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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brotherton v. Brotherton (09/01/2006) sp-6039
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
| DOUGLAS WAYNE | ) |
| BROTHERTON, | ) Supreme Court No. S- 11852 |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 3AN-94-01210 CI | |
| v. | ) |
| ) O P I N I O N | |
| TAHNI WARNER BROTHERTON, | ) |
| ) No. 6039 - September 1, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Herbert M. Pearce, Law Office
of Herbert M. Pearce, Anchorage, for
Appellant. Tahni Warner Brotherton, pro se,
Anchorage, Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Parties to a divorce proceeding appear before this
court for the third time to resolve a debt arising out of the
marital property division first made in 1995. The superior court
ordered Douglas Brotherton to pay to Tahni Brotherton a sum equal
to one-half interest in the Wasilla property coupled with an
interest rate of 10.5%. Douglas appeals on the grounds that
Tahni did not obtain a writ of execution within five years and
did not have just and sufficient reasons to justify her failure
to do so. Douglas also appeals the 10.5% post-judgment interest
rate and the date from which it is to be calculated. Tahni
additionally seeks to appeal the superior courts denial of her
request that Douglas be required to pay a debt still owed to
Tahnis mother. We affirm the superior courts rulings on all
issues.
II. FACTS AND PROCEEDINGS
Douglas Brotherton and Tahni Brotherton were married in
1981, separated in 1991,1 and divorced pursuant to a decree
entered in April 1995. Tahni asked for alimony but the superior
court determined that the most appropriate way to deal with a
request for alimony is to consider all of the property of the
parties, including the $33,800 equity in Douglas[s] pre-marital
property in Wasilla. The Wasilla property is a five-acre parcel
of land with a mobile home trailer that generates a rental
income. It was bought by Douglas approximately sixteen months
before Douglas and Tahni were married.
In the original divorce decree issued in April 1995,
Tahni was awarded [o]ne-half of the equity of the Wasilla
property having a fair market value of $16, 900. Douglas
appealed the divorce decree on a number of issues, including the
invasion of his premarital property,2 to this court. We issued a
decision (Brotherton I) in which we held that the superior court
must clarify whether the Wasilla property was marital or separate
property.3 The status of the Wasilla property was unclear
because while the superior court called it premarital property,
evidence also showed that the mortgage had been paid using
marital funds.4
In its order on remand of April 14, 1998, the superior
court concluded that the Wasilla property was marital property
because during the time the couple was together, marital funds in
the approximate amount of $22,318 were used to pay the mortgage
payments, the parties jointly managed the property, and Douglas
treated the property as a joint holding. Tahni was again awarded
$16,900, representing her half of the equity in the Wasilla
property.
Douglas filed a motion for reconsideration on April 23,
1998, which was denied in full on May 15, 1998. Douglas then
appealed again to this court on June 12, 1998; during this appeal
the parties stipulated to have the trial court review the matter
one more time to correct errors contained in the first order on
remand. The trial court entered a new order on remand on
February 10, 1999, in which an arithmetic error was corrected
such that Tahni was awarded $15,600 as her portion of the equity
in the Wasilla property.
Douglas again appealed this result to this court and we
issued a memorandum opinion and judgment (Brotherton II) on March
1, 2000.5 We affirmed the superior court because Douglas did not
provide any evidence to demonstrate that the superior court had
erred in its determination that the Wasilla property was marital
property. We denied Douglass petition for rehearing on March 22,
2000. The order upon conclusion of appeal was issued by the
superior court on April 4, 2000.
Tahni did not file a motion for entry of judgment
concerning the Wasilla property until October 21, 2004. Her
motion asked for the amount of $15,600 plus accrued interest at
10.5% effective from April 18, 1995. In the same motion, Tahni
asked for the amount of $10,600 plus accrued interest at 10.5%
that Douglas owed to her mother, Wanda M. Warner, pursuant to the
trial courts findings of fact and conclusions of law dated April
18, 1995. Douglas opposed Tahnis motion for entry of judgment on
the basis that: (1) Tahni was seeking to execute on a judgment
more than five years old; and (2) Tahni was seeking to collect on
a promissory note on her mothers behalf.
No hearing was held in this matter. The superior court
issued its order on February 1, 2005. The superior court granted
Tahnis motion for entry of judgment on her own behalf, reasoning
that [Tahnis] failure to obtain a writ of execution within five
years after the judgment entered in the divorce case in 1995 is
understandable given the high level of animosity in the case and
the fact that the case was appealed and was not affirmed until
2000. The superior court also found that there are just and
sufficient reasons for Ms. Brotherton to have failed to obtain a
writ of execution earlier. The superior court additionally
determined that Ms. Brotherton is entitled to interest at the
rate of 10.5%. Tahnis motion to collect a debt on behalf of her
mother was denied.
Douglas now appeals the trial courts grant of the
motion for entry of judgment, award of 10.5% interest, and
determination of the date from which the interest should be
calculated. In her brief, Tahni appears to contest the denial of
her motion on behalf of her mother. But because she did not
timely file an appeal or cross-appeal, that matter is not
properly before the court.6
III. STANDARD OF REVIEW
This court exercises its independent judgment when
interpreting and applying statutes of limitation.7 Alaska
statutes do not impose a definitive time limitation on the
commencement of executions of judgment.8 But if a judgment
creditor seeks execution upon a valid judgment after five years,
just and sufficient reasons must be demonstrated for the delay.9
The superior courts decision to allow execution on a
judgment more than five years old is a mixed question of law and
fact. Questions of law are reviewed de novo.10 Questions of fact
are reviewed under the clearly erroneous standard.11 But if the
facts are undisputed, then this court may employ an independent
standard of review and apply a legal doctrine to those facts
without deferring to the trial court.12
IV. DISCUSSION
A. Tahnis Motion for Entry of Judgment Was Properly
Granted.
The main question in this case is whether Tahni had
presented to the superior court just and sufficient reasons for
her failure to obtain a writ of execution within five years after
the entry of judgment.13 The question is governed by
AS 09.35.020, which provides:
When a period of five years has elapsed after
the entry of judgment and without an
execution being issued on the judgment, no
execution may issue except by order of the
court in which judgment is entered. The
court shall grant the motion if the court
determines that there are just and sufficient
reasons for the failure to obtain the writ of
execution within five years after the entry
of judgment.
In Dean, we construed this statute to require a showing of good
cause for delay in execution.14 Alaska Statute 09.35.020 is
implemented by Civil Rule 69(d).15
In its order granting Tahnis motion, the superior court
found two reasons for Tahnis delay that it considered just and
sufficient: (1) the high level of animosity in this case; and (2)
the fact that the case was appealed and was not affirmed until
2000. Douglas disputes that either reason constitutes a just and
sufficient reason for Tahnis delay. We disagree and hold that
the first reason is a factual determination well within the
superior courts discretion and that the second is a just and
sufficient reason as a matter of law.
Douglas first disputes the superior courts
determination that Tahnis delay was justified by the high level
of animosity in the case by noting that [h]igh levels of
animosity are present in many of the [divorce] cases that end up
going to trial. But there is sufficient evidence in the record
to support the superior courts finding that Tahnis delay was due
to the acrimonious relationship between the parties. Both
parties have had ongoing conversations about and attempted to
come to agreement about the debt in the past. It remains in
dispute whether Tahni in fact forgave the debt. There has been
at least one settlement negotiation meeting in Douglass attorneys
office concerning the divorce decree and the parties have
attended therapeutic counseling. In addition, as Tahni points
out, she deferred enforcement action since 2000, as [she] feared
for the consequences it would have on [their] already fractured
relationships, especially the effects it might have on [their]
children. The parties have engaged in an ongoing and bitter
custody dispute with hearings before the superior court as
recently as January 2005. The record contains materials
pertaining to the custody case indicating that the parties have
found little common ground. Thus, the superior court did not err
in determining that Tahnis delay was excused given the high level
of animosity in the case.
Douglas also disputes the superior courts second
finding, that Tahnis delay was excused because the case was
appealed and was not affirmed until 2000. Implicitly, the
superior court found that waiting until all appeals are exhausted
is in itself a just and sufficient reason for delay for the
purposes of AS 09.35.020. We agree with the superior court.
In this case, it is undisputed that Douglas vigorously
appealed the award of one-half of the equity in the Wasilla
property until all avenues of appeal were exhausted.16 It is a
general rule that a judgment creditor executes on a judgment at
his or her peril while appeals are pending because any monies
received in excess of the final amount of the award must be
returned.17 In this case, as Tahni points out, she was uncertain
of the status of the award as well as the amount of the award
until all avenues of appeal were exhausted. Indeed, the dollar
amount of the award had already been reduced once. Tahni
therefore had reason to wait until the appeals were exhausted and
she was certain of the amounts due her before executing on the
judgment. And Tahnis delay did not prejudice Douglas, since it
is difficult for the person who is appealing to claim unfair
surprise when the opposing party executes upon the judgment
within five years of the appeal.18 In short, waiting for
exhaustion of the appeals process before executing on the
judgment constitutes a just and sufficient reason to excuse delay
and strikes a proper balance of rights and duties of both parties
implicit in the language of AS 09.35.020.19
We therefore hold that the superior courts decision to
allow execution was well within its discretion and that
waiting until the appeals process is exhausted before
moving for execution of judgment provides a just and
sufficient reason to excuse delay. B. The Award of
Interest Was Proper.
The superior court also stated that Tahni was entitled
to interest at the rate of 10.5%. Douglas disputes this rate of
interest, arguing that when we reversed and remanded the original
1995 award to Tahni and the superior court entered a new judgment
on remand in 1999, the 1999 date became the effective date for
the purposes of calculating interest. And while the statutory
interest rate for money judgments before 1997 was fixed at the
rate of 10.5%, after 1997, interest is to be calculated in accord
with AS 09.30.070.20 If Douglass argument were correct, he would
only owe 7.5% interest if it were calculated from 1999.21
As an initial matter, we note that Douglas has likely
waived this argument. Civil Rule 69(d)(3) states that [t]he
judgment debtor waives all defenses and objections which the
judgment debtor does not present by answer as herein provided.
In this case, Douglas, although represented by a lawyer, did not
dispute the interest amount in his response to Tahnis motion for
entry of judgment.
But even assuming that Douglas had not waived his
objection to the award of interest, his argument has no merit.
He bases his argument merely on the request that Tahni not be
allowed to benefit financially from her lack of diligence and on
other concerns of injustice. But Alaska has a clear rule on the
effect of modification or reversal of a judgment on interest
calculations. Alaska Rule of Appellate Procedure 509 provides:
If a judgment for money in a civil case is
affirmed, interest at the rate prescribed by
law shall be payable from the effective date
of the judgment of the trial court. If in a
civil case a judgment is modified or reversed
with directions that a judgment for money be
issued by the trial court, interest on the
new judgment at the rate prescribed by law
shall be payable from the effective date of
the prior judgment which was modified or
reversed.
Thus, if an appeal modifies or reverses a judgment and directs
that a judgment for money be issued by the trial court, the
interest is to be calculated from the date of the original
judgment entered by the trial court.
In this case, this court reversed the superior court
and remanded for a clarification of the findings with regard to
the Wasilla property, and any necessary adjustments to the
distribution resulting from these issues and the courts treatment
of the reduction of the marital debt.22 That language amounts to
a reversal with directions that a judgment for money be issued by
the trial court and, following the direction of Rule 509,
interest at 10.5% is thus to be calculated from the date of the
original judgment of April 18, 1995.
V. CONCLUSION
We AFFIRM the rulings of the superior court on all
issues.
_______________________________
1 Brotherton v. Brotherton, 941 P.2d 1241, 1243 (Alaska
1997) (Brotherton I).
2 Id.
3 Id. at 1246-47.
4 Id.
5 Brotherton v. Brotherton, Mem. Op. & J. No. 957
(Alaska, March 1, 2000) 2000 WL 34545647.
6 See Alaska R. App. P. 204; Alaska Brick Co. v. McCoy,
400 P.2d 454, 457 (Alaska 1965) (Orderly procedure will not
permit an appellee to attack a judgment for the first time in his
brief in the appellants appeal.).
7 Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999).
8 AS 09.35.020.
9 Id.; Alaska R. Civ. P. 69(d); State, Dept of Revenue,
Child Support Enforcement Div. ex rel. Inman v. Dean, 902 P.2d
1321, 1324-25 (Alaska 1995).
10 Moody-Herrera v. State, Dept of Natural Res., 967 P.2d
79, 82 (Alaska 1998).
11 Id.
12 Guttchen v. Gabriel, 49 P.3d 223, 226-27 (Alaska 2002)
(holding that just and sufficient reasons existed as a matter of
law where both parties had the opportunity to present their
positions to the superior court in memoranda and affidavits,
neither party requested an evidentiary hearing before the
superior court, and the critical facts surrounding the issue were
undisputed); Foss Alaska Line, Inc. v. Northland Servs., Inc.,
724 P.2d 523, 526 (Alaska 1986) (noting that we may apply a legal
doctrine to undisputed facts without deferring to the superior
court).
13 Tahni additionally claims that the five-year period for
execution of judgments under AS 09.35.020 should be measured from
the date the superior court issued its order upon the conclusion
of the appeal on April 4, 2000. But in Alaska, absent a stay or
supersedeas bond, an appeal does not in itself prevent execution
on a domestic judgment. Alaska R. App. P. 204(d) & 603; Liberty
Natl Ins. Co. v. Eberhart, 398 P.2d 997 (Alaska 1965).
14 902 P.2d at 1324. In Dean, we stated that
administrative efforts to collect past-due support payments and
evidence of previous attempts to execute might show good cause.
Id. at 1325. In Magdan v. Alaska USA Fed. Credit Union, we added
that delay was excused if execution on a judgment would be futile
because no assets were available to be executed upon. 36 P.3d
659, 662 (Alaska 2001). In Guttchen, we determined that delay
was justified when the party opposing the execution of judgment
was in control of the preconditions to the filing of the motion
to execute. 49 P.3d at 227.
15 Civil Rule 69(d) provides in relevant part:
Execution After Five Years. Whenever a
period of five years shall elapse without an
execution being issued on a judgment, no
execution shall issue except on order of the
court in the following manner:
(1) The judgment creditor shall file a
motion supported by affidavit with the court
where the judgment is entered for leave to
issue an execution. The motion and affidavit
shall state the names of the parties to the
judgment, the date of its entry, the reasons
for failure to obtain a writ for a period of
five years and the amount claimed to be due
thereon or the particular property of which
possession was adjudged to the judgment
creditor remaining undelivered.
(2) Upon filing such motion and
affidavit the judgment creditor shall cause a
summons to be served on the judgment debtor
in accordance with the provisions of Rule 4.
In the event the judgment debtor is deceased,
the summons may be served upon the judgment
debtors representative. The summons shall
state the amount claimed or the property
sought to be recovered under the judgment.
(3) The judgment debtor, or, in the
event of the judgment debtors death, the
judgment debtors representative, may file and
serve a verified answer to such motion within
the time allowed to answer a complaint,
alleging any defense to such motion which may
exist. The judgment creditor may file and
serve a verified reply to such answer. The
judgment debtor waives all defenses and
objections which the judgment debtor does not
present by answer as herein provided.
16 Douglas appealed the entirety of the property division
to this court (Brotherton I, 941 P.2d at 1241); filed a motion to
reconsider the superior courts order on remand, which was denied;
filed another appeal to this court resulting in an order on
remand for entry of a corrected order on remand; further appealed
that order to this court, resulting in our memorandum opinion and
judgment of March 1, 2000 (Brotherton, Mem. Op. & J. No. 957
(Alaska, March 1, 2000) 2000 WL 34545647); and finally filed for
and was denied a petition for rehearing of that memorandum
opinion and judgment.
17 5 Am. Jur. 2d Appellate Review 433.
18 Douglas argues that this reasoning implies that parties
to a divorce with contested custody actions would not be required
to execute on a judgment as long as there was pending litigation
between the parties. But we note that Tahnis delay was not due
to just any lawsuit between the parties, but to repeated appeals
of the very monetary award at issue.
19 Statutes of limitations attempt to strike a balance
between ensuring that claimants have enough time to file a claim
and protecting persons from due process concerns that arise when
subjected to stale charges. Long v. Holland Am. Line Westours,
Inc., 26 P.3d 430, 434 (Alaska 2001). In this context, it is
noteworthy that AS 09.35.020 does not impose a definitive statute
of limitations on the execution of judgments but leaves the
balancing of rights and duties between the parties to the
discretion of the trial court.
20 See ch. 26, 18, 19, SLA 1997; Marine Solution Servs.
v. Horton, 70 P.3d 393, 415 (Alaska 2003). AS 09.30.070
provides, in relevant part:
[T]he rate of interest on judgments and
decrees for the payment of money, including
prejudgment interest, is three percentage
points above the 12th Federal Reserve
District discount rate in effect on January 2
of the year in which the judgment or decree
is entered[.]
21 See Alaska Court System, How to Determine Pre- and Post-
Judgment Interest Rates, http://www.state.ak.us/courts/int.htm.
22 Brotherton, 941 P.2d at 1248.
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