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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Watega v. Watega (09/08/2006) sp-6041
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
| LESLEY J. WATEGA, | ) |
| ) Supreme Court No. S- 11652 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3PA-02-86 CI |
| ) | |
| CRAIG T. WATEGA, DAVID | ) O P I N I O N |
| DRUMM, and KRISTY DRUMM, | ) |
| ) | |
| Appellees. | ) No. 6041 - September 8, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: David A. Golter, Golter &
Logsdon, P.C., Palmer, for Appellant.
Michael Jungreis, Bethany A. Pribila, Hartig
Rhodes Hoge & Lekisch, PC, Anchorage, for
Appellees Kristy and David Drumm.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
At issue in this case is whether the superior court
erred when it authorized the sale of a divorcing couples home on
motion of one party and over the objection of the other. We
conclude that while courts do have the authority to permit the
sale of property despite the objection of a party when a divorce
is pending, that authority should be exercised sparingly and only
for pressing reasons. Here, because no pressing reason existed,
the superior court abused its discretion when it permitted the
sale.
II. FACTS AND PROCEEDINGS
Lesley and Craig Watega married in 1994. Four years
later, the couple built the house that is the subject of this
dispute. The title to and the deed of trust on the house were in
both Lesley and Craigs names.
Craig filed for divorce in January 2002. The superior
court, in an interim order, gave Craig possession of the house
for the duration of the divorce proceedings. The court also
required Craig to pay the existing deed of trust note arrearages
and to make all future payments on it. Despite the courts order,
Craig did not make any payments, and the Wategas fell even
further behind in their deed of trust note payment obligations.
Because none of the 2002 deed of trust payments had
been made, the holder of the deed of trust began threatening
foreclosure. At the end of May 2002, worried about foreclosure
and with his divorce still pending, Craig petitioned the court to
compel the sale of the property. Craig explained that he had
found purchasers, David and Kristy Drumm, who were willing to pay
$147,100 for the house, which Craig described as a break-even
price. Craig knew David Drumm from their employment together in
the Alaska National Guard.
Lesley opposed the compelled sale. In response, Craig
explained to the court that the sale price would actually be
closer to $153,000 because the Drumms would pay the approximately
$6,000 of payments in arrears. In addition, the Drumms would pay
all of the closing costs. Craig also informed the court that the
Drumms wanted until December 2003 to secure financing. Until
they obtained financing, the Drumms would lease the property at
the amount of the monthly payment plus dues.
Craig submitted to the court a copy of an agreement the
Drumms had signed. The Drumms had experience in buying and
selling real estate, and it was they who provided Craig with the
form agreement, which was entitled Earnest Money Receipt and
Agreement to Purchase (EMA). David Drumm drafted and Kristy
Drumm handwrote additional terms and conditions, which read as
follows:
(1) Buyer will pay arrears of current
mortgage[;] (2) Buyer will lease property for
at least 18 months in order to obtain
financing[;] (3) Lease will be at current
mortgage rate per month plus annual dues[;]
(4) if financing is unattainable buyer will
be reimbursed for arrears payment made,
including any additional payments made to
principal[;] (5) if financing is unattainable
buyer will be reimbursed for any improvements
made that increase the property value[,] i.e.
fences, paving or additional building[;] (6)
Buyer will pay all closing cost as stated
above in costs.
Without conducting a hearing, the court granted Craigs
motion for a proposed sale. The Drumms moved into the home very
soon after the court issued its order. Before the Drumms moved
in, but possibly after the Drumms had paid the arrearages, Craig
warned David that Lesley would likely continue fighting the sale
in court.
Lesley filed a motion for reconsideration, arguing in
part that the court should at least have conducted a hearing
prior to allowing the property to be sold. The court conducted a
hearing in response to Lesleys motion for reconsideration. At
the hearing, the court explained that it believed a foreclosure
would be bad for Lesleys financial future, given that she had
declared bankruptcy in the past. The court refused to change its
decision to permit the sale, in part because the sale alleviated
the burden of imminent foreclosure, and in part because the
Drumms had relied on the courts decision when they moved into the
home.
Lesley alleges that sometime after the hearing, Craig
changed his mind about selling the property to the Drumms and
destroyed the EMA, which he had never signed. Craig also
allegedly quitclaimed his interest in the property to Lesley.
Craig argues that his execution of the quitclaim deed was the
result of duress.
After Lesley asked the court to award her the property
based on the quitclaim, the court allowed the Drumms to intervene
in the Wategas divorce proceeding. In their first act as
intervenors, the Drumms filed a motion for summary judgment,
asking that the court declare them the equitable owners of the
property and order specific performance of the EMA. The court
granted the Drumms motion for summary judgment. Instead of
declaring the Drumms the equitable owners of the property,
however, the court deemed them to be bona fide purchasers for
value.
After the Drumms received a preliminary credit approval
for a loan on January 5, 2004 (which was five days after the EMA
stated that the sale needed to be recorded), they asked Lesley to
provide a deed to the house so that they could close. When
Lesleys attorney responded by demanding that the Drumms vacate
the property because they had defaulted on the agreement, the
Drumms filed a motion for final judgment asking the court to
direct Lesley to execute a deed conveying the property to them.
Lesley responded with a motion for possession of real property.
After a hearing, the superior court issued a final judgment
pursuant to Civil Rule 54(b). In the judgment, the court
declared the Drumms to have a valid and enforceable possessory
interest in the property and outlined the process they needed to
follow in order to close on the house.
Lesley appeals.
III. DISCUSSION
A. The Superior Court Abused Its Discretion when It
Permitted Craig To Sell the Home.
1. Courts do have the authority to permit the sale of
property while a divorce is pending.
Lesley argues that the superior court had no authority
to order the sale of the couples property before the divorce
trial took place. The Drumms respond by saying that AS
25.24.140(b)(6) permitted the court to allow Craig to sell
marital property over Lesleys objections.
Alaska Statute 25.24.140 governs orders issued by
superior courts during divorce and annulment actions. The
statute mentions the sale of marital property during the pendency
of a divorce, stating in relevant part:
(b) During the pendency of the [divorce]
action, upon application, a spouse is
entitled to necessary protective orders,
including orders . . .
(6) prohibiting a spouse
from disposing of the
property of either spouse
or marital property
without the permission of
the other spouse or a
court order.[1]
We apply our independent judgment to questions of
statutory interpretation.2
As Lesley points out, AS 25.24.140(b)(6) is couched in
terms of protective orders that preserve assets for later
division. However, the statute does envision two exceptions to
the prohibition on sale. If one spouse has obtained a protective
order to preserve property, the other spouse may still sell the
property in two circumstances: if the first spouse grants
permission or if the court issues a subsequent order permitting
the sale. Because the language about court-ordered sales appears
in the exception, AS 25.24.140(b)(6) may not amount to explicit
statutory authorization for courts to issue orders for the sale
of property. Nevertheless, the language of the statute clearly
presumes court authority to permit sales.
We have not previously addressed the issue of whether
superior courts have the power to authorize sales of property
pending a divorce, but we have responded to an argument that a
superior court failed to properly account for the proceeds of
such a sale. In Ogden v. Ogden the superior court permitted the
wife to sell marital assets in order to pay living expenses and
marital debts.3 Later, when the superior court divided the
couples property, it did not credit the wife with the proceeds
from the sale.4 While we did not directly address the superior
courts authority to permit the sale, we expressed no hesitations
about the validity of the underlying sale when we upheld the
superior courts treatment of the proceeds.5
Lesley cites a California appellate case, Lee v.
Superior Court,6 to support her argument that the superior court
in this case did not have the authority to permit the sale.
California, like Alaska, possesses a statute that permits
superior courts to issue orders to prohibit the sale of property
during the pendency of a divorce.7 In Lee, the appellate court
concluded that the statute
is intended to apply only to prevent a
transfer to maintain the status quo and
does not authorize the trial court, ex parte
or otherwise, to change the status quo by
authorizing the sale of property involved in
a dissolution proceeding and the transfer of
the proceeds to one of the parties without
adequate safeguards for the other.[8]
However, as Lesley acknowledges, the California statute
being interpreted in Lee, unlike AS 25.24.140, only allows courts
to issue restraining orders; it did not contain a court-ordered
sale exception.9 As a result, the California appellate courts
interpretation of the statute in Lee is inapposite to whether
Alaska courts have the authority to permit sales.
Randazzo v. Randazzo,10 a case in which the Supreme
Court of New Jersey recently addressed the issue of whether
courts have the equitable power to order the disposition of
property prior to the divorce of the parties, is much more
helpful. The spouse opposed the sale of property in Randazzo
and, like Lesley here, argued that the court only had the
authority to distribute marital assets at the time of the
divorce, not before.11 The supreme court concluded otherwise,
holding that the courts have the equitable power to order sales
pending divorce.12
The Randazzo court reached this conclusion after
analyzing New Jerseys statutes and court rules. Unlike in
Alaska, where orders during the pendency of a divorce action are
governed by one statute, AS 25.24.140, and the equitable division
of property in a divorce judgment is governed by another, AS
25.24.160, in New Jersey, both aspects of the divorce process are
controlled by just one statute. The relevant New Jersey statute
states that
[p]ending any matrimonial action . . . the
court may make such order as to the alimony
or maintenance of the parties, and also as to
the care, custody, education and maintenance
of the children, . . . as the circumstances
of the parties and the nature of the case
shall render fit, reasonable, and just . .
. .[13]
The statute then goes on to authorize courts where a
judgment of divorce . . . is entered [to] make such award or
awards to the parties . . . to effectuate an equitable
distribution of the [marital] property, both real and personal .
. . .14 The statute nowhere specifically mentions court-ordered
sales of property. However, a New Jersey court rule does provide
that courts can direct the parties to sell, mortgage, or
otherwise encumber or pledge marital assets to the extent the
court deems necessary to permit both parties to fund the
litigation.15
The Randazzo court first determined that the portion of
N.J. Stat. Ann. 2A:34-23 allowing courts to make orders
necessary for maintenance limits the portion of the statute
instructing that equitable distribution occur at the time of the
divorce judgment.16 The court then concluded that it was
consistent with the statute and the rule for trial courts to
exercise [their] discretion to order the sale of marital assets.17
Since AS 25.24.140(b)(6) explicitly contemplates court
authority to order sales of property while divorce proceedings
are ongoing, we believe that the existence of such authority is
even clearer here than it is in New Jersey.
Because there is no specific language about court
orders in the New Jersey statute, the Randazzo court locates New
Jersey courts authority to issue such orders in their authority
to provide for the parties maintenance. The New Jersey court
resultantly analyzed the issue of whether the trial court had
abused its discretion by asking whether the sale of the property
in the Randazzo case was necessary for the financial maintenance
of the parties.18 Lesley argues that this court should take a
similar approach. According to Lesley, if AS 25.24.140 provides
superior courts with any authority to permit sales, it only does
so if such a sale is necessary to enforce a support order. In
other words, Lesley argues that we should interpret AS
25.24.140(b), which addresses court orders, through the lens of
AS 25.24.140(a), which permits courts to award spouses expenses,
including reasonable spousal maintenance. Alaska Statute
25.24.140 provides no indication that the legislature intended
for the separate sections of the statute to be read together in
the way suggested by Lesley. Since AS 25.24.140(b) independently
mentions court authority to order sales, we do not need to follow
the New Jersey approach and extrapolate such authority from AS
25.24.140(a). That is not to say that superior courts have
unlimited authority to permit the sale of property during a
divorce, however. We address limitations on such sales in the
next section.
2. Courts may only exercise their authority to order
sales in exceptional circumstances not present in
this case.
In addition to questioning the superior courts
authority to order the sale, Lesley argues that the superior
court abused its discretion when it granted Craig permission to
sell the property.
We review a superior courts issuance of an order
permitting the sale of property using the same abuse of
discretion standard that we employ when reviewing other superior
court orders.19 We find an abuse of discretion when we are left
with a definite and firm conviction, after reviewing the whole
record, that the trial court erred in its ruling.20
The New Jersey Supreme Court, in Randazzo, did limit
the circumstances in which courts may permit sales of marital
property pending divorce. As previously described, the court
located the authority to permit sales in a statute permitting
maintenance prior to a divorce.21 The court imported language
from that statute into its guidance for trial courts, explaining
that courts may exercise [their] discretion to order the sale of
marital assets and the utilization of the proceeds, but only in a
manner as the case shall render fit, reasonable, and just. 22
Having made that comment, the court explained it would leave to
the discretion of the trial court the varying circumstances that
may justify the sale of the marital assets and the utilization of
the proceeds prior to the divorce judgment.23 When assessing
whether the trial court had abused its discretion given the
specific facts of the Randazzo case, the supreme court concluded
that it had not, since the sale of one piece of marital property
was necessary to generate money needed to meet financial
obligations on the couples other properties.24
While AS 26.24.140(b)(6) does not provide any
limitation on a courts ability to permit a sale of marital
property, we agree with the Randazzo court that courts do not
have unlimited discretion to permit the sale of marital property
prior to the division of the property in a divorce judgment.
Instead, courts should permit sales sparingly and only for
pressing reasons, such as for the prevention of waste of marital
assets that justified the sale in the Randazzo case.
The superior court, when it decided to permit Craig to
sell the house, suggested that a similar pressing reason existed
in this case. When Craig filed his motion for a compelled sale
in late May 2002, he indicated his understanding that the
mortgage company was going to begin foreclosure proceedings at
the end of the month. When the superior court later held a
hearing on Lesleys motion to reconsider the sale, it indicated
that the imminent foreclosure had partly motivated its decision
to grant Craigs motion. According to the court,
When I made the order that said that [Craig]
could go ahead and sell [the house], it
really seemed like the best thing overall
considering all the options. Including that
often by the time we get to the divorce
trial, everyones wishing that we had sold it
during the interim because its gotten so much
worse and especially if there is an actual
foreclosure, and youve already had a
bankruptcy in 95. Thats much worse for your
future really than losing a couple thousand
here or there.
Yet unlike in Randazzo, sale of the property in this
case did not preserve the assets of the marital estate. For one
thing, since the sale of the house was for the amount of the
loan, it failed to result in any gain to the estate. Moreover,
at the time that the court granted Craigs motion, the foreclosure
proceedings apparently had yet to begin. While the mortgage
company had notified the Wategas that they were in default, it
seems not to have recorded a notice of default.25 Once the
mortgage company recorded the notice of default, it would have to
have waited at least three months before selling the property.26
At any point prior to the sale, the Wategas would have been able
to stop the foreclosure process by bringing their payments
current.27 Furthermore, because the mortgage company appeared to
be threatening a non-judicial foreclosure, no deficiency judgment
could be entered against the Wategas if the mortgage company
received less than the amount of the outstanding debt from its
sale of the property.28 As for the superior courts explanation
that it was attempting to protect Lesleys credit by averting
foreclosure, Lesley, since she objected to the proposed sale, was
clearly willing to take the risk that her credit would be harmed.
Since the sale of the property did nothing to increase
or preserve the assets of the marital estate, and since
protection of Lesleys credit is not a sufficiently strong reason
to justify a court-authorized sale over Lesleys objection, we
conclude that the superior court abused its discretion when it
granted Craigs motion.29
B. The Sale of the Property to the Drumms Should Be
Rescinded.
1. The Drumms do not qualify as bona fide purchasers
for value.
When the superior court granted the Drumms motion for
summary judgment and ordered specific performance of the EMA, the
court declared the Drumms to be bona fide purchasers for value
(BFPs). Later, when considering Lesleys motion for possession of
real property, the court reiterated its description of the Drumms
as BFPs. The court never explained exactly why it believed the
Drumms to be BFPs.
The Drumms contend that the superior court was correct
in declaring them BFPs of the property. They argue that their
status as BFPs should cut off any rights that Lesley has to the
property, since they relied on the validity of the court order
when they proceeded with their obligations to purchase the
property, beginning with their immediate payment of over $7,000
to cover the mortgage default.
Lesley argues in response that the Drumms cannot be
BFPs because they knew about her interest in the property before
they entered into agreement with Craig.
Whether or not the Drumms qualify as BFPs is a question
of law30 to which we apply a de novo standard of review.31
As the Drumms point out, BFPs frequently obtain
protections as a result of their status. For instance, if a BFP
purchases property at a voidable foreclosure sale, the trustor
cannot later set aside the sale.32 If, by contrast, the sale was
void rather than voidable, BFP status is unavailable to confer
protection.33 Because we conclude, for reasons explained below,
that the Drumms do not qualify as BFPs, we do not have to
determine whether the transaction in this case is more akin to a
voidable or a void foreclosure sale.
In order to be a BFP, one claiming the status must have
acquired title without notice, actual or constructive, of
anothers rights and also must have paid value for the same.34
Here, the Drumms cannot qualify as BFPs because they possibly had
actual notice and certainly had constructive notice of Lesleys
right to the property at the time that they paid money towards
fulfilling their EMA commitment.
Whether the Drumms had sufficient actual knowledge of
Lesleys rights to the property is somewhat unclear from the
record. Both Craig Watega and David Drumm acknowledge that Craig
warned David that Lesley would continue to assert her rights in
the property. However, while this warning gave the Drumms notice
of Lesleys rights, they may not have received that notice until
after they had already paid the mortgage arrearage. David Drumm
states that Craig told him about Lesleys threats of litigation,
but not until later on the day that he paid the mortgage
arrearage. Craig explains that he warned David prior to the
Drumms moving into the house, but says nothing about when the
warning occurred in relation to the Drumms payment to the
mortgage company.
However, even if the Drumms received actual notice of
Lesleys rights only after they had paid some money towards
satisfying the EMA, they certainly had constructive notice
beforehand of Lesleys claim to the property. The Drumms knew
before they entered into the agreement that Craig needed to sell
the house because he was getting divorced. They also knew that
Craig needed to get permission from the court prior to selling
the property. As a result, the Drumms are charged with the
knowledge of the documents contained in the public file of the
Wategas divorce case.35 The file, which contained Lesleys
opposition to the sale of the property, provided the Drumms with
at least constructive knowledge that Lesley opposed the sale and
might exercise her right to challenge it on appeal.
To summarize, the superior court was incorrect when it
declared the Drumms to be BFPs. As a result, the Drumms cannot
assert BFP status in an attempt to cut off Lesleys rights to the
property.
2. What a rescission remedy entails in this case.
Lesley argues that if this court concludes that the
superior court did not have the authority to permit the sale in
this case, she is entitled to immediate return of her property.
We agree that the transaction between Craig and the Drumms must
be rescinded. Rescission is an equitable remedy that abrogates,
annuls, or unmakes a contract entered into through mistake,
fraud, or duress.36 Here, Craig and the Drumms mistakenly
believed that the sale was valid based on the decision of the
superior court. Our decision holds that the courts decision was
an abuse of discretion. Therefore the sale was not valid and
rescission is required.
Before the superior court, upon remand, rescinds the
transaction, it will need to determine whether the property
should be returned just to Lesley or to both Wategas. Following
Craigs transaction with the Drumms, he signed a quitclaim deed
purporting to transfer his interest in the property to Lesley.
Based on this transaction, it would seem that Craig no longer has
any interest in the property and that it should resultantly be
returned to Lesley. However, Craig later argued that he signed
the quitclaim deed as the result of duress. The issue of the
validity of the quitclaim may need to be resolved before the
superior court can know to whom to return the property. Whoever
receives the property will be responsible for reimbursing the
Drumms as outlined below.
When the superior court rescinds the transaction, it
should keep in mind that rescission involves restoring the
parties to their pre-contract position[s], at least as far as [it
is] possible to do so.37 As the Iowa Supreme Court has explained,
rescission calls for a return of the land to the seller, with the
buyer given judgment for payments made under the contract plus
the value of improvements, less reasonable rental value for the
period during which the buyer was in possession.38 In this case,
restoring the parties to their pre-contract positions will entail
returning the property to either Lesley or both Wategas. In
exchange, the recipient of the property will need to return the
payments made by the Drumms, as adjusted for the Drumms use of
the property, plus the reasonable value of any improvements.
To adjust for the Drumms use of the property, the EMA
is a reasonable starting point. It contains a formula for
reimbursing the Drumms in the event that the sale could not be
finalized. The relevant terms of the EMA provide that:
(3) Lease will be at current mortgage rate
per month plus annual dues[;] (4) if
financing is unattainable buyer will be
reimbursed for arrears payment made,
including any additional payments made to
principal[;] (5) if financing is unattainable
buyer will be reimbursed for any improvements
made that increase the property value[,] i.e.
fences, paving or additional building . . . .
Under the EMA, since the lease payments equaled the mortgage
payments plus the annual dues, the recipient of the property
would need to return to the Drumms the arrears payment plus the
reasonable cost of improvements they made that increased the
value of the property.
Lesley, of course, was not a party to the EMA and she
is not therefore bound by its terms, including the rescission
formula that it contains. But the EMA at least sets out terms
that Craig Watega and the Drumms found to be acceptable.
Further, the rescission terms appear to be facially reasonable.
On remand Lesley is entitled to argue that a different formula
should be employed, but absent a persuasive showing to the
contrary, the court may choose to follow the EMA.
IV. CONCLUSION
For the above reasons we REVERSE the grant of Craigs
motion for compelled sale of the couples marital home. We REMAND
the case so that the superior court can enter an order rescinding
the sale of the property, conditioned on the reimbursement of the
Drumms. The superior court must give the recipient of the
property reasonable time, to be not less than ninety days after
the issuance of the order setting the reimbursement amount,
within which to reimburse the Drumms.
_______________________________
1 The portions of AS 25.24.140 related to party expenses
and superior court orders read as follows:
(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. (b) During the pendency
of the action, upon application, a spouse is
entitled to necessary protective orders,
including orders (1) providing for the
freedom of each spouse from the control of
the other spouse; (2) for protection under
AS 18.66.100 -- 18.66.180; (3) directing
one spouse to vacate the marital residence or
the home of the other spouse; (4) restraining
a spouse from communicating directly or
indirectly with the other spouse; (5)
restraining a spouse from entering a
propelled vehicle in the possession of or
occupied by the other spouse; and (6)
prohibiting a spouse from disposing of the
property of either spouse or marital property
without the permission of the other spouse or
a court order.
2 State v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).
3 39 P.3d 513, 521 (Alaska 2001).
4 Id.
5 Id. at 521-22.
6 63 Cal. App. 3d 705 (1976).
7 Cal. Civ. Code 4359, quoted in Lee, 63 Cal. App. 3d at
709-10.
8 Lee, 63 Cal. App. 3d at 710.
9 Cal. Civ. Code 4359, quoted in Lee, 63 Cal. App. 3d at
709-10.
10 875 A.2d 916 (N.J. 2005).
11 Id. at 921.
12 Id. at 917.
13 N.J. Stat. Ann. 2A:34-23, quoted in Randazzo, 875 A.2d
at 921 (alteration in case).
14 N.J. Stat. Ann. 2A:34-23(h), quoted in Randazzo, 875
A.2d at 921 (alteration in case).
15 N.J. Chancery Div. Family Part Rule 5:3-5(c), quoted
in Randazzo, 875 A.2d at 923.
16 Randazzo, 875 A.2d at 924.
17 Id.
18 Id.
19 See, e.g., Fuller v. City of Homer, 113 P.3d 659, 662
(Alaska 2005) (reviewing discovery orders for abuse of
discretion); Caldwell v. State, 105 P.3d 570, 573 (Alaska 2005)
(determining whether the superior court abused its discretion
when issuing a child support order); Beal v. Beal, 88 P.3d 104,
111 (Alaska 2004) (applying an abuse of discretion analysis to
orders that merely enforce a property division or divorce
decree).
20 Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
21 Randazzo, 875 A.2d at 924.
22 Id., (quoting N.J. Stat. Ann. 2A:34-23(h)).
23 Id.
24 Id.
25 AS 34.20.070(b) (requiring a trustee of a deed of trust
to record a notice of default prior to selling trust property).
26 Id.
27 Id.
28 AS 34.20.100.
29 Lesley also argues that the superior court abused its
discretion because it failed to impose any conditions to protect
her interests when it permitted the sale. Since we conclude that
the lack of a sufficient justification for the sale in this case
precluded the court from ordering the sale, we do not address the
way in which sales pending divorce would need to be structured in
the future in order to be permissible.
Our conclusion that the superior court abused its
discretion when ordering this sale also means that we do not need
to reach Lesleys alternative arguments on appeal, namely: (1)
that the superior court violated her right to procedural due
process; (2) that disputed issues of material fact existed,
precluding the superior court from granting the Drumms motion for
summary judgment; (3) that the Drumms breached the EMA, thereby
excusing Lesley from performing; and (4) that the superior court
misinterpreted the EMA.
30 K&L Distribs., Inc. v. Kelly Elec., Inc., 908 P.2d
429, 431, 433 (Alaska 1995).
31 Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska
2004).
32 Rosenberg v. Smidt, 727 P.2d 778, 784 (Alaska 1986).
33 Id. at 783.
34 James v. McCombs, 936 P.2d 520, 525 n.9 (Alaska 1997)
(quoting State v. 18,018 Square Feet, More or Less, 621 P.2d 887,
890 n.5 (Alaska 1980)).
35 Cf. Stratman v. Leisnoi, Inc., 969 P.2d 1139, 1142-43
(Alaska 1998) (explaining that the lis pendens statute . . .
simply provides a convenient method for giving constructive
notice to subsequent purchasers and encumbrancers that their
interests may be affected by a pending action. ) (quoting Leisnoi
v. Stratman, 835 P.2d 1202, 1210 n.17 (Alaska 1992)); Kordecki v.
Rizzo, 317 N.W.2d 479, 483-84 (Wis. 1982) (Refusing a purchaser
of property purchaser in good faith status because the property
record contained a lis pendens. According to the court, the lis
pendens in the record should have led the purchaser to the
document contained within the court file of the proceedings
described by the lis pendens.).
36 McKeown v. Kinney Shoe Corp., 820 P.2d 1068, 1071
(Alaska 1991).
37 1 Dan B. Dobbs, Law of Remedies 4.8, at 676 (2d
ed.1993).
38 Potter v. Oster, 426 N.W.2d 148, 151 (Iowa 1988).
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