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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dunlap v. Dunlap (03/17/2006) sp-5996
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
| JAMES T. DUNLAP, | ) |
| ) Supreme Court No. S- 11750 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-91-9141 CI |
| ) | |
| ANN C. DUNLAP, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 5996 - March 17, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: John C. Pharr, Law Offices of
John C. Pharr, Anchorage, for Appellant. Ann
C. Dunlap, pro se, South Park, Pennsylvania.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This case is a child support dispute. It regards a
divorced fathers obligation to use a portion of his retirement
buyout to fund educational accounts for his children in lieu of
using that portion to pay child support. According to the 1992
divorce settlement agreement between James and Ann Dunlap, James
would deposit a portion of any retirement or severance buyout
equal to the portion that was payable as child support into
educational accounts for the couples children. James received
such a retirement buyout in 1994 and opened educational accounts
that October. In 1995 James closed out the educational accounts
after Superior Court Judge Larry D. Card refused to reduce Jamess
child support obligations even though his income had declined.
Judge Card reasoned, in part, that Jamess retirement buyout would
allow him to continue making child support payments for a number
of months, notwithstanding his reduced income. James did not
appeal this ruling. In 2003 Ann Dunlap contacted her ex-husband
regarding the educational account for their son Matthew, who was
preparing to attend college in fall 2004. After James told her
he had closed out the account, Ann sued and obtained a judgment
against James. James appeals this judgment.
James has offered no excuse for his failure to
contribute the required funds to the educational accounts. He is
therefore precluded from challenging Judge Cards interpretation
of his obligation to fund such accounts. James argues that the
settlement agreement was too indefinite to be enforced, that the
judgment constituted erroneous gap-filling, and that Ann had
waived or was equitably estopped from arguing that James was
obliged to provide funds to the educational accounts. Because
these arguments lack merit, we affirm the judgment of the
superior court.
II. FACTS AND PROCEEDINGS
A. Facts
A. James and Ann Dunlap were married in December 1982. Their
marriage produced two children: James Matthew (Matthew) (b. 1985)
and Katelyn E. (b. 1990). The couple separated in 1991 and were
divorced in 1992. Ann received primary legal and physical
custody of both children. James, who was an Army Warrant Officer
stationed in Alaska at the time, was ordered to pay child support
in the amount of $739.93 per month pursuant to Alaska Civil Rule
90.3(a). Shortly thereafter, James moved for a modification of
the support order because his military compensation package
decreased when he was reassigned outside Alaska. The court
agreed to modify the award, reducing Jamess obligation to $626.16
per month.
The couples divorce settlement agreement contained a
special provision regarding Jamess military retirement benefits.
Although the agreement specified that James would retain [a]ny
and all interests in his military retirement, it also contained a
provision addressing the disposition of any retirement benefits
James might receive if he left the army prior to his retirement
eligibility:
13. If plaintiff separates from the service
prior to retirement, any severance received
by plaintiff will be considered as income
pursuant to Alaska Civil Rule 90.3 and the
portion payable as child support (27% of the
net) will be placed in an education fund in
the children[s] names.
James left military service in 1994 and the military
bought out his retirement benefits for a lump sum of $57,598.
After taxes, James received $40,271. Pursuant to the settlement
agreement, James deposited $10,0001 into two educational funds
for his children on October 17, 1994.
After leaving the military, James moved for a second
reduction in his child support obligations, citing his reduced
income. In her opposition to Jamess motion, Ann contended that
his reduced income was the temporary result of his status as a
probationary employee of the post office. She argued that it was
inappropriate to reduce his obligation based on his income as a
probationary postal worker and that, in the meantime, James could
afford to pay his full obligation because of his retirement buy-
out. In response, James argued that his retirement buy-out had
been largely spent. He stated that, pursuant to the settlement
agreement, he had deposited $10,000 into the educational accounts
for the children. He also noted that he had deposited $10,000
into a retirement account for himself, spent $4,000 on the
childrens vacations, and drew on the remaining funds to cover his
own living expenses, especially for medical care.
Judge Card rejected Jamess motion, largely because
James had not disclosed the retirement buyout in his motion for
modification. Judge Card also concluded that, based on the
retirement buyout, James would be able to afford his support
obligations on his current income for another thirty-one months.
Thus, he held that James had sufficient income for another thirty-
one months and could not move again for a modification until
January 1997.
On February 10, 1995, James cashed out the educational
funds because he needed the money to live on and continue to pay
child support in the higher amount. He promised to replace the
$10,000 at a later date and stated that he was currently paying
$341.16 per month into the educational funds. James appears to
have believed he could meet the requirement of paragraph 13 of
the settlement agreement by eventually paying $10,000 into
educational funds.
James moved for reconsideration of Judge Cards ruling.
He argued that he did not have the entire $40,271 because he had
deposited $10,000 into an educational fund pursuant to the
settlement agreement and that he could not meet the $1,300
shortfall for thirty-one months. In response to this motion, the
superior court amended the order on March 17, 1995. Although the
superior court concluded that the $10,000 deposit did not alter
Anns right to child support payments under Civil Rule 90.3 since
Jamess retirement buyout clearly constituted income under the
rule the court held that Ann agreed to forgo her property
interest in that $10,000 in exchange for the creation of the
educational funds. Therefore, the superior court reduced the
amount of the retirement buyout that was available from $40,271
to $30,271, envisioning that the retirement buyout would make up
for Jamess $1,300 shortfall for twenty-four, rather than thirty-
one, months.
At the time the parties were litigating Jamess motion
for modification, James began paying only $285 per month in child
support. According to James, this amount equaled twenty-seven
percent of his current net income.2 James stated that he was
paying the balance of his obligation under the child support
order $341.16 into the childrens educational funds. In
response, Ann filed a motion to show cause why James should not
be held in contempt for violating the child support order. James
opposed the motion, arguing that he was only liable for twenty-
seven percent of his income and that twenty-seven percent of his
retirement buyout had already been allocated to the childrens
educational funds.
Before the court could rule on Anns motion, James and
Ann settled their dispute and stipulated that James would pay
$450 per month, retroactive to January 1, 1995. As part of the
stipulation, James agreed to forgo his right to appeal Judge
Cards orders regarding his motion for modification.
Matthew turned eighteen in March 2003 when he was
enrolled as a sophomore in college at Indiana University of
Pennsylvania. Ann requested that James release the educational
funds. But James had cashed out the account and there were no
educational funds.
B. Proceedings
A. Ann, appearing pro se, filed a motion to reduce to judgment
in September 2004. She claimed that paragraph 13 of the divorce
settlement agreement required James to create educational
accounts in the childrens names worth twenty-seven percent of his
retirement buyout. Ann stated that James had closed out the
educational accounts and had not provided any funds for Matthews
college. She asked the court for a judgment in the amount of
$10,000 plus interest.
James opposed Anns motion to reduce to judgment,
maintaining that the 1995 litigation demolished the notion that
the parties had intended for twenty-seven percent of his
retirement buyout to be placed in educational accounts; rather,
he maintained that the retirement funds were intended to be used
for an educational fund or to pay child support, but not both.
James also argued that Ann had waived her contentions or that she
was equitably estopped from making them, or both. Lastly, he
argued that paragraph 13 of the settlement agreement was too
indefinite to be enforced because it did not specify how the
funds were to be administered or disbursed.
Ann filed a reply to Jamess opposition. She disputed
Jamess interpretation of the settlement agreement and Judge Cards
1995 rulings. She also maintained that waiver and equitable
estoppel did not apply and that the settlement agreement was not
indefinite.
Superior Court Judge Stephanie E. Joannides entered
judgment in favor of Ann on October 29, 2004 and awarded her
$10,000 plus interest. James appeals from this decision.
III. STANDARD OF REVIEW
We review a superior courts interpretation of a child
support agreement as we would review the interpretation of any
contract, de novo.3 We review a superior courts enforcement of
a divorce decree for abuse of discretion.4
IV. DISCUSSION
A. James Was Not Excused from Contributing Money to the
Educational Funds.
Paragraph 13 of the Dunlaps separation agreement
states:
If plaintiff separates from the service prior
to retirement, any severance received by
plaintiff will be considered income pursuant
to Alaska Civil Rule 90.3 and the portion
payable as child support (27% of the net)
will be placed in an education fund in the
children[s] names.
James maintains that [p]aragraph 13s intent was to set
aside an educational fund with the child support portion of
plaintiffs military retirement, or severance pay if he did not
stay 20 years to qualify for a retirement. However, he contends
that this intent was thwarted when Judge Card considered the
retirement buyout (minus a $10,000 deposit into the childrens
educational accounts) to be included in his income under Civil
Rule 90.3. Thus, Judge Card required him to set aside twenty-
seven percent of the buyout for an educational fund and pay child
support from the remainder of his buyout. We reject this
argument because it is untimely.
James failed to appeal Judge Cards 1995 ruling, letting
the determination stand for ten years, and he has not
demonstrated that we should reopen it. When James and Ann
litigated Jamess motion for modification in 1994 and 1995, the
parties addressed how the buyout should be used to support their
children. James contended that the settlement agreement
specified that he need only place twenty-seven percent of his
buyout in educational accounts for the children. Ann argued that
the buyout should also be used to pay support when Jamess income
was temporarily reduced.
After Judge Card rejected Jamess motion for
modification largely because James had not disclosed the
retirement buyout in his motion papers James moved for
reconsideration, ask[ing] the court to take into account that
under [the settlement agreement,] [James] was required to put 27%
of his net income into an education fund for the children. He
argued that, because of his lack of income, the courts refusal to
reduce his obligation would force him to dip into the educational
accounts. In her opposition to Jamess motion, Ann argued that
the retirement buyout constituted income under Civil Rule 90.3.
Judge Card agreed with Ann that the retirement buyout
was income under Rule 90.3. He also interpreted the settlement
agreement as waiving Anns rights to a percentage of Jamess
retirement i.e., Ann waived her right to receive child support
as the childrens custodian in exchange for Jamess promise to
provide a college fund for the children. The court concluded
that this bargain did not justify a reduction in the amount of
child support that should be paid. Presumably this was because
Judge Card believed that Jamess support obligation accorded with
his long term income, and that the buyout allowed James to meet
this obligation without undue hardship even though his income was
temporarily reduced. The court did recognize that the $10,000
that James had claimed was deposited into educational accounts
reduced the funds available to James. Consequently, the court
amended its previous order to the extent that James could apply
for a modification after twenty-four months. James commenced an
appeal of this order but later abandoned it.
James may have had a claim that the superior court
erred in concluding that James was both required to place $10,000
in the educational accounts and that the retirement money would
be considered income for the purposes of calculating child
support. But the time to appeal was in 1995. James did not
appeal, instead explicitly waiving his right to appeal the
superior courts recent rulings on his motion to modify child
support as part of the April 20, 1995 stipulation. In return for
this waiver, James received the relief he wanted: his child
support obligations were reduced from $626 to $450 monthly.
James abandoned his appeal, letting the superior courts
order stand. The relief James seeks is now barred by the law of
the case. This is the principle that issues previously
adjudicated can only be reconsidered where there exist
exceptional circumstances presenting a clear error constituting a
manifest injustice. 5 James has not presented evidence of either
condition. Although our doctrine of law of the case generally
refers to issues that have previously been reviewed at the
appellate level, the doctrine is equally applicable to issues
that have been fully litigated in the superior court and as to
which no timely appeal has been made.6
B. Paragraph 13 Is Sufficiently Definite To Be Enforced.
James contends that paragraph 13 of the settlement
agreement is too indefinite to be enforced. He argues:
The parties never agreed on how to administer
the educational fund. There was no
definition of what educational purposes the
fund is to be used for. There was no
mechanism for agreement on the use of funds.
. . . There is no way for the court to
determine how the educational fund of
paragraph 13 is to be administered, and it
therefore cannot be enforced.
James is certainly correct that paragraph 13 does not specify how
the educational fund is to be administered or what educational
purpose it is designed to serve. But this fact does not render
the agreement too indefinite for enforcement. We have previously
held that while [v]agueness of expression, indefiniteness and
uncertainty as to any of the essential terms of an agreement may
prevent the creation of an enforceable contract[,] . . . courts
should give legal effect to the intentions of the parties where
necessary to reach a fair and just result.7 Moreover, as
Professor Corbin has explained, [t]he fact that the parties have
left some matters to be determined in the future should not
prevent enforcement, if some method of determination independent
of a partys mere wish, will, and desire exists.8
The essential terms of the bargain Ann forswears her
right to the portion of Jamess retirement buyout (either as child
support or as part of her share of the marital estate, or both)
in exchange for the creation of educational accounts with those
funds seem clear. And the absence of agreed-upon procedures for
administering and distributing the educational funds should not
be fatal to this bargain. It seems reasonable to conclude that
the parties would have deferred decisions regarding distribution
until the childrens educational needs were more apparent (in
1992, the Dunlaps children celebrated their seventh and second
birthdays). Moreover, Jamess conduct evinces such an
understanding: Upon opening the educational accounts in 1994, he
stated that he would act as custodian and that the disbursement
would be left to the discretion of the children.
C. The Superior Court Did Not Err in Granting Judgment to
Ann.
James argues that Judge Joannides erred in granting
judgment to Ann because nowhere does [the settlement agreement]
state that upon default in the maintenance of the educational
fund, judgment is to be entered for the same amount in favor of
Ann. James contends that the courts decision to grant judgment
to Ann erroneously filled a gap in the contract because [t]here
is no indication in the record that James would have agreed to
the entry of judgment in Anns favor for the amount of the
educational fund.
This argument misconstrues the basis of the judgment.
Although a contract may specify that, in case of a breach, a
party is entitled to a specific remedy, a contract need not
expressly provide for a particular remedy in order for it to be
available.9 Thus we reject Jamess argument that the judgment
constituted improper gap-filling.10
D. Ann Was Not Equitably Estopped from Arguing that James
Was Obliged To Deposit $10,000 into the Educational
Fund.
James contends that Ann argued in 1995 and 1996 that
twenty-seven percent of his retirement buyout should be used to
pay ongoing child support. Consequently, he maintains that Ann
has waived the argument that twenty-seven percent of his buyout
should have gone into educational accounts for the children. He
also claims that he relied on her arguments and cashed out the
educational fund in order to meet his child support obligations.
Because of this reliance, he argues that Ann should be equitably
estopped from arguing that he was obliged to put twenty-seven
percent of his buyout into educational accounts. Neither claim
is persuasive.
Contrary to Jamess assertion, the record contains no
instance where Ann argued that 27% of James[s] severance pay
should be used to pay ongoing child support. Though she did
state that the retirement buyout should be used to calculate
Jamess income, and that it would cushion any hardship faced by
James in meeting his obligation, Ann never argued for a twenty-
seven percent carve-out from Jamess retirement buyout for the
purpose of making child support payments.
In 1995 and 1996, litigation between James and Ann
centered around three motions: Jamess November 25, 1994 motion to
modify the child support order, Anns March 2, 1995 motion to hold
James in contempt, and Anns March 22, 1996 motion to modify the
support order. In regard to the first motion, Ann filed an
opposition, and an opposition to Jamess motion for
reconsideration. Ann did not argue in either opposition that
twenty-seven percent of the buyout should be used to pay child
support. Although she argued that Jamess present income should
be used to determine his adjusted income under Civil Rule 90.3,
she also maintained that she had no entitlement to [the buyout].
Anns affidavit in support of her motion to hold James
in contempt under Civil Rule 90 did not mention the retirement
buyout or the settlement agreement. Anns affidavit in support of
her motion for a modification of the child support order was
largely focused on the fact that James was hired as a full-time
postal employee in August 1995 and had become more emotionally
stable. And while she mentioned the retirement buyout, she did
not contend that twenty-seven percent $10,873 should be set
aside for child support. Rather, she stated:
With the severance payment of $57,000 [James]
received upon leaving the military and any
interest earned as income resulting from the
severance payment, it should cause no undue
hardship on [James] to support this
modification of payments.
Because the record contains no evidence of the alleged
arguments upon which Jamess motion is based, we reject Jamess
waiver and equitable estoppel arguments.
V. CONCLUSION
James is precluded from challenging his obligation
under the settlement agreement by his failure to appeal Judge
Cards March 12, 1995 order. Additionally, Jamess other arguments
that paragraph 13 is too indefinite to be enforced; that Judge
Joannides erroneously filled a gap in the contract by awarding
judgment to Ann; and that Ann had waived or was equitably
estopped from claiming that James was obliged to deposit twenty-
seven percent of his retirement buyout into educational accounts
lack merit. For these reasons, we AFFIRM the order of the
superior court.
_______________________________
1 Although the agreement called for James to deposit 27%
of the net into the education fund, the $10,000 payment
represented only 24.8%. James stated that he spent the
difference ($670) on the childrens summer vacation.
2 Twenty-seven percent is the applicable support rate for
two children. Alaska R. Civ. P. 90.3(a)(2)(B).
3 Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998).
4 Beal v. Beal, 88 P.3d 104, 111 (Alaska 2004).
5 State, Commercial Fisheries Entry Commn, v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (quoting Patrick v. Sedwick, 413 P.2d
169, 173-74 (Alaska 1966) and Alaska Diversified Contractors,
Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 583 (Alaska
1989)).
6 See Hermosillo v. Hermosillo, 797 P.2d 1206, 1208
(Alaska 1990) (presentation, in 1989, of motion nearly identical
to motion denied in 1988 constituted untimely appeal).
7 George v. Custer, 862 P.2d 176, 179 (Alaska 1993)
(quoting Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 485 (Alaska
1981)).
8 1 Joseph M. Perillo, Corbin on Contracts 4.1, at 536
(1993).
9 See generally Restatement (Second) of Contracts 344-45
(1981).
10 James does not discuss the slight incongruity that his
failure to provide a benefit for his children was remedied by an
award to his ex-wife. Since James has not raised this issue, we
do not resolve it. We note, however, that Ann appears to be
bearing some of the costs of her sons education and the award
might be viewed as restitutionary. Moreover, superior courts
are given discretion to enforce an order dividing property
following divorce. Beal v. Beal, 88 P.3d 104, 110 (Alaska 2004).
The superior court may have concluded that the best way of
enforcing the settlement agreement was to award a judgment to Ann
as opposed to her son.
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