search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Brown v. Brown (10/31/97), 947 P 2d 307
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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WENDY G. BROWN, )
n/k/a WENDY G. AUDETTE, ) Supreme Court Nos. S-7340/7440
Appellant and )
) Superior Court No.
v. ) 4FA-90-1053 CI
KEVIN M. BROWN, ) O P I N I O N
Appellee and ) [No. 4897 - October 31, 1997]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jane F. Kauvar, Judge.
Appearances: Gary Foster, Law Office of Gary
Foster, Fairbanks, for Appellant and Cross-Appellee. Fleur L.
Roberts, Law Offices of Fleur L. Roberts, Fairbanks, for Appellee
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
Each party in this matter appeals aspects of the trial
court's second attempt at dividing property in a divorce
proceeding. Regrettably, we conclude that a third attempt is
Wendy and Kevin Brown married in 1980 and separated in
1990. They had two children during their marriage.
We have already decided some issues relating to the
division of the parties' property in this case. On July 6, 1994,
we issued a memorandum opinion and judgment, Brown v. Brown, No.
0730 (Brown I). In that appeal, we considered the superior court's
two parcels of raw land, one referred to as
the Derby tract located in Fairbanks, and one located in Gig
Harbor, Washington. Also in dispute is a series of cash transfers
allegedly made as gifts to Wendy by her father, Vernon H. Boyles .
. . $250,000 in October 1988; $50,000 and $85,000 in May 1989; and
$100,000 in July 1989.
We reversed in part, vacated in part, and remanded the case with
the following instructions:
The [superior] court shall hold a
supplementary evidentiary hearing and make findings and conclusions
concerning the marital or separate character of the Derby tract and
the Gig Harbor property. The court should also address whether any
or all of the monetary gifts were transmuted from separate to
marital property prior to the dissolution of the marriage. Once
these issues are decided the court should decide whether the
marital property of the parties should be divided differently and
whether the equities of the case require invasion of Wendy's
In response to our mandate, the superior court held additional
proceedings and issued new factual and legal conclusions, which
will be discussed below. Both Kevin and Wendy appeal.
II. ANALYSIS TO BE APPLIED BY SUPERIOR COURT IN DIVIDING PROPERTY
IN DIVORCE CASES AND THE APPLICABLE STANDARD OF REVIEW
Our decision in Wanberg v. Wanberg, 664 P.2d 568, 570
(Alaska 1983), requires a trial court dividing a couple's property
to follow three steps.
Step one -- determining what property is
available for distribution -- is reviewed under the abuse of
discretion standard, although it may involve legal determinations
to which this court applies its independent legal judgment. The
second step -- placing a value on the property -- is a factual
determination that will be upset only if there is clear error.
Alaska R. Civ. P. 52(a). Step three - allocating the property
equitably -- is reviewed purely under the abuse of discretion
standard and "will not be disturbed unless it is clearly unjust."
Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990) (citations
This appeal involves challenges to the trial court's
decisions at "step one"and "step three."
III. DISCUSSION OF CHALLENGES TO THE SUPERIOR COURT'S "STEP ONE"
A. In View of Kevin's Post-Trial Agreement with Wendy, the
Superior Court Was Correct to Treat Trade Construction as Wendy's
Trade Construction is a corporation of which Wendy is the
sole shareholder. On this appeal Kevin argues that Trade Construc-
tion should be considered marital property.
Wendy represented at the original trial that, as a result
of pending litigation against it, Trade Construction faced
significant actual and potential liabilities.
At the conclusion of the original trial, the trial court
ruled that Trade Construction was marital property. Accordingly,
the trial court ruled that Kevin and Wendy were to share equally in
Trade's assets and liabilities. Kevin wished to avoid exposure to
Trade's potential liabilities. He therefore sought to convince the
trial court to award him half of Trade's assets without requiring
him to bear any of its liabilities. The trial court's response to
Kevin's proposal was as follows:
And I'll say it for a third time on [t]he
record, he can't have it both ways. If they're marital assets, the
debts and the assets are marital assets.
. . . .
Well, if [Kevin] wants Trade to not be a
marital asset, we can take care of that problem. We'll make Trade
not a marital asset, but then he doesn't get any of the proceeds
that came from Trade either.
In order to avoid any exposure for Trade's obligations,
on November 1, 1991, Kevin made the following offer regarding Trade
I [Kevin's attorney] am willing to pass on to
Kevin any offers of settlement concerning this issue of Trade
Construction. Kevin would be willing to allow Wendy to have the
$150,000 [in accounts owned by Trade Construction] without an
accounting and in return, not be liable for the costs of litigation
of the Mapco Counterclaim and potential liability for this
counterclaim and also allow Wendy to retain the monies awarded to
Trade Construction in this suit.
On November 25, 1991, Wendy replied to Kevin's offer as follows:
Kevin's offer to relinquish any rights in
Trade Construction (past, present, and future) in exchange for
being relieved of any liabilities (litigation costs or liability to
Mapco) is accepted. Let me know if you think any additional
paperwork, other than your letter offer and my acceptance above, is
Trade Construction prevailed in the litigation against it. At the
remand hearing, Kevin argued that Trade Construction should be
characterized as a marital asset. In response, the trial court
noted the agreement regarding Trade Construction:
at the end of the trial I said Trade was a
marital asset and that gave Kevin the liabilities as well as the
assets. He chose, post-trial, to opt out of that and not have it
be a marital asset for which he was responsibility -- responsible
for the liabilities. That's something that came after trial. It
doesn't have anything to do really with [the remand issues] here.
Parties to a divorce may stipulate to the characteriza-
tion of property. [Fn. 1] "In general, the construction of
stipulations is governed by the rules of contract"law. Godfrey v.
Hemenway, 617 P.2d 3, 8 (Alaska 1980). "Absent a cognizable
contract defense, such as fraud,"stipulations should be enforced.
See Dewey v. Dewey, 886 P.2d 623, 625-26 (Alaska 1994). On this
appeal, Kevin appears to raise two points relating to the Trade
First, Kevin disputes the meaning of his agreement with
Wendy. In particular, he seems to suggest that he did not agree
that Trade Construction would be treated as Wendy's separate
property. According to Kevin, he simply agreed "to allow Wendy to
have the inventory, including the cash on hand and accounts
receivable in exchange for being relieved from any of Trade
Construction's debt." Although Kevin's argument is somewhat
opaque, the implication seems to be that the superior court should
have treated Trade Construction as marital property which was
distributed to Wendy.
Kevin's proffered interpretation of his agreement with
Wendy is untenable. As indicated by the portions of the record
quoted above, Kevin wished to avoid responsibility for Trade
Construction's obligations and liabilities, but the trial court was
unwilling to permit him to do so unless he agreed that Trade
Construction would be considered Wendy's separate property.
Accordingly, Kevin stipulated that Trade Construction would be
Wendy's separate property. Kevin's interpretation of the agreement
-- that, essentially without receiving any benefit in return, Wendy
agreed to allow Kevin to avoid responsibility for Trade's potential
liabilities -- is unreasonable. Accordingly, we reject Kevin's
argument. [Fn. 2]
Kevin's second argument concerning Trade Construction is
that he relinquished his claims to Trade Construction based on
misrepresentations by Wendy. The trial court expressly refused to
consider this argument at the remand hearing and suggested that
Kevin raise the point in a separate motion. It appears, however,
that Kevin failed to raise the point below as suggested by the
trial court. Kevin therefore may not assert the point on appeal.
Tommy's Elbow Room, Inc. v. Kavorkian, 754 P.2d 243, 245 n.7
B. The Trial Court Did Not Err in Concluding that the Gifts
from Wendy's Father to Wendy Were Not Transmuted into Marital
We next consider Kevin's claim that the trial court erred
in concluding that the cash gifts from Wendy's father to Wendy had
not been transmuted into marital property.
In Brown I, we stated:
Also in dispute is a series of cash transfers
allegedly made as gifts to Wendy by her father . . . . Wendy
claims that she received a total of $485,000 in cash gifts from her
father . . . . Wendy used these monies for a series of loans and
other transactions, with the proceeds eventually invested in a
high-yield New Zealand money market account.
At the original trial, the superior court found that
"Wendy had not demonstrated that these transfers were gifts to her
alone"(i.e., that the transfers were properly regarded as marital
As mentioned above, we reversed the conclusion of the
superior court on this point. We held that all of the cash
transfers were Wendy's separate property at the time of transfer
and remanded the case to the superior court with instructions to
"address whether any or all of the monetary gifts were transmuted
from separate to marital property prior to the dissolution of the
On remand, the superior court determined that all of the
cash transfers are properly regarded as "separate property"because
the transfers "were definitely not co-mingled. In fact, since
Wendy never told Kevin about . . . [the transfers] it is hard for
the court to find any basis for Kevin's assertion of co-mingling."
We affirm the trial court's conclusion on this point.
In essence, Kevin makes two arguments in support of his contention
that the trial court erred in concluding that the cash transfers
had not been transmuted into marital property. First, Kevin argues
that the trial court's determination that the cash gifts were not
transmuted into marital property should be reversed because,
according to Kevin, the cash gifts were co-mingled with marital
assets. This argument warrants only brief discussion. Under
Alaska law, the co-mingling of separate property with marital
assets does not necessarily mean that separate property has been
transmuted into marital property. [Fn. 3] "Placing separate
property in joint ownership is rebuttable evidence that the owner
intended the property to be marital." Chotiner v. Chotiner, 829
P.2d 829, 833 (Alaska 1992). However, there was evidence
sufficient to overcome this presumption and to support the trial
court's decision that the transfers retained their character as
separate property. Wendy's father made the gifts to Wendy shortly
prior to the end of the marriage between Wendy and Kevin, Wendy
essentially exercised unilateral control of the funds, and Wendy
presented evidence to the trial court tracing the flow of the cash
gifts from her father to the New Zealand account and into the court
Second, Kevin makes a number of arguments which are all
to the same effect: that by characterizing the money from the New
Zealand account as Wendy's separate property, the superior court
bestowed upon her a double recovery. [Fn. 4] Kevin, however,
adduces no meaningful record support for these arguments. As a
result, none of the arguments warrants reversing the trial court's
conclusion that the proceeds from the New Zealand account are
properly classified as Wendy's separate property.
C. The Superior Court Erred by Directing Wendy to Place
$100,000 in Trusts for Her Children.
We next consider Wendy's argument that the superior court
erred by directing her to place $100,000 in trusts for her
At the original trial, the superior court found that the
$250,000 transfer from Wendy's father
created a trust with Wendy as the trustee and
the children as the beneficiaries. As trustee, Wendy would possess
only bare legal title to the income and corpus of the trust, while
the children possessed the beneficial interest. The superior court
concluded that Wendy's bare legal title was marital property to be
divided between the parties.
Brown I, at 3.
In Brown I, we reversed "the superior court's
determination that the $250,000 was marital property." We also
vacated the superior court's order "to the extent that it granted
Kevin one-half of this money and subjected the entire sum to trusts
for the benefit of the children." As mentioned above, we remanded
this case to the superior court with specific instructions. We
nowhere indicated in those instructions that the superior court
should revisit the issue of whether the gift proceeds from Wendy's
father should be placed in trusts for the children. Moreover, we
stated that "[g]iven that the gift is the separate property of
Wendy, it is unnecessary in this [divorce] proceeding to determine
whether or not she holds it in trust for her children."[Fn. 5]
Notwithstanding our statements in Brown I, on remand, the
superior court made the following order:
[T]he $50,000.00 each, previously put in the
children's savings accounts, and then taken out by Wendy to invest
in Trade, shall be re-deposited in accounts for the children, with
both parents' names on it.
In so ruling, the superior court exceeded the mandate of this court
and acted in a manner contrary to the law of this case. We
therefore reverse the superior court's order that $100,000 of
Wendy's separate property must be placed in trusts for her two
IV. DISCUSSION OF CHALLENGES TO THE SUPERIOR COURT'S "STEP THREE"
ANALYSIS: THE SUPERIOR COURT'S FINDINGS DO NOT ADEQUATELY SUPPORT
ITS DECISION TO AWARD KEVIN 100% OF THE MARITAL PROPERTY AND
$81,000 OF WENDY'S SEPARATE PROPERTY
Finally, we consider Wendy's argument that the superior
court's allocation of property in this case was an abuse of
As mentioned above, in Brown I, we directed the superior
court to "decide whether the marital property of the parties should
be divided differently and whether the equities of the case require
invasion of Wendy's separate property."
On remand, the superior court concluded that the total
value of the marital estate at the conclusion of the original trial
was $159,512.89. [Fn. 6] The total value of Wendy's separate
property at the conclusion of the original trial was $404,289. [Fn.
7] The superior court then ordered a division of property. [Fn. 8]
The effect of the court's division would be to award Kevin (1) 100%
of the marital estate as valued at the time of the original trial
plus (2) approximately $81,000 of Wendy's separate property. [Fn.
Although, as indicated above, the superior court has
"broad discretion"in determining when the equities of the case
require invasion of premarital assets, Julsen v. Julsen, 741 P.2d
642, 646 n.4 (Alaska 1987), whether the trial court applied the
appropriate legal standard in exercising its broad discretion is a
question of law. Bays v. Bays, 807 P.2d 482, 485 n.4 (Alaska
In performing the Wanberg "step three"analysis, the
trial court generally should begin with the presumption that an
equal division of marital property is most equitable. Lowdermilk
v. Lowdermilk, 825 P.2d 874, 877 (Alaska 1992). [Fn. 10] However:
If at the third step the court finds that an
equitable division is not possible using the marital property
alone, then the court must determine whether invasion of separate
property is necessary to balance the equities. AS 25.24.160(a)(4).
If invasion is necessary, then the court must determine what
separate property the parties own, value it, and adjust the initial
division as needed.
Murray v. Murray, 856 P.2d 463, 466 (Alaska 1993) (citation
omitted). In determining whether an imbalanced award of the
marital assets is appropriate, the trial court should consider the
Merrill factors as codified and expanded in AS 25.24.160(a)(4).
[Fn. 11] Moreover, in considering whether the invasion of separateproperty is necessary to balance the equities the trial court
particularly consider factors such as the
duration of the marriage, the conduct of the parties during the
marriage, the manner of acquisition of the property, its value at
the time of acquisition and at the time of the property division,
and any other factors bearing on whether the equities dictate that
the other spouse is entitled to share in that property.
Vanover v. Vanover, 496 P.2d 644, 648 (Alaska 1972).
Against this backdrop, for three reasons, we vacate the
superior court's property division in this case and remand for a
new property division. [Fn. 12] First, an examination of the
superior court opinion on remand indicates that the trial court
clearly failed to begin with the presumption that an equal division
of marital property is the most equitable. Instead, the trial
court appears to have begun with the presumption that an equal
division of the marital property and of Wendy's separate property
would be the most equitable.
Second, the trial court failed to address in any detail
the factors set forth in Vanover and Merrill. Indeed, an
examination of the remand opinion and the remand transcript
suggests that the trial court was unaware of the existence of any
standards regulating the exercise of its discretion. [Fn. 13]
Given the record in this case, the trial court's failure to make
detailed Merrill/Vanover findings in support of its property
division cannot be excused: it is not obvious from the record that
Kevin's earning capacity is significantly lower than Wendy's; Kevin
currently is thirty-eight years old and apparently is in good
health, and it appears that Kevin brought little property into the
Third, we have previously criticized as overbroad one of
the trial court's primary stated justifications for its property
division -- that Wendy was "benefitted by Kevin having a regular
salaried position with health benefits." See Chotiner v. Chotiner,
829 P.2d 829, 833 (Alaska 1992) ("Though Jennifer's financial
contributions to the marriage were significant, they do not make
Andrew's separate property marital. Such a result would mean that
a non-working spouse would never be able to keep his or her
inherited property separate.").
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED for additional proceedings in conformity with this
See Laing v. Laing, 741 P.2d 649, 652 (Alaska 1987) (noting
without objection that "the parties in this case stipulated to the
characterization of the divided assets as marital property").
See Godfrey v. Hemenway, 617 P.2d 3, 8 (Alaska 1980) (stating
that "[t]he courts look with favor on stipulations designed to
simplify, shorten or settle litigation, or to save costs and will
not give such stipulations a forced construction").
See, e.g., Carlson v. Carlson, 722 P.2d 222, 224 (Alaska 1986)
(stating that "the act of comingling, in itself, does not
automatically establish intent to jointly hold property, and a
court always should consider the property's source when determining
what assets are available for distribution"); see also Gardner v.
Harris, 923 P.2d 96 (Alaska 1996); Miles v. Miles, 816 P.2d 129
In particular, Kevin argues that
a look at each of the gifts demonstrates that
they were either spent during the marriage; remained in accounts
which Wendy ultimately received, and/or were invested in Trade
Construction, Inc. and co-mingled with the profits.
If the claim that Wendy holds the gifts in trust for her
children were valid, it presumably could be brought in a separate
action by a representative of the children or by Wendy's father.
At the original trial, the superior court concluded that the
value less the mortgage of one of the marital assets -- the Snowy
Owl property -- was $40,000. Wendy submits that, as a result of
market appreciation, mortgage payments, and renovations paid for in
cash or accomplished as a result of Wendy's labor -- all of which
occurred after the divorce -- she and her second husband currently
have $100,000 of equity in the house.
There are some indications in the trial court's opinion
on remand that the superior court may have implicitly adjusted
upward the valuation of the marital estate by the amount of the
post-trial appreciation in the Snowy Owl property. (The superior
court there stated that, "one solution is to re-divide the marital
assets and give Kevin more of those assets, which primarily is the
[Snowy Owl] house.") There is no indication that the superior
court adjusted the valuation of any of the other assets comprising
the marital estate to account for any post-trial appreciation.
To the extent that the appreciation of the Snowy Owl
property is attributable to Wendy's post-trial expenditures of
effort or money, it would be error to increase the valuation of the
marital estate. See, e.g., Bousquet v. Bousquet, 731 P.2d 1211,
1214 (Alaska 1987) (holding that assets acquired subsequent to
separation are not considered marital property, absent evidence
that spouse used marital property to obtain them); Foster v. Foster
883 P.2d 397, 399 (Alaska 1994) ("The date that the marriage has
ceased to function as a single economic unit, often the date of
separation, is the date after which newly acquired property should
be considered non-marital property.").
To the extent that the appreciation of the property is
attributable to post-trial market appreciation it would be, as
Wendy argues, inappropriate to "single out one marital asset, the
Snowy Owl Lane house, and value it alone six years after separation
and five years after the trial." See Moffitt v. Moffitt, 813 P.2d
674, 678 (Alaska 1991) ("In some circumstances, it might be unjust
to revalue only one asset at the date of the new trial while
maintaining old values on all other assets which have been
The basis for this figure is as follows: $359,289 currently is
impounded in the court registry. The superior court concluded that
the entire amount is Wendy's separate property. The superior court
also determined that the Derby Tract lot is Wendy's separate
property. At the time of the original trial, the value of the
Derby Tract property was $45,000.
The superior court explained its allocation of property in
this case as follows:
Wendy was able to run her own business,
in large part, due to the generous loans and gifts from her father.
However, she was also benefitted by Kevin having a regular salaried
position with health benefits. Whether or not Trade made or lost
money at a given point in time, Wendy had the security of Kevin
being regularly employed. Wendy did not have to work at a job with
a stable income to ensure she would have money for the family,
because Kevin held a salaried position. When Trade was profitable,
Wendy would pay herself a generous salary, and the family had
additional money for new cars, trips, and so forth. Wendy was able
to invest her father's gifts in Trade, local investment accounts,
and New Zealand accounts, because she did not need the money to
live on. Had Kevin not been working, some of this money may have
been used for the support of the family, and not available for
savings accounts in New Zealand. This Court does not find that it
would be an equitable division to divide the property as suggested
by Wendy, where she has all the money, and Kevin has none. On the
other hand, Kevin's solution is for this Court to simply ignore the
Supreme Court's decision and leave him with half of everything.
Unfortunately, this proposed solution does not lend much guidance
as to what would be a fair and equitable division, in light of the
. . . .
The Court is faced with the problem of
determining what would be a fair and equitable distribution and
sees two options to equalize the distribution. Either the marital
property is re-divided and Kevin gets a greater share, or some of
Wendy's separate property needs to be invaded. . . . The Court
finds that it is not equitable now to leave Kevin with very little
separate assets, and Wendy with over $300,000.00, plus the family
home. The children are shared equally, and this would lead to
widely disparate lifestyles.
The basis for this figure is as follows: At the conclusion of
the original trial, Wendy paid Kevin $54,674.44 of her separate
property. The trial judge did not reduce Kevin's award on remand
to reflect this. Kevin was also awarded $67,787 of marital
property. The superior court, on remand, ordered Wendy to convey to
Kevin the Snowy Owl property or to pay him its "current value." On
the assumption that, by its use of the term "current value,"the
superior court meant "current equity,"Wendy has represented that
her current equity in the house is approximately $100,000. The
superior court also ordered Wendy to pay Kevin half the value of
the Gig Harbor property ($5,500), and an additional $12,000. This
awards Kevin $239,961.44. The marital estate is valued at
See also Hayes v. Hayes, 756 P.2d 298 (Alaska 1988) ("While
50/50 division of marital property is presumptively just, an
unequal division can be condoned when it is justified by relevant
factors identified in the findings of the court."); Bousquet v.
Bousquet, 731 P.2d 1211, 1217 n.14 (Alaska 1987) ("Moreover, there
is a presumption that the most equitable division of the [marital]
property is an equal division.").
The Merrill factors include:
the ages of the parties, their earning
capacity, the duration of the marriage, the conduct of the parties
during marriage, their "station in life,"the circumstances and
necessities of each, their health, their financial condition, the
time and manner of acquisition of the property in question, the
value of the property at the time of division, and the income-
producing capacity of the property.
Miller v. Miller, 739 P.2d 163, 166 n.3 (Alaska 1987).
Wendy has asked the court to vacate the property division
ordered by the superior court and to order a 50/50 division of the
marital property. We think that such a course of action would be
inappropriate in view of the absence of detailed Merrill/Vanover
findings by the trial court. See Merrill v. Merrill, 368 P.2d 546,
548 (Alaska 1962) ("As the case stands now we would have to assume
the role of the trial court, weigh the evidence, draw reasonable
inferences, make findings and determine the result. That is not
our function or obligation.").
During the remand hearing, the superior court made the
following two statements: "I wish I'd had more guidance from [the
Supreme Court] as to what they wanted me to look at when I decide
whether the equities require invasion of the separate property."
"I mean [the Supreme Court] didn't set forth what criteria I'm
supposed to use, but presumably you have some idea of what criteria
I'm supposed to be looking at in deciding whether I should invade
the marital . . . the nonmarital property."