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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McDougall v. Lumpkin (11/3/00) sp-5326

McDougall v. Lumpkin (11/3/00) sp-5326

     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.


AVIS D. McDOUGALL,            )
                              )    Supreme Court No. S-9133
          Appellant,          )
                              )    Superior Court No.
     v.                       )    3AN-96-8048 CI
LINDSAY LUMPKIN II,           )    O P I N I O N
          Appellee.           )    [No. 5326 - November 3, 2000]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.

          Appearances:  Avis D. McDougall, pro se. 
Lindsay Lumpkin II, pro se.

          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice.

          Avis McDougall appeals from rulings entered when she and
Lindsay Lumpkin divorced.  We vacate the property division and
remand because it was both inequitable and based on clearly
erroneous findings.  We also vacate the alimony award and remand
because of conflicts between that award and the property division,
and because of unexplained contradictions between the superior
court's oral and written findings.  We affirm the award of joint
legal custody because the superior court did not abuse its
discretion in dealing with the custody issue.
          In 1997 Lindsay Lumpkin filed for a divorce from Avis
Lumpkin (now Avis McDougall), his wife of sixteen years and the
mother of their four daughters.  Lindsay served in the United
States Air Force during the marriage, rising to the rank of senior
master sergeant, while Avis held the day-to-day responsibility for
raising their daughters.  Avis also sometimes worked in part-time
jobs until 1991, when she began seeking a college degree.  She
continued to work as a homemaker and to pursue her degree at the
time of the divorce.
          Lindsay and Avis moved to Florida soon after Lindsay
filed for divorce, but Lindsay continued to prosecute the divorce
proceedings in Alaska.  The superior court held a final divorce
hearing in June 1998.  Anchorage attorney William T. Ford appeared
for Lindsay, who testified telephonically.  Avis also testified
telephonically but was not represented by counsel.
          The superior court addressed five issues at the hearing:
child custody, visitation, support for the three minor children,
alimony, and the division of marital property.  The court announced
extensive oral findings and conclusions and directed Lindsay's
attorney to prepare written findings of fact and conclusions of
law.  The superior court signed the proposed written findings of
fact and conclusions of law without substantial change and entered
a decree of divorce.  Avis appeals.  
     A.   Standard of Review

          A superior court adjudicating a divorce or dissolution of
marriage exercises broad discretion in dividing the marital assets.
[Fn. 1]  As explained in Wanberg v. Wanberg, [Fn. 2] a superior
court must follow a three-part process when dividing marital
property: "First, the trial court must determine what specific
property is available for distribution.  Second, the court must
find the value of this property.  Third, it must decide how an
allocation can be made most equitably." [Fn. 3]  We review the
classification of property for an abuse of discretion, although
some items' classification may present questions of law to which we
apply our independent judgment. [Fn. 4]  We will reverse a superior
court's valuation of marital property only if it is clearly
erroneous. [Fn. 5]  We review the property's equitable distribution
for an abuse of discretion and will affirm unless the division is
"clearly unjust." [Fn. 6]  
          We apply an abuse of discretion standard when reviewing
a superior court's awards of rehabilitative alimony [Fn. 7] and
child custody. [Fn. 8]
     B.   The Property Division

          Did the superior court equitably divide Avis and
Lindsay's marital property?  Alaska Statute 25.24.160(a)(4)
provides that the court may divide marital property "in a just
manner."  We have held that "[i]n the absence of findings to
warrant an unequal division . . . an equal division of the marital
estate is presumptively the most equitable." [Fn. 9]  An unequal
division can be condoned when it is justified by relevant factors
identified in the superior court's findings. [Fn. 10]
          The parties' primary assets included Lindsay's military
retirement, a home in Florida, and three undeveloped lots.  Their
debts included a mortgage on the Florida home, a loan secured by
the vacant lots, credit card debts, and student loans.
          The superior court found that Avis was entitled to one-
half of Lindsay's military retirement benefits that had accrued
during the marriage.  The superior court also allocated the
parties' real property: their Florida home, two undeveloped lots in
Florida known as Marion Oaks #10 and Marion Oaks #34, and a vacant
lot in Colorado known as Baca Grande.  The court orally accepted
Avis's pretrial valuation of the properties:  $34,000 for Marion
Oaks #10, $14,000 for Marion Oaks #34, and $9,900 for Baca Grande.
[Fn. 11]  The Florida home was worth $95,900, but the balance on
its mortgage loan was $97,212.60, creating a negative value of
          As Avis agreed, the court awarded the Florida home and
responsibility for its mortgage to Avis.  Avis also received the
unencumbered Baca Grande lot worth $9,900.  Lindsay received the
two Marion Oaks lots valued together at $48,000, encumbered only by
a $6,375.91 loan on Marion Oaks #10.  Lindsay therefore received
real property with a net value of $41,624.09 and Avis received real
property with a net value of $8,587.40.
          The superior court ordered Lindsay to pay the marital
credit card debt of $5,960.91.  It ordered Avis to assume
responsibility for "her" student loans, including those  incurred
during the marriage.  The loans incurred during the marriage
totaled $22,822 when the parties separated.
          This division of assets and debts therefore gave Lindsay
net assets worth $35,663.18 and Avis net assets worth negative
          Lindsay did not submit an appellate brief but by motion
indicated his agreement on appeal with the superior court's
findings and conclusions.
          We rely here on the property values provided by Avis and
orally accepted by the superior court.  Based on these figures,
Lindsay and Avis began the divorce proceeding with a combined net
worth of $21,428.58.  After the superior court divided their
property, Lindsay received assets and debt having a net value of
$35,663.18; Avis received assets and debt having a net value of
negative $14,234.60.  Thus, the superior court awarded Lindsay
$49,897.78 more than it gave Avis.  Even if all the student loans
were properly treated as nonmarital, the resulting division would
have given Lindsay marital property worth $35,663.18, and Avis
marital property worth $8,587.40, a difference of about $27,000.  
          The findings and evidence in the record do not justify
this grossly inequitable division.  An equitable property division
is presumptively fifty-fifty, absent any statutory or equitable
factors justifying a different division. [Fn. 12]  The factors
discussed in AS 25.24.160(a)(4)(A)-(I) do not justify awarding Avis
less than fifty percent of the marital wealth.  Nor does the record
reveal any equitable basis for doing so.  We therefore vacate the
property division and remand for an equitable division.
          Avis also argues on appeal that Lindsay received his own
IRA as part of the property settlement.  The record does not reveal
whether the superior court considered Lindsay's IRA.  It did not
mention the IRA in its oral or written findings and conclusions. 
The status of Lindsay's IRA must be clarified on remand.  Our
discussion of the property division has not addressed the possible
effect of the IRA.
     C.   The Student Loans

          The superior court orally found that although the student
loans were incurred "in the course and conduct of the marriage,"
they were deferred as long as Avis was a full-time student.  It
orally found that the loans were "more significantly traceable and
allocated directly to Mrs. Lumpkin."  The written findings and
conclusions explained that "[t]he benefits of these student loans
to her and her education will accrue to her alone."  
          Avis had submitted a pretrial memorandum and an affidavit
asserting that Lindsay had supported her pursuit of higher
education, and indicating that they had sometimes used the student
loans to pay living expenses and non-educational debts.  Lindsay
offered no evidence to rebut Avis's sworn statements.  The superior
court's written findings acknowledged that Avis "testified that a
portion of the money from the student loans was used for family
purposes," but found that the majority was used to benefit her own
education.  Given the evidence, we conclude that it was an abuse of
discretion to treat the unpaid student loans incurred before
separation as non-marital debt.  They should have been treated as
marital debt subject to division under AS 24.25.160(a). [Fn. 13]  
We remand so the student loans can be reclassified as marital debt. 
          Nor can we affirm on a theory that the student loans are
marital debt that can be entirely allocated to Avis.  We have never
required either that student loan debt be treated as non-marital
debt, or that the student-spouse pay the student loan debt
regardless of the parties' economic position.  To the contrary, in
both Tybus v. Holland [Fn. 14] and Notkin v. Notkin, [Fn. 15] we
held that the superior court did not abuse its discretion by
allocating student loan debt to the non-student spouse. [Fn. 16] 
Avis was very clearly economically disadvantaged, and her
uncontroverted testimony was that she pursued her education as part
of a family plan.  The statutory factors outlined in AS
25.24.160(a)(4) do not justify such an inequitable division of this
debt. [Fn. 17]  Absent any evidence that she incurred these debts
as part of an agreement that she begin this education at her
expense in anticipation of divorce, the timing of the loans and the
circumstances made these debts subject to an equitable division.
          We conclude that it was an abuse of discretion to assign
Avis full responsibility for the student loan debts incurred during
marriage to further her education.
     D.   The Relationship Between the Property Division and the

Alimony Award
          Avis claims that the superior court conflated the
property and alimony issues in its oral and written findings. 
          Usually the parties' assets and liabilities must be
divided without regard to any alimony award.  We held in Ulsher v.
Ulsher [Fn. 18] that "[a]n alimony award is separate from a
property division.  Payments that do not divide property cannot be
considered part of a property division." [Fn. 19]
          The record suggests that the property and alimony awards
did not respect this distinction.  The oral findings stated: "I
think that the allocation of the marital assets to Mr. Lumpkin with
a -- the $500.00 payment over four years is fair and equitable
under the circumstances as long as Baca (ph) Grande is -- is given
to Mrs. Lumpkin."  This suggests that the property division may
have been used to balance the legally unrelated alimony award. [Fn.
          Moreover, the written findings and conclusions awarding
the Baca Grande property to Avis contained the following provision
in the part titled "Rehabilitative Spousal Support":  "[I]f the
parties agree, the husband may continue to pay the sum of $500.00
per month in spousal support for an additional two (2) years, in
exchange for the return of the Colorado (Baca Grande Lot #1232)
property to him."  The oral findings included a similar provision.
Thus, if Lindsay agreed, Avis could trade a piece of property worth
$9,900 when they separated for two years more of alimony valued at
$12,000 when received.  Such a trade-off was inappropriate if it
was intended to resolve Avis's pretrial request for extended
alimony.  Courts may permissibly provide for periodic payments to
effect equitable property divisions, [Fn. 21] and may divide
property in a way that helps a spouse become financially
independent.  But the trade-off language used here implies that the
alimony and property division issues may not have been treated
independently.  And if the trade-off provision was meant to be a
substitute for alimony, it was not contingent on Avis's need, but
turned on Lindsay's agreement.  On remand, the parties' property
must be divided without regard to alimony.
     E.   Duration of Alimony

          The court's oral findings and conclusions ordered Lindsay
to pay Avis rehabilitative alimony of $500 per month for four
years, finding that amount to be "fair and equitable."  But the
written findings and conclusions prepared by counsel and entered by
the court did not specify the duration of the alimony.  When Avis
objected to the written findings' lack of specificity concerning
the duration of the alimony award, the superior court entered an
addendum specifying that alimony would be payable for two years;
the addendum did not explain the contradiction between the amended
term and the oral findings or why the duration of the alimony was
being reduced.
          Avis argues that the superior court abused its discretion
by reducing the duration of her alimony award from four years to
two years.
          Although it would not necessarily have been an abuse of
discretion to have awarded alimony of two years (or six years) at
the hearing, the conflict between the oral findings, the initial
written findings, and the addendum was resolved without
explanation, even though the result reduced the original award by
fifty percent and a total of $12,000.  We are consequently unable
to review the reasoning behind the reduction.  On remand, the
duration of the alimony award should be clarified, and if it
differs from the term found orally, the court should explain its
reasons for the different result.  This reconsideration of the
alimony award must not be inappropriately affected by the property
          Avis also argues on appeal that she deserved an
additional two years of alimony so that she could complete an
M.B.A.  She acknowledges that she never explicitly asked the
superior court for an additional two years of alimony.  But she
correctly notes that she explained to the court that her
educational plan included getting a master's degree, and her trial
exhibits indicated that she was studying business administration to
prepare for an M.B.A. program.  We express no opinion concerning
the merits of Avis's argument that she should receive six years of
alimony.  When the superior court reconsiders its alimony award,
Avis may ask the court to consider her effort to improve her
economic prospects by pursuing an M.B.A.
     F.   Military Retirement: the QDRO and the Insurance

          Avis argues that the superior court abused its discretion
by failing to enter a qualified domestic relations order (QDRO) to
protect her interest in Lindsay's retirement benefits.
          The superior court orally recognized at the hearing that
a "direct order" would be necessary to guarantee that Avis received
her share of Lindsay's retirement when the military began to pay
Lindsay; Lindsay's attorney represented to the court that he was
familiar with such orders and would be "doing the paperwork
anyway," implying that he would prepare and submit the necessary
order for consideration by the court.  The written findings and
conclusions contain no provision guaranteeing that Avis will
receive her share of the retirement payments and the record
contains no QDRO. 
          We have held that "[t]rial courts have discretion to
distribute retirement benefits to a non-employee spouse through
either a qualified domestic relations order (QDRO) or through a
lump sum payout." [Fn. 22]  The superior court orally opted for
entry of a "direct order," which we take to be a QDRO.  This was an
appropriate choice.  But it was error to fail to enter the order
required to protect Avis's interests and we must remand for entry
of the necessary order. 
          Avis also argues that it was an abuse of discretion not 
to require Lindsay to insure his military retirement account.  We
agree.  We held in Zito v. Zito [Fn. 23] that "an agreement for
equitable division of retirement benefits earned during marriage
presumptively encompasses survivor benefits." [Fn. 24]  We remanded
with instructions to amend the QDRO to provide for a "survivor
benefits" clause to ensure that the ex-wife be treated as a
"surviving spouse" should her former husband predecease her. [Fn.
25]  Here, Avis either needs life insurance to protect her interest
in Lindsay's military retirement or a clause in the QDRO that will
require the Air Force to treat her as a surviving spouse if Lindsay
predeceases her.  On remand, the superior court should ensure that
Avis's interest is protected appropriately.
     G.   Joint Legal Custody

          The superior court awarded the parties joint legal
custody of the three minor children, but recognized that Lindsay's
frequent absences overseas meant that Avis would make most major
decisions regarding the children. [Fn. 26]  On appeal Avis argues
that it was error not to give her sole legal custody.
          Avis never expressly sought sole legal custody at trial,
but her pretrial memorandum stated that she "doesn't see how [joint
legal custody] will work."  We consider this issue absent any
argument that Avis failed to preserve this argument for appeal. 
          On appeal Avis asserts that she and Lindsay have
difficulty communicating, and points to the trial comment of
Lindsay's attorney that Lindsay "does not have a particularly good
relationship with Mrs. Lumpkin and -- and would prefer not to have
to contact her."  The superior court nonetheless concluded, "Mr.
Lumpkin it's uncontroverted has been responsible in dealing with
his children's educational needs, that he has been providing a
sufficient amount of well, a significant amount of support and
there is a basis for granting of joint legal custody."  The
superior court continued: "This decision to award joint legal
custody is done because I think the parties can work out major
differences.  It's not meant to be a hindrance for Mrs. Lumpkin who
will need to continue to make those primarily -- primary on the
spot decisions."
          No evidence in the record justifies a conclusion that the
superior court abused its discretion by awarding joint legal
custody of the children. [Fn. 27]  We therefore affirm this award.
     H.   Other Rulings

          Finally, Avis argues on appeal that the superior court
failed to follow its own oral findings regarding the nurture and
care of the parties' minor children.  Avis's pretrial memorandum
sought entry of provisions (1) ensuring ongoing support for
children over eighteen if they were seeking further education; (2)
splitting educational expenses for children attending college; (3)
requiring Lindsay to provide health care coverage for the children
through his employer until Avis completes her degree program, and
to share medical costs while the children attend college; (4)
requiring life insurance of $201,000 to secure the child support,
and the children's educational obligations; and (5) requiring cost-
of-living increases in child support.  Avis argues on appeal that
although the superior court "orally adopted [these] provisions,"
the written findings and conclusions failed to address these
          The superior court's written findings and conclusions
directly and adequately addressed most of these requests.  First,
the superior court found that "the father has indicated that he
intends to help his children with their college education and has
indicated that he will use his best efforts to do so."  Lindsay's
counsel had announced at the hearing that Lindsay planned to help
his children when they attend college, and Avis presented no
evidence that would justify a conclusion that the court's finding
was clearly erroneous.  Moreover, Lindsay's "best efforts"
undertaking was too general to create an enforceable obligation to
pay half of the expenses.  The superior court's finding therefore
adequately addresses Avis's first two requests -- supporting the
children while in school, and sharing higher education expenses --
and part of the third request -- sharing health expenses for
children in college.
          The other alleged omissions do not require reversal,
either.  The superior court ordered Lindsay to provide health
insurance coverage for the children, and to continue to do so after
his eventual discharge from the Air Force.  The court ordered that
uninsured costs should be borne equally by the parties to a maximum
of $5,000, and then allocated pro-rata between the parties
according to their respective incomes.  It also required Lindsay to
maintain life insurance covering his child support obligation.  The
court did not state a dollar figure, as Avis had requested, but the
orders are consistent with the essence of Avis's pretrial
memorandum's request: that payment of child support be ensured
should Lindsay die.  Finally, Avis asked for a cost-of-living
adjustment for the child support payments.  Alaska Civil Rule 90.3,
which governs child support, does not require cost-of-living
adjustments.  The superior court might have corrected Avis's
misunderstanding, but did not err in failing to do so or by
declining to impose an obligation not required by Rule 90.3.
     I.   Discrepancies Between the Oral and Written Findings

          Lindsay's trial attorney did not incorporate in the
written findings several of the court's oral findings although the
court directed him to do so in the following language: "I am going
to direct Mr. Ford to prepare the findings and conclusions
consistent with my oral findings and conclusions set forth here on
the record and the final decree of divorce and any other orders
necessary for Mrs. Lumpkin to obtain her benefits in the military
retirement, et cetera."  Despite these instructions, the proposed
findings and conclusions failed to specify any duration for the
alimony award.  Nor did counsel submit a proposed QDRO, although
the court had asked that an appropriate order be prepared and
counsel had reassured the court that he was familiar with such
orders.  Furthermore, the written findings interject speculation
about different values for the marital property, although at the
hearing the superior court had explicitly adopted Avis's
          Counsel agreeing to draft written findings and
conclusions for the superior court is essentially a scribe who must
accurately memorialize the court's oral findings and conclusions.
[Fn. 28]  Especially if the opposing party has no lawyer and is
less able or less likely to mount an effective challenge to the
proposed written findings, counsel must take extra care to ensure
faithful and accurate renditions of the court's rulings. [Fn. 29] 
If counsel has questions about what a court has ruled or perceives
ambiguity, the proper course is to flag the issue so that the court
may revisit it.  
          An attorney's failure to submit written proposed findings
conforming to the oral findings does not relieve a trial court of
responsibility for confirming that the written findings reflect the
court's thinking. [Fn. 30]  The responsibility here was shared. 
Counsel cannot expect the court to compare the tape of its oral
findings and conclusions with the proposed written findings and
conclusions;  the court is entitled to assume that counsel will
scrupulously comply with the court's request to prepare findings
and conclusions that are "consistent" with the court's oral
findings and conclusions.  
          One result of the discrepancies in this case is an appeal
that might have been avoided in whole or in part.  
          For these reasons, we VACATE the property division, and
REMAND for further proceedings regarding the property division and
alimony issues, for entry of a QDRO, and for entry of provisions
protecting Avis's interest in Lindsay's military retirement.  We
AFFIRM as to the remaining issues Avis raises, including the award
of joint legal custody. 


Footnote 1:

     See Tybus v. Holland, 989 P.2d 1281, 1284 (Alaska 1999). 

Footnote 2:

     664 P.2d 568 (Alaska 1983).

Footnote 3:

     Id. at 570.

Footnote 4:

     See Tybus, 989 P.2d at 1284.

Footnote 5:

     See id.

Footnote 6:


Footnote 7:

     See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).

Footnote 8:

     See id.; Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska

Footnote 9:

     Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991). 

Footnote 10:

     See Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988).  Relevant
factors for possible deviation from a presumptive equal division
are found in AS 25.24.160(a)(4)(A)-(I). 

Footnote 11:

     Although the written findings and conclusions prepared by
counsel refer vaguely to possibly lower values for these
properties, the appellate record contains no evidence of other
values.  The superior court's oral findings explicitly relied on
Avis's pretrial valuations, and her figures were nearly identical
to the values contained in Lindsay's initial financial declaration.

Footnote 12:

     See Miles, 816 P.2d at 131; Hayes, 756 P.2d at 300; Wanberg,
664 P.2d at 574-75.

Footnote 13:

     Not at issue here is an additional $3,716 of student loan debt
incurred after separation. 

Footnote 14:

     989 P.2d 1281 (Alaska 1999).

Footnote 15:

     921 P.2d 1109 (Alaska 1996).

Footnote 16:

     See Tybus, 989 P.2d at 1286 (holding that superior court
"committed no error" in allocating wife's student loan debt to
husband with greater earning capacity); Notkin, 921 P.2d at 1113-14
(holding that superior court did not abuse its discretion by
requiring husband to pay off wife's outstanding student loan
obligations, because wife's earning capacity was "low").

Footnote 17:

     See generally AS 25.24.160(a)(4)(A) ("the length of the
marriage and station in life of the parties during the marriage");
AS 25.24.160(a)(4)(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 of children during the marriage");
AS 25.24.160(a)(4)(D) ("the financial condition of the parties").

Footnote 18:

     867 P.2d 819 (Alaska 1994).

Footnote 19:

     Id. at 821-22.

Footnote 20:

     But see, e.g., Hammer v. Hammer, 991 P.2d 195, 199 (Alaska
1999) (noting that extended alimony may be awarded when
insufficient property exists to eliminate differences between
spouses' earning capacities through an unequal property division). 

Footnote 21:

     See, e.g., Hunt v. Hunt, 698 P.2d 1168, 1171 (Alaska 1985)
(ordering husband to pay wife for her share of business in equal
monthly installments for three years at 10.5% interest).  

Footnote 22:

     Nicholson v. Wolfe, 974 P.2d 417, 425-26 (Alaska 1999).

Footnote 23:

     969 P.2d 1144 (Alaska 1998).

Footnote 24:

     Id. at 1148.

Footnote 25:

     See id. at 1147-48.

Footnote 26:

     Lindsay had agreed that Avis should have primary physical
custody of the three minor daughters.  The oldest daughter was an
adult at the time of the divorce.

Footnote 27:

     See Crane v. Crane, 986 P.2d 881, 889 n.18 (Alaska 1999) ("As
we held in Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990), legislative
intent 'favors joint legal custody, regardless of the physical
custody arrangement.'"). 

Footnote 28:

     See Schoenberg v. Romike Properties, 59 Cal. Rptr. 359, 363
(Cal. App. 1967) ("The busy trial judge has a right to expect that
the attorneys will prepare suitable findings."); see also Robert N.
Rosen, Postrial: Orders for the Court, 12 Fam. Advoc. 63 (1990)
("In preparing an order [containing findings of fact and
conclusions of law]: . . . [C]ounsel has an ethical duty to the
court to submit an order that is consistent with the record, true
and correct, and balanced in presentation so that it does not
present only one side . . . ."). 

Footnote 29:

     In this case, Avis did challenge the written findings.  Her
arguments there, as well as in her advocacy at trial and on appeal,
were thorough and capable.  But this is an extraordinary exception
to most such cases, and cannot justify any failure to be fair and

Footnote 30:

     See Industrial Indem. Co. v. Wick Constr. Co., 680 P.2d 1100,
1108 (Alaska 1984) (noting that trial court should adopt findings
and conclusions prepared by counsel only if "they reflect the
court's independent view of the weight of the evidence").