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Musser v. Johnson (3/8/96), 914 P 2d 1241
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT W. MUSSER, )
) Supreme Court No. S-6278
) Superior Court No.
v. ) 3AN-93-749 CI
JANET E. JOHNSON, ) O P I N I O N
Appellee. ) [No. 4325 - March 8, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Larry Card, and Karl
S. Johnstone, Judges.
Appearances: Robert W. Musser, pro se,
Anchorage. Vincent Vitale, Law Offices of
Vincent Vitale, P.C., Anchorage, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice pro tem.*
I. FACTS AND PROCEEDINGS
Robert Musser and Janet Johnson were married in July
1991 and separated in April 1992. They filed a dissolution
petition that August, appending a "Property Settlement Agreement"
(Agreement). According to the Agreement, Janet was to quitclaim
the home the couple had purchased together in exchange for a
$15,000.00 cashier's check; each was to assume full
responsibility for debts listed in his or her own name. When
Robert and Janet appeared before a master, they could no longer
agree on the division of marital property. The dissolution
petition was therefore dismissed.
Janet filed for divorce in January 1993. At trial,
Robert argued that Janet was bound by the terms of the Agreement.
Janet testified that when she signed the Agreement she was
confused as to whether it accounted for $20,660 she had given
Robert in 1991 and 1992. The superior court found that Janet was
confused about the terms of the Agreement, and refused to enforce
it. The court also found that the money Janet had given Robert
was a marital debt.
The parties disputed the value of the house. Janet
testified that its assessed value was $104,000. Robert argued
that the tax assessment overstated the house's value. The
superior court accepted the $104,000 figure, finding the tax
assessment process credible.
The superior court divided the marital assets and debts
equally, leaving Robert with a debt to Janet of $14,255. The
court also awarded attorney's fees of $700 to Janet.
Janet moved for a writ of execution against Robert's
wages to satisfy the $14,955 judgment. Robert's motions for a
stay of execution and for an exemption from garnishment were
denied. Robert appeals.
Robert argues that the superior court erred in not
enforcing the Property Settlement Agreement. Before a proposed
property division can take effect, a court must find that both
spouses "understand fully the nature and consequences of their
action,"and that the proposed division "constitute[s] the entire
agreement between the parties." AS 25.24.230(a)(1) and (2).
Janet testified that when she signed the Agreement she was
confused about its terms. The master hearing the dissolution
proceeding dismissed the petition, finding that there was "no
present agreement between the parties regarding marital property
division." Under AS 25.24.230(a), the superior court did not err
in refusing to enforce the Agreement.
Robert next argues that the superior court erred in
valuing the house at $104,000. A trial court's valuation of
marital property is a factual determination which will not be set
aside on appeal unless it is clearly erroneous. Rice v. Rice,
757 P.2d 60, 62 (Alaska 1988). Robert and Janet initially agreed
that the house was worth $104,000. At trial Robert argued that
the house was worth less than $104,000. The court's decision to
reject this argument and to value the house at the price the
parties had earlier agreed to was not clearly erroneous.
Robert also argues that the superior court erred in
considering the money Janet gave him as a marital debt when
almost half of the amount was given to him prior to the marriage.
Robert and Janet were divorced fifteen months after they married.
In a marriage of such short duration, the superior court may
treat the property division as an action in the nature of a
rescission. Rose v. Rose, 755 P.2d 1121, 1125 (Alaska 1988). As
the aim of rescission is to restore parties to their status quo,
see 17A Am. Jur. 2d Contracts ' 590 (1991), it would have not
been an abuse of discretion for the court to hold Robert
accountable for all the money Janet gave him, including the
amounts tendered prior to their marriage. See Rose, 755 P.2d at
1223 ("We have long recognized the trial court's broad discretion
in determining a just disposition of property based upon the
particular facts before it."). Considering the money as marital
debt and holding him liable for only half was not error.
Robert further argues that the superior court erred in
denying his motion to recuse. Under Alaska Civil Rule 42(c)(1),
"each side is entitled as a matter of right to a change of one
judge. . . ." Alaska R. Civ. P. 42(c)(1). Civil Rule 42(c)(3)
provides in part:
Failure to file a timely notice precludes [a]
change of judge as a matter of right. Notice
of change of judge is timely filed if filed
before the commencement of trial and within
five days after notice that the case has been
assigned to a specific judge.
Alaska R. Civ. P. 42(c)(3). Robert was notified that the case
was assigned to Judge Reese on February 1, 1993, when he was
served with a Domestic Relations Pre-Trial Order. Robert did not
move to recuse Judge Reese until August 9. Under Civil Rule
42(c)(3), the superior court did not err in denying the motion as
Robert's argument that Janet's counsel engaged in ex
parte communications with the superior court has no support in
the record, nor was it raised below. We have considered Robert's
arguments that the garnishment was improperly obtained, that the
divorce decree was fraudulent, and that the scheduling of the
trial violated Civil Rule 16(1)(c), and have concluded that they
are without merit.
Robert's single meritorious argument is that the
superior court erred in awarding Janet attorney's fees. The
trial court has broad discretion to award attorney's fees in a
divorce action. Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992).
The relevant considerations in awarding fees in a divorce action
are the "relative economic situation and earning power of each
party." Streb v. Streb, 774 P.2d 798, 803 (Alaska 1989). A
court may also award attorney's fees where "a party has acted in
bad faith or engaged in vexatious conduct." Kowalski v.
Kowalski, 806 P.2d 1368, 1373 (Alaska 1991). We have held that
"mere evasiveness in responding, contentiousness over difficult
issues, or delay in completing discovery do not, in themselves,
constitute bad faith or vexatious conduct." Id.
The superior court found that the parties' economic
situations were equivalent, and that Robert's conduct was not
vexatious. The court nevertheless ordered Robert to pay half of
Janet's fees, or $700, reasoning that if Robert had an attorney
"I expect they probably [could have] got the matter wrapped up
for less than a total of $1400. So, it's appropriate for him to
handle that amount." This decision is an abuse of discretion
because it does not identify the nature and amount of the
increased costs, Kowalski, 806 P.2d at 1373 ("When the court
finds that one spouse's misconduct has unnecessarily increased
the other spouse's costs, the court must identify the nature and
amount of these increased costs."), and also because it penalizes
Robert for choosing to represent himself. We reverse the
attorney's fees award.
We AFFIRM all parts of the divorce decree except the
award of attorney's fees. We REVERSE the award of attorney's
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.