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Ogden v. Ogden (12/14/2001) sp-5516
Ogden v. Ogden (12/14/2001) sp-5516
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
DOUGLAS L. OGDEN, )
) Supreme Court No. S-9815
Appellant, )
) Superior Court No.
v. ) 3AN-99-3940 CI
)
JULIE L. OGDEN, ) O P I N I O N
)
Appellee. ) [No. 5516 - December 14, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sen K. Tan, Judge.
Appearances: Douglas L. Ogden, pro se,
Anchorage. Robin A. Taylor, Law Office of
Robin A. Taylor, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Douglas Ogden appeals the custody and property division
provisions of a divorce decision and challenges the trial court's
refusal to disqualify the child custody investigator for apparent
gender bias because her yellow-page listing advertised her as an
attorney who was a "voice for women and children." Although we
find that the yellow-page listing gives rise to a reasonable
appearance of bias that warranted disqualification, we conclude
that failure to disqualify the custody investigator amounted to
harmless error. But we further conclude that unjustified delay in
entry of the written judgment and resulting discrepancies between
that judgment and the superior court's earlier oral decision
necessitate a remand for reconsideration of the judgment's
visitation provisions; we similarly hold that discrepancies and
oversights in the judgment's provisions addressing the division of
marital property must be clarified on remand.
II. FACTS AND PROCEEDINGS
Julie Ogden and Douglas Ogden were married in 1985 and
lived in Anchorage with their two children: Wendy, born in April
1987, and Patrick, born in July 1992. On January 17, 1999, Douglas
-- secretly intending to end the marriage and keep permanent
custody of his daughter -- abruptly abandoned his job, his family
home, and his wife and son, and absconded to Juneau with Wendy.
After spending a week with a friend in Juneau who ultimately asked
him to leave, Douglas traveled to Tok with Wendy, moved in with his
sister and brother-in-law, and enrolled Wendy in school. During
this time Douglas maintained sporadic contact with Julie but
refused to disclose his and Wendy's location.
On January 21, 1999, four days after Douglas absconded,
Julie filed for divorce in Anchorage. Less than two weeks later,
Julie managed to locate Douglas and Wendy in Tok and, after a
hastily scheduled hearing held in Anchorage on February 5, 1999,
she secured an order that gave her interim custody of both Wendy
and Patrick. The interim order appointed Anchorage attorney
Jacqueline Bressers to conduct a child custody investigation and
prepare a recommendation for permanent custody. Although the
interim order also established a visitation schedule that allowed
Douglas to maintain supervised contact with his children, Douglas
balked at the order's supervision requirement and elected not to
exercise his visitation rights.
Ten months later, in December 1999, Douglas and Julie
signed agreements formally retaining Bressers to conduct the
custody investigation. By March 2000 more than a year had passed
without visitation between Douglas and his children; Bressers, who
was actively conducting her custody investigation, met with Douglas
-- evidently at his request -- to arrange a visitation schedule
that would enable her to observe him interacting with the children.
The conference resulted in a stipulation allowing Douglas to have
supervised visitation for approximately six hours on alternating
Saturdays.
The Ogdens' divorce trial was scheduled to begin in
June 2000. In May Douglas moved to delay the trial and asked for
an expedited hearing to determine Bressers's ability to serve as
custody investigator. His motion alleged that Bressers was biased
against men and claimed that she had displayed that bias in a child
custody recommendation that she had prepared on April 6, 2000. To
bolster his allegation of gender bias, Douglas submitted, among
other things, a copy of Bressers's listing in the attorney's
section of the Anchorage yellow pages, where Bressers advertised
herself as a "Voice for Women and Children."
At the time that Douglas filed his motion, Bressers had
completed her custody investigation and was preparing her final
report. The superior court, noting that Bressers had been
appointed since February 5, 1999, and that Douglas had failed to
specify when his dissatisfaction with Bressers initially arose,
concluded that Douglas had not established grounds for an expedited
hearing. The court declined to delay the trial or to hear
Douglas's motion immediately, indicating that it would be addressed
as a preliminary issue at the outset of trial. Douglas
subsequently renewed his motion, submitting supplemental
descriptions of actions on Bressers's part that, in his view,
established her bias. The court evidently took no action on the
renewed motion before the time of trial.
On June 14, the day set for trial, the superior court
conducted an extensive hearing into Douglas's claim that Bressers
was biased. Upon concluding the hearing, the court found that
Douglas had failed to establish grounds for Bressers's
disqualification; the court observed that Douglas's disagreement
with Bressers's report was not an indication of bias but was
instead "something that occurs in every case." After noting that
Bressers's yellow-page advertisement dealt with her field of
practice as an attorney and that it is common for attorneys to
advertise their specialties, the court explained that attorneys who
are appointed as child custody investigators "wear different hats"
by serving as neutral advisors to the court. In short, while
recognizing that, as a lay person, Douglas might easily jump to the
conclusion that "there is an agenda here," the court found no
evidence of actual bias warranting Bressers's disqualification.
Because the hearing into bias had been so time consuming,
the court postponed the trial until July. The rescheduled trial
began on July 11, 2000. While the trial nominally dealt with
issues of both property and custody, the parties primarily disputed
custody. In oral findings made on the record at the close of
trial, the court divided the marital property equally and granted
Julie sole legal and physical custody of both children. The court
also established a "stair-step" visitation schedule designed to
work progressively toward allowing Douglas to assume shared custody
of both children.
As described by the court, the stair-step approach
initially required Douglas to follow the supervised visitation
schedule in existence at the time of trial, which the parties
agreed gave Douglas about seven hours of supervised visitation
every two weeks. After three months, supervised visitation would
increase by one hour. And the court proclaimed that it would
consider further increases -- possibly including unsupervised and
overnight visits -- after Douglas submitted the results of a
psychological evaluation.
Upon entering these oral findings on the record on
July 12, 2000, the court directed Julie's attorney to submit
proposed written findings and conclusions. [Fn. 1] Douglas promptly tried
to appeal the decision, but his notice of appeal was held in
abeyance by the Appellate Court Clerk's Office because the superior
court had not yet entered a written judgment. On August 30, seven
weeks after the court ordered Julie's attorney to submit written
findings and conclusions, Douglas filed a motion asking the court
to compel Julie's attorney to comply with the order. In his
motion, Douglas complained that the court's delay in issuing its
written decision was prejudicing his right to visitation and
preventing him from pursuing his right to an appeal.
A month later, on September 29, the court granted
Douglas's motion and ordered Julie's attorney to produce the
proposed findings within ten days or show cause for her delay.
Julie's counsel filed the proposed findings and conclusions on
October 2, and the court signed them the following day without
making any revisions.
Douglas's appeal then proceeded.
III. DISCUSSION
1. The Disqualification of the Child Custody Investigator [Fn. 2]
Douglas initially contends that the superior court abused
its discretion in failing to disqualify Bressers as the child
custody investigator. He accuses Bressers of gender bias,
supporting his accusation by pointing to Bressers's yellow-page ad
and various signs of bias that Douglas detected in the course of
Bressers's custody investigation.
The superior court considered this evidence before
denying Douglas's motion to disqualify Bressers but concluded that
it failed to reveal any actual bias. In the court's view,
Bressers's yellow-page ad merely described her chosen specialty as
an attorney; it did not reflect on her function as a court-
appointed custody investigator, a role that required her to act
neutrally. The court also found no evidence of bias in Bressers's
conduct during the custody investigation, noting that her report
"doesn't miss the mark" with respect to the fundamental issues
disputed at trial.
In our view, the record fully supports the superior
court's findings. But the findings themselves focus too narrowly
on the issue of actual bias without independently considering the
issue of appearance of bias. We have not previously discussed
appearance of bias or impropriety in connection with a court-
appointed child custody investigator's role. But because court-
appointed custody investigators are officers of the court and
perform quasi-judicial functions, the Code of Judicial Conduct
provides a helpful analytical framework. [Fn. 3] The Code states: "In all
activities, a judge shall . . . avoid impropriety and the
appearance of impropriety." [Fn. 4] The commentary to the Code defines
appearance of impropriety by an objective standard -- one that asks
not whether a judicial officer displayed actual bias but "whether
the conduct would create in reasonable minds a perception that the
judge's ability to carry out judicial responsibilities with
integrity, impartiality and competence is impaired." [Fn. 5]
Applying this standard here, we conclude that reasonable
minds could understandably doubt the impartiality of a court-
appointed custody investigator who, as an attorney practicing in
the field of domestic relations, claimed to be "a voice for" only
one gender. The appearance of bias would be greatly compounded in
cases involving pro se litigants, who, without the benefit of
advice from an experienced advocate, might find it difficult to
accept the notion that practicing lawyers are often expected to
"change hats" when they act in different capacities. In such
cases, even if a custody investigator's report might ultimately
demonstrate the absence of actual bias, the litigant's initial
suspicions would be likely to jeopardize the reliability of the
investigation; for the effectiveness of the process itself largely
depends on the confidence and trust of all interested parties. For
these reasons, then, we conclude that a court-appointed child
custody investigator is ordinarily subject to disqualification upon
a showing of either actual or apparent bias.
In the case at hand, however, even though we find that
Bressers's yellow-page advertisement created an appearance of bias
sufficient to warrant disqualification, we conclude that any error
in failing to grant Douglas's motion for disqualification was
clearly harmless. We note initially that, even apart from
Bressers's recommendation, the evidence at trial strongly supports
the superior court's custody decision. [Fn. 6] Furthermore, by expressly
observing that the evidence proved Bressers's recommendations to be
accurate in all significant respects, the court demonstrated that
its custody decision was based primarily on the evidence, rather
than on Bressers's report. The court thus demonstrated its
awareness that Bressers's custody recommendations were not binding
and that the court had the duty to independently determine the
children's best interests. And our review of the record also
convinces us that Douglas failed to present any plausible evidence
of bias apart from the inherent appearance of bias arising from
Bressers's yellow-page advertisement.
A final factor that we consider is the timing of
Douglas's motion to disqualify Bressers. Douglas filed his motion
in May 2000, just a month before the case was scheduled for trial.
Fifteen months had passed since the divorce action was filed; more
than fourteen months had elapsed since the court originally
appointed Bressers; and five months had elapsed since Douglas first
met Bressers and signed an agreement retaining her to perform the
custody investigation. The month before Douglas filed his motion,
Bressers had completed her investigation; Douglas had just received
her initial recommendations, which favored granting primary custody
to Julie.
Although Douglas contended below that he moved to
disqualify Bressers as soon as he could, his own affidavit belies
that contention, expressly acknowledging that he already knew of
Bressers's yellow-page advertisement when he met with her in
December 1999 and signed the agreement retaining her to perform the
investigation. The timing of the disqualification motion thus
strongly suggests that Douglas's motion reflects his displeasure
with Bressers's recommendation rather than a genuine concern over
the appearance of bias arising from her yellow-page ad.
Considering the totality of these circumstances, we find
no reasonable possibility that a report by a different custody
investigator would have had any appreciable effect on the superior
court's custody decision. Finding nothing to indicate that Douglas
suffered actual prejudice, then, we decline to hold that the
failure to disqualify Bressers amounted to reversible error.
2. The Timeliness and Accuracy of the Written Decision
Douglas next challenges the merits of the superior
court's decision. His challenge focuses on the delayed issuance of
the court's written findings of fact and conclusions of law and
their failure to accurately reflect the court's previously
announced oral decision. Douglas's arguments on these points have
considerable merit.
We turn first to the issue of timeliness. After
announcing its decision on record at the conclusion of the trial on
July 12, the superior court directed Julie's attorney to submit
proposed findings and conclusions. Alaska Civil Rule 78 expressly
required Julie's counsel to file the proposed findings and
conclusions within ten days:
Unless otherwise ordered by the court, counsel
for the successful party to an action or
proceeding shall prepare in writing and file
and serve on each of the other parties
proposed findings of fact, conclusions of law,
judgments and orders. In a case in which the
custody of children is at issue, a party
required to prepare findings of fact,
conclusions of law, or a judgment or order
pertaining to that issue shall serve and file
them within 10 days after the day on which the
judge announces on the record that the party
is to prepare them, pursuant to Rule
58.1(a)(1).[Fn. 7]
Julie's attorney failed to comply with this requirement,
did not seek an extension of time, and offered no explanation for
her noncompliance. More than seven weeks after the court announced
its decision, on August 30, Douglas moved for an order compelling
Julie's attorney to produce the proposed findings and conclusions.
He complained that the court's delay in entering written findings
and conclusions had hampered his efforts to appeal and was
prejudicing his visitation rights.
On September 29 the court ordered Julie's attorney to
produce the proposed findings and conclusions within ten days or
show cause for failing to do so. Julie's counsel submitted the
proposed findings on October 3 -- nearly three months after the
court's oral ruling. The court signed the proposed findings and
conclusions the next day, without change. As Douglas correctly
observed in his August 30 motion to the court, this delay
interfered with his ability to seek timely appellate review. [Fn. 8] And
as we explain in detail below, the delay also led to discrepancies
between the court's oral and written rulings that effectively left
its stair-step visitation plan in limbo.
Normally, when inconsistencies arise between a court's
oral and written findings, the written decision prevails. [Fn. 9] But the
normal rule assumes that -- and consequently only applies when --
the trial court consciously made or endorsed the changes
incorporated in its written decision. We have held that a trial
court abuses its discretion when it adopts, without explanation or
change, proposed findings of fact and conclusions of law that
substantially deviate from the court's earlier oral decision. [Fn. 10]
We have also emphasized that the role of counsel in
drafting proposed findings and conclusions is that of "a scribe who
must accurately memorialize the court's oral findings and
conclusions." [Fn. 11] And we have placed a particularly heavy burden of
accuracy on attorneys whose opponents are unrepresented by counsel:
"[I]f 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 ruling." [Fn. 12]
The findings and conclusions proposed by Julie's counsel
fell short of this mark in several respects. Most prominently, the
superior court's oral order establishing a stair-step visitation
program expressly specified that Douglas's visitation was to
increase to eight hours each weekend "after three months starting
now." Yet almost three months later, Julie's counsel submitted
proposed findings that failed to include this reference to timing;
on their face, the written findings seemingly made the stair-step
plan's initial three-month extension effective as of the date the
written plan was signed, rather than at the time of trial. By
failing to include the oral decision's specific timing provision,
then, the written findings effectively doubled the visitation
plan's first step. [Fn. 13]
The written decision is also inaccurate in other
respects. For example, it requires Douglas to undergo a
psychological evaluation "conducted by Dr. Melinda Glass or the
alternate therapist selected by the parties." This language
implicitly makes Dr. Glass the default examining physician: absent
Julie's consent to another physician, the provision seemingly
requires Douglas to submit to an evaluation by Dr. Glass. But as
Douglas correctly points out, the superior court's oral findings
did not specify Dr. Glass as the default therapist. In its oral
judgment, the court ordered Douglas to undergo a psychological
evaluation by a therapist whom the parties mutually agreed upon.
The court did say that Dr. Glass seemed like a logical choice for
Douglas. But it also suggested other possible candidates and did
not require or suggest that Douglas be evaluated by Dr. Glass if
the parties were unable to agree on another therapist.
The inaccuracies in the written findings and conclusions
are not confined to custody provisions. For example, the court's
oral decision specified that the marital portions of Douglas's
retirement plans were to be divided equally by a qualified domestic
relations order (QDRO) and that the court would retain jurisdiction
over Douglas's unvested National Guard plan until it vested. But
while the written decision includes a provision dividing Douglas's
retirement benefits equally, it neglects to mention the use of a
QDRO. The written decision thus fails to specify a method for
dividing these assets. [Fn. 14]
Besides these omissions of parts of the oral decision,
the written findings and conclusions add provisions not found in
the oral findings. The court's oral decision did not specify the
time frame for determining the marital portion of the retirement
benefits. Without seeking clarification or guidance on this point,
Julie's counsel simply included a provision specifying that
"retirement benefits earned between February 23, 1985 and July 12,
2000" were to be deemed marital for purposes of the property
division. Yet these dates appear to be unduly favorable to Julie.
Marital property available for distribution in a divorce is
ordinarily identified as of the date of separation rather than
trial. [Fn. 15] Yet here, the written decision uses the date of the
parties' trial -- July 12, 2000 -- not the date of their separation
-- January 17, 1999 -- to establish the period during which
Douglas's retirement funds should be deemed marital.
In summary, by submitting written findings that did not
conform to the exact terms of the superior court's oral findings,
Julie's counsel overstepped her role as the court's scribe. New or
additional matter should not have been included in the written
findings without giving Douglas advance notice of the changes and
an opportunity to object. [Fn. 16] And if Julie's counsel encountered
questions or uncertainties in drafting the findings and
conclusions, she should have at least specified in her proposed
order those findings that were extrapolations from the court's oral
remarks or otherwise were not mentioned by the court. Here,
because the superior court had no notice of the discrepancies
between the written and oral decisions, because the written version
was submitted so long after the court announced its oral decision,
and because the court signed the proposed version without revision
or correction almost immediately after its submission, [Fn. 17] we
conclude that the written decision must be vacated and that this
case must be remanded for entry of an amended judgment. [Fn. 18]
C. Remaining Property Issues
Douglas also challenges several aspects of the superior
court's order dividing the marital property. Alaska Statute
25.24.160(a)(4) gives trial courts broad discretion to divide the
marital property of divorcing litigants. [Fn. 19] Dividing a marital
estate involves a three-step process: identifying, valuing, and
dividing the marital assets. [Fn. 20] Legal determinations made within
the first step are reviewed under the independent judgment
standard. [Fn. 21] The second step usually involves factual determinat-
ions, reversed only if made in clear error. [Fn. 22] Allocations under
the third step are reviewed under the abuse of discretion standard
and will not be disturbed unless clearly unjust. [Fn. 23]
In its oral findings at the close of trial, the superior
court divided the marital property equally, evidently adopting the
property schedule presented in Julie's trial brief. While
Douglas's arguments challenging the property division are cursory
and difficult to follow, they focus partly on the superior court's
decision to divide his retirement plans by QDRO. As already noted
above, the superior court's oral decision required the retirement
plans to be divided by QDRO but did not specify the dates to be
used in distinguishing marital from non-marital earnings; in
contrast, the written decision omitted any reference to QDROs and
incorporated potentially incorrect marital dates that Julie's
counsel supplied without notice to the court or to Douglas. On
remand, the court should address these deficiencies. [Fn. 24]
Douglas additionally complains that the superior court
failed to account for the financial effects that his post-
separation bankruptcy had on the parties' marital debts. Julie
acknowledged in her trial brief that Douglas's bankruptcy action
discharged his obligation on various marital debts; but the brief
also indicated that Julie remained liable for many of the
discharged debts, including a USAA Savings Bank obligation of
$7,300 and People's Bank VISA debt of $7,200. Yet at the same
time, Julie acknowledged that she was awaiting a refund for post-
discharge payments that she had made on a different marital credit
card debt that had been discharged in the bankruptcy -- a $4,300
debt to Providian Bank VISA. Without commenting on Douglas's
bankruptcy discharge, the superior court simply accepted Julie's
characterization of all of these credit card debts as still current
marital obligations. The court thus divided the total debt
equally, stipulating that Douglas should receive a proportionate
credit if Julie ever received a refund for her Providian Bank VISA
payments.
Douglas questions this decision. Relying on Julie's
apparent acknowledgment that she may be entitled to assert his
bankruptcy discharge to recover her post-discharge payments on the
Providian Bank VISA obligation, Douglas questions her claim that
she remains personally liable for the full amount of the now-
discharged USAA Savings Bank and People's Bank obligations. Julie
does not specifically respond to this argument. Because the
findings below neither addressed the effects of Douglas's
bankruptcy discharge nor explained the court's reasons for counting
the discharged obligations as marital debt, we are unable to review
the court's ruling and conclude that this issue must be remanded
for further findings.
Douglas also complains that neither Julie's trial brief
nor the superior court's findings properly accounted for several
articles of marital property that the court authorized Julie to
sell while the parties' divorce action was pending. This argument
lacks merit. The property in question was sold in accordance with
a May 1999 order granting Julie's motion to sell several marital
articles in her possession to allow her to pay current living
expenses and accrued marital debts. The record does not disclose
how much money Julie realized in the sale or how she spent the sale
proceeds. As Douglas correctly observes, the court did not credit
Julie with the proceeds of the sale in its order dividing the
marital property. [Fn. 25]
But we have consistently held that a divorce court
engaged in dividing property should usually identify marital assets
as of the time of separation but establish their value at the time
of trial. [Fn. 26] Ordinarily, then, neither party is charged for loss in
the value of marital property occurring in the interim between
separation and trial. [Fn. 27] Although we have occasionally recognized
an exception that allows recapture of property that has been
dissipated or wasted in the interim between separation and trial, [Fn. 28]
Douglas alleges no exceptional circumstances that would warrant
recapturing the value of the articles sold in this case. We find
no error in the trial court's failure to account for the sold
articles.
IV. CONCLUSION
For the reasons discussed above, we AFFIRM in part,
REVERSE in part, and REMAND for further proceedings and entry of a
new order consistent with this opinion.
FOOTNOTES
Footnote 1:
Specifically, the trial court stated, "Ms. Taylor, I'm
going to ask you to draft these findings up. Okay? I made very
general findings. You can listen to the tape. See what's in
there, okay?"
Footnote 2:
We apply the abuse of discretion standard to review a
trial court's decisions relating to appointment of a child custody
investigator and admission of the investigator's report into
evidence. See R.M. v. S.G., 13 P.3d 747, 749 (Alaska 2000).
Footnote 3:
See Lythgoe v. Guinn, 884 P.2d 1085, 1087-88 (Alaska
1994).
Footnote 4:
Alaska Code of Judicial Conduct Canon 2(A).
Footnote 5:
Id. at Canon 2(A) commentary (emphasis added).
Footnote 6:
We review a trial court's child custody decision for
abuse of discretion. See Borchgrevink v. Borchgrevink, 941 P.2d
132, 134 (Alaska 1997).
Footnote 7:
Alaska R. Civ. P. 78 (emphasis added).
Footnote 8:
Under Appellate Rule 202(a), Douglas had the right to
appeal upon entry of a final judgment; under Appellate Rule 218(d)
this right accrued on "the date shown in the clerk's certificate of
distribution on the order or judgment." Accordingly the appeal was
not ripe until the superior court entered and distributed its
judgment. Douglas initially submitted a notice of appeal on
August 15, 2000, but his opening pleadings were held until the
superior court entered its written judgment.
Footnote 9:
Lowe v. Lowe, 944 P.2d 29, 33-34 (Alaska 1997).
Footnote 10:
McDougall v. Lumpkin, 11 P.3d 990, 998 (Alaska 2000).
Footnote 11:
Id.
Footnote 12:
Id.
Footnote 13:
The prejudicial delay in Julie's production of proposed
findings is discussed more fully infra.
Footnote 14:
As of the date that the appellate record was certified to
this court, the superior court's file contained nothing to indicate
that a QDRO had been issued.
Footnote 15:
E.g., Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994).
Footnote 16:
See McDougall, 11 P.3d at 998.
Footnote 17:
Douglas's failure to file an objection in the superior
court to Julie's proposed findings and conclusions does not
preclude him from disputing these inaccuracies on appeal. Because
the court signed Julie's proposed findings and conclusions the day
after they were filed with the court and served upon Douglas,
Douglas had no opportunity to object.
Footnote 18:
The current record does not allow us to determine how
greatly Douglas's visitation was actually impaired by the written
judgment's delayed issuance and its omission of any reference to
the effective date of the stair-step visitation provision;
accordingly, on remand the superior court will need to fashion a
new custody order based on the current best interests of the
children. Because our decision vacates the superior court's
written order and requires a reevaluation of best interests on
remand, we need not consider other arguments raised by Douglas
concerning the custody order.
Footnote 19:
AS 25.24.160 provides in pertinent part:
(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
. . . .
(4) for the division between the parties of
their property, including retirement benefits,
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, including retirement
benefits, of either spouse acquired before
marriage when the balancing of the equities
between the parties requires it; and to
accomplish this end the judgment may require
that one or both of the parties assign,
deliver, or convey any of their real or
personal property, including retirement
benefits, to the other party; the division of
property must fairly allocate the economic
effect of divorce by being based on
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 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.
Footnote 20:
Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998);
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
Footnote 21:
Id.
Footnote 22:
Id.
Footnote 23:
Id.
Footnote 24:
We note also that the superior court's findings on the
retirement assets failed to address evidence indicating that, in
addition to his Loomis Fargo and National Guard retirement plans,
Douglas evidently maintained a separate Loomis Fargo 401(k) account
of undetermined value. In contrast to the retirement plans, the
401(k) account could conceivably contain currently accessible funds
with a readily apportionable present value; if so, these funds
might be easily divided without recourse to a QDRO. After the
superior court orally announced its decision to divide Douglas's
retirement funds by QDRO, Douglas attempted to inquire into the
court's treatment of this 401(k) account, possibly meaning to
suggest that the court consider immediately dividing that account's
present value, so that Douglas could use his share of the cash to
pay his share of the marital debt. The court -- perhaps failing to
recognize a potential distinction between Douglas's personal 401(k)
account and his employers' retirement plans -- simply informed
Douglas that the money would be divided by QDRO. Given the
possible distinctions between Douglas's 401(k) account and his
employer retirement plans, the superior court should reconsider
this issue on remand if Douglas is inclined to assert it.
Footnote 25:
It does not appear that Julie used the sale proceeds to
pay down existing marital debt. The marital debts listed in
Julie's trial brief are identical to those reflected in Julie's
form DR 250 financial statement, which she filed in April 1999, a
month before the court issued its order authorizing the sale of
marital assets.
Footnote 26:
Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998)
(court's decision dividing property should identify marital
property existing at the time of separation, establish value of
that property at the time of trial, and allocate the property in an
equitable manner); see also Jones v. Jones, 942 P.2d 1133, 1136
(Alaska 1997); Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994);
Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991).
Footnote 27:
See, e.g., Jones, 942 P.2d at 1139; Foster v. Foster, 883
P.2d 397, 399-400 (Alaska 1994); Ogard, 808 P.2d at 819-20.
Footnote 28:
Foster, 883 P.2d at 400.
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