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Nelson-Lizardi v. Lizardi (6/14/2002) sp-5583
Nelson-Lizardi v. Lizardi (6/14/2002) sp-5583
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
JACKIE NELSON-LIZARDI, )
) Supreme Court No. S-9803
Appellant, )
) Superior Court No.
v. ) 4FA-89-502 CI
)
ISMAEL ROBERTO LIZARDI, ) O P I N I O N
)
Appellee. ) [No. 5583 - June 14,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Julie L. Webb and Andrew
Harrington, Alaska Legal Services Corp.,
Fairbanks, and Robert H. Hickerson,
Anchorage, for Appellant. Edward R.
Niewohner and Lawrence F. Reger, Niewohner &
Associates, P.C., Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Jackie Nelson-Lizardi and Ismael Roberto (Bob) Lizardi
divorced in 1990 but the divorce decree did not deal with the
division of Bob's pension because the pension had not yet vested.
In a hearing on December 1, 1999, the superior court ordered
Jackie to file a request for a formal accounting by December 15,
1999 or face waiver of any claim to the pension. Jackie did not
file a request for a formal accounting on December 15, but she
did file a notice stating that she did not have enough
information to make the decision as to whether a formal
accounting was appropriate and apprising the court of her efforts
to obtain the needed information. The parties continued to
exchange relevant information for several months. But on June
14, 2000, the superior court issued a decision denying Jackie any
right to the pension. Because Jackie was entitled to a decision
on the merits on the issue of awarding the pension entirely to
Bob, we reverse the decision of the superior court. We remand
the issue of division of the pension for further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
Jackie and Bob were married in 1980. Jackie filed for
divorce in 1989 and trial was held in January 1990. The superior
court issued an amended decree of divorce on April 30, 1990.
During their marriage, Jackie and Bob accumulated several pieces
of personal and real property1 that made up the marital estate.2
Jackie and Bob accumulated several debts related to the farming
business during the marriage.3
In the divorce decision, the superior court distributed
the assets and liabilities of the marriage by giving Jackie, in
pertinent part, the house and the two loans secured by the house,
as she was the party most likely to have an interest in paying
off those loans. Bob was given the eighty-acre parcel with the
remaining debt on that property and the agricultural loans, with
the exception of loan C-941 (due to a dispute with the state as
to the value of this loan). Loan C-941 was a loan secured by all
farm equipment owned by Bob. The amount of this loan was in
dispute because Bob stated that the equipment was sold to the
Whitestone farm and the purchase price was paid to the state but
the state had not yet deducted the amount from the loans. The
superior court did not distribute Bob's pension because it was
unvested, and instead delayed the distribution until the pension
vested.
In October 1994 the state settled the lawsuit that was
pending against Bob during the divorce proceedings. The state
released Bob from all of the outstanding Agricultural Revolving
Loan Fund loans, including the two loans secured by the house and
awarded to Jackie in the divorce. Jackie claims to have made
efforts to set up arrangements to pay the loans secured by the
house but was told that the state was unable to discuss the
matter with her because the lawsuit was against Bob. Bob claims
that he was forced to convey several items of real and personal
property to the state in order to discharge the loans. However,
the settlement agreement states only that Bob was to convey a
John Deere hay baler, a mulcher/packer, and a wagon. There is no
evidence that Bob had to convey any real property to the state in
the agreement.
B. Proceedings
Bob retired in 1998 and began receiving his pension
benefits. In February 1999 Bob filed a motion to modify child
support because his income had decreased by more than fifteen
percent. In April 1999 Jackie filed a supplemental opposition to
Bob's motion that included several counter-motions, including a
motion to divide Bob's pension. The superior court held an
evidentiary hearing on December 1, 1999 to resolve the issues
between the parties. Jackie did not attend the hearing but her
attorney did.
At the hearing, Bob argued that he was entitled to an
offset against what was owed to Jackie on the pension in the
amount of the loans secured by the house plus interest from the
date of settlement. Bob argued that the loans plus interest
currently totaled approximately $24,000. Jackie's attorney
stated that she felt uncomfortable discussing the issue of the
offset because Bob had not filed anything formal on the issue,
other than the opposition to Jackie's motion, and no concrete
numbers or evidence had been offered. Jackie's attorney stated
that she was not sure of the value of the pension or the amount
Bob claimed as an offset and that she would need some time to
review the evidence. The court thus ordered Jackie to file a
motion for a formal accounting of the pension by December 15,
1999, or "that issue is just going to drop out of the case," that
is, Jackie's rights to the pension would be presumed to be offset
by settlement of the loans secured by the house.
On December 15, 1999, Jackie filed an "Advice of
Counsel" stating that she did not have adequate information on
the pension to make an informed decision as to whether to request
a formal accounting. The "Advice of Counsel" stated that Jackie
was waiting for information promised by Bob and, once she
received this information, she would file a request with the
court within thirty days. Alaska Laborers-Construction Industry
Trusts sent Bob a letter on December 14, 1999 detailing the
specifics on Bob's pension. Bob's attorney forwarded the letter
to Jackie's attorney on December 21, 1999. Bob's attorney sent
Jackie's attorney a release of information so that Jackie could
obtain information on the pension on January 10, 2000. The
release expired on January 30, 2000 and Jackie's attorney failed
to ask for the information before the release expired. Jackie
made further requests for the information and for another signed
release of information, but she was unable to obtain either.
Sometime in the spring, Jackie retained the services of
a professor of economics, Paul Taylor, Ph.D., to value the
pension. Taylor estimated in an affidavit that the pension was
worth substantially more than the figure offered by the trust
company. Jackie filed Taylor's affidavit on June 26, 2000.
Taylor estimated that Jackie's marital portion of the pension was
$33,919.50, or $246.93 per month, while the trust company had
estimated that the marital portion of the pension was $24,190.00,
or $151.94 per month.
Jackie filed a discovery request on May 2, 2000 in
which she requested a signed release of information and a copy of
Bob's most recent tax return. On May 10, 2000 Bob requested a
hearing on uncovered medical bills and pension rights. This
request was stamped "not used" by the superior court. Then, on
May 19, 2000, Bob filed a proposed order regarding pension
distribution. This proposed order was signed by the superior
court on June 14, 2000. The order stated that the superior court
entered its oral findings on the record on December 1, 1999 and,
because Jackie had not filed for a formal accounting of the
pension, she was entitled to no interest in the pension. On June
30, 1999, the superior court denied Jackie's motion for
reconsideration.
Jackie appeals the decision of the superior court
denying her an interest in the pension, denying her motion to
compel discovery, and denying her motion for reconsideration.
Because we conclude that we need to reach only one aspect of the
first issue, we do not address the motion to compel discovery or
the motion for reconsideration.
III. STANDARD OF REVIEW
We review procedural decisions of the superior court
under the abuse of discretion standard.4 For example, we have
held that a superior court's denial of a motion on timeliness
grounds and denial of a continuance are reviewed for abuse of
discretion.5 We will reverse a ruling for abuse of discretion
only when, after reviewing the whole record, we are left with a
definite and firm conviction that the trial court erred.6
IV. DISCUSSION
The Superior Court Erred in Denying Jackie a Marital Share
of Bob's Pension as a Penalty for Not Requesting an
Accounting and without a Determination on the Merits.
Jackie argues that the superior court erroneously
failed to apply the proper standard to the division of the
pension. But the superior court did not reach the merits of the
division of the pension. Its ruling was based on Jackie's
failure to comply with the court's order to file a request for a
formal accounting by December 15, 1999. We therefore must
determine whether the superior court erred in summarily awarding
the entire pension to Bob as a penalty for Jackie's failure to
request an accounting.
We addressed a similar issue in Gamble v. Northstore
Partnership.7 In Gamble, Northstore Partnership was sued by the
Gambles for reformation of a recorded grant of easement.8 Six
days before the close of discovery and one and one-half months
before trial, Northstore moved for summary judgment, which was
granted following oral argument.9 The superior court noted that
the real issue was whether the Gambles had had enough time to
oppose the summary judgment motion, but it declined to grant an
extension because the Gambles failed to make a specific request
for relief under Alaska Civil Rule 56(f).10 Alaska Civil Rule
56(f) allowed for a continuance in order to obtain more discovery
to oppose a motion for summary judgment.11 We held that while the
Gambles' submission of an "Affidavit of Attorney in Opposition to
the Motion to Amend and Motion for Summary Judgment" did not
expressly mention the continuance provision, it "clearly set
forth the Gambles' desire and justification to undertake
additional discovery."12 Therefore, because the Gambles had "made
an unambiguous request for a continuance with which to undertake
additional discovery," we held that the superior court abused its
discretion in not permitting this discovery.13
The situation here is strikingly similar. The superior
court denied Jackie her share of the marital portion of the
pension because she failed to file a request for a formal
accounting by December 15, 1999. But Jackie filed an "Advice of
Counsel" on that date stating (1) that she was unable to make an
informed decision about pursuing the formal accounting without
additional information from Bob; (2) that she was expecting to
obtain more information from Bob once Bob received a letter from
the pension plan administrator; and (3) that she would file a
request for a formal accounting within thirty days of receipt of
the information requested.
We recognize that a trial court has broad discretion to
set and enforce deadlines for filing pleadings and completing
discovery.14 However once a deadline has passed with a party
failing to take a required action,15 and the superior court fails
to enforce the deadline for a substantial period of time, and the
parties proceed to work to resolve their dispute, basic fairness
requires that the superior court give advance notice and an
opportunity to cure the delinquency before it rules against the
party for failing to take the appropriate action.
The superior court never ruled on the merits of the
issue of division of the pension. Nor did it in any way indicate
that Jackie waived the issue by not filing for a formal request
by December 15, 1999. The parties continued to conduct
themselves as if division of the pension was still an issue for
nearly six months. Bob provided a signed release to obtain
information that was valid until January 30, 2000. The parties
exchanged substantial correspondence on the matter. The first
mention of any concern about timeliness is found in a letter from
Bob's attorney to Jackie's attorney dated March 8, 2000, in which
Bob's attorney declined to provide an updated release of
information for the pension fund. Even then, it would be more
than three months before the superior court would rule that
Jackie's efforts to obtain her portion of the pension would be
foreclosed by what the court considered to be a missed deadline
six months earlier. We are left with a definite and firm
conviction that the superior court erred in denying Jackie a
ruling on the merits under these circumstances.
Because Jackie's pension rights claim was dismissed on
procedural grounds, the superior court had no occasion to apply
the standard articulated in Wanberg v. Wanberg16 to the division
of the pension. Alaska law requires that property be divided "in
a just manner and without regard to which of the parties is in
fault . . . ."17 Moreover, "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 . . . ."18 In Wanberg,
we explained that division of marital assets involves a three-
step procedure: the trial court must first determine what
specific property is available for distribution, then the court
must value this property, and, finally, it must decide how an
allocation can be made most equitably.19 In Merrill v. Merrill,20
we held that the trial court must make "sufficiently detailed and
explicit findings `to give the appellate court a clear
understanding of the basis of the trial court's decision, and to
enable it to determine the ground on which the trial court
reached its decision.' "21 Included in these findings are a
number of factors that a trial court must take into account in
making property divisions.22 And in Edelman v. Edelman,23 we held
that the trial court may not award the entire pension to one
spouse without an accounting of the other spouse's marital
portion.24 In the present case, the superior court determined in
the 1990 divorce decree that the pension was marital property to
the extent that it was earned during the marriage. However,
because Jackie did not request a formal accounting, the superior
court did not undertake the last two steps of the procedure in
the 1999 proceedings.
At the hearing on December 1, 1999, the superior court
stated that it was its "fairly vague impression" that "[Jackie]
was going to end up owing [Bob]" due to the fact that the pension
would be worth less than the amount "paid" by Bob in the
settlement with the state that released the loans on the house.
However, the superior court acknowledged that nobody had done the
exact calculations, there had been no effort to reduce the
pension benefits to present value to make a valid comparison, and
the figures the court was using were very rough. The superior
court never made any findings as to the value of the pension, nor
did it apply the factors set out in Merrill25 to divide the
pension. And Jackie adduced considerable evidence that the rough
figures Bob's attorney proposed in unsworn argument on December 1
were incorrect. Jackie is entitled to a determination on the
merits and, before that determination can be made, discovery is
necessary to determine the value of the pension and whether
Jackie's portion is offset by the settlement of the loans secured
by the house. Therefore, we remand for a hearing on the
valuation and division of the pension.
V. CONCLUSION
Because the "Advice of Counsel" filed by Jackie on
December 15, 1999 was sufficient to alert the court and opposing
counsel that further information was needed by Jackie to respond
to the court's order to file a request for an accounting by that
date, and because it was so treated by opposing counsel, the
court abused its discretion in awarding the entire pension to Bob
with no further notice. We REMAND this issue to the superior
court for division of the marital property under Wanberg.
_______________________________
1 Although complicated, a detailing of the property and
debts accumulated during the marriage is important to an
understanding of the quandary facing Jackie in deciding whether
to request a formal accounting of Bob's pension.
2 Bob bought a forty-acre parcel in 1977 on which they
built a house and had a working farm. The parties acquired an
eighty-acre parcel of agricultural land and a 280-acre parcel of
agricultural land. Bob also had an unvested pension through the
Laborer's Union that was earned, in part, during the marriage.
3 In particular, loans totaling $12, 232.48 on the house
and $19,115.74 of the purchase price on the eighty-acre parcel
had yet to be paid off at the time of the divorce. The division
of the marital property was complicated by the fact that the
state started proceedings against Bob in order to recover on six
agricultural loans, including those on the house, borrowed from
the Agricultural Revolving Loan Fund. The four loans not secured
by the house were secured by various pieces of farm equipment,
the 280-acre parcel, and crops. These loans were awarded to Bob
in the divorce, with the exception of the loans on the 280-acre
parcel. The 280-acre parcel and the loans on this property were
not awarded in the divorce proceeding because there was a dispute
at the time of the divorce as to who owned the parcel.
Bob had sold the 280-acre parcel to Paul Mertz in 1985.
Mertz agreed to take over the loan payments to the state but
apparently did not make the payments. The state evidently agreed
to the land transfer but then sued Bob for the arrearage. The
suit was then stayed until it was determined what Mertz's
responsibility was as to the parcel. In June 1990 Mertz entered
into a settlement with the state in which it was determined that
he was the owner of the 280-acre parcel. Under Mertz's
settlement, the 280-acre parcel was conveyed to the state and,
therefore, was not part of Bob and Jackie's marital estate.
4 See Morgan v. State, Dep't of Revenue, 813 P.2d 295,
297 n.4 (Alaska 1991).
5 See, e.g., Red Top Mining, Inc. v. Anthony, 983 P.2d
743, 746 (Alaska 1999) (stating that we review the "denial of a
motion to intervene on timeliness grounds for abuse of
discretion") (citing Mundt v. N.W. Explorations, Inc., 947 P.2d
827, 830 (Alaska 1997)); Parson v. Marathon Oil Co., 960 P.2d
615, 618 (Alaska 1998) (stating that denial of continuance for
opposition to motion for summary judgment reviewed under abuse of
discretion standard).
6 Morgan, 813 P.2d at 297 n.4.
7 907 P.2d 477 (Alaska 1995).
8 Id. at 479.
9 Id. at 480.
10 Id.
11 Id. at 485 n.6.
12 Id.
13 Id. at 487.
14 See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164,
1169 (Alaska 1998) (stating that "[o]rdinarily, the choice of a
particular sanction for a discovery violation is a matter
committed to the broad discretion of the trial court, subject
only to review for abuse of discretion"); Rutledge v. Alyeska
Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986) (stating
that "[r]egardless of the timing of the alleged actions, the
trial court has broad discretion in allowing or denying proposed
amendments [to pleadings] after the initial period has passed
under either Rule 15(a) or 15(d)").
15 We note that, while Jackie failed to file a request for
a formal accounting, she did file a paper that explained her
predicament to the superior court. Therefore, this is not a
situation in which a deadline completely passed without a party
taking any action at all.
16 664 P.2d 568 (Alaska 1983).
17 AS 25.24.160(a)(4).
18 Id.
19 Wanberg, 664 P.2d at 570.
20 368 P.2d 546 (Alaska 1962).
21 Id. at 548 (quoting Irish v. United States, 225 F.2d 3,
8 (9th Cir. 1955)); see also Alaska R. Civ. P. 52(a) (stating
"[i]n all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specially and state
separately its conclusions of law thereon . . . .").
22 In Merrill, 368 P.2d at 547-48 n.4, we stated:
It has been held that the principal factors
to be considered by the trial court in
determining the question of alimony or
division of property as between the parties
are the respective ages of the parties; their
earning ability; the duration and conduct of
each during the marriage; their station in
life; the circumstances and necessities of
each; their health and physical condition;
their financial circumstances, including the
time and manner of acquisition of the
property in question, its value at the time
and its income producing capacity if any.
23 3 P.3d 348 (Alaska 2000).
24 Id. at 355-56.
25 Merrill, 368 P.2d at 547-48 n.4.
