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Brown v. Brown (3/29/96), 914 P 2d 206
NOTICE: This 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
RUTH M. BROWN, )
) Supreme Court No. S-6816
v. ) Superior Court No.
) 3AN-93-7419 Civ.
DONALD BROWN, JR., )
) O P I N I O N
______________________________) [No. 4328 - March 29, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
James A. Hanson, Judge.
Appearances: Dan Allan, Law Office of Dan
Allan, Anchorage, for Appellant. Donald
Brown, Jr., Pro Se, Kenai.
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
In the parties' divorce proceeding, Ruth Brown was
awarded approximately fifty-percent of the marital property, one
year of rehabilitative alimony, legal and physical custody of the
children, and child support. She appeals issues related to each.
II. FACTS AND PROCEEDINGS
Ruth Brown and Donald Brown were married in 1981. They
have three children. During the marriage Ruth was primarily a
homemaker, although she attended college briefly early in the
marriage. Donald worked for his parents' construction company.
From 1990 to 1993, his wages from this company varied from
$58,517.60 to $71,561.45.
In mid-1992 the parties separated. Ruth and the
children moved to Anchorage from Soldotna. Ruth began working as
a medical receptionist, earning $1,400 per month, and began a
training program to become a physician's assistant. She also
sued Donald for divorce and other relief.
Trial was held in August 1994. The parties agreed that
Ruth would have primary physical custody of the children.
Following trial the court granted her legal custody. The court
awarded Donald the marital home in Soldotna, a 1979 auto, and
various personal property, along with the responsibility for
payment of two student loans, an auto loan, and several credit
card debts. With an equalization payment from Ruth, his property
award totaled $17,685. The court awarded Ruth a newer auto, the
portion of Donald's retirement accrued during marriage, and
various personal property, and also required an equalization
payment to Donald. Her property award totaled $17,681.
Donald was awarded visitation on alternate weekends, a
substantial part of the summer vacation, half of Christmas
holidays, alternate Thanksgivings, Easters, and spring breaks,
his birthday, and - if no significant travel is involved -
Father's Day. The paternal grandparents were awarded a vacation
period with the children covering part of the father's summer
visitation. Transportation expenses are to be paid by Donald
until 1996, when they are to be divided evenly between Donald and
Ruth. The court ordered Donald to pay child support of $1,291
per month. The court also awarded rehabilitative alimony of
$1,000 per month for one year.
Ruth appeals seven different issues.
A. The Superior Court Correctly Determined the Equity in
the Marital Home
A trial court's determination of the value of the
property available for distribution "is a factual determination
which will be reversed only if clearly erroneous." Jones v.
Jones, 835 P.2d 1173, 1175 (Alaska 1992).
Ruth argues that the court erroneously valued the
equity of the marital house at $43,100. She argues that
uncontested testimony placed the appraisal at $61,000. She
argues that only one outstanding loan, for $9,202, existed at the
time of trial. She concludes that the equity in the house was
therefore $51,798. The appraisal value of the
residence was stipulated to be $61,000. Testimony indicated two
loans were taken out using the residence as collateral. One was
from Donald's parents for $20,000 to purchase the residence. At
the time of trial the balance was $9,272.55. In August 1992, the
balance was $12,930.71. The second loan was for the purpose of
moving the residence and furnishing it with gas. By the time of
trial, this loan had been paid off. However, in August 1992 this
loan had a balance of $5,749.75.
The parties separated in July or August 1992. The
court found that the equity value of the property was $43,100;
given the figure it arrived at, it is clear that the court valued
the property as of the date of separation ($61,000 - $12,930.71 -
$5,000 = $43,069.29), not the date of trial. Ruth argues that
the property should be valued as of the date of trial.
"Ordinarily . . . the date of valuation, which may be
distinct from the date employed to distinguish marital from
post-marital property, should be as close as practicable to the
date of trial." Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991)
(footnote omitted). This is to provide recent rather than stale
financial valuations. Id. The date for distinguishing marital
from post-marital property, however, is the date of separation.
Cox v. Cox, 882 P.2d 909, 917 (Alaska 1994).
Since post-separation income is separate property,
payments made by Donald that increased the equity in the house
are his separate property. Therefore, the trial court
appropriately valued the mortgage liability on the house as of
the date of separation.
B. The Trial Court Did Not Abuse Its Discretion in
Dividing the Property Equally
Ruth argues that the statutory factors dictate a
property division weighted in her favor. She cites the different
earning capacities, her lack of training and skills, and her
absence from the job market.
The court has broad discretion in determining a
property division. Laing v. Laing, 741 P.2d 649, 651 (Alaska
1987). By statute, the court is empowered to divide all of the
property acquired during the marriage and to invade separate
property of either spouse if a balancing of the equities so
requires. AS 25.24.160(a)(4).1 On review, this court will only
disturb a property division if it is clearly unjust. Laing, 741
P.2d at 651.
A 50/50 property split is presumptively just and is the
starting point for application of the factors the court must
consider. Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988);
Wanberg v. Wanberg, 664 P.2d 568, 574-75 (Alaska 1983). An
unequal division may be upheld "when it is justified by relevant
factors identified in the findings of the court." Hayes, 756
P.2d at 300. In Hayes, we upheld an unequal division because the
findings of the trial court indicated "the wife's future need for
income during a period when she will be pursuing an advanced
professional degree." Id. This was akin to rehabilitative
alimony. Where a couple has sufficient assets, "the spouse with
the smaller earning capacity can and should receive a larger
share in the property distribution to aid him or her in this
transition." Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987).
Furthermore, property division is preferable to alimony for
providing for parties' needs. Id.
The court awarded Donald the marital home, a 1979 auto
and various personal property, as well as the responsibility for
several debts. His property award totaled $17,685. The court
awarded Ruth a newer auto, the portion of Donald's retirement
accrued during marriage, and various personal property. Her
property award totaled $17,681. However, her personal property
was not valued, though Donald's was, and testimony indicated that
she had a piano as well as other goods. We are not persuaded
that the court's award was an abuse of discretion.
C. The Superior Court's Determination of Child Support
Must Be Supported by Findings
Ruth argues that the superior court erred in
determining the child support award because it improperly
calculated Donald's adjusted income under Civil Rule 90.3. She
argues that the court did not take into account Donald's
permanent fund dividend or his employer-provided transportation.
A child support award will not be reversed unless this
court has "a definite and firm conviction based on the record as
a whole that a mistake has been made." Kowalski v. Kowalski, 806
P.2d 1368, 1370 (Alaska 1991). According to the commentary to
Rule 90.3,2 permanent fund dividends are to be included in
income. Alaska R. Civ. P. 90.3 cmt. III.A.6. Such an inclusion
also finds support in the language of the rule: "total income
from all sources." Alaska R. Civ. P. 90.3(a)(1). The commentary
also suggests inclusion of "perquisites or in-kind compensation
to the extent that they are significant and reduce living
expenses, including . . . employer provided . . . transportation
benefits." Alaska R. Civ. P. 90.3 cmt. III.A.19. While we have
not addressed specifically the inclusion of permanent fund
dividends, we have held that transportation expenses need to be
considered. In Coghill v. Coghill, 836 P.2d 921, 926 (Alaska
1992), we reviewed the trial court's assessment of the income of
a self-employed parent. The parent objected to the trial court's
disallowance of a deduction from income for the business expense
of transportation, allowed under federal income tax rules.
Although transportation cost is a legitimate business expense, we
held it also reduced his living expenses and thus needed to be
incorporated into his income.
In this case, the court ordered child support of $1,291
per month, apparently calculated according to Rule 90.3. No
worksheet was provided, however. It is important that trial
courts provide a written analysis of their child support awards.
Without such an analysis, we are unable to review their
determinations; a remand becomes necessary in most cases. This
is such a case, and we therefore remand for findings setting
forth the computations on which the child support award was
D. The Reduction in Child Support Payments When Donald Has
Extended Custody Needed to Be Supported With Findings
The court allowed a fifty-percent reduction in child
support payments when the children are with Donald for longer
than twenty-seven consecutive days. This is scheduled to occur
once every summer. Ruth challenges this allowance, alleging that
the disparate income of the parties, as well as a minimal
reduction in support expenses during the period, make the
Civil Rule 90.3 specifically grants the trial court
power to make such an adjustment.3 Only one case from this court
has specifically discussed Rule 90.3(a)(3). In Renfro v. Renfro,
848 P.2d 830, 832 (Alaska 1993), we first observed that "[t]he
decision whether to credit the obligor parent's support
obligation for these expenses is committed to the superior
court's discretion." We then held that the trial court must make
specific findings detailing its reasons for declining to apply
the adjustment, and remanded the case to the superior court for
such findings. Id.
We hold that just as a trial court must make specific
findings in denying a Civil Rule 90.3(a)(3) reduction, so must it
make specific findings in allowing such a reduction. Were we to
hold otherwise, Rule 90.3(a)(3) would be transformed into a
presumption that child support payments should be reduced, absent
express findings to the contrary. We see nothing in the language
of Rule 90.3(a)(3) that suggests that it establishes any such
presumption. Rather, Rule 90.3(a)(3) only states that the court
"may allow"such reductions.
We remand this issue to the superior court for specific
findings explaining both its decision to reduce the child support
award pursuant to Rule 90.3(a)(3), and its decision to reduce
this award by the full fifty-percent allowable under the Rule.
E. The Superior Court Did Not Abuse its Discretion in
Providing Visitation Rights for the Paternal
Ruth argues that "[i]t was an abuse of discretion for
the court to provide the grandparents with specific visitation
rights, when such visitation was not ordered pursuant to a
finding that it would be in the best interests of the children."
"[T]he court may . . . make, modify, or vacate an order
for the custody of or visitation with the minor child . . .
including an order that provides for the visitation by a
grandparent or other person if that is in the best interests of
the child." AS 25.24.150(a). AS 25.24.150(a) does not require
the trial court to specify why such visitation is in the best
interests of the children. Instead, it merely states that the
trial court may award such rights if they are, in fact, in the
best interests of the children. Thus it is implicit in the
court's decision that such visitation is in the best interests of
the children. The trial court could have reasonably determined
that visitation by the paternal grandparents would be in the best
interests of the children; we see no reason to require a precise
explanation. Cases cited by Ruth do not support a contrary
F. The Allocation of Transportation Expenses for the
Children Was Proper
The superior court ordered Donald to pay transportation
expenses for the children's travel until 1996; the expenses would
be split after that. It carved out an exception for Father's
Day, Mother's Day, and birthday visits; those expenses would be
borne by the "honored"parent. Ruth argues that this order was
an abuse of discretion, since the method of travel was left to
Donald, and he might choose "expensive"air travel.
Nothing in the record indicates that Donald has control
over the travel method after 1996. While the court ordered Ruth
to cooperate with air travel if "the father has arranged for
transportation by air to Kenai,"the current home of Donald, this
statement occurred in the paragraph that ordered Donald to pay
for expenses through 1996. Nothing indicates that Donald has
sole control over travel method after 1996, and Ruth's argument
G. The Rehabilitative Alimony Award Was Proper
The court also awarded rehabilitative alimony of $1,000
per month for one year. The court stated that Ruth "has made a
good case for rehabilitative or reorientation alimony. There is
no question that all concerned will benefit from the enhanced
income that will attend the completion of her studies. I cannot,
however, justify such payments beyond October 1995 at $1,000 per
month." Ruth's studies were slated to end in September 1995,
with a board exam at the end of October. Her expected income
would then rise to between $35,000 and $38,000 per year.
Ruth argued that the award was insufficient to meet its
stated purpose, as it terminated prior to her certification,
which was expected in January 1996. She therefore requested that
rehabilitative alimony be extended to January 1996.
The object of rehabilitative alimony is to rehabilitate
the spouse's job skills. Richmond v. Richmond, 779 P.2d 1211,
1215 (Alaska 1989). As we stated in Richmond:
Rehabilitative alimony may be awarded for a
specific purpose and a short duration even
with an adequate property division, but is
limited to job training or other means
directly related to entry or advancement
within the work force. The party seeking
rehabilitative alimony must intend to use it
for such purposes. Absent such an intent,
rehabilitative alimony should not be awarded.
Id. (citations omitted); see also Jones v. Jones, 835 P.2d 1173,
1178-79 (Alaska 1992) (rehabilitative alimony is warranted only
if it will be used for "job training designed to lead to
employment"); Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986)
(rehabilitative alimony is "properly limited to job training or
other means directly related to the end of securing for one party
a source of earned income"). The trial court must find that the
alimony will be applied to job training. Miller v. Miller, 739
P.2d 163, 165 (Alaska 1987) (remanding for such a finding, and
allowing an award "[o]nly if the court finds that she does intend
to prepare to re-enter the work force").
By her own testimony, Ruth acknowledged that her
training and exams would be fully completed by the end of October
1995. While she alleged that she would not be able to enter the
job market in her new profession until the beginning of 1996,
nothing prevented her from finding employment for the last part
of 1995. She had no additional school expenses and no studies to
complete. Understandably she would have liked to be supported
for that period; however, nothing prevented her from supporting
herself. In our cases upholding rehabilitative alimony awards,
no case identifies a specific time when rehabilitative alimony
must terminate. However, in Dixon v. Dixon, 747 P.2d 1169, 1173
(Alaska 1987), we overturned a rehabilitative alimony award,
finding that the education plan did not prevent the spouse from
working full-time, and thus did not justify the "substantial
award." Applying the reasoning of Dixon to the case before us,
we conclude that the superior court's termination of
rehabilitative alimony at the conclusion of Ruth's studies was
well within its discretion.
We REMAND the case to the superior court for findings
regarding the child support award, in accordance with parts III.C
and D of this opinion.4 We AFFIRM the decision of the superior
court in all other respects.
1 The court is to consider the following factors:
(A) the length of the marriage and station in
life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties,
including their educational backgrounds,
training, employment skills, work
experiences, length of absence from the job
market, and custodial responsibilities for
children during the marriage;
(D) the financial condition of the parties,
including the availability and cost of health
(E) the conduct of the parties, including
whether there has been unreasonable depletion
of marital assets;
(F) the desirability of awarding the family
home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities of each
(H) the time and manner of acquisition of the
property in question; and
(I) the income-producing capacity of the
property and the value of the property at the
time of division.
2 This court has not officially adopted the commentary,
but may rely on it for guidance. See Eagley v. Eagley, 849 P.2d
777, 779 (Alaska 1993) (used to aid in determining adjusted
annual income for self-employed parent).
3 "The court may allow the obligor parent to reduce child
support payments up to 50% for any period in which that parent
has extended visitation of over 27 consecutive days." Alaska R.
Civ. P. 90.3(a)(3).
4 We do not retain jurisdiction over this appeal. In the
event either party wishes to appeal the ruling on remand, the
party may file, within 30 days after the superior court
distributes its ruling, a notice to reinstate the appeal, a
supplemental statement of points on appeal, and request a
supplemental briefing schedule.