
Civil Rule 54(b), such a judgment is not immediately
appealable. Alaska R. Civ. P. 54(b). Donald properly
raised the propriety of the maintenance award in his
appeal from the Final Decree of Divorce.
3. The statute provides in part that "[d]uring the pendency
of the [divorce] action, a spouse may, upon application
and in appropriate circumstances, be awarded expenses,
including . . . reasonable spousal maintenance . . . ."
AS 25.24.140(a).
4. Donald contends that his position is supported by
language in Burgess v. Burgess, 710 P.2d 417, 421 & n.6
(Alaska 1985). In Burgess, this court indicated that a
party would be entitled to an offset for post-
separation improvements to property unless the party
invaded marital property to finance the improvements.
Id.
As Sylvia points out, Donald's April 16, 1986 Financial
Declaration reveals no source from which he could have
obtained such funds except marital property. If Donald
invaded marital property to make payments on the Cold
Bay lot, he should receive no offset.
5. Donald contends that his position is supported by Dixon
v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987). Donald
misreads Dixon. In Dixon, we concluded that the trial
court did not abuse its discretion where it required
one party to pay for more than half the cost of
appraisals even though the court had previously ordered
the costs split. Id.
6. Assuming that issue 2 is properly before the court, it
is without merit. Donald does not contest the $102,000
valuation of the hangar adopted by the court. Neither
does he dispute the fact that he transferred his
interest in Kenai Float Plane Service, Inc. to his son
Warren with the result that Warren and Sylvia own 51%
and 49% of the corporation respectively. Rather, he
argues that the court erroneously determined that the
hangar on the Kenai homestead was a corporate asset and
subtracted 51% of the value of the hangar from the
marital estate. We note that there is evidence in the
record which supports the court's finding that the
hangar was the property of Kenai Float Plane Service,
Inc. Beginning in 1971, the corporation listed the
hangar as an asset and recognized depreciation of the
hangar on its corporate tax schedules.
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