You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Harrelson v. Harrelson (2/14/97), 932 P 2d 247
<![CDATA[
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, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH HARRELSON, )
) Supreme Court No. S-7141/7462
Appellant, )
) Superior Court No.
v. ) 3AN-94-9032 CI
)
BARBARA HARRELSON, ) O P I N I O N
)
Appellee. ) [No. 4479 - February 14, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
James A. Hanson, Judge.
Appearances: Mark S. Bledsoe, Bledsoe &
Knutson, Anchorage, for Appellant. Vincent
Vitale, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
EASTAUGH, Justice.
RABINOWITZ, Justice, with whom FABE, Justice,
joins, dissenting in part.
I. INTRODUCTION
Kenneth (Larry) Harrelson appeals the trial court's
division of property and award of rehabilitative spousal support to
Barbara Harrelson. We affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
A. Facts
Barbara and Larry Harrelson were legally married for the
last thirty-four months of their twelve-year relationship. They
began living together in the fall of 1982, and resided in Barbara's
California home until 1985. They began holding themselves out as
husband and wife in 1985.
In 1985 Larry obtained a job with an Anchorage automobile
dealership and the couple moved to Alaska. Larry is currently
employed at the dealership, where he is now the finance manager.
Barbara worked as a waitress and a bartender. She quit working in
the spring of 1991 and was not employed outside the home for the
remainder of their relationship. At trial, Barbara testified that
she was currently enrolled at the University of Alaska Anchorage
and intended to earn a degree in journalism and public relations by
June 1999.
From 1987 through 1993, the parties filed joint federal
income tax returns as though they were married. (EN1) In 1989 the
parties were joint owners of a home. The parties separated from
October 1989 to June 1990 and from October 1990 to December 1990 or
January 1991, when they reconciled. During the separation, each
purchased a separate residence with his or her own funds. After
they reconciled, they sold their separate residences and retained
the proceeds in their individual bank accounts. They married on
January 3, 1992.
About the time they last reconciled in 1991, they had a
condominium built on Brittany Drive. It was their marital
residence, and Barbara still resided there at the time of trial.
Title is solely in Larry's name. The parties dispute the extent of
Barbara's financial contribution to the construction expenses.
Both parties testified that the condominium was solely in Larry's
name because of Barbara's impaired credit rating.
The parties permanently separated in October 1994.
B. Proceedings
Following trial in 1995, the court issued findings of
fact and conclusions of law and a final decree of divorce. Relying
on the disparity between the earnings of the parties, the court
held that an unequal distribution of the marital assets and an
award of spousal support were warranted. The court found the value
of the marital estate, which included the anticipated net sale
proceeds from the Brittany Drive condominium, to be $196,554. The
court awarded assets worth $135,657 to Barbara, and the remainder
of the marital estate, worth $60,897, to Larry. The court awarded
Barbara $1,200 per month in spousal support "as long as she is a
full time student, until she dies, marries, or through June, 1999,
whichever first occurs."
Larry filed a Civil Rule 60(b) motion for relief from the
judgment, requesting credit for his post-separation payments on the
condominium and Barbara's car. The court denied a credit for the
condominium payments but granted a credit for Larry's payments on
the car loan. The court denied Larry's subsequent Civil Rule 77
motion for reconsideration.
III. DISCUSSION
A. Standard of Review
In Cox v. Cox, 882 P.2d 909 (Alaska 1994), we summarized
the standards of review for the various elements of divorce
proceedings as follows:
The trial court has broad discretion in
fashioning a property division in a divorce
action. This court reviews the trial court's
determination of what property is available
for distribution under an abuse of discretion
standard. If in the course of determining
what property is available the trial court
makes any legal determinations, such
determinations are reviewable under the
"independent judgment"standard. All
questions of law are reviewed de novo with
this court adopting the rule of law that is
most persuasive in light of precedent, reason
and policy. However, the trial court's
findings that the parties intended to treat
property as marital are disturbed only if
clearly erroneous. The valuation of available
property is a factual determination that
should be reversed only if clearly erroneous.
The equitable allocation of property is
reviewable under an abuse of discretion
standard and will not be reversed "unless it
is clearly unjust."
Id. at 913 (citations omitted).
We review a denial of a Civil Rule 60(b) motion for
relief from a judgment for an abuse of discretion. Morris v.
Morris, 908 P.2d 425, 427 (Alaska 1995). Likewise, we review a
denial of a Civil Rule 77 motion for reconsideration for an abuse
of discretion. Neal & Co. v. Association of Village Council
Presidents Regional Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).
We will find an abuse of discretion only when "left with a definite
and firm conviction, after reviewing the whole record, that the
trial court erred in its ruling." Buster v. Gale, 866 P.2d 837,
841 n.9 (Alaska 1994) (quoting Dura Corp. v. Harned, 703 P.2d 396,
409 (Alaska 1985)).
B. Property Division
Larry raises a number of issues regarding the court's
property division. These issues fall into the following broad
categories: duration of the marriage; classification of property;
each party's contribution to the marital estate; the question of
commingling of assets and the application of a rescission or source
of funds approach to the property division; denial of credit for
post-separation house payments; and the allegedly clear injustice
of the award.
1. Duration of marriage
The trial court made conflicting statements in its
findings of fact and conclusions of law regarding the duration of
the marriage. It found that by 1985 the parties "were holding
themselves out as husband and wife"and that "[t]he parties lived
together in what they believed to be a common law marriage from at
least 1985 until January 3, 1992." Although the court found that
the parties were married on January 3, 1992, it also found that the
parties were married for "eight years." Additionally, it stated
"Mr. Harrelson admits that the parties were married in Mexico in
1992. However, for the first time he denies that they were married
prior to the 1992 Mexican ceremony . . . ."(EN2)
Alaska does not recognize common law marriages. AS
25.05.011; (EN3) Serradell v. Hartford Accident & Indem. Co., 843
P.2d 639, 641 n.5 (Alaska 1992) ("There is no common law marriage
in Alaska.") (citing Edwards v. Franke, 364 P.2d 60, 63-64 (Alaska
1961)). We have held, however, that "the trial court is free to
consider the parties' entire relationship, including any period(s)
of premarital cohabitation, in making its property division under
AS 25.24.160(a)(4), so long as the court observes the distinction
which AS 25.24.160(a)(4) draws between assets acquired prior to and
during coverture."(EN4) Murray v. Murray, 788 P.2d 41, 42 (Alaska
1990). Because the parties were legally married for only thirty-
four months, it was clear error to find that the parties had been
married for eight years and to otherwise imply a marriage of longer
duration.
In stating that Barbara was married for eight years, the
trial court may have meant that Barbara had a marriage-like
relationship with Larry for eight years. That would have been a
permissible characterization of the parties' relationship. Other
language in the findings of fact and conclusions of law implies
that may have been what the trial court meant. That is not what
the trial court expressly said, however. Nor did it make any
reference to Murray that might have helped confirm that was what it
meant. Rather than inferring a finding the trial court might not
have intended, we prefer to remand so that it can clarify (or
correct if necessary) its finding that the marriage lasted eight
years. Therefore, because it is unclear to what extent the court's
treatment of the duration of the marriage influenced the property
division, we must reverse the property division and remand for
reconsideration. On remand, the court is free to consider the
parties' premarital cohabitation as long as it makes the proper
property distinction mandated by Murray and AS 25.24.160(a)(4).
(EN5)
2. Classification of property
The trial court held that "[t]he condominium is deemed a
marital asset because a substantial portion of Mrs. Harrelson's
premarital money was used to purchase it and she was actively
involved in its construction and maintenance."
Larry asserts that the court erred in treating the
Brittany Drive residence as marital property because he purchased
the property prior to the parties' marriage, was the sole
titleholder, and paid all condominium dues, taxes, insurance, and
utility expenses. Larry further argues that the property should
not be deemed to be a marital asset because Barbara did not show
intent to treat the property as a joint asset, as the property was
not placed in joint ownership and Barbara was not substantially
involved in managing, maintaining, or improving the property.
We have held that "[i]n limited circumstances invasion of
one spouse's property acquired before coverture may be required as
a matter of law." Wanberg v. Wanberg, 664 P.2d 568, 571 (Alaska
1983). In Cox, this court summarized when premarital property
becomes marital property as a matter of law:
Separate property becomes marital only upon a
showing that the parties intended to treat the
property as marital. Chotiner [v. Chotiner,
829 P.2d 829, 832 (Alaska 1992)]. The proper
standards for determining whether real
property should be characterized as marital
are set forth in such cases as Chotiner and
McDaniel v. McDaniel, 829 P.2d 303 (Alaska
1992). The relevant factors include: "(1)
the use of property as the parties' personal
residence, and (2) the ongoing maintenance and
managing of the property by both parties,"
McDaniel, 829 P.2d at 306 (citing Burgess v.
Burgess, 710 P.2d 417, 420 (Alaska 1985)), as
well as (3) placing the title of the property
in joint ownership and (4) using the credit of
the non-titled owner to improve the property.
Chotiner, 829 P.2d at 833.
Cox, 882 P.2d at 916.
We find that the record is clear that the parties
intended to treat the Brittany Drive residence as marital property.
The condominium was the parties' marital residence and they both
contributed financially to its construction. Both testified that
Barbara was not on the title because of her impaired credit.
Additionally, Larry acknowledges that Barbara acted as his agent
for the building of the condominium, making all the interior
decorating decisions and generally supervising the construction.
We hold that these facts are sufficient to show the parties' intent
to hold the property as a joint asset and that the trial court did
not err in treating it as such.
3. The parties' contributions to the marital estate
The trial court found that Barbara contributed the entire
proceeds of the sale of her California home, $81,923, to "joint
expenses"and the "marital enterprise." The court stated that
Barbara "did not segregate these funds from the marital estate."
Larry argues that the court erred in holding that Barbara
contributed $82,000 to the marital estate and in failing to
consider Larry's financial contributions to the marriage. (EN6)
Barbara received the proceeds from the sale of her
California home in 1990 and testified to the use of this money
before the parties' marriage in 1992. Therefore, to the extent the
trial court characterized Barbara's contribution of the $82,000 as
a contribution to the marital estate, the trial court erred. The
court recognized, however, that Barbara contributed the entire
proceeds to the parties' joint economic enterprise. Because the
trial court was free to consider the parties' entire relationship
in determining an equitable property division, Murray, 788 P.2d at
42, any error in characterizing Barbara's contributions as marital
was harmless.
The trial court also made other findings bearing on the
parties' relative contributions to the marital estate. It noted
the parties' past incomes, explicitly listing their respective
incomes from 1987 to 1993. It also noted Barbara's unemployment
during the later years of the parties' relationship, and the fact
that after the parties separated, Larry continued to pay the
condominium mortgage payments and most of Barbara's living
expenses. Moreover, the court stressed that the "glaring
disparity"between the parties' earning capacities was the
fundamental factor supporting the unequal property division. We
hold that the trial court properly considered the parties'
respective contributions and did not abuse its discretion in
holding that an unequal property distribution was warranted.
4. Substantial commingling of assets and application
of a rescission or source of funds approach in the
property division
The trial court found that "[f]rom at least 1985 through
October 1994, [the parties] commingled their assets. They had
joint checking accounts. They spent their individual earnings on
family expenses." Larry argues that the court erred in finding
that the parties substantially commingled their assets and thus
erred in refusing to apply a rescission theory under Rose v. Rose,
755 P.2d 1121 (Alaska 1988), or a source of funds theory under
Zimin v. Zimin, 837 P.2d 118 (Alaska 1991).
The parties lived together for approximately twelve
years. The court heard testimony that they shared living expenses,
filed joint federal tax returns for six years (and shared the
expense of joint tax liabilities), and raised and supported each
other's children. Before marrying, they owned and sold a home
together. The trial court did not clearly err in finding that the
parties had substantially commingled their assets.
We held in Rose that for marriages of short duration in
which assets have not been commingled a "trial court may, without
abusing its discretion, treat the property division as an action in
the nature of rescission, aimed at placing the parties in, as
closely as possible, the financial position they would have
occupied had no marriage taken place." 755 P.2d at 1125. We have
refused to apply Rose when the parties have commingled assets.
Cox, 882 P.2d at 914; Zimin, 837 P.2d at 121; Bell v. Bell, 794
P.2d 97, 102 (Alaska 1990). Because we hold that the trial court
did not err in finding substantial commingling of assets, we find
no error in its decision not to apply Rose.
In Zimin, 837 P.2d at 122, we upheld a source of funds
approach in a property division when the parties failed to present
any evidence of the present value of the disputed property. In
Cox, we clarified that the source of funds approach is only
appropriate under limited circumstances:
In Zimin, the trial court was essentially
forced into a source of funds approach because
there was no evidence regarding the present
value of the disputed property. . . . Our
holding was thus limited to the approval of
the source of funds approach in the limited
context of determining current value in the
absence of any other evidence.
Cox, 882 P.2d at 914-15 (citation omitted). Because the Harrelsons
presented evidence regarding the current value of the disputed
property, Zimin is inappropriate and the trial court did not err in
declining to adopt this approach.
5. Denial of credit for post-separation house payments
Larry argues that the trial court erred in denying his
motion to modify the final decree to give him credit for post-
separation house payments. Larry asserts that Barbara's exclusive
possession of the house mandates that he be given credit for post-
separation payments made to maintain the Brittany Drive residence.
"We have required that trial courts consider payments
made to maintain marital property from post separation income when
dividing marital property. We have not, however, held that the
spouse who makes such payments must necessarily be given credit for
them in the final property division." Ramsey v. Ramsey, 834 P.2d
807, 809 (Alaska 1992) (citing Doyle v. Doyle, 815 P.2d 366, 369
n.5 (Alaska 1991)); see also Rodriguez v. Rodriguez, 908 P.2d 1007,
1013 (Alaska 1995) (holding that while payment of fair market
rental value for the use of marital property may be required under
some circumstances, trial courts have discretion whether to give
credit for post-separation payments to maintain marital property in
property divisions). The trial court explicitly addressed Larry's
request for a credit for post-separation house payments. (EN7)
Given the parties' highly disparate incomes, the trial court did
not abuse its discretion in denying the credit.
6. Division of the property
Larry argues that the property division was clearly
unjust because it awarded Barbara two-thirds of all of the parties'
assets, including premarital assets. We have held that trial
courts have broad discretion in dividing property and that such
decisions will not be disturbed unless clearly unjust. Burcell v.
Burcell, 713 P.2d 802, 804 (Alaska 1986) (citing Hunt v. Hunt, 698
P.2d 1168, 1171 (Alaska 1985)).
Alaska Statute 25.24.160(a)(4) mandates that, in making
property divisions, courts must fairly allocate the economic
effects of divorce and must 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
insurance;
(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
party;
(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.
As noted above, the trial court's treatment of the
duration of the parties' marriage was clear error. Because this
error implicates factors (A) and (H) under AS 25.24.160(a)(4) and
may have influenced the court's decision, remand and
reconsideration of the property division are necessary. On remand,
the court must first determine what property is marital. Only the
marital property is subject to division unless the court finds that
invasion of separate property is required by a "balancing of the
equities." AS 25.24.160(a)(4).
C. Award of Rehabilitative Spousal Support
Larry argues that it was an abuse of discretion for the
court to award rehabilitative spousal support given the short
duration of the parties' marriage and the sufficiency of assets in
the marital estate to cover Barbara's educational expenses. Larry
alternatively argues that he is entitled to credit against his
spousal support obligations because part of that award represented
housing costs which Barbara has not actually incurred. Larry
asserts that the trial court's refusal to grant such a credit was
a clear abuse of discretion.
"An award of spousal support is within the trial court's
discretion and will be set aside only if it is unjust or
unnecessary." Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska
1989).
Alaska Statute 25.24.160(a)(2) provides the test for when
spousal support may be granted:
(a) In a judgment in an action for divorce or
action declaring a marriage void or at any
time after judgment, the court may provide
. . . .
(2) for the recovery by one party from
the other of an amount of money for
maintenance, for a limited or indefinite
period of time, in gross or in installments,
as may be just and necessary without regard to
which of the parties is in fault; an award of
maintenance must fairly allocate the economic
effect of divorce by being based on a
consideration of 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 insurance;
(E) the conduct of the parties,
including whether there has been unreasonable
depletion of marital assets;
(F) the division of property under
(4) of this subsection; and
(G) other factors the court
determines to be relevant in each individual
case.
Spousal support awards must be supported by specific findings that
consider the statutory and case law factors. Gallant v. Gallant,
882 P.2d 1252, 1255 (Alaska 1994) (citing AS 25.24.160(a)(2);
Messina v. Messina, 583 P.2d 804, 805 (Alaska 1978); Merrill v.
Merrill, 368 P.2d 546, 547-48 n.4 (Alaska 1962)). However, "a
trial court need not make findings regarding every factor."
Gallant, 882 P.2d at 1255.
1. Effect of duration of marriage on rehabilitative
spousal support issue
In its decision to award rehabilitative spousal support,
the trial court explicitly relied upon the disparity between the
parties' incomes and earning capacities, the age and health of the
parties, the nature of the marital property, the reasonableness and
necessity of the educational costs, and the duration of the
relationship. (EN8) Because it is unclear to what extent the
court's error with respect to the duration of the parties' marriage
influenced its spousal support award, it is necessary to remand
this issue for clarification. We note, however, that on remand the
trial court has the discretion to consider "other factors the court
determines to be relevant in each individual case." AS
25.24.160(a)(2)(G). Therefore, the court is free to consider the
parties' entire relationship, including periods of premarital
cohabitation and joint economic enterprise, in analyzing the issue
of rehabilitative spousal support. (EN9)
2. Denial of a credit against Larry's spousal support
obligations due to Barbara's rent-free housing
Larry asserts that he is entitled to a deduction from his
spousal support obligations in the amount of $750 per month while
Barbara resides rent free in the Brittany Drive residence.
The court justified the spousal support award, in part,
by the estimated cost of Barbara's housing needs. Receipt of the
full amount of this award, therefore, is neither just nor necessary
when Barbara does not incur this cost. Consequently, we hold that
it was an abuse of discretion to refuse to modify the judgment to
provide for a reasonable deduction from Larry's spousal support
obligation to reflect Barbara's rent-free use of the marital
residence. Therefore, if on remand the trial court awards
rehabilitative spousal support, the award must take into
consideration the periods for which Barbara has not had to incur
housing costs. (EN10)
IV. CONCLUSION
We AFFIRM in part and REVERSE and REMAND in part.
Because we hold that the trial court erred in finding that the
parties were married prior to 1992, we REMAND the property division
and spousal support award for reconsideration in light of our
holding. Additionally, we REVERSE the trial court's denial of a
credit against Larry's spousal support obligations for Barbara's
rent-free use of the Brittany Drive condominium and REMAND for
determination of the proper amount of credit. We AFFIRM the trial
court's decision in all other respects.RABINOWITZ, Justice, with whom FABE, Justice, joins, dissenting in
part.
Central to the court's reversal of the property division
and spousal support award is its assertion that "[t]he trial court
made conflicting statements in its findings of fact and conclusions
of law regarding the duration of the marriage." Op. at 5. In my
view, a study of the superior court's findings of fact and
conclusions of law in their entirety reveals that whatever
"conflict"may be found in the superior court's description of the
marital status of Barbara and Larry simply reflects the ambiguity
that characterized their relationship.
This ambiguity is well documented throughout the superior
court's findings of fact and conclusions of law. Taken as a whole,
these findings of fact and conclusions of law support the superior
court's determination that from 1985 until 1992, Larry and Barbara
held themselves out as husband and wife, sharing what they
considered to be a common law marriage. In 1992 the parties were
legally married in Mexico. They commingled their assets through
October 1994. These findings are not clearly erroneous.
The court admits the possibility that "[i]n stating that
Barbara was married for eight years, the trial court may have meant
that Barbara had a marriage-like relationship with Larry for eight
years . . . . Other language in the findings of fact and
conclusions of law implies that may have been what the trial court
meant." Op. at 7. Yet the court proceeds to reverse the property
division and spousal support award because the superior court did
not "expressly"state this or make any explicit reference to Murray
v. Murray, 788 P.2d 41 (Alaska 1990), despite the superior court's
explicit determination that by 1985 the parties "were holding
themselves out as husband and wife."
We have never required that Murray be expressly
referenced in a talismanic fashion. What is relevant is that the
superior court made the distinction mandated by Murray between
assets acquired before and during coverture -- to the extent
possible. Murray demands not a formalistic invocation of language
marking the distinction between assets acquired prior to and during
"coverture"-- or, more appropriately, marriage (EN1) but, rather,
meaningful consideration of the nature of the parties' ownership of
assets prior to division.
The superior court pursued precisely this inquiry,
essentially determining that from at least 1985, Barbara and Larry
commingled their assets. What the superior court's findings
suggest is that marriage was not a meaningful marker with respect
to the Harrelsons' acquisition of property. In its findings of
fact and conclusions of law the superior court observed the
distinction between assets acquired prior to and during marriage to
the extent that such a distinction existed.
The court rightly notes that a superior court is free to
consider the parties' premarital relationship pursuant to Murray
and AS 25.24.160(a)(4). The superior court did just that in
dividing the Harrelsons' property and, in my view, its conclusions
satisfy the requirements of Murray. Courts should not effectively
be foreclosed from equitably distributing property that was
commingled in "quasi-marital"premarital relationships. Arguably,
it is in these relationships that such a distribution is most just.
This result is not dictated by Murray and, moreover, effectively
undermines its basic premise.
Because I disagree with the court's conclusion that "it
is unclear to what extent the [superior] court's treatment of the
duration of the marriage"influenced its judgment, I would affirm
both the property division of the superior court and its spousal
support award. (EN2)
ENDNOTES:
1. Larry's earned income ranged from $69,551 in 1988 to $128,202
in 1993. In that same time period, Barbara's earned income ranged
from zero to $14,445 in 1990.
2. We suspect that this inconsistency is the result of the
court's adoption of findings and conclusions prepared by counsel.
While adopting findings and conclusions prepared by counsel is
permissible, it "is appropriate only when the findings and
conclusions 'reflect the court's independent view of the weight of
the evidence.'" Smith v. Smith, 845 P.2d 1090, 1093 n.3 (Alaska
1993) (quoting Industrial Indem. Co. v. Wick Constr. Co., 680 P.2d
1100, 1108 (Alaska 1984)).
3. In relevant part, AS 25.05.011 states:
(a) Marriage is a civil contract requiring
both a license and solemnization . . .
. . . .
(b) A person may not be joined in marriage in
this state until a license has been obtained
for that purpose as provided in this chapter.
A marriage performed in this state is not
valid without solemnization as provided in
this chapter.
4. In pertinent part, AS 25.24.160(a)(4) states:
(a) In a judgment in an action for divorce
. . . the court may provide
. . . .
(4) for the division between the parties of
their property, . . . whether joint or
separate, acquired only during marriage, in a
just manner and without regard to which of the
parties is in fault; however, the court, in
making the division, may invade the property,
. . . of either spouse acquired before
marriage when the balancing of the equities
between the parties requires it; . . . .
5. We are reversing not because we require a "talismanic"
reference to Murray or a "formalistic invocation"of particular
language, Dissent at 20, but because we cannot determine whether
the error influenced the property division.
6. We review factual findings for clear error. State, Dep't of
Revenue v. Merriouns, 894 P.2d 623, 625 (Alaska 1995).
7. Larry's argument that the court failed to consider his request
for a credit is without merit. Not only did the court explicitly
consider this request in its findings of fact and conclusions of
law, it also addressed the issue in its order responding to Larry's
post trial motions. Moreover, the trial court granted Larry some
relief from the maintenance expenses for the condominium, ordering
that the parties evenly split any repair expenses incurred after
April 21, 1995, the date of the final divorce decree.
8. Relying on Ulsher v. Ulsher, 867 P.2d 819 (Alaska 1994), the
court noted that in Ulsher the parties were married for eight years
and that the Harrelsons "lived together as an economic unit for
thirteen years." In an earlier comparison of Ulsher and the facts
in this case, the court stated "[l]ike Mrs. Ulsher, Mrs. Harrelson
was married for eight years."
9. Larry additionally argues that because the marital estate had
sufficient assets to cover Barbara's educational expenses, the
court abused its discretion in awarding rehabilitative alimony.
This argument is without merit. Although we have expressed a
preference for meeting the parties' needs through property
divisions, we have held that this preference "does not apply to
rehabilitative alimony or support of limited duration." Bays v.
Bays, 807 P.2d 482, 485 (Alaska 1991) (citing Schanck v. Schanck,
717 P.2d 1, 5 (Alaska 1986)).
10. We note that a deduction of the full $800 budgeted by Barbara
for rent in her trial court exhibits may be larger than the rental
expenses estimated by the trial court in calculating the alimony
award. It is unclear how the trial court arrived at the alimony
award of $1,200 per month. At one point, the court relied on
Barbara's trial exhibit establishing her monthly expenses and
earnings. This exhibit indicates a monthly deficit of $1,668
between expenses and income. The trial court, however, only
awarded $1,200 per month. Therefore, a deduction of the full
housing allowance proposed by Barbara may result in a deduction
greater than the housing expense estimate used by the trial court
in setting the alimony award.
ENDNOTES (Dissent):
1. "Coverture"is defined as
[t]he condition or state of a married woman.
Sometimes used elliptically to describe the
legal disability which formerly existed at
common law from a state of coverture whereby
the wife could not own property free from the
husband's claim or control.
Black's Law Dictionary 366 (6th ed. 1990).
2. The superior court's thorough explanation of its award is
ample evidence that it properly considered the relevant factors in
reaching its conclusion and that it did not abuse its discretion in
doing so.
]]>
