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Ilardi v. Parker (4/19/96), 914 P 2d 888
Notice: This opinion is subject to 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
FRANK J. ILARDI, )
) Supreme Court No. S-7121
) Superior Court No.
v. ) 3AN-92-04330 Civil
JOYCE A PARKER, n/k/a ) O P I N I O N
JOYCE A. ILARDI, )
Appellee. ) [No. 4339 - April 19, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Joan M. Woodward, Judge.
Appearances: M. Gregory Oczkus, Greg Oczkus
Law Office, Anchorage, for Appellant. Andrew
J. Fierro, Kemppel, Huffman and Ginder, P.C.,
Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.*
SHORTELL, Justice pro tem.
This is an appeal from an order of the superior court
denying Frank J. Ilardi's homestead exemption claim.
The exemption claim was heard by a court master, who
made findings and recommendations and concluded that Ilardi's
claim of homestead exemption should be granted. Parker filed a
written objection to the master's report, attaching additional
evidence. The superior court considered the additional evidence,
disapproved the master's report, and denied Ilardi's homestead
exemption claim. Ilardi appeals.
II. FACTS AND PROCEEDINGS
Joyce A. Parker obtained a judgment against Frank J.
Ilardi, her former husband, in the total amount of $212,291.26.
In March 1993 the clerk of court issued a writ of execution on
Notice of public sale of Ilardi's property was filed in
March 1994, listing Unit No. 4B, Widgeon Court Condominiums, as
the real property to be sold. A Public Notice of Levy was posted
on March 30, and a Certificate of Levy recorded March 31.
Ilardi filed a claim for homestead exemption under AS
09.38.010(a). The exemption hearing was held before Master
Andrew M. Brown in July 1994. Prior to the taking of evidence,
counsel for Parker requested a continuance, claiming that because
Ilardi failed to attend a scheduled deposition he had been unable
to obtain additional evidence necessary to rebut Ilardi's
argument that the Widgeon Court condominium was his principal
place of residence. Parker's request for a continuance was
denied. Following the hearing, Master Brown issued a master's
report recommending approval of Ilardi's claim of homestead
exemption on August 27, 1994. The master's report also stated:
Any objections to this Report must be filed
under Civil Rule 53 at 303 K St., Anchorage,
Ak. 99501 within 10 days after its mailing.
The evidence is closed, so only objections
and proposed orders may be submitted, not
affidavits or other documents.1
Prior to the conclusion of the exemption hearing,
however, the parties set a date for a show-cause hearing before
Judge Woodward.2 On August 31, 1994, the show-cause hearing was
held. At the hearing Parker requested additional time to respond
to the master's report. The superior court gave both parties
until October 7, 1994 to object to the master's report. The
court also ordered Ilardi to provide a number of documents to
Parker filed an objection to the master's
recommendation. He filed sixteen new exhibits with his
objection. Ilardi responded, objecting that these unverified
documents should not be considered because they had been
submitted in violation of Master Brown's order closing the
On March 16, 1995, the superior court issued an order
approving the master's findings and recommendation that Ilardi's
claim of exemption be granted.3 The court explained its decision
to approve the master's report by stating "[t]he basis for
[Parker's] objections consists of evidence outside of the record
in this case."
In response to the March 16 order, Parker moved for
reconsideration, contending that the superior court's September
21, 1994 order allowed her to supplement the record with
additional evidence obtained in discovery from the appellant.
Although the September 21 order had required Ilardi to produce
many documents, it did not explicitly authorize Parker to submit
the documents she received, nor did it reopen the evidentiary
The superior court then issued an order on March 31,
1995, disapproving the master's report. The order stated:
The exemption is denied. The court meant to
circle the "approved"language in the 3/16/95
order. However, the court did not then
recall the prior procedural history which
allowed objections to be made based on
evidence obtained through discovery.
. . . .
Considering the evidence submitted by
plaintiff with his objections, and the
meaning of "actual dwelling place,"the court
concludes that defendant did not have an
actual dwelling place at the Widgeon Court
condo at the time of execution.
The superior court did not, aside from the order quoted
above, issue any findings of fact or explain why it concluded the
evidence required it to reject Ilardi's claim that the Widgeon
Court condominium was his actual dwelling place.
Ilardi filed a motion for reconsideration, arguing that
in his August 27, 1994 report Master Brown had closed the
evidence and Ilardi should now have the right to present
testimony to explain and rebut the new evidence submitted by
Parker. The superior court denied Ilardi's motion.
This appeal followed.
We must first determine whether the master and the
superior court correctly interpreted the statutory terms
"principal residence"and "actual dwelling place."
An individual is exempt from execution on an "interest
in property in this state used as the principal residence of the
individual or the dependents of the individual." AS
09.38.010(a). "Principal residence"is defined as "the actual
dwelling place of an individual or dependents of the individual
and includes real and personal property." AS 09.38.500(10).
In construing the homestead exemption statute, Master
Brown emphasized that "the most reliable guide to the meaning of
a statute is the words of the statute construed in accordance
with their common usage . . . the more plain the language of the
statute the more convincing the evidence of contrary legislative
intent must be." Homer Elec. Ass'n v. Towsley, 841 P.2d 1042,
1043-44 (Alaska 1992) (citations omitted). He realized that in
some cases legislative history or rules of construction might
indicate that the literal meaning of a statute would not be what
the legislature intended. But he also found the legislative
history of the Alaska homestead exemption statute uninformative.
This caused him to focus appropriately on the meaning of the
phrase "actual dwelling place."
The master also recognized the requirement that
exemption laws should be liberally construed in favor of the
debtor. Gutterman v. First Nat. Bank of Anchorage, 597 P.2d 969,
972 (Alaska 1979). Emphasizing the language used by the
legislature, he found that substantial absences from the debtor's
property would not necessarily defeat the claim of exemption. He
equated the phrase "actual dwelling place"with the term "usual
place of abode." He quoted with approval a case from Missouri
that said "[a]ctual residence . . . means no more than residence
- true, substantial, and real; not fictitious, nominal, or
pretended."4 His interpretation of the statute was essentially
Alaska's exemption statute uses two phrases to describe
the homestead exemption. The first is "principal residence."
That term, unmodified by other statutory language, has been
interpreted to require actual occupancy on a regular basis; thus,
a distinction can be made between a home that is regularly
occupied by the judgment debtor and property that is used only as
a vacation or weekend home. See In re Galcia's Estate, 299
N.Y.S.2d 723, 726 (Sur. 1969) (property used only as vacation or
week-end retreat does not qualify for exemption under New York
exemption statute). And a marital residence vacated by a
judgment debtor and no longer occupied by him because he has
moved to another state cannot qualify as a "primary residence."
Fontana v. Fontana, 453 N.Y.S.2d 23, 24 (App. Div. 1982).
A person may as a matter of fact have more than one
residence. Davis v. State Farm Mut. Auto Ins. Co., 583 So. 2d
225, 228 (Ala. 1991). Although the word "residence"may standing
alone be "an ambiguous, elastic, or relative term,"State Farm
Mut. Auto. Ins. Co. v. Hanna, 166 So. 2d 872, 876 (Ala. 1964),
the Alaskan statutory modifiers "primary"and "actual dwelling
place"confirm the legislature's attempt to describe the property
exempted with some degree of precision.
Under the Alaska statute, a "resident" is "an
individual who is physically present in the state and who intends
to maintain a permanent home in Alaska." AS 09.38.120(b).5
This definition of "resident"is comparable to the
meaning given to the word "domicile." See Unif. Exemptions Act '
3 cmt. 4.6 Thus, if a resident/domiciliary of this state claims
a homestead exemption under Alaska law, he must prove that the
property he seeks to exempt is his "actual dwelling place," or
the "actual dwelling place"of his dependents.7 "Dwelling place"
is no more than the claimant's home, or the home of his
dependents, which assumes a position of primary importance over
any other dwelling used or occupied by the debtor or his
Residence in this context does not require continuous
physical presence. See Unification Church v. Attorney General
for U.S., 581 F.2d 870, 875 n.11 (D.C. Cir. 1978). The courts
have uniformly held that temporary absences from the property,
even those of substantial length, will not categorically result
in residency forfeiture. See Unif. Exemptions Act ' 4 cmt. 4.
See also, Petition of Costrinakis, 179 F. Supp. 444, 445 (D. Md.
1959). The facts and circumstances of the absences should be
considered in determining whether the exemption is lost. See
Fontana, 453 N.Y.S.2d at 23-24. The facts must show that no
other residence of the debtor or the debtor's dependents is used
or lived in with such regularity and consistency that the claimed
residence cannot be found to be the debtor's primary residence or
The exemption must be determined at the time of the
levy. Cross v. Fruehauf Trailer Co., 93 N.W.2d 233, 237 (Mich.
1958). Master Brown and the superior court both correctly used
this date in evaluating Ilardi's claim of exemption. They also
agreed, apparently, that the facts as found by the master were
correct. However, the superior court disagreed with the master's
ultimate conclusion that Ilardi should be entitled to claim the
Widgeon Court condominium as his principal residence. It is this
disagreement that must be examined to determine whether the
superior court erred in rejecting Ilardi's claim of exemption.
Master Brown found that at the time that the levy took
place, March 30, 1994, Ilardi's absence from the property should
be regarded as a temporary absence due to employment which should
not defeat his claim to it as his "principal residence" or
"actual dwelling place." He recommended that Ilardi's claim of
exemption be granted.9
The superior court rejected the recommendation. It
ruled that Ilardi did not have his "actual dwelling place"at the
Widgeon Court condominium on the date of the levy. The court's
conclusion was reached after consideration of the additional
evidence submitted by Parker. No additional findings were made,
however. Therefore, the court's reasons for rejecting the
master's recommendation are not clear.
Ilardi argues that Alaska Rule of Civil Procedure 52(a)10
requires the superior court's order to contain specific findings
of fact and conclusions of law to permit meaningful review by
this court. He is correct.
The trial court must accept the master's findings of
fact unless they are clearly erroneous. Civil Rule 53(d)(2).
The trial court may, however, disregard the master's
recommendation. Its decision to do so will not be overturned
unless the record shows it to have abused its discretion.
Headlough v. Headlough, 639 P.2d 1010, 1012-14 (Alaska 1982). In
this case, as in Headlough, we cannot determine whether the trial
court abused its discretion because its ultimate conclusion is
not supported by findings sufficient to give a clear
understanding of the grounds upon which it reached its decision.
In these circumstances, a remand for additional findings is
necessary. Id. at 1014.
The record is incomplete in another respect also. The
court refused Ilardi the opportunity to present additional
evidence after it had allowed Parker to do so. The master and
the trial court consistently refused to allow supplementary
evidence to be presented by either party until the March 31, 1995
order disapproving the master's report. Only fifteen days
before, the trial court had told the parties that Parker's
evidence was "outside" the record in this case. Under the
circumstances, Ilardi, who had relied on the prior directives of
the court and master, should have been allowed to respond by
presenting further evidence and argument.
We therefore remand this case to the trial court to
reopen the record, to hold any hearings that are needed, to take
testimony if that is appropriate, and to issue findings of fact
and conclusions of law in support of its decision. These further
proceedings in the trial court may be conducted by the superior
court or by the master, as the superior court orders.
This case is REMANDED to the superior court for further
proceedings in light of this opinion. We retain jurisdiction of
this appeal pending completion of the remand.
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Master Brown reiterated the fact that the hearing and
taking of evidence was closed in his order dated January 24,
2 This hearing was the result of Ilardi's failure to
attend an October 1992 show-cause hearing which was scheduled
after his failure to appear at a September 1992 judgment debtor
3 Although in the March 16, 1995 order Judge Woodward
circled the word "disapproved"in reference to the master's
report, she later explained in her March 31, 1995 order granting
Parker's motion for reconsideration that she meant to circle the
word "approved"in her order.
4 Clarksen v. MFA Mut. Ins. Co., 413 S.W.2d 10, 14 (Mo.
1967) (quoting United States v. Anderson, 238 F. 648, 649 (D.
5 Alaska patterned its homestead exemption after that of
the Uniform Exemptions Act, with two pertinent modifications.
First, it used "primary residence"and "actual dwelling place"in
place of the Uniform Act's "property in this State used as a home
by [the debtor] or his dependents." Second, it defined
"resident" as "an individual who is physically present in the
state and who intends to maintain a permanent home in Alaska,"in
comparison to the Uniform Act's definition, "an individual who
intends to maintain his home in this state." AS 09.38.120(b);
Unif. Exemptions Act ' 3(b), 13 U.L.A. 365 (1979).
6 Alaska's exemption statute adopts without material
change the following language taken from the Uniform Act:
Residents of this state are entitled to
exemptions provided under this chapter.
Nonresidents are entitled to the exemptions
provided by the law of the jurisdiction of
AS 09.38.120(a). See also, Unif. Exemptions Act ' 3(a). Thus,
if Ilardi is a "resident"of Alaska, his exemption claim must be
governed by Alaska law. If he were a resident of some other
state, the law of that state would have to be invoked. No
specific finding was made by either the trial court or the master
whether Ilardi is a "resident"of Alaska, but the master's
findings clearly indicate that he is.
7 "'[D]ependent' means an individual who derives support
primarily from another individual." AS 09.38.500(3). The master
declined to rule whether Ilardi's wife and her son, who were
living in the condominium at the time of the levy, were
"dependents"pursuant to AS 09.38.500(3) because of "insufficient
evidence." This question will have to be explored on remand and
the evidentiary record reopened to allow the parties to present
evidence in support of their contentions.
8 Analysis of the facts is necessary to avoid the
allowance of dual or multiple homestead exemptions. See Unif.
Exemptions Act ' 3 cmt. 2 and 4.
9 Ilardi bought the Widgeon Court condominium in December
1989. He has owned it ever since. He lived in it from 1989 to
1993. In 1993, he took a job in Saudi Arabia and lived and
worked there for nine to eleven months. The condominium was
vacant for six of those months, and acquaintances of Ilardi lived
in it for the rest of the time Ilardi was in Saudi Arabia.
Ilardi returned to Alaska in late 1993 but he did not move back
into the condominium because his acquaintances were there, and
because he took four temporary jobs out of state. His wife and
her son moved into the condominium in February 1994, however, and
Ilardi himself moved back into the condominium in June 1994.
Master Brown issued the following findings and conclusions after
reviewing the facts summarized above:
At the time that the levy apparently took
place - March 30, 1994 - Dr. Ilardi's wife
and her son were occupying the Widgeon Court
property. Three months later he joined them
there. The evidence was sufficient to
believe that he did not move in to that
property for two reasons: (1) he was doing
various temporary work assignments in the
rest of the country and (2) when he was in
Anchorage for brief periods this spring there
was not sufficient furniture to accommodate
him along with his wife and her son. His
wife and her son entering into the property
and staying there, with his subsequent June
1994 moving back in indicates he did not
intend to abandon the property or move from
10 Rule 52(a) provides in part:
In all actions tried upon the facts without a
jury or with an advisory jury, the court
shall find the facts specially and state
separately its conclusions of law thereon . .
. . Findings of fact and conclusions of law
are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion except as
provided in Rule 41(b).