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Beal v. Beal (02/27/2004) sp-5782
Beal v. Beal (02/27/2004) sp-5782
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID D. BEAL, ) Supreme
Court No. S-10151/10191
) Consolidated with S-
10491/10511
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 3AN-99-8146 CI
)
ANNETTE J. BEAL, ) O P I N I O N
)
Appellee/Cross-Appellant. ) [No. 5782 - February
27, 2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Carl J.D. Bauman, Hughes
Thorsness Powell Huddleston & Bauman, LLC,
Anchorage, for Appellant/Cross-Appellee.
Justin Eschbacher and G. R. Eschbacher, Law
Offices of G. R. Eschbacher, Anchorage, for
Appellee/Cross-Appellant
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Annette and David Beal appeal in excess of twenty
issues surrounding the superior courts award of interim support
during the pendency of their divorce, its order dividing their
marital estate, the enforcement of that order, and its refusal to
grant their motions for various credits. We affirm the superior
courts decisions imposing and maintaining its interim support
award, ordering David to pay the property tax arrearages on the
parties home, ordering David to pay the late fees stemming from
the parties failure to pay their mortgage on time, ordering David
to reimburse Annette for insurance payments, and ordering David
to pay health insurance for Annette and the parties children. We
affirm the superior courts award of the selling costs of the
parties home to Annette, its valuation of a table awarded to
Annette, and its denial of Davids claims concerning Annettes
execution upon the parties property in order to satisfy Davids
unpaid interim support obligations. We also affirm the superior
courts award of a painting of the parties daughter to David, its
decision that a medical malpractice reimbursement was Davids
separate property, its decision declining to credit Annette for
the childrens educational expenses during the pendency of the
divorce, its conditional award of educational expenses to
Annette, its decision that the family home was marital property
(even though it was placed in Annettes name), and its denial of
Annettes motion for attorneys fees. We remand the following
issues for findings: Davids claim for interim support offset
credits for reduction of the principal balance on the parties
home, Davids motion for offset credits for gold allegedly missing
from the family safe, Annettes motion for credit for her having
paid some of the parties marital debts, and Davids requests for
credits for claims that he allegedly became aware of after the
property division. We remand the superior courts summary refusal
of Davids claim that the property division was not carried out in
accordance with the superior courts order so that the court may
issue an explanatory ruling, and we remand the question
concerning the artwork in Davids office so that the superior
court may issue a ruling with regard to that artwork. Finally,
we reverse the superior courts failure to account for the
appreciation in value of Davids premarital art collection in its
property division and its inclusion of the separate property of
the parties and their children in the portion of the marital
estate awarded to Annette.
II. FACTS AND PROCEEDINGS
A. Facts
Annette J. and David D. Beal were married on June 5,
1985. They have two children, Matthew, born on September 4,
1984, and Nicole, born on March 3, 1986. The parties enjoyed a
very high standard of living throughout their marriage and
acquired a substantial amount of property, including a $1,100,000
family home on 11th Avenue in Anchorage. They separated on or
about July 7, 1999 and Annette filed for divorce on July 9, 1999.
Since the separation the parties have demonstrated a complete
unwillingness to cooperate with each other and have aggressively
contested every possible issue in this divorce.
David is a medical doctor specializing in
otorhinolaryngology.1 He suffers from a persistent ankle problem
which required multiple surgeries between 1998 and 2000. Davids
medical practice, and therefore his earning capacity, is limited
to some degree by his ankle problems. Despite his ankle
problems, David leaves the marriage in a superior economic
position due to his earning capabilities and separate estate not
subject to division.
Annette earned a Bachelors Degree in Justice from the
University of Alaska. She worked in Davids office during the
marriage and has the ability to find meaningful employment in a
similar capacity.
The parties signed a valid and enforceable prenuptial
agreement before their marriage. The agreement provided that
Annette would receive no alimony, but that David would provide
support for Annettes education in the event that the parties
divorced.
B. Procedural History
The superior court issued an interim spousal support
order on October 1, 1999 providing that Annette would reside in
the 11th Avenue home. It also required David to bring current
the mortgage arrearages on that residence; pay the monthly
mortgage, property taxes and insurance on that residence; pay
Annette $5,000 per month in interim support; and pay Annette
$1,312 per month in child support. David failed to meet many of
these financial obligations.
On November 1, 1999 the superior court ordered the
parties to identify artwork to be sold in order to pay the
mortgage payments on the 11th Avenue home. On January 4, 2000
the superior court awarded Annette a judgment of $64,722.99 in
unpaid spousal support. The court then approved Annettes sale of
some of the parties artwork and gold to satisfy the arrearage in
interim spousal support payments needed to pay the mortgage and
avoid foreclosure on the 11th Avenue home.
David moved to terminate the interim support order on
May 24, 2000. The superior court did not rule on this motion
before the August 2000 trial. It finally terminated the interim
spousal support order when it granted the divorce on March 6,
2001. The next day the superior court announced its findings of
fact and conclusions of law. It valued the parties marital
estate, comprising substantial amounts of real property, art,
jewelry, and precious stones, at $2,185,361. It awarded David
forty-five percent and Annette fifty-five percent of the marital
estate. Annettes share included the familys 11th Avenue house.
The superior court also awarded Annette $131,000 in educational
support, but it denied her request for attorneys fees.
On March 19, 2001 David moved for reconsideration of
several issues decided by the superior courts March 7, 2001
order. On March 28, 2001 Annette moved for a judgment for unpaid
interim spousal support. In his opposition to this motion, David
claimed that the superior court should reduce its interim support
award and credit him for a number of payments made to Annette and
a number of items allegedly improperly sold by Annette to
partially satisfy the judgment. On April 10, 2001 the superior
court ruled on both motions. On the parties cross motions for
reconsideration of its division of the marital estate, the
superior court changed its award of three pieces of artwork. It
also awarded Annette $221,215.51 in unpaid interim spousal
support, but did not make any findings of fact regarding Davids
requests for credits. Numerous questions involving the October
1, 1999 interim support award, the March 7, 2001 property
division, and the credits or reimbursements requested by both
parties and resolved by the April 10, 2001 order are the subject
of the parties first set of cross-appeals.
Annette then filed a motion for David to pay the
parties 1998 income tax obligation because the Internal Revenue
Service had a lien for $85,013.64 on the 11th Avenue house, which
was awarded to her in the superior courts March 7, 2001 order.
David responded to this motion by claiming that Annette had
received more than her court-ordered share of the parties marital
property. The superior court conditionally granted Annettes
motion for judgment against David for the parties 1998 tax
obligation, provided that Annette could prove that the 1998 tax
obligation was satisfied with assets awarded to her in the
property division. The court concurrently ruled on Davids
multiple motions for offset credits by denying the motions
without making any findings of fact.
On July 23, 2001 Annette moved to reduce support
arrearages to judgment from the portion of the March 7, 2001
superior court order mandating that David pay for Annettes
education expenses. David opposed this motion by arguing again
that he was entitled to offset credits. On December 14, 2001 the
superior court denied Annettes motion for educational support
arrearages because she had not yet enrolled in school and denied
Annettes motion for judgment for the unpaid taxes for lack of
proof that Annette had paid them. The court also denied Davids
motion for offset credits. The second set of cross-appeals
involves Annettes appeal of the superior courts denial of
educational support arrearages and Davids appeal of the superior
courts denial of offset credits.
III. STANDARD OF REVIEW
Trial courts have broad discretion in fashioning
property divisions.2 We will not set aside factual
determinations made by the trial court, such as the valuation of
property, unless they are clearly erroneous.3 We review
allocations of property under the abuse of discretion standard,
and will reverse the trial courts allocations only if they are
clearly unjust.4 Similarly, we review a superior courts award of
interim spousal support under the abuse of discretion standard.5
We review mixed questions of law and fact, such as the
alleged inter-spousal transfer of real property in this case,
under two different standards.6 Factual determinations are
reviewed under the clearly erroneous standard.7 Legal questions
are reviewed de novo, and we adopt the rule of law that is most
persuasive in light of precedent, reason and policy.8
The question of whether the superior court added terms
to its property division or divorce decree is a question of law
subject to de novo review.9 We review superior court orders that
merely enforce a property division or divorce decree for abuse of
discretion.10
Finally, we will only reverse a trial courts decision
not to award attorneys fees if it was an abuse of discretion.11
IV. DISCUSSION
A. The Superior Courts Award of Interim Support to Annette
and Maintenance of that Award Throughout the Pendency
of the Divorce Did Not Constitute Error.
David argues that the superior courts decision ordering
him to pay Annette roughly $15,49212 per month in interim spousal
support during the pendency of the divorce was an abuse of
discretion. The superior court entered its interim award on
October 1, 1999 and this award was maintained until the parties
divorce on March 7, 2001. Interim support orders during the
pendency of a divorce are governed by AS 25.24.140, which allows
the superior court to provide reasonable attorneys fees, spousal
support, and child support.13 David advances three arguments as
to why this interim award was unreasonable, and therefore an
abuse of the superior courts discretion, under AS
25.24.140(a)(2): (1) the amount of the order was too high given
Annettes needs and his inability to pay, (2) the order provided
maintenance for more than seventeen months, and (3) the parties
prenuptial agreement only allowed support for the purposes of
Annettes education.
1. The amount of support awarded by the superior
court was not unreasonable given
Annettes need for such support and Davids ability
to pay the interim support order.
David contends that the superior court found in its
Findings of Fact and Conclusions of Law dated March 7, 2001 that
reasonable support for Annette was $3,638 per month (the courts
award of educational support) rather than the interim payment of
$15,492 per month ordered by the court in its Interim Support
Order of October 1, 1999. Annette responds that the superior
court did not abuse its discretion because the interim support
order provided for her reasonable needs and maintained a level
playing field between both parties during the pendency of the
divorce.
David further contends that the interim support order
was excessive because he was unable to pay the award. He bases
this contention on his disability limiting his income from his
medical practice, the divorce proceeding restricting the parties
assets, and his inability to obtain credit due to the parties
outstanding tax obligations and the potential foreclosure on the
11th Avenue home. David also contends that he cannot pay the
interim support judgment because it orders him to pay the
arrearage on the mortgage and property tax payments that were
outstanding prior to the courts award of monthly household
payments to Annette. Annette responds that David had sufficient
earning capability and actual income to pay the interim support
order, and that he made a decision to allow the 11th Avenue home
to go into foreclosure.
The superior court must base its interim support order
on sufficient factual findings concerning the parties needs and
ability to pay.14 In reviewing challenges to interim support
orders, we have placed the burden on the supporting spouse to
demonstrate that it was impossible for him to pay the amount
ordered.15 Prior to his ankle injury, David earned a substantial
six-figure income. In its interim support order, the superior
court noted testimony that David had a disposable income of
$251,564 for the first eight months of 1999. It found that David
stated that he would voluntarily stop performing surgeries in
order to allow the house to go into foreclosure and that David
made significant charitable contributions during the pendency of
the divorce. This finding supports the superior courts
determination that Davids partial disability stemming from his
ankle problems did not diminish his earning capacity to the
degree he claimed. Therefore, the superior courts finding that
David had sufficient income to support the interim order was not
clearly erroneous.
The superior court also made sufficient factual
findings regarding Annettes needs. The court first found that
the parties pre-divorce lifestyle was extravagant and rejected
Annettes request for $22,789 per month in interim support as an
unnecessary attempt to maintain that lifestyle. This rejection
of Annettes attempt to maintain her pre-separation lifestyle
shows that the court considered Annettes actual needs. Davids
argument that the disparity between the superior courts award of
$15,492 per month during the pendency of the divorce and its
later award of $3,638 per month for tuition and living expenses
for Annettes education shows an abuse of discretion is
unpersuasive. Johnson v. Johnson16 established that interim
support should be enough to provide for reasonable and necessary
living expenses and to ensure that neither spouse is
disadvantaged during the pendency of a divorce.17 The superior
courts award met this standard. It was appropriate to order a
higher level of interim support to ensure a level plane during
divorce litigation, and it was appropriate to reduce this amount
once the parties property was divided and Annette was established
in her living arrangements. The superior courts different awards
of support for Annette were therefore well-founded and
reasonable. The superior court did not abuse its discretion in
awarding Annette $15,492 per month in interim support.
2. The duration of the interim support award was not
unreasonable.
David argues that the superior court erred by failing
to terminate the October 1, 1999 interim support order, or even
rule on his May 24, 2000 motion to terminate support, until March
6, 2001, a period of more than nine additional months. Each
party claims that the other sought to prolong and benefit from
the delay. David argues that Annette prolonged the interim
support period to receive more interim support because the
prenuptial agreement precluded alimony. Annette claims that
David failed to file a request for decision on his motion to
terminate interim support, while refusing to pay the interim
support, because he wanted to buy the house after it was
foreclosed upon. The superior court did not rule on Davids
contention that, because Annette was purposefully delaying the
trial, interim support should be terminated.
The absence of a decision or explanation for the lack
of a decision on Davids motion is troubling, but we perceive no
error. Because it was well within the superior courts power to
move the trial date ahead to remedy any delay, we interpret the
lack of a ruling on Davids motion to terminate support as a
denial of that motion.18
3. The prenuptial agreement precluding alimony does not
preclude the award of interim spousal support.
David claims that the superior court abused its
discretion by awarding Annette an excessive amount of money for
re-education expenses and by providing Annette with alimony in
the form of the interim spousal support. The parties prenuptial
agreement provides that Annette shall receive no alimony upon
divorce, but that David shall pay for [Annettes] tuition, books,
and all other expenses at a law school of her choice. The
superior court, in its March 7, 2001 decision, found that the
parties prenuptial agreement is . . . a valid and enforceable
agreement. Neither party has advanced any argument as to why the
provisions agreed to should not be enforced.
David first challenges the $131,000 for Annettes
education as including an unnecessary year of preparatory classes
and argues that Annette should have been taking the preparatory
classes during the pendency of the divorce. We hold that it was
well within the superior courts discretion to determine that
preparatory classes were necessary for Annettes MBA due to the
amount of time that Annette had been out of school. We affirm
the superior courts award of $131,000 in educational support.
David also argues that the superior court abused its
discretion by refusing to apply the prenuptial agreements alimony
provision to preclude, terminate, or reduce the Interim Support
Order. Interim support is a type of alimony 19 which can be
subject to a prenuptial agreement provision precluding the award
of alimony. In their prenuptial agreement, the Beals agreed that
Annette shall receive no alimony upon divorce. By its definition
this agreement only precludes alimony after the parties divorce.
Because the prenuptial agreement did not preclude alimony during
the pendency of the divorce, the superior court did not err by
awarding interim support to Annette.
B. The Superior Courts April 10, 2001 Judgment for Unpaid
Interim Support
The superior courts judgment found that David owed
Annette $24,822.10 in unpaid interim child and spousal support,
$44,631.53 in municipal property taxes, $151,761.88 in mortgage
and insurance on the family residence, and $8,818.81 in interest
for a total of $230,034.32.20 David claims that the superior
courts judgment for unpaid interim support is overstated because
the superior court did not credit him for a number of payments
made either to or for Annette and because it ordered him to make
payments that were Annettes responsibility. With one exception,
we reject these claims.
1. The superior court did not err in ordering David to pay for
the property tax arrearages the parties accrued prior to their
separation.
1. David claims that Annette overstated the property tax
arrearage, and that the superior court erred by including the
property taxes on the 11th Avenue house between January 1, 1999
and September 30, 1999 in its judgment against him. This claim
rests primarily on the fact that the interim support order, which
became effective on October 1, 1999 required David to pay and
bring current the arrearage on the home mortgage and pay the
monthly mortgage, property tax and insurance on the family
residence, but did not mention the arrearage in property taxes.
The failure to specifically mention property tax arrearages in
the interim support order does not forbid the award of such
arrearages if it would further the clear purpose of the order.21
Annette is correct that the superior court intended the order to
require David to pay both the outstanding debt and the monthly
mortgage payments on the 11th Avenue home because the interim
support order provides that David must pay for all household
expenses in addition to $5,000 in support per month. Allowing
the property to be encumbered by a property tax debt which might
have led to foreclosure by the municipality is inconsistent with
the intent of the interim support order. That the superior court
did not grant David relief on this issue provides further support
for the conclusion that the omission of property tax arrearages
from the original order was mere oversight. Additionally, Davids
claim that he is not responsible for the property tax arrearages
because he provided Annette with money in early 1999 that could
have been used to pay them must fail because the superior court
intended that he pay the outstanding taxes. Therefore, the
superior court did not err by declining to credit David for any
portion of the property tax arrearages he was required to pay.
2. The superior court did not err in ordering David to pay the
late charges stemming from the parties failure to pay the 11th
Avenue mortgage on time.
The superior court adopted Annettes requested judgment
for unpaid interim support, which assessed to David the fees owed
to Bank of America because of the parties failure to make their
mortgage payments on time. David claims that Annette should be
responsible for the $413.97 per month in late charges because
Annette had the funds to make these payments on time. This
argument is frivolous. The superior court explicitly gave David
the responsibility for making the mortgage payments, determining
that he was fully capable of meeting the interim support order.
Whether Annette could have made the payments is irrelevant given
that the court directly ordered David to pay the household
expenses. Therefore, David is responsible for all late charges
resulting from his failure to meet his interim support
obligations in a timely manner.
3. David failed to properly raise his contention that the
superior court erred in assessing him $11,213.15 in premium
payments to State Farm, the parties original insurance carrier.
David argues that the amount of property insurance
premiums claimed by Annette and awarded by the superior court was
overstated. The superior court adopted Annettes requested
judgment and awarded her $11,213.15 in reimbursement for
insurance payments to State Farm, the insurer. David failed to
raise any challenge to this reimbursement in his objections to
the proposed judgment for unpaid interim support. We have
previously held that [m]atters not made issues or tried before
the lower court will not be considered on appeal.22 Because David
failed to raise this issue before the superior court, we will not
consider it on appeal.
4. The superior court did not err in forcing David to pay for
the cost of the Bank of America insurance policy procured because
he failed to make timely interim support payments.
David challenges the superior courts award to Annette
of the costs of a Bank of America insurance policy on the 11th
Avenue house which was obtained when Annette defaulted on the
State Farm policy discussed above, arguing that Annette should be
held responsible for the difference in cost between the two
policies because she failed to pay the State Farm policy with the
money she had available. David also claims that he should not be
responsible for the cost of the Bank of America policy because
the policy was grossly overpriced. The above analysis concerning
Davids inability to claim a credit for mortgage late fees caused
by his failure to make mortgage payments in accordance with the
superior court order applies with equal weight to this claim.
The superior court did not err by holding David responsible for
any increase in insurance premiums caused by his failure to
fulfill the requirements of the interim support order in a timely
manner.
5. The superior court did not err in relying on a Child Support
Enforcement Division statement or in failing to credit David for
support payments.
1. David next claims that the superior court erred in relying
on a Child Support Enforcement Division (CSED) arrearage
statement that failed to credit him for any payments he made to
Annette prior to September 13, 2000. David claims that this
statement fails to include various payments he made in April and
May 2000 which should have been applied to the spousal support
payments for January through May 2000 and the child support
payments for March through May 2000. David is wrong: CSED did
credit David for spousal and child support payments every month
from October 1999 through January 2001 in the document in
question, an Adjustment Worksheet. Therefore, David has failed
to demonstrate that the superior court did not credit him for the
payments made in April and May 2000.
6. The superior court did not err in failing to credit David
for costs of appraisals of real property.
David also claims that the judgment is overstated
because he was not credited for the money he spent for appraisals
of certain property under the superior courts order that the
parties share the cost of appraising property, unless otherwise
ordered, in the event that the value of the property was
contested. Annette responds that the superior courts final
judgment for unpaid interim support constituted an order that
appraisal costs would not be shared. We find Annettes argument
unpersuasive because the judgment for interim spousal support did
not specifically mention any of Davids alleged credits or the
allocation of appraisal costs. Annette also argues that the
parties hired appraisers as expert witnesses rather than neutral,
joint appraisers, and that each party should bear the full cost
for his or her independent expert witnesses. We agree with
Annette on this point: One party should not be forced to pay for
one who is essentially the other partys expert witness.
Therefore, the superior court did not err by declining to credit
David for the majority of his appraisal costs.
7. The superior court erred in failing to credit David for one-
half of the appraisal cost of his medical practice.
1. We note an exception to the rule stated in the previous
section for the appraisal costs regarding Davids medical
practice. The prenuptial agreement provided that Davids practice
could only be valued by the accounting firm that prepared the
business most recent federal income tax return. This provision,
which explicitly provides for a particular appraiser, was agreed
to by both parties. Therefore, David should be credited with
half of the cost of this appraisal. Davids brief does not
clearly state the costs of this appraisal, as it lists three
different parties that appraised Davids medical practice and
holdings. Because the record is unclear on this point we remand
this issue to the superior court to make factual findings
regarding the cost of valuing Davids medical practice by the
appraiser specified in the prenuptial agreement, and to credit
David for one-half of that amount.
C. The Superior Courts Resolution of Credits David Sought To
Offset the Amount of Money He Owed Annette for Interim Support
Arrearages
1. The superior court should determine whether to credit David
for reducing the principal balance on the 11th Avenue home.
The superior court valued the Beals 11th Avenue home at
$1,100,000 and subtracted the principal balance of $765,219 and
selling costs of $66,000 to arrive at an award to Annette of an
equity value of $268,781 in its March 7, 2001 property division.
David claims that the superior court undervalued the home because
the equity value had been substantially increased by his mortgage
payments during the pendency of the divorce. He also argues that
the superior court erred by denying his request, made in response
to Annettes March 28, 2001 filing of a Judgment for Unpaid
Interim Support, for a credit to offset the alleged
undervaluation of the home in the property division. Annette
responds that David is precluded from challenging this issue on
appeal because he failed to present evidence supporting his
current valuation of the property at trial.
We have previously held that the date of valuation
should ordinarily be as close as practicable to the date of
trial.23 But while the property should be valued as of the date
of trial, and while David did not present evidence supporting his
current valuation at the trial, David argues that another avenue
to relief is available to him in this case. In opposing Annettes
post-trial motion for Judgment for Unpaid Interim Spousal
Support, David demonstrated that [t]he huge mortgage payments on
the property on 11th do reduce the principal, pointing to the
banks records, submitted by Annette, showing that the mortgage
was about $709,000 whereas the court found that the principal was
about $765,000. Thus, evidence was before the trial court,
shortly after the court issued its valuation, that suggested that
the courts findings were incorrect. Because the trial court must
consider payments to maintain marital property from post-
separation income when dividing marital property,24 and because
David presented his argument and pointed to the evidence
supporting it shortly after the court issued its findings, we
remand for the superior court to consider whether David should
receive credit for post-separation mortgage payments that were
part of his interim support payments.
David also claims that he should be entitled to
additional credit because Annette sold the home for $1,330,000
rather than the $1,100,000 that the court applied to her share of
the marital assets in its valuation. This claim is without merit
because property is valued for the purposes of division at the
time of trial, rather than at the time it is sold.25 Neither
party challenged the $1,100,000 appraisal of the home at trial.
2. The superior court did not err in declining to credit David
for his payment of health insurance for Annette and the children.
1. David claims that he should be credited with an offset for
half of the health insurance premiums he paid for the childrens
insurance. David also claims that he should be reimbursed for
the health insurance he provided Annette during the pendency of
their divorce. In response to a question from Annettes attorney
at the superior court hearing on interim support, David affirmed
that he would continue paying for the family health insurance.
He paid for this health coverage throughout that time period
while under court order to make the interim support payments.
Given Davids offer to pay health insurance before the interim
support order was entered, it appears that the superior court
intended the interim support payments to be made in addition to
the health insurance payments. Therefore, the superior court did
not abuse its discretion in declining to credit David for these
payments.
3. The superior court did not err in awarding Annette
selling costs for the 11th Avenue home.
David claims that the superior court abused its
discretion by awarding Annette $66,000 in selling costs for the
11th Avenue home. David claims that the superior courts award of
selling costs to Annette and concurrent refusal to award selling
costs on the property awarded to him was error because the
superior court did not force Annette to sell the 11th Avenue
house, while the large judgments against him effectively will
force him to sell his properties. We have held that the superior
court must consider sales costs when its property division is
premised on an economically disadvantaged party being forced to
sell a house.26 The superior court expressly premised its
property division on Annette being the economically disadvantaged
party, and it is obvious from the findings that her earning
capacity was clearly not enough to cover the household payments.
Davids argument is without merit, as the superior courts findings
regarding the parties relative earning capacities which is
unassailable amount to a finding that Annette would have to sell
the house while David could earn enough to maintain his
properties. Because the disparate treatment of the parties with
regard to selling costs was justified by the superior courts
findings, the award of selling costs to Annette did not
constitute error.
4. The superior court did not err in adopting an appraisers
valuation of a table.
David claims that Annettes appraiser undervalued a
rosewood table awarded to Annette under the assumption that the
table was made of mahogany, and that the superior court erred by
adopting the appraisers valuation of the table. He seeks a
credit for the alleged difference in value. Annette admits that
the appraiser erred in thinking that the table was mahogany but
argues that this did not lead to an error in valuation. David is
correct that his lay testimony that the table was worth $30,000,
as opposed to the $6,640 appraised value, is admissible to prove
the tables value.27 Nonetheless, we cannot say that it was clear
error for the trial court to adopt a trained appraisers valuation
of a table over the evaluation of an owner of the table. We hold
that the superior court did not err by declining to allow David
any additional credit for the table.
5. David did not properly raise his contention that the
superior court erred by allowing Annette to execute on Davids
artwork.
1. David claims that Annette sold some of Davids separate, pre-
marital art to her friends at a discount in violation of AS
09.35.140.28 The superior court approved Annettes sale of the
selected art on February 4, 2000 in order to satisfy the January
4, 2000 judgment against David for unpaid interim support and to
save the family home from foreclosure. Even though the details
of the sale were clear at the time, David did not raise any
objection to the sale based on the notice requirement of AS
09.35.140. Because this issue was not presented to the superior
court, David cannot raise it on appeal.29
6. The superior court erred in failing to make any
factual findings in conjunction with
Davids request for credit for gold allegedly
missing from the family safe while it was under
Annettes sole control.
David claims that he should be credited for gold that
was his separate property and that was allegedly removed from the
safe in the 11th Avenue house while Annette was in sole control
of the safe. David contends that there were forty-nine ounces of
raw gold, gold bullion, and gold coins in the safe as of July 7,
1999, the last time he was allowed in the house. Annettes
attorney acknowledged that Davids gold at the 11th Avenue house
was worth between $15,000 and $18,000. Almost all of Davids gold
in the safe30 was sold to satisfy a judgment for unpaid interim
support against him and to avoid the foreclosure of the 11th
Avenue home, and David was credited for the sale of $9,685.13 in
gold. Annette apparently admitted receiving a payment of $6,354
for more gold, but this payment was not accounted for in the
property division or the April 10, 2001 judgment for unpaid
interim support. Annettes only response to this claim is her
assertion that she knows of no gold missing. If there had been
any additional gold, [she] would have sold it too. That appears
to be Davids point: that Annette probably used the gold to
support herself. Because it was reasonable for David to assume
that the $6,354 of gold remaining after the judgment for unpaid
interim support had been satisfied would be credited towards
other unpaid interim support obligations, it was proper for him
to seek compensation for the allegedly missing gold as a credit
for unpaid interim support in April 2001. But the superior court
failed to make any findings in this regard. We remand this issue
for findings in regard to Davids motion for credits for the
alleged missing gold.
D. Annettes Motions for Credits for Claims Involving the
Parties Property and Marital Debts
1. The superior court erred in dividing the artwork in Davids
office.
Annette claims that the superior court erred in finding
that David had pieces of art by Miro and Zirul in his office that
were part of the marital estate while failing to value or award
the artwork. Annette should have been credited for fifty-five
percent of the value of any marital art in accordance with the
overall property division. David does not object to giving
Annette her requested $1,925 credit for the Zirul, but contends
that he does not possess the Miro. The superior court erred in
failing to value or award the Miro after finding that it was
marital property. On remand the superior court must credit
Annette for the Zirul. It also must determine the value of the
Miro and award it to one of the parties, though it is free to
reexamine whether there was a sufficient factual basis for
finding that the Miro was still part of the marital estate at the
time of divorce.
2. The superior court did not err in awarding a painting of
Nicole to David.
Annette claims that the superior court erred in
awarding David a painting of their daughter Nicole commissioned
by the parties at a cost of roughly $20,000. The superior court
awarded the painting to David for sentimental reasons because his
relationship with Nicole was strained. Annette first argues that
the painting was a gift to Nicole and is therefore Nicoles
separate property. She argues in the alternative that the
painting is marital property and that she should therefore be
credited with her share of its value. There is no indication in
the record that the painting is Nicoles separate property. Nor
is there any record evidence of the paintings fair market value.
It was well within the superior courts discretion to award a
painting of almost entirely sentimental value to the spouse who
does not receive primary physical custody of the child.
3. The superior court erred in finding that Davids pre-marital
artwork appreciated $63,788 while failing to account for this
appreciation in the property division.
1. Annette contends that she should be credited for any
appreciation in value of Davids pre-marital artwork. The parties
prenuptial agreement provided that the appreciation of separate
property would be considered a marital asset. The superior court
found that Davids pre-marital artwork appreciated $63,788 over
the course of their marriage but did not account for this
appreciation in its property division. David suggests the
superior court failed to include the appreciation in its division
of the marital estate because it implicitly agreed with his
earlier claim that the appraisal was incorrect, and the true
amount of appreciation was de minimis. This assertion is
unsupported in the record. Because the prenuptial agreement
specifically mandates that appreciation of separate property be
treated as a marital asset, the superior court erred in failing
to account for significant appreciation of pre-marital artwork in
the property division. We remand this issue to the superior
court so that it may credit Annette for the appreciation of
Davids separate artwork.
4. The superior court erred in including the separate property
of the parties and their children in the marital estate.
Annette claims that the superior court incorrectly
included the separate property of the parties and their children
in the marital estate. The superior court found that such
separate property existed and that it was identified by the
initials of the property owners in the exhibits presented at
trial. All of this separate property was awarded to Annette and
credited against her in the property division, mistakenly raising
the value of the property awarded to her in that division.
David concedes that the superior court included the
separate property in the marital estate, but argues that the
childrens property should be characterized as Annettes because
she has custody of the children. This argument is without merit
because David has not alleged that Annette violated her duties as
trustee of the childrens separate property by misusing or
misappropriating the property.31 The custodial parent should not
have the childrens separate property credited against his or her
share of the marital estate because that parent is under a duty
to use that property for the childrens benefit or allow the
children to use it for their own benefit. Therefore, we remand
this issue to the superior court to reduce its valuation of the
portion of the marital estate awarded to Annette by the value of
the parties and their childrens separate property.
David also claims that the superior court did not err
in failing to credit Annette for the value of his separate
property because she has not returned many of the items from the
11th Avenue house and that the few items returned were damaged.
The superior court did not make any findings on whether Annette
had returned Davids separate property. We remand the question of
whether Annette complied with the property division by returning
Davids separate property.
5. The superior court did not err in determining that the
$46,701 medical malpractice reimbursement was Davids separate
property.
Annette claims that the superior court erred in
characterizing as Davids separate property a reimbursement from a
payment made during the marriage to settle a medical malpractice
claim against David. She argues that the payment was made from
joint household funds and should therefore be characterized as
marital property. David responds that the money for the
settlement came from his medical practice and was therefore his
separate property under the prenuptial agreement. Property is
considered part of the marital estate if it is treated as a joint
holding by the parties.32 But the parties here did not treat the
reimbursement as a joint holding. The money for the settlement
apparently came from Davids Pacific Northern Academy bonds, which
were purchased with Davids separate funds, although the proceeds
from the bonds were channeled through the parties joint account.
Other than movement of the funds through a joint account, the
settlement money clearly appears to have been Davids separate
property. The superior court did not abuse its discretion by
classifying the malpractice reimbursement as Davids separate
property.
6. The superior court failed to make findings on whether
Annette paid some of the parties marital debt.
1. Annette claims that the superior court erred by failing to
assign the debts accumulated by the parties during their
marriage. Annette claims that she paid $11,087.62 in marital
debt and that three bills remain outstanding. David asserts that
the debts in question should be considered Annettes personal
debts, and could have been covered by the interim support
payments she received from David. The facts are unclear. We
have previously held that the superior court must consider
whether one spouse is entitled to credits for his or her payment
of marital debt with post-separation income in order to preserve
the marital estate.33 We now hold that the superior court must
consider any payment of debts accrued during marriage out of post-
separation income, regardless of whether the payments preserve
the marital estate, because such liabilities are as much a part
of the marital estate as marital assets. Therefore, we remand
this issue to the superior court to determine whether the debts
alleged by Annette existed and whether any such debts are
separate or marital property. The superior court should
apportion any such debts between the parties in accordance with
their status as separate or marital property.
7. The superior court did not err by declining to provide
Annette with credit for the childrens educational expenses.
Annette claims that she should be reimbursed for the
childrens educational expenses during the pendency of the divorce
because they are marital debts. In the August 2000 trial the
superior court determined that any future educational expenses
would be taken from the childrens substantial funds. The
superior court did not err by declining to award Annette credit
for similar post-separation educational expenses because the
expenses could have been paid with the childrens funds.
E. The Superior Court Did Not Err in Awarding Annette $131,000
To Pursue Her Education and Refusing To Force David To Pay the
Support Without Proof that Annette Was Enrolled Full-time.
Annette claims that the award of $131,000 for her
education did not include $50,000 for tuition costs. Under the
parties prenuptial agreement David is responsible for Annettes
tuition, books, other educational expenses, and reasonable
support at a law school34 of her choice. The superior court found
that this provision entitled Annette to the above support for one
year of preparatory classes at UAA and the two-year Masters of
Business Administration program at the University of Washington.
Annette argues that the award of the total sum of $131,000 does
not include her tuition costs. But the superior court clearly
considered both tuition and living expenses in finding that
tuition, books, and fees for the three years of schooling would
cost roughly $50,000 and that reasonable support for the
rehabilitative period was somewhere between the $15,168 per month
requested by Annette and the $1,500 per month offered by David.
It concluded by finding that a reasonable amount of support for
David to pay Annette to complete her MBA degree is the total sum
of $131,000. This award clearly included Annettes tuition costs
and cannot reasonably be interpreted to provide Annette with an
additional $50,000 of tuition. We reject Annettes argument that
tuition was not included in the superior courts award.
Annette also claims that the trial court erred in
estimating her reasonable living expenses in arriving at its
$131,000 award. She argues that the court both underestimated
the cost of her education and awarded her far less than the
amount necessary for her reasonable support. The superior court
thoroughly analyzed the cost of Annettes education, and did not
abuse its discretion in awarding $50,000 for educational
expenses. As for living expenses, we find no abuse of discretion
in the award of $81,000 for three years, post-divorce.
Therefore, we hold that the superior court did not abuse its
discretion by awarding Annette the total of $131,000 in
rehabilitative support.
Annette further claims that the superior court erred in
denying her motion for educational support for her year of
preparatory classes on the grounds that she was not enrolled at
UAA. Annette apparently took two summer classes but did not
register for fall classes, allegedly because David had not made
the educational alimony payments from March through July 2001.
The superior court refused to compel David to pay the ordered
educational support because Annette did not provide any proof
that she has been or is enrolled as a full-time student in a
university pursuing her educational goals. Annette argues that
the superior courts order that she be enrolled full-time adds a
new term to the March 7, 2001 award and removes a needed degree
of flexibility in determining her course load. Though we are
sympathetic to providing custodial parents with flexibility in
pursuing rehabilitative education, there was no error here:
Annette requested and received support for one year of
preparatory classes at UAA. The superior court did not abuse its
discretion by forcing her to abide by the award.
F. The Superior Court Did Not Err in Finding that the Real
Property Placed in Annettes Name Was Marital Property.
A. Annette claims that the superior court erred in classifying
property given to her by David as marital property. David
transferred a number of pieces of real property to Annette over
the course of their marriage. One of these properties was sold
in order to acquire the 11th Avenue home, which was held in
Annettes name. The parties prenuptial agreement provided that
gifts become the separate property of the recipient. Annette
argues that the property transfers were gifts from David to her
and are therefore her separate property. David responds that the
properties were only placed in Annettes name to ensure that they
would not be lost in possible medical malpractice judgments
against David. We have held that the relevant factors in
determining whether property should be characterized as marital
are . . . (1) the use of property as the parties personal
residence . . . , (2) the ongoing maintenance and managing of the
property by both parties, 35 (3) placing the title of the
property in joint ownership and (4) using the credit of the non-
titled owner to improve the property.36 The superior court
specifically found that the first, second, and third factors were
present in this case. Additionally, the superior court based its
finding that the properties were marital property on the
testimony of a number of the parties friends, who supported
Davids claim that the properties were placed in Annettes name to
guard against medical malpractice claims rather than as gifts.
The superior courts extensive factual findings on the parties
intent in transferring the property to Annette are sufficient to
support its finding that the property placed in Annettes name was
marital property. The superior court did not abuse its
discretion in finding that the property was marital property.
G. The Superior Court Did Not Err in Denying Annettes Motion
for Attorneys Fees.
A. A. Annette argues that the superior court abused its
discretion by declining to award her attorneys fees. She claims
that her litigation costs were driven up by Davids noncompliance
with court orders and refusal to produce discovery materials in a
timely fashion. David responds that Annette has failed to
demonstrate that the superior court abused its discretion in
denying fees for Annettes aggressive litigation of this case. We
have mandated a two-step process for determining whether
attorneys fees should be awarded under AS 25.24.140(a)37 for
vexatious conduct by a party in a divorce proceeding.38 The
superior court must first determine whether fees are appropriate
under the general rule looking to the parties economic
situations; it may then increase any award based on misconduct by
one of the parties.39 The superior court denied Annettes request
for attorneys fees based on our decision in Beard v. Beard,40
which recognized that awards of attorneys fees under AS
25.24.140(a) are based on the relative economic situations and
earning powers of the parties41 and should ensure that both
spouses have the proper means to litigate the divorce action on a
fairly equal plane.42 The superior court found that the property
division compensated for the disparity in the parties earning
capacity and left them with comparable ability to litigate the
action. It further found that both parties had needlessly
increased litigation costs and been completely uncooperative
throughout the divorce, and held that neither party had clean
hands to request fees for vexatious conduct. Because these
factual findings are sufficient to support a denial of attorneys
fees under AS 25.24.140(a), we uphold the superior courts denial
of Annettes motion for attorneys fees.
H. The Superior Court Erred in Summarily Refusing Davids Claims
for Credits Arising After the March 7, 2001 Order.
1. The superior court erred in failing to make factual findings
on whether the parties property was divided in accordance with
its order.
1. David claims that Annette controlled the court-ordered
division of the parties art, jewelry, and precious stones in a
manner that left him with $175,000 less than the $430,453.50 of
such property he was awarded. Annette argues that David
personally and willingly divided the property. Her only support
for this contention is the affidavit of a paralegal at her
attorneys firm who was present at the time. The superior court
denied Davids motions for credit for Annettes alleged violation
of the property division without a hearing and did not otherwise
address the claim. We have previously held that a superior
courts denial of a credit should be reversed and remanded if the
record shows a genuine dispute regarding the requested credit and
the superior court failed to make factual findings on the issue.43
In this case the record provides some support for Davids claim of
an unequal property division, presenting a genuine issue of
material fact. Therefore, we remand for factual findings the
issue whether David should be credited for Annettes alleged
violation of the court-ordered property division.
2. The superior court erred in failing to make any findings on
Davids request for credits that he allegedly became aware of
after the court divided the marital estate.
David claims that he should receive credits for (1)
property tax payments that were allegedly misappropriated by
Annette, (2) a $12,413 account awarded to him but allegedly
emptied by Annette, and (3) a gun that the court found was Davids
separate property but that Annette did not return to him. He
contends that he only became aware of his right to these alleged
credits after the divorce trial.
David claims that he gave Annette money to pay property
taxes and seeks credit for this money. Annette responds that the
appeal should be denied because the issue was not raised at the
trial and the appeal was not filed in a timely manner. David
responds that Annettes alleged misuse of this payment was not
raised at the trial because he did not discover it until after
the conclusion of the trial. Alaska Civil Rule 60(b)(2) allows a
court to relieve a party from a final judgment if he or she
presents newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under
Rule 59(b).44 Because the timing of Davids discovery of the
alleged conversion is a factual issue, we remand the question
whether David exercised due diligence in presenting his request
for a credit. If David brought this claim in a timely manner,
the superior court should determine whether he is entitled to
credit for the allegedly misused property tax payments.
David argues that he should receive credit for a
$12,413 account awarded to him in the superior courts property
division, because it was emptied by Annette, and for his gun,
which was retained by Annette. Annette responds that Davids
appeal must be rejected because he failed to raise the issue at
the trial level. She also argues that this court does not have
jurisdiction under AS 22.05.010(a)45 because the superior court
has not ruled on the issues. That statute is inapplicable to
this appeal because the superior courts general denial of an
offset credit in this case appears to apply to Davids request for
credits for, or the return of, his alleged separate property.
David claims that he only became aware of the missing money after
trial and promptly presented the issue to the trial court in his
November 5, 2001 motion for credits in response to Annettes
motion for judgment for support arrearages. The above analysis
of Davids request for a property tax credit applies with equal
weight to these issues. We therefore remand for a determination
whether David acted with due diligence. If the superior court
finds that David brought these requests for credits in a timely
manner, it should make factual findings as to whether he deserves
an offset credit or the return of the property.
V. CONCLUSION
A. We REMAND for further findings the issues of offset credits
for reduction of the principal balance on the house and for the
allegedly missing gold, Annettes credit for having paid marital
debts, and Davids requests for credit for the allegedly late-
discovered issues. We REMAND for rulings the claim that the
property division did not conform to the superior courts order
and the issue of the office artwork. We REVERSE the inclusion of
the parties separate property and the childrens property in
evaluation of the estate awarded to Annette, as well as the
failure to account for appreciation of Davids premarital art
collection. In all other respects, we AFFIRM the decisions of
the superior court.
_______________________________
1 The branch of medical science concerned with the study
of the ear, nose, and larynx, the treatment of their diseases,
etc. Websters New Intl Dictionary 1730 (2d ed. 1960).
2 Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000).
3 Bellanich v. Bellanich, 936 P.2d 141, 143 (Alaska
1997).
4 Edelman, 3 P.3d at 351.
5 Johnson v. Johnson, 836 P.2d 930, 933 (Alaska 1992)
(examining award of interim spousal maintenance under AS
25.24.140(a)(2) for abuse of discretion).
6 Brooks v. Brooks, 733 P.2d 1044, 1055-56 (Alaska 1987).
7 Id.
8 Bellanich, 936 P.2d at 143 (quoting Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979)).
9 Horchover v. Field, 964 P.2d 1278, 1282 (Alaska 1998).
10 Id.
11 Edelman v. Edelman, 61 P.3d 1, 4 (Alaska 2002).
12 The superior court ordered David to pay Annette $5,000
per month in spousal support and to pay roughly $10,492 in
mortgage, property tax, and insurance payments related to the
family house occupied by Annette.
13 AS 25.24.140 provides in pertinent part:
(a) During the pendency of the action, a
spouse may, upon application and in
appropriate circumstances, be awarded
expenses, including (1) attorney fees
and costs that reasonably approximate the
actual fees and costs required to prosecute
or defend the action; in applying this
paragraph, the court shall take appropriate
steps to ensure that the award of attorney
fees does not contribute to an unnecessary
escalation in the litigation; (2)
reasonable spousal maintenance, including
medical expenses; and (3) reasonable
support for minor children in the care of the
spouse and reasonable support for unmarried
18-year-old children of the marriage who are
actively pursuing a high school diploma or an
equivalent level of technical or vocational
training and living as dependents with the
spouse or designee of the spouse, if there is
a legal obligation of the other spouse to
provide support.
14 Johnson v. Johnson, 836 P.2d 930, 934 (Alaska 1992)
(remanding for factual findings on parties relative economic
circumstances and needs . . . and the ability to pay the
maintenance).
15 Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).
16 836 P.2d 930 (Alaska 1992).
17 Id. at 934 (stating that an award of interim
maintenance provides for reasonable and necessary living expenses
while divorce litigation is pending and insures that neither
spouse is disadvantaged in presenting their claims).
18 While it would have been preferable for the superior
court to rule explicitly on the motion, Annette cannot be blamed
for the superior courts failure to rule. And the plethora of
motions and counter-motions by both parties suggests that the
superior court determined that it would be best to resolve all
pending disputes after hearing the evidence at trial.
19 Edelman v. Edelman 3 P.3d 348, 357 (Alaska 2000); Lewis
v. Lewis, 785 P.2d 550, 553 n.4 (Alaska 1990); Blacks Law
Dictionary 73-74 (7th ed. 1999).
20 To this amount, payable as of the date of the judgment,
the superior court added 8.5% interest until paid in full.
21 Cf. Ellingstad v. State, Dept of Natural Res., 979 P.2d
1000, 1006 (Alaska 1999) (holding that maxim of statutory
interpretation expressio unius est exclusio alterius, meaning the
expression of one thing implies the exclusion of others . . .
will not apply if contrary to the purpose of the statute).
22 B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).
23 Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991).
24 Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992). See
also Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997).
25 Ogard, 808 P.2d at 819.
26 Tollefsen v. Tollefsen, 981 P.2d 568, 571-72 (Alaska
1999) (property division premised on economically disadvantaged
wife selling real property awarded to her but failing to provide
for cost of repairs and sale for property constituted error).
27 See Osborne v. Hurst, 947 P.2d 1356, 1361 (Alaska 1997)
(quoting Schylmanski v. Conventz, 674 P.2d 281, 286 (Alaska
1983)).
28 AS 09.35.140 states:
Before the sale of property on execution,
notice of the sale shall be given as follows:
(1) notice of the sale of personal
property is given by posting a written or
printed notice of the time and place of sale
in three public places within five miles of
the place where the sale is to be held, not
less than 10 days before the day of sale; one
of the notices shall be posted at the post
office nearest to the place where the sale is
to take place[.]
29 B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).
30 The appraisal of the parties property listed only
seventy dollars worth of Davids gold coins in the safe.
31 See, e.g., In re Hambright, 762 N.E.2d 98, 101-03 (Ind.
2002) (recognizing and applying traditional legal notion that
childs custodian is also childs trustee).
32 Wanberg v. Wanberg, 664 P.2d 568, 571 (Alaska 1983)
(holding that parties may indicate by their actions intent to
treat property that would otherwise be considered separate as
joint holdings).
33 Brotherton v. Brotherton, 941 P.2d 1241, 1246 (Alaska
1997).
34 The superior court noted that at the time the parties
entered into the prenuptial agreement the parties expected
Annette to attend law school, but that she subsequently changed
her plans. The court found her decision to pursue an MBA program
instead of law school is reasonable and substantially meets the
conditions of the parties agreement. David does not challenge
this finding.
35 Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994) (quoting
McDaniel v. McDaniel, 829, P.2d 303, 306 (Alaska 1992)).
36 Id. (citing Chotiner v. Chotiner, 829 P.2d 829, 832-33
(Alaska 1992)).
37 AS 25.24.140 provides:
(a) During the pendency of the action, a
spouse may, upon application and in
appropriate circumstances, be awarded
expenses, including (1) attorney fees
and costs that reasonably approximate the
actual fees and costs required to prosecute
or defend the action; in applying this
paragraph, the court shall take appropriate
steps to ensure that the award of attorney
fees does not contribute to an unnecessary
escalation in the litigation[.]
38 Wright v. Wright, 904 P.2d 403, 410-11 (Alaska 1995)
(awarding attorneys fees for vexatious conduct despite refusal to
award fees based on parties general economic situation).
39 Id.
40 947 P.2d 831 (Alaska 1997) (holding that superior court
did not abuse its discretion by awarding attorneys fees to
spouse, who received $65,000 of marital assets and 60% of other
spouses pension fund, because of her drastically inferior earning
capacity).
41 Id. at 833 (quoting Kowalski v. Kowalski, 806 P.2d
1368, 1372 (Alaska 1991)).
42 Id. (quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187,
1192 (Alaska 1987)).
43 Berry v. Berry, 978 P.2d 93, 96-97 (Alaska 1999).
44 Alaska R. Civ. P. 60(b)(2).
45 AS 22.05.010(a) states: [t]he supreme court has final
appellate jurisdiction in all actions and proceedings. However,
a party has only one appeal as a matter of right from an action
or proceeding commenced in either the district court or the
superior court.
