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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krize v. Krize (08/25/2006) sp-6037
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
| ROBERT L. KRIZE, | ) |
| ) Supreme Court Nos. S- 11842/11862 | |
| Appellant/Cross-Appellee, | ) |
| ) Superior Court No. 4FA-04-1070 CI | |
| v. | ) |
| ) O P I N I O N | |
| JUDY N. KRIZE, | ) |
| ) No. 6037 - August 25, 2006 | |
| Appellee/Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mark I. Wood, Judge.
Appearances: Mila A. Neubert, Neubert Law
Office, LLC, Fairbanks, for Appellant/Cross-
Appellee. Joseph W. Sheehan, Law Offices of
Joseph W. Sheehan, Fairbanks, for
Appellee/Cross-Appellant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Robert and Judy Krize divorced after thirty-one years
of marriage. The superior court ruled that the future income
from a long-term lease of Roberts real property had been
transmuted into marital property because Robert had arranged to
have the lease income deposited in the parties joint bank
account. Because this evidence was insufficient to permit a
finding that Robert intended all future lease income to be
marital, it was error to apply the transmutation doctrine to
future lease income and to classify the future income as marital.
We consequently reverse that ruling. We also reverse as clearly
erroneous the valuation of the parties charter boat business. We
therefore remand for further proceedings, including possible
consideration of whether equity requires invasion of Roberts
separate property.
II. FACTS AND PROCEEDINGS
Robert and Judy Krize married in 1973 and were divorced
in 2005.
Robert has operated a charter boat operation (Alaska
Viking Cruises, or Viking) for nineteen years. Robert and Judy
jointly own Viking through a corporation. The only year Viking
made a profit was 2004.
Roberts income has come from investments and gifts from
his parents. His principal source of income is a ground lease of
Fairbanks property that Roberts parents gave him in 1999. Wells
Fargo Bank owns a building on Roberts land and has a long-term
lease on the property through 2025 and an option to extend
through 2074. Only Roberts name is on the deed. The real
property reverts to Robert when the lease expires. The lease
currently earns $50,000 annually and the income will increase
over time. Until the couple separated in 2004, the lease income
was deposited in Robert and Judys joint bank account, per a
Notice of Assignment Robert executed in 1999.
Judy had worked in various positions with the Fairbanks
North Star Borough; her employment provided insurance benefits
for Robert. Judy took early retirement from her job in 1999.
Her retirement income is $1,115 per month; she also receives
health benefits. Judy has medical problems that may make it
difficult for her to return to work, but the superior court found
that she was capable of working. She occasionally helped run
Viking.
The parties stipulated to the value of most of the
marital property, but disputed the classification or valuation of
some assets, including Viking, the lease, and two parcels of real
estate in Mexico.
The superior court recognized that the Fairbanks real
property was Roberts separate property, but determined that
Robert had transmuted the income from the lease into marital
property. Although it found the present value of the leasehold
to be $730,000, it did not divide the present value between the
parties, and instead awarded half the lease income to each party
and permitted them to designate where their portion of the future
lease income is to be deposited. The superior court noted that
even if the lease income were not marital property, the court
would have to reach a very disproportionate property division or
would have to invade at least part of the lease income to balance
the economic impact of this divorce. Robert contends that it was
error to apply the transmutation principle to the leasehold.
The court valued Viking at $50,000. Robert disputes
that valuation on appeal.
The court also made a comment that, according to
Robert, reveals that the court inappropriately considered Roberts
future inheritance prospects when it divided the property.
III. DISCUSSION
A. Standard of Review
We review property division rulings for abuse of
discretion.1 Property division is a three-step process: (1)
determining what property is available for division as marital
property, (2) valuing the property, and (3) equitably allocating
the property.2 In the first step
the trial court must determine what property
is available for distribution, characterizing
the property as either separate or marital, a
determination we review under the abuse of
discretion standard. An abuse of discretion
occurs if the court considers improper
factors, fails to consider relevant statutory
factors, or assigns disproportionate weight
to some factors while ignoring others.
Marital property includes all property
acquired during the marriage excepting only
inherited property and property acquired with
separate property which is kept as separate
property.[3]
The second step, placing a value on property, is a factual
determination we review for clear error.4 The third step,
equitably allocating property, we review for abuse of discretion;
we will not disturb the allocation unless it is clearly unjust.5
We review a finding of transmutation for clear error.6
B. There Was Insufficient Evidence To Conclude that Robert
Intended To Convert Future Lease Income into Marital
Property.
The superior court ruled that the Fairbanks real estate
leased to Wells Fargo is Roberts separate property, but
classified the future lease income as marital. It concluded that
because the lease proceeds were used for the couples benefit,
history supports the finding that the lease itself the proceeds
of the lease were intended to be marital property. This had the
effect of creating a usufructory interest in the property for
Judy.7 Although the court thus classified the real property as
separate and classified the income as marital, neither party
argues that this result was conceptually problematic.
Instead the issue here is whether, as Robert contends,
no evidence justified application of the transmutation doctrine
to the lease income to be received after divorce. He argues that
[t]he only indication of transmutation that the court could point
to was that the monies were directed to the parties joint
checking account. He asserts that this evidence only indicated
that the lease proceeds for each month were individual gifts and
did not indicate an intent to make a gift of all future revenue
from the lease. Judy responds that Roberts notice of assignment
and his trial testimony . . . demonstrate Roberts intent to
change the lease income into marital property. Judy cites
Roberts trial testimony that his father gave him the property
because the father understood income from the lease, would go to
benefit us that is to say my wife, my son and I, by putting it
in our account.
The Fairbanks property was quitclaimed to Robert by his
parents in 1999. Robert directed that the lease payments be
deposited into a joint checking account, but the deed to the real
estate remained in his name only. Robert testified that he
intended the lease proceeds to be marital only while the marriage
lasted.
Judy never testified that Robert told her the lease
income was marital. We assume from her testimony she would have
so testified if Robert had said any such thing. Thus, when asked
if she had discussions with Bob about those lease payments, she
simply responded: Just that it was a nice secure future for us .
. . I had no idea that the bank lease was only in his name . . .
. She also testified that Bobs parents had been very generous
with us throughout our marriage. And I always assumed it was
just . . . another wonderful gift. The superior court heard her
testimony and did not find that Robert had told her the lease
income was marital.
As we have previously explained, [t]ransmutation
requires intent, as demonstrated through conduct, to change the
character of property from separate to marital.8 We have
suggested several factors to help determine intent to transmute
property: [T]he propertys use as a marital residence; its ongoing
maintenance and management by the parties; the listing of its
title in joint ownership; or the use of the non-owner spouses
credit to improve the property.9 In the context of a commercial
lease, the last three factors are potentially relevant.10 But
none of these circumstances is present here. First, there is no
evidence Judy helped manage the leased property or the lease.
Judys testimony indicates she did not know any of the details of
the lease, and Robert testified that his father did not want
anyone but Robert to have anything to do with [the property],
except for the funds generated from it. Second, Judy presented
no evidence suggesting that her credit was used to improve the
property. Finally, the title to the property was never listed in
joint ownership but only in Roberts name; since the lease itself
has no title this fact is of minor importance.
The testimony of the parties is unhelpful in
understanding Roberts subjective intent regarding future income
from the lease. Judys testimony that she merely assumed Roberts
parents had given the real estate to both spouses permits an
inference that Robert never expressed an intention to convert the
lease into marital property. Judys testimony is like that of the
wife in Harrower v. Harrower who express[ed] her belief that the
[property] would be part of the couples retirement. But she
acknowledged that [the husband] never told her that the property
was partly hers.11 We concluded there that the wifes subjective
belief could not support a finding that the husband intended to
transmute the investment property.12 We reach the same conclusion
here.
Roberts testimony is similarly unhelpful. Robert
presented uncontradicted testimony that he intended the revenue
to be marital property only while the marriage lasted. But we
have previously stated that this kind of self-serving testimony
is ordinarily not probative.13 Robert also testified that his
father wanted income from the lease . . . to benefit us. But
that testimony does not make it clear whether Roberts father
intended to benefit both Robert and Judy even if the marriage
ended. It is therefore unclear what Roberts subjective intent
was regarding the future lease income. Robert may have intended
to share the future lease income or he may have intended to share
only current lease income as it accrued.
Although Roberts intent may be ambiguous on this point,
his conduct is less so. The fact that Robert directed that the
lease payments be deposited in a joint account is not enough to
show an intent to transmute future lease payments to marital
property.14 The lease income was paid into Roberts lease escrow,
and Robert simply instructed the escrow agent to deposit the
payments into the parties joint checking account. Because Robert
retained the right to stop contributing payments to the joint
checking account, his actions can more realistically be viewed as
causing periodic gifts of accrued income than as a blanket
assignment of future income. Given Roberts ambiguous statements
of intent, and his conduct suggesting periodic gifts, there is no
basis to infer that he actually assigned any future lease
proceeds.
These circumstances are similar to those in Sampson v.
Sampson,15 in which the disputed asset was money held in a
brokerage account only in the husbands name.16 The husband
periodically used income earned from the A.G. Edwards account to
contribute to the marriage.17 The superior court ruled that this
use of the funds transmuted the account into marital property; we
held that there was insufficient evidence to conclude that
transmutation was intended.18 Simply placing funds earned from
separate property in a joint account, whether on a regular basis
as here, or periodically as in Sampson, is insufficient to evince
intent to transmute separate property into marital property.
Because there was no evidentiary basis for the finding that the
lease was marital, it was an abuse of discretion.
Judy argues alternatively that even if the lease is not
marital, Robert is equitably estopped from arguing otherwise
because he told Judy that if she quit her job he would take care
of her. She claims on appeal she would never have terminated her
employment with [Fairbanks North Star Borough] if Robert had told
her that the lease income was not marital property. But Judy
only testified that she assumed that the lease was marital
property. Because there is no indication that Robert misled Judy
with respect to the lease, her estoppel claim is groundless.19
We must therefore reverse the transmutation ruling and
remand for further proceedings.
Our opinion resolves only the transmutation issue. It
does not address the superior courts comments about allocating
marital assets or invading the lease income. Even as it
classified the future lease income as marital, the superior court
commented:
[I]f I wouldnt consider [the lease] as
marital property at all, it would require me
to do a very disproportionate division of the
assets in favor of Ms. Krize . . . to fairly
allocate the economic effect of this divorce.
Or it would require me to invade at least a
portion of the lease income in order to
balance the economic impact of this divorce.
After classifying property as marital or separate, a
trial court must decide whether equity requires invasion of
separate property. It has broad discretion under AS
25.24.160(a)(4) to divide property and the equitable allocation
of property will not be reversed unless clearly unjust.20 On
remand, therefore, the superior court may return to steps two and
three of the property division process and reconsider the
propertys valuation and its equitable allocation.
Robert argues that the lease value found by the court
was excessive because it included the value of his reversionary
interest in the land. Our reversal moots this issue. If the
superior court determines on remand that it is equitably
necessary to invade the lease income, it should also consider
whether there was an error in calculating its value.
C. It Was Clear Error To Find Vikings Value To Be $50,000.
Robert next argues that the superior court erred in
valuing Viking. In the superior court Robert suggested a value
of $10,000 and Judy suggested a value of $50,000. The superior
court found the value to be $50,000.
Valuation is factual and will be reversed only for
clear error.21 In Moffitt v. Moffitt we noted that a finding is
clearly erroneous if it is unsupported by anything in the record.22
As in this case, each party there expressed an opinion about the
good will value23 of the business and the two estimates diverged
widely. We held that valuation must be based on one or more
principled methods of valuation, not mere speculation, and
concluded that the courts valuation was clearly erroneous because
it was unsupported by the record.24 Owners may express their
opinions of an assets value, but must use a principled method of
valuation.25
Judy asserts on appeal that the valuation technique she
used can be characterized as either a capitalization of net
profits or a market value. When asked at trial how she had come
to the $50,000 valuation, Judy testified that Well, I just used
the the idea that this was an income producing asset and so only
projected it out for five years and came up with $50,000. She
based this value on the fact the business had earned a profit of
about $10,000 the previous year, although in all prior years it
had lost money.
Application of the capitalization of net profits method
of valuation to this evidence does not produce a value of
$50,000. Estimates of profits should be based on an average
year. As one court has noted:
The validity of an opinion based upon
capitalization of income would depend upon
the selection of an income figure which was
relatively stable, average and representative
of which there was reasonable probability of
permanence or persistence in the future. An
opinion based exclusively upon a highly
variable factor . . . would be without
probative value.[26]
Because Judys calculation was based on an atypical, rather than
average, year, an opinion based on the capitalization of net
profits method of valuation is unsupported by reliable evidence.
Judys opinion does not pass muster under the reasonable
market value method of valuation, either. Operation of the
company would have required purchase of other assets, so any
calculation of the companys reasonable market value would have to
consider necessary investments and the potential rate of return
on those investments. No evidence in the record would permit a
conclusion that multiplying a single years profits without
examining the rate of return on potential capital investments can
lead to a reliable estimate of the businesss fair market value.
The record does not indicate what method the superior
court applied in finding that Vikings value was $50,000. It
noted that the value depended on an estimate of how well the
tourism industry would do and how much effort Robert would put
into the business. The superior court concluded: How much profit
[Robert] can turn over time depends upon a lot of what he chooses
to do with it. The superior court may have based its valuation
on an assumption the business was capable of making an annual
profit of $10,000. But the only evidence potentially supporting
a value of $50,000 was Judys flawed opinion. Consequently, no
reliable evidence in the record supports the courts valuation.
It would have been error either to accept as accurate Judys
speculation about the value of Vikings good will, or to base a
valuation on a speculative assumption that Viking would realize
stable future profits given the evidence of business losses in
all but one year.
We therefore reverse the finding of Vikings value. In
determining Vikings value on remand, the court should explain its
method of valuation.
D. The Superior Court Did Not Err by Considering the
Likelihood of Future Inheritance.
Robert argues that the superior court impermissibly
assumed Robert was going to inherit a large sum of money, and
then relied on this assumption in dividing the property. Judy
argues that because the court is required to consider each partys
financial condition, it was proper to note Roberts expected
inheritance. It is unclear whether the court gave any weight to
a possible inheritance when it divided the property. Because we
are remanding, and because the issue may arise again on remand,
we choose to address it.
Our analysis of this question necessarily begins with
the pertinent statutory language. Alaska Statute 25.24.160(a)(4)
requires that the superior court consider
(A) the length of the marriage and station
in life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties,
including their educational backgrounds,
training, employment skills, work
experiences, length of absence from the job
market, and custodial responsibilities for
children during the marriage;
(D) the financial condition of the parties,
including the availability and cost of health
insurance;
(E) the conduct of the parties, including
whether there has been unreasonable depletion
of marital assets;
(F) the desirability of awarding the family
home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities of
each party;
(H) the time and manner of acquisition of
the property in question; and
(I) the income-producing capacity of the
property and the value of the property at the
time of division.[27]
The requirement that the trial court consider the
circumstances and necessities28 of each party is fairly broad and
open-ended. Being named as beneficiary in a parents will could
be considered a circumstance of a party. Moreover, the financial
condition of the parties29 might encompass each partys long-term
financial condition.
The language of the statute the fact that the factors
are all phrased in the present tense suggests that the court is
to look only to present financial condition and present
circumstances and necessities. But being named a beneficiary in
a will could be treated either as a present circumstance or as a
future interest which may or may not ever vest.
Because the statutory language does not explain how
future inheritance should be regarded in the context of property
division, we examine the issue according to generally accepted
common law principles.
Our previous cases do not provide an answer. Our only
previous case to discuss this general topic concerned a superior
courts denial of a request to change an alimony order. We there
explained:
Homer maintains that changes in circumstances
since the judgment was entered make
prospective application inequitable. He
asserts that Teresa is expecting a
substantial inheritance from her mother and
argues that the court should have taken this
into account before dismissing his motion.
Teresas inheritance, however, is not a fact.
Its occurrence is speculative and therefore
does not represent a changed circumstance.[30]
Our statement about the speculative nature of
inheritance in Burrell is not determinative here because alimony
is unlike property division in an important way. Since alimony
is ongoing, either party can ask the court for a change if there
is a significant change of circumstances; in that context the
court can wait until a future interest vests. But property
divisions once final cannot normally be reopened.31
Whether it is proper to consider prospective
inheritance in a property division dispute is a difficult
question that has split American jurisdictions. A majority of
American jurisdictions regards expected inheritance as too
uncertain to be used as a factor in property division.32 But a
substantial minority of jurisdictions permits or requires courts
to consider inheritance as a factor in determining each partys
financial condition upon separation.33
One leading treatise asserts that it is better to
permit trial courts to consider the possibility of future
inheritance when the inheritance is fairly certain:
Where the beneficiary remains on generally
good terms with the donor, and particularly
where the donor is a parent or other close
family member, it is a rare case where the
expected gift or inheritance will completely
fail to yield any benefits at all. The
better position, therefore is that the court
may consider an expected gift or inheritance
as one relevant factor in dividing the
marital estate.
Of course, the weight of a future gift
or inheritance as a division factor should
depend heavily upon the degree of likelihood
that benefits will actually be received.[34]
Turners preference contains some limitations on when
prospective inheritance should be considered. Robert argues that
permitting inquiry into potential inheritances would be a
slippery slope that would swamp the courts with inquiry into the
wills and trusts of not only parents (as in this case), but
aunts, uncles and the like. An absolute prohibition on
considering prospective inheritance is unwarranted, but we think
any such consideration (1) must be limited to immediate family
members, (2) must be limited to inheritances that are not just
possible but virtually certain, and (3) must treat the prospect
as simply one factor and not give it inordinate weight. The
likelihood of inheritance should not lead to a greatly
disproportionate division of assets; but if inheritance is
virtually certain, the court may give it some weight in
considering how to divide the property.
We therefore conclude that it is not inherently
improper for a court to consider the possibility of inheritance
in some cases. Because property divisions cannot be reopened,
however, courts must be cautious in using this factor.
On remand, the court should permit further discovery on
this issue and on the extent to which Roberts interests have
vested. Interests that have already vested may be considered as
an asset of the beneficiary when the superior court divides the
property.
E. The Property Division Did Not Unfairly Favor One Party.
Robert argues that the superior court erred in awarding
a disproportionate amount of income-producing assets to Judy.
Robert notes that if neither he nor Judy works he will have
income of $28,000 while Judy will have income of $40,000. Robert
had testified that he wanted and intended to continue working,
and the superior court assumed an income from the cruise business
of at least $10,000 a year. Because the superior court may need
to recalculate the division based on the non-marital status of
the ground lease as well as the revaluation of the cruise
business, Roberts objection to the current division (which may be
substantially modified on remand) is moot.
Robert also argues that granting Judy one of the
parties two Mexican Rancho Migrino lots was erroneous. First, he
argues it was erroneous because [t]he only explanation for the
courts decision to split the lots is that the court incorrectly
presumed Robert had a better financial picture than Judy, because
he stood to inherit his mothers estate. Judy argues that the
absence of a valuation made the division necessary, otherwise the
court could not be sure there was a fair overall division.
Although the superior court did not explicitly state its reason
for dividing the parcels, the courts comments suggest that it
thought the fairest division was an equal division given the
uncertain value of the parcels. We do not think that method was
erroneous under the circumstances. On remand, the superior court
may need to require a more accurate valuation if it is necessary
for proper division.
Robert also argues that Judy had agreed before trial to
let Robert have both Rancho Migrino properties; in exchange she
would receive the Club Cascadas timeshare. (The stipulated value
of the timeshare was $50,000, and the original agreed-upon value
of the two Rancho Migrino lots was $59,400.) Judy then changed
her mind, asking for both Rancho Migrino lots and the timeshare.
Robert argues that the superior court should have followed the
parties agreement rather than awarding one of the Rancho Migrino
properties to Judy.
Judys pretrial property distribution spreadsheet
indicates that the parties had agreed that both Rancho Migrino
lots would go to Robert. At trial, however, Judy testified that
a real estate agent in Cabo San Lucas had told her the value of
Rancho Migrino lots had increased dramatically; Judy therefore
asked the court to award both Rancho Migrino lots to her.
We assume Judys pretrial spreadsheet reflected the
agreement Robert describes. But we have held that courts need
not accept property settlements as controlling when the facts
indicate an agreement was not made with full understanding.35
Robert agrees that the lots were never properly valuated.
Because the properties had not been professionally appraised the
parties were uncertain of the value. The original agreement was
certainly not made with full understanding and the superior court
did not abuse its discretion by failing to hold Judy to the
pretrial understanding. The superior court therefore was within
its discretion in granting Judy one of the Rancho Migrino lots.
Robert further argues that it was error to distribute
the property without a proper valuation because Judys decision to
back out of her deal was based on her unsupported allegation of
increased value. He argues that he could not contradict her
assertion of increased value because he chose not to appraise the
property in reliance on Judys promise to let him have both Rancho
Migrino lots. But Robert did not raise these arguments at trial.
In a divorce proceeding the trial court has wide
discretion in deciding how to structure the property division,36
but a court must be especially careful if it appears that one
party has unfairly manipulated the process. Robert did not
object to Judys testimony that she had been told the property
value had increased, even though her testimony was arguably
hearsay. Neither on cross-examination nor at closing argument
did Roberts attorney suggest that Judys assertion of increased
value was inaccurate. And in closing arguments Roberts attorney
did not suggest that Judy had unfairly tricked him into forgoing
a proper valuation. Robert instead argued at closing that Judy
had agreed to let him have both Rancho Migrino properties, and
that because the land was undeveloped it was better suited to
Robert than Judy. Given Roberts failure to contest the issue of
increased value, and his failure to argue that he had been
induced to forgo valuation in reliance on Judys promise, the
superior court had no reason to believe that deviating from the
parties original agreement was inequitable. Under the
circumstances including the fact that there had been no proper
valuation of the property the superior court acted within its
discretion in awarding one of the Rancho Migrino properties to
Judy.
Finally, Robert argues that the superior court erred by
not taking into account the cost of his health insurance, a cost
he estimates to be $6,000 per year or more. Judy counters that
there was no evidence of cost and suggests that Roberts estimate
is exaggerated. Alaska Statute 25.24.160(a)(4)(D) requires the
court to consider the availability and cost of health insurance
when dividing property. The divorce decree awarded Robert $1.00
of Defendant Judy N. Krizes PERS benefits, so that Plaintiff
Robert L. Krize qualifies to purchase health insurance through
the PERS program. The court therefore did consider the
availability and cost of health insurance when dividing the
property. It made an award that will help ensure that Robert
will be able to obtain affordable insurance. Robert has not
demonstrated that his health care needs cannot be met by the
award of marital property, or that failure to give greater
consideration to the health care insurance issue was erroneous or
clearly unjust. But because the cost of Roberts health insurance
remains uncertain and because we are remanding for further
proceedings, on remand Robert may offer evidence of his insurance
cost. The superior court should take that evidence into
consideration in its final division of property.
IV. CONCLUSION
For these reasons the judgment is VACATED and the case
is REMANDED for further proceedings in accord with this opinion.
_______________________________
1 Malone v. Malone, 587 P.2d 1167, 1167 (Alaska 1978)
(noting the court has broad discretion [to divide property] which
will be interfered with on appeal only in cases of clear
injustice).
2 Sampson v. Sampson, 14 P.3d 272, 275 (Alaska 2000).
3 Hansen v. Hansen, 119 P.3d 1005, 1009 (Alaska 2005)
(quoting Lewis v. Lewis, 785 P.2d 550, 558 (Alaska 1990)).
4 Id. (citing Moffitt v. Moffit, 749 P.2d 343, 346
(Alaska 1988)).
5 Id.
6 Id. at 1013.
7 Usufructory is derived from the noun, usufruct, which
is [t]he right of using and enjoying and receiving the profits of
property that belongs to another. Blacks Law Dictionary 1544
(6th ed. 1990).
8 Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004).
9 Harrower v. Harrower, 71 P.3d 854, 858 (Alaska 2003)
(holding that shares of stock in husbands name had not been
transmuted) (citing Green v. Green, 29 P.3d 854, 858 (Alaska
2001)).
10 See Sampson, 14 P.3d at 276 (noting that although first
factor only applies to real property, other factors may apply to
both real and personal property).
11 Harrower v. Harrower, 71 P.3d 854, 858 (Alaska 2003).
12 Id.
13 Abood v. Abood, 119 P.3d 980, 986 (Alaska 2005).
14 We assume the individual lease payments became marital
property when they were deposited into the joint bank account.
See Abood, 119 P.3d at 987 (noting that separate property may
become marital if it is inextricably commingled with marital
property). But the question here is not whether money already
deposited in the joint account was marital, but whether the right
to receive future lease payments was marital.
15 Sampson v. Sampson, 14 P.3d 272 (Alaska 2000).
16 Id. at 274.
17 Id.
18 Id. at 276.
19 Equitable estoppel results from an assertion of a
position, expressly or by implication, which is reasonably relied
on by the opposing party to his detriment. Bibo v. Jeffreys
Rest., 770 P.2d 290, 293 (Alaska 1989).
20 Keturi v. Keturi, 84 P.3d at 408, 412 (Alaska 2004)
(quoting Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska
1997)); see also Silvan v. Alcina, 105 P.3d 117, 123 (Alaska
2005) (The superior court has broad discretion to make an
equitable division of property; this court will overturn a
division only if it is clearly unjust.).
21 Rice v. Rice, 757 P.2d 60, 62 (Alaska 1988).
22 Moffitt v. Moffitt, 749 P.2d 343, 347 (Alaska 1988).
23 Good will value is the amount by which the market value
of a going concern exceeds the total value of its tangible
assets. Principles of the Law of Family Dissolution: Analysis
and Recommendations 4.07 cmt. d (2002). The business has no
tangible assets. The tour boat (M/V Valhalla) is titled as
personal, not corporate, property and the parties agree that its
value is $185,000.
24 Moffitt, 749 P.2d at 347-48.
25 An owner may express an opinion about the value of an
asset (see Schymanski v. Conventz, 674 P.2d 281, 286 (Alaska
1983)), but the owner must still use a proper method of valuation
before a court can rely upon the owners opinion in a property
division case. See Moffitt, 749 P.2d at 347. Judys argument
that Robert failed to object to her opinion of value misses the
point. The issue is not whether her opinion was admissible into
evidence (in which case failure to object would matter), but
whether the evidence was legally sufficient for purposes of
valuation.
26 Shelby County R-IV Sch. Dist. v. Herman, 392 S.W.2d
609, 614 (Mo. 1965).
27 The legislative intent provides little guidance as to
interpretation of this section. The intent section of the Act
states that the factors codified are intended to restate the
principal factors found in case law, not to change them, affect
the interpretation given to them, or preclude changes or
additions to them by other court rulings. Ch. 130, 1, SLA 1990.
28 AS 25.24.160(a)(4)(G).
29 AS 25.24.160(a)(4)(D).
30 Burrell v. Burrell, 696 P.2d 157, 166 (Alaska 1984).
31 See Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991)
(noting that once property division is incorporated into a final
judgment relief may be granted only within the parameters of
Civil Rule 60(b)).
32 See, e.g., Colo. Rev. Stat. Ann. 14-10-113(7)(b)
(2005) ( [A]n asset of a spouse shall not include any interest a
party may have as an heir at law of a living person . . . nor
shall any such interests be considered as an economic
circumstance or other factor.); Rubin v. Rubin, 527 A.2d 1184,
1191 (Conn. 1987) (To base a division of property, which is not
ordinarily subject to modification, upon the possibility of a
future inheritance might often prove to be unfair in the light of
subsequent events.); McCloskey v. McCloskey, 359 So. 2d 494, 496
(Fla. App. 1978) (noting [s]aid inheritance is supposed to come
to her by will when an elderly aunt dies, but the wife may die
first, wills can be re-written, or the aunt may make an inter
vivos disposition of the stock); In re Marriage of Ellinwood, 651
P.2d 190, 193 (Or. App. 1982) (noting that expected inheritance
is so uncertain as to justify its exclusion in the division of
marital property).
33 See, e.g., Iowa Code 598.21(1)(i) (2005) (noting that
in equitable division trial court should consider economic
circumstances of each party including pension benefits, vested or
unvested, and future interests); Atkinson v. Atkinson, 32 S.W.3d
41, 46 (Ark. App. 2000) (noting the fact that appellant is an
only child and potential heir to a one-million-dollar estate
coupled with the fact that he was the beneficiary of the
aforementioned trust certainly suggests that he has opportunities
for further acquisition of capital assets and income that are
unavailable to appellee); In re Marriage of Benz, 518 N.E.2d
1316, 1324 (Ill. App. 1988) (noting that there is generally no
error where a court considers a future or anticipated inheritance
when distributing property because statute requires court to
assess opportunity of each spouse for future acquisition of
assets and income).
34 2 Brett R. Turner, Equitable Distribution of Property
6.91 (3d ed. 2005). But Turners analysis appears to be based on
a typical statute which is quite different from Alaskas. He
states that most statutes speak of likelihood not certainty. Id.
AS 25.24.160 does not mention the likelihood of acquiring future
assets but appears to be more present-oriented than many
statutes. See, e.g., Iowa Code 598.21(1)(i) (2005) (directing
courts to consider even unvested future interests as part of the
economic circumstances of each party). Turners analysis is less
convincing in Alaska than it might be in other jurisdictions.
35 Ford v. Ford, 68 P.3d 1258, 1263 (Alaska 2003) (quoting
Notkin v. Notkin, 921 P.2d 1109, 1112 (Alaska 1996)).
36 Silvan v. Alcina, 105 P.3d 117, 124 (Alaska 2005).
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