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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Forshee v. Forshee (09/08/2006) sp-6044
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
| JACK FORSHEE, | ) |
| ) Supreme Court No. S- 11751 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-06428 CI |
| ) | |
| SHAN FORSHEE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6044 - September 8, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Joan M. Clover, Law Office of
Joan M. Clover, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This property division appeal arises from the divorce
of Jack and Shan Forshee. Jack argues that the superior court
erred in its identification and valuation of several marital
assets and liabilities, including the marital residence, a lot
used by Jack to store business supplies, an investment property
in Washington State, retirement benefits originally held by Shan,
and a list of several business debts. Jack alleges that he was
unable to present adequate evidence because he lacked legal
representation at trial, and he claims that the superior court
erred in denying his motion for a partial new trial. Because the
superior courts identification and valuation of each item of
property was supported by the evidence in the record, we affirm
its judgment.
II. FACTS AND PROCEEDINGS
A. Marriage and Divorce
Shan and Jack Forshee were married on July 5, 1986, and
they had three children during their marriage.1 From 1993 until
after the divorce trial, Shan was employed by the Municipality of
Anchorage as a real estate appraiser. Her federal taxable gross
salary was approximately $55,000. Jack, who ran his own
construction business2 until he was diagnosed with leukemia in
2000, was unemployed at the time of the divorce. Although Jacks
leukemia was in remission at the time of trial, the court found
that it was unlikely that [he would] be able to restart any of
his business ventures quickly. Shan and Jack separated on March
4, 2004.
B. Jacks Self-Representation at the Divorce Trial
Although the form answer filed by Jack contained a
space to request interim attorneys fees, and noted that the court
could give these [fees] to [the litigant] before the end of the
case,3 Jack did not move for interim attorneys fees. The court
ordered Jack to attend a Family Law Education Class to learn how
to handle [his] own case and what the Judge [would] expect[]
[him] to do, and the Family Law Self-Help Center later certified
that Jack had completed the class. At trial, Jack proceeded pro
se. At the conclusion of Shans testimony, the court gave Jack
the option of cross-examining Shan or taking the stand himself,
and suggested that the latter would be more effective:
All right, Mr. Forshee, let me explain how
this works and Ill . . . give you an option.
Youre entitled to ask questions. My
experience with people who . . . dont want
lawyers, dont really know how to do cross-
examination, is that they often have a lot of
points that they want to make, and try to
make these points in the questioning of Ms.
Forshee, for example. And that, in all
likelihood, the more efficient way for you to
get across what you want me to hear, is to
actually just simply take the stand yourself
and tell me what you want [me] to hear,
rather than trying to get her to admit
whatever point youre trying to make . . . .
Jack chose to testify, and he engaged in a dialogue with the
trial judge regarding each item of property.
C. Marital Property
Several items of marital property, including real
property, personal property, and financial assets, were at issue
during the divorce trial. Before trial, the parties disagreed
primarily about the values of assets rather than who should
receive each asset. But the court departed from the proposed
distribution in order to avoid the need for a large equalization
payment and to give each party a similar mix of assets and
liabilities.
1. Marital residence
Both parties agreed that the Anchorage house that had
been their marital residence should be awarded to Jack, and both
agreed that the mortgage balance at the time of trial was
$55,562. Jack claimed that the value of the house was $131,200,
citing as evidence a municipal tax assessment and two contractors
estimates of the cost of completing an unfinished addition and
other repairs and upgrades.4 Shan claimed that the home was
worth $285,000, citing the estimate of an appraiser who drove by
the home. She also estimated a significantly lower cost for
completing the addition.5
The court determined that both estimates were
questionable, as Jack had provided little explanation about the
alleged need for so much work, and Shans appraiser had not
inspected the interior of the house. But because the tax
assessment was simply . . . too low given the size of the house,
the court used Shans appraisal as a starting point and deducted
$35,000 for the cost of completing the addition, and $25,000 for
needed repairs.6 The house was therefore assigned a gross value
of $225,000, with net equity amounting to $169,432.
Jack retained an attorney immediately after the court
issued its judgment, and filed a motion for a partial new trial.7
In this motion, Jack pointed out that the courts valuation of the
house was different from either partys estimate, and argued that,
as a pro se litigant, he was unable to present adequate evidence
to support his claims.8 He asserted that the court should have
directed the parties to obtain a current appraisal by a mutually
agreed qualified appraiser. Although the court acknowledged that
the evidence presented was less than optimal, it declined to
grant a new trial on this issue, and noted that Jack had never
once stated that his medical condition or emotional state
precluded him from participating in the trial or from presenting
the evidence that he wanted.
2. Commercial lot
Jack and Shan also owned a commercial lot where Jack
stored his construction equipment during his illness. The court
noted that Jack wanted to receive the lot, but determined that
reaching a realistic division that does not require an enormous
cash payment from one to the other party required that the lot be
awarded to Shan. Jack contended that the 48,000 square foot lot
was worth $168,000, using his own estimate of $3.50 per square
foot. Shan claimed that it was worth $262,000, based on a
brokers estimate of between $5 and $6 per square foot. The court
considered these values, as well as neighborhood conditions such
as new construction, and assigned the lot a gross value of
$240,000. It awarded the lot to Shan on the condition that she
allow Jack to store his vehicles and equipment on the lot rent
free until 1 July 2005[,] unless she has a buyer or lessor . . .
before then, in which case Shan was to provide reasonable notice
to Jack.
In November 2004 Shan found a buyer for the lot. In
order to prevent her from selling it before he could move his
business equipment, Jack filed a notice of lis pendens.9 Less
than a week later, Shan filed an expedited motion for clerks deed
to transfer Jacks interest to her, and Jack, now represented by
counsel, filed an opposition. The court granted Shans motion.
Shan then moved for an expedited order lifting the lis pendens;
the court granted her motion on December 1 without input from
[Jack] based on [Jacks] earlier responses to the related motion
concerning the clerks deed. Shan sold the property the same
week, and Jack moved for reconsideration, arguing that he was not
given notice of the order lifting the lis pendens until December
7, and seeking to buy Shans interest in the lot. The superior
court denied Jacks motion.
In addition to the lis pendens matter, Jack argued in
his motion for a partial new trial that the court had erred in
its valuation of the commercial lot, making similar arguments to
those that he made regarding the marital home. The superior
court declined to grant a new trial for the reasons that Jack had
been provided with ample opportunity to present evidence, Jack
had not voiced concern at trial about his ability to present
evidence, and the evidence presented at trial, while less than
optimal, was adequate.
3. Washington State investment property
In 1993 Jack purchased an investment property in
Spokane, Washington by trading a parcel of real estate worth
$64,00010 and an additional $18,000 of marital cash. Jack and his
brother each owned a fifty percent interest in this Washington
State parcel, which contained a restaurant, bar, and cabins and
operated under the name of Forshees Last Resort. In June 2000
Jack conveyed his interest in the Washington property to his
brother by quitclaim deed, receiving no direct compensation in
exchange. In response to questions from the court, Jack
maintained that the total value of the property at the time that
he conveyed his half to his brother was $350,000 and claimed that
he conveyed the interest because his accountant recommended it,
because Shan was threatening to divorce him if he kept it, and
because the investment never got the time and money it required
to make a good go of it. At the time of trial, however, Jack was
still listed by the State of Washington as a corporate officer of
Forshees Last Resort. Shan claimed that the transfer was made
because she and Jack werent getting along at the time and because
it would be easier to refinance under the name of Jacks brother.
The court found that Jacks claims regarding the reasons
he transferred his interest were not credible, and determined
that the real reason for the transfer was to remove the property
from the marital estate, with the expectation that [Jack] would
retain a de facto interest in the property. Discounting the
$175,000 value of Jacks share because [a] third party would be
reluctant to purchase land that is intertwined with a closely
held family business, the court found that the marital interest
in the property had only appreciated to $100,000, and credited
Jack with receipt of that amount.
Jacks motion for a partial new trial claimed both that
the superior court had erred in determining that Jack retained a
continuing interest in the property and that the court had erred
in its valuation of his interest. But the motion, which was
prepared by the attorney hired by Jack after trial, did not deny
that the Washington State property was marital property when Jack
did have an interest in it. As it did for the marital residence
and commercial lot, the court acknowledged that the quality of
evidence was less than optimal, but it d[id] not find that the
quality of the evidence was so poor that a new trial [wa]s
needed.
4. Shans PERS account
At the time of trial, Shan had three retirement
accounts, including a vested PERS account. At trial, the parties
expressed agreement about the value of the PERS account, but did
not distinguish paid-in value11 from present value:
Court: Is there any dispute about the
value of the PERS[,] 401(k)[,] and
deferred compensation?
[Jack]: No, Your Honor, I dont.....
Court: Yeah, so.....
Mr. Lack: Then I would just move to admit
Exhibit 30, the value for the PERS
retirement is $43,000, the 401(k)
is $44,000, and the deferred comp
is $8,700.
The court admitted as an exhibit a benefit statement dated June
30, 2003, in which Shans PERS balance was listed as $43,676.79.
The trial court determined that the value of the PERS account was
$43,000, and awarded the PERS account to Shan.
In his motion for a partial new trial, Jack asserted
that the court had erred by using the paid-in value of the PERS
account instead of the present value, and argued that the present
value was likely to be at least twice [the paid-in value]. The
court denied a new trial on this issue, stating that it
cannot determine if the value used for the
PERS was reduced [to present value] or
whether that figure represented the balance
at the time of the trial. The court suspects
it was the latter. But if the account is
reduced to present value, only Jack is
harmed. The values of the marital estate and
Shans portion are reduced[,] while the value
of his portion remains the same while his
relative percentage is increased. The
[c]ourt sees no reason to have a new trial to
make this correction.
5. Additional debts
In his Property and Debt Worksheet, Jack listed debts
totaling $52,385 as of March 5, 2004. He designated a modified
version of this list as an exhibit, but appears not to have
introduced it into evidence at trial.12 When the court discussed
the allocation of the couples debt, it engaged in the following
exchange with Jack:
Court: The debts, you see how shes
allocated the debts on her property
list?
Jack: Yes, sir.
Court: That you know, you get the ones
that she says you get and she keeps
the ones she says she keeps, is
that acceptable?
Jack: Yes sir, I believe so.
Court: Okay.
Jack: There were a few things on my
list.....
Court: All right, hang on, well get to
your list.
Jack: Okay.
Shortly thereafter, the court asked if there was anything else
you want to tell me about any other topic involving debts,
liabilities, value of things or the distribution of things. It
then inquired, [d]o you want to think about that for a while, to
which Jack responded, Id like to, yes sir. Jack then raised an
issue relating to his sons testimony, and the court took a
recess. The court then asked him, is there anything else you
want to tell me? Jack responded that there was not. At the end
of the trial, the court asked both spouses if either of them had
anything else you want to present, to which both responded in the
negative.
In his motion for a partial new trial, Jack claimed
that he had attempted to present evidence of significant business
obligations totaling $67,000, but that he was unable to present
this evidence [b]ecause of his inability to effectively represent
himself at trial. The court denied the motion with regard to the
debts, stating that Jack ha[d] provided no explanation for his
failure to mention those debts at trial, and pointing out that
Jack was not shy about raising topics and had shown himself
capable of presenting cogent arguments on his behalf. This
appeal followed.
III. DISCUSSION
A. Standard of Review
Property division entails determining what property is
available for distribution, assessing its value, and allocating
it equitably.13 We review the trial courts characterization of
property as marital or separate for abuse of discretion.14
Whether the trial court applied the correct legal standard is a
question of law that this court reviews de novo.15 The trial
courts factual findings regarding the value of property are
reviewed for clear error, which exists if, upon review of the
entire record, we are left with a firm and definite conviction
that a mistake has been made.16 We review the ultimate
distribution of assets for abuse of discretion, and will reverse
it only if the distribution is clearly unjust.17 As Jack
correctly notes, this court reviews a trial courts denial of a
motion for a new trial for an abuse of discretion.18
B. The Courts Failure To Solicit Additional Evidence from
Jack
Underlying all of Jacks arguments is his contention
that he did not receive a fair trial because he was an
unsophisticated pro se litigant who was recovering from a
serious illness. He alleges that he did not know that his case
would have been better served by presenting additional evidence
regarding the value of each item of property and that the court
erred by failing to solicit additional evidence from him.
1. Jacks status as a pro se litigant
Although the pleadings of pro se litigants should be
held to less stringent standards than those of lawyers,19 and
trial judges should take limited steps to mitigate the difficulty
of representing oneself,20 a trial judge may not compromise his or
her impartiality by sav[ing] a litigant from his choice of
lawyer, including when a litigant chooses himself as legal
representative.21
Given that the total marital estate amounted to over
$700,000, and that the form answer specifically informed pro se
litigants that they could move for attorneys fees before the end
of the case, Jack presents no reason why he could not hire an
attorney before trial. Jack concedes that he consulted an
attorney immediately after receiving the courts decision.
Furthermore, as the superior court noted in its rejection of
Jacks motion for a partial new trial, Jack never once stated that
his medical condition or emotional state precluded him from
participating in the trial or from presenting the evidence that
he wanted. Thus, Jack appears to have knowingly and voluntarily
chosen to proceed without counsel, and has not established that
he was unable to represent himself.
2. Additional evidence regarding value
Jack cites this courts statement in Root v. Root that
where a party identifies a significant marital asset but presents
no evidence as to its value, the best practice is for the trial
court to direct the parties . . . to fill the evidentiary void.22
But the same case noted, and subsequent cases reaffirmed, that it
is the duty of the parties, not the court, to ensure that all
necessary evidence is before the court in divorce proceedings.23
Except in the situation where no evidence is presented,24 a party
who fails to present sufficient evidence may not later challenge
the adequacy of the evidence on appeal.25
In the present case, evidence was presented as to the
value of every asset at issue except for the Washington State
investment property, in which Jack claimed he had no continuing
interest,26 and the business debts, which are addressed below.
Both parties presented appraisals of the house, and Jack offered
the opinions of two contractors about likely improvement and
repair costs. Jack offered his own opinion of the value of the
commercial lot, and Shan offered a brokers estimate. In
addition, the courts opinion gives a detailed description of the
propertys geographic location,27 and discusses conditions in the
surrounding neighborhood that could affect the propertys value,
such as commercial and high-density residential construction.28
Documents detailing Shans retirement benefits were entered into
the record with Jacks assent. Although the evidence was less
than optimal, the court was not wholly lacking in evidence about
any of the assets at issue except for Jacks business debts. And
Jack was not denied the opportunity to present additional
evidence. For these reasons, we hold that the superior court did
not err by failing to solicit additional evidence from Jack.
C. Marital Residence
Jack also asserts that the superior court erred by
making a compromise valuation of the marital residence. A
factual finding unsupported by anything in the record, including
a compromise valuation, is clearly erroneous.29
Here, however, the trial court did not simply adopt a
compromise value without weighing the evidence. Although it
noted that the evidence was less than optimal, and that a
valuation would necessarily be[] somewhat arbitrary, the court
does appear to have considered the evidence, given certain pieces
of evidence more weight than others, and explained its reasons
for doing so. For example, the court found problems with both
Jacks tax assessment and Shans appraisal, but chose to use the
appraisal as a starting point because the size of the house
suggested that the tax assessment undervalued it. Rather than
selecting a value midway between the appraisal and the
assessment, and adopting it without explanation, the court
reduced the assessment value to account for the cost of interior
repairs, as the appraiser had not examined the interior of the
home. The court then factored in reduced repair costs, on the
grounds that the estimates submitted by Jack were likely
inflated. Although this was an inexact method of calculating the
value of the house, and could have been avoided if both parties
had submitted complete appraisals and repair estimates,30 the
trial court did not simply ch[o]ose a compromise figure somewhere
between31 $131,200 and $285,000. Because the superior courts
valuation of the marital residence is supported by a detailed
consideration of the evidence, we hold that it is not clearly
erroneous.
D. Commercial Lot
Jack raises a similar argument with regard to the
commercial lot and also states that he believes this was not a
sale to a bona fide purchaser for value.32 As is true for the
marital residence, evidence was presented by the parties, and the
court appears to have weighed this evidence, rather than merely
arriving at a compromise value. The court chose to give more
weight to the brokers appraisal for the plausible reason that the
brokers experience of over 11 years in the field gives his
opinion more credibility than Jacks. As noted above, the court
also considered the lots location and aspects of the neighborhood
that could affect property values. Thus, for the same reasons
that apply to the marital residence, we hold that the superior
courts judgment regarding the value of the commercial lot is not
clearly erroneous.
E. Washington State Investment Property
1. Identification as marital property
Jacks next argument is that the superior court erred in
identifying the Washington State lot as marital property. This
argument is twofold: first, Jack maintains that the court erred
in referring to the parcel of real estate he initially traded for
$64,000 of the $82,000 investment as marital property; and
second, he asserts that the court erred in imputing to him a
continuing interest in the property.
a. Whether Jack challenged the marital nature of
the Washington State property below
Although Jack stated in his dialogue with the court
that part of the $82,000 investment in the Washington State
property was a $64,000 1031 exchange33 from a piece of property I
owned and bought in 1975,34 he did not argue at trial, or in his
motion for a partial new trial, that his interest in the
Washington State property prior to its transfer to his brother
was not marital property. Our requirement that an issue be
preserved by being presented in the superior court applies even
to pro se litigants.35 And as Shan correctly notes, the motion
for partial new trial which was filed after Jack had retained a
lawyer also did not challenge the courts passing reference to
the traded parcel of real estate as marital property or its
determination that the Washington State property was marital.
Because Jack failed to claim below that the Washington State
property was not marital property, we will not consider his claim
for the first time here. Moreover, in view of the considerable
investment of marital assets in the Washington State property
$18,000 of marital funds and a parcel in which seven to eight
years of marital mortgage payments had been invested the trial
courts failure to address the question of transmutation of the
traded lot does not present plain error.36
b. Jacks continuing interest in the property
Ample evidence supports the courts determination that
Jack executed the quitclaim deed to protect his share in the real
estate from the threat of division had they divorced in 2000. As
the court correctly observed, it makes no sense to give away
assets that cost $82,000 and likely had appreciated. Even if
Jack simply sought to get away from what had become a bad
investment, or to appease a spouse who wanted to discontinue the
investment, he could have continued to list the property for sale
and simply lowered his asking price until he found a buyer.37
Jacks decision to give away his interest appears to have been
either a willful waste of marital assets or, as the superior
court found, a sham transaction designed to conceal a continuing
interest.
Either possibility supports imputing to Jack the
portion of his interest that was marital property. A spouse who
engages in economic misconduct which has unreasonably depleted
marital assets can be credited with the assets that he or she
dissipated.38 Jack argues that the superior court made no finding
of fraudulent intent on his part but the intent to engage in
economic misconduct either fraud or massive waste is obvious
from the record.39 For this reason, we hold that the superior
court did not err in imputing to Jack the portion of his interest
in the Washington State investment property that was marital
property.
2. Value of Jacks interest
Jack also argues that the superior court erred in
determining the value of his interest in the Washington State
property. But the court provided a plausible explanation of its
estimate, stating that, while the property had likely
appreciated, its value would be limited by its entanglement with
a family-run business. It valued Jacks interest at $100,000, an
amount significantly lower than either Jacks estimate of
$175,000, or Shans estimate of over $350,000.40 Thus, assuming
that Jack would attempt on remand to prove that the value of his
interest was less than what the court imputed to him,41 he would
be presenting evidence that contradicted his own testimony in the
first trial.42
As noted above, a party who fails to present sufficient
evidence may not later challenge the adequacy of the evidence on
appeal.43 Here, if Jack wished to convey to the court that his
interest was worth less than $100,000, he could have presented an
appraisal, tax assessment, or other evidence to that effect. At
the very least, he could have refrained from testifying that his
interest was worth $175,000. Because the superior courts
determination of the value of Jacks interest is not clearly
erroneous, and because Jack waived the argument that his interest
was worth less than $100,000 by admitting that it was worth
seventy-five percent more, we affirm the judgment of the superior
court with regard to the value of Jacks interest.
F. PERS Account
Jacks next argument is that the superior court erred by
failing to calculate the present value of Shans vested PERS
benefit. This court has held that
[t]he proper division of a vested pension can
be accomplished in either of two ways. The
court can either award a lump sum discounted
to present value to one party or both, or
retain jurisdiction and have payments made to
the parties as retirement benefits come
due.[44]
Although this court has remanded for a present value
determination in at least one case where the appellant did not
present evidence of present value below,45 the parties are
generally responsible for presenting evidence to the trial court.46
Here, the parties stipulated to the value of Shans retirement
benefits, and presented an annual benefit statement as evidence.
As Shan points out, the parties effectively reached a
settlement on the value of the PERS benefit. Settlements
regarding the division of property are generally controlling in
the absence of fraud, duress, concealment of assets or other
facts showing that the agreement was not made voluntarily and
with full understanding.47 Although the court admitted in its
denial of Jacks motion for a partial new trial that it was unable
to determine whether the value used for the PERS was reduced [to
present value] or whether that figure represented the balance at
the time of the trial, there is no evidence that Jack was coerced
or defrauded into stipulating to the value of the PERS benefit.
In these circumstances, it appears that Jack had an agreement
with Shan regarding the value of the PERS benefit, and that he
waived any claim that he would otherwise have by stipulating to
the value. For this reason, we hold that the superior courts
valuation of the PERS benefit was not clearly erroneous.
G. Business Debts
Finally, Jack claims that the court erred by not
revisit[ing] his list of business debts, and thereby leaving
debts of $46,245.92 out of its calculation of the marital estate.
The list, which Jack had previously filed as a Property and Debt
Worksheet, is marked as Exhibit 10, but was apparently never
introduced at trial.48 A retrial to consider new evidence is
generally unwarranted unless the evidence at issue was not . . .
discoverable, with due diligence, before trial.49 As noted above,
it is the duty of the parties, not the court, to ensure that all
necessary evidence is before the court in divorce proceedings.50
Here, the court did not prevent Jack from introducing
the list of debts into evidence or mentioning the debts. Indeed,
the court actively solicited additional evidence and arguments
from Jack, and repeatedly asked if he had any additional issues
to discuss. Jack responded more than once that he did,51 and did
in fact raise new issues, but at no point did he raise the
additional business debts. The last two times that the court
asked Jack if there was anything else, Jack responded in the
negative. Short of actually requiring Jack to introduce the
exhibit, it is unclear what more the court could have done to
obtain it. Because Jack declined repeated opportunities to
introduce the list of business debts, and has not alleged that
the evidence was not discoverable with due diligence at the time
of trial, we affirm the judgment of the superior court on this
issue.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
1 Custody was not disputed below and is not at issue in
this appeal.
2 From 2000 until the dissolution of the business in
2003, Shan had power of attorney over its finances. Jack claims
that the cause of the dissolution of the business was Shans use
of business accounts to pay personal and household expenses
instead of paying debts owed by the business. Shan disputes this
claim, and maintains that the construction business failed
because Jacks illness rendered him unable to work.
3 The form directed users to the website of the Family
Law Self-Help Center, which provides pro se family litigants
forms and information on court procedure, including how to file
motions. See Alaska Court System, Family Law Self-Help Center,
Motion Practice Requesting an Order from the Court,
http://www.state.ak.us/courts/motions.htm.
4 The estimates for completing the addition were $86,000
and $107,000; the estimates for the laundry list of needed
repairs and upgrades were $95,000 and $113,000.
5 The appraisers estimate of the cost of completing the
addition was $15,000. She gave no estimate of the cost of
interior repairs.
6 It noted that these figures were necessarily . . .
somewhat arbitrary, but that Jacks cost estimates were likely
inflated, and it was not clear that all of the repairs sought by
Jack were necessary.
7 Shan also filed a motion for partial reconsideration,
but she does not appeal the courts disposition of that motion.
Jack, however, contests the denial of his motion for a partial
new trial with regard to several items of property.
8 He also claimed that Shan, as a municipal appraiser,
should have obtained a higher-quality appraisal.
9 See Waiste v. State, 10 P.3d 1141, 1146 n.17 (Alaska
2000) (citing Blacks Law Dictionary 1081 (Rev. 4th ed. 1968), in
which notice of lis pendens is defined as notice filed for the
purpose of warning all persons that the title to certain property
is in litigation, and that, if they purchase the defendants claim
to the same, they are in danger of being bound by an adverse
judgment).
10 Although Jack purchased the $64,000 traded parcel
before the marriage, Shan testified that substantial mortgage
payments on the real estate were made from marital assets for
between seven and eight years.
11 We use this term because it is used by the parties to
describe the account balance on Shans annual benefit statement.
12 The document that Jack cites lists both business and
credit card debts, some of which were addressed by the court. As
Shan correctly notes, the $46,245.92 figure appears nowhere on
the face of the document, although it is less than the sum of all
debts listed in the document.
13 Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006).
14 Id.
15 Id.
16 Id.
17 Id.
18 Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990).
19 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
20 See id. (holding that a trial judge should inform a pro
se litigant of the proper procedure for the action he or she is
obviously trying to accomplish); but see Collins v. Arctic
Builders, 957 P.2d 980, 982 (Alaska 1998) (noting that this court
has distinguished Breck by refus[ing] to . . . require judges to
warn pro se litigants on aspects of procedure when the pro se
litigant has failed to file at least a defective pleading )
(quoting Bauman v. State, Div. of Family & Youth Servs., 768 P.2d
1097, 1099 (Alaska 1989)).
21 Bauman, 768 P.2d at 1099.
22 851 P.2d 67, 69 (Alaska 1993).
23 See, e.g., Brotherton v. Brotherton, 941 P.2d 1241,
1245 (Alaska 1997) (quoting Root, 851 P.2d at 69).
24 In Root, the court found that the trial courts error in
valuing one partys nonvested retirement benefits was aggravated
by the fact that [the party] failed to present evidence
indicating the present value of these benefits. 851 P.2d at 69.
But, unlike the assets at issue here, the value of the benefits
in Root was not established at all during the trial. Id. at 68.
25 Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).
26 Although no evidence was presented regarding the
current value of the Washington State property, there was
evidence of the amount of the initial investment and of
circumstances, such as its connection with a family-owned
business, that would likely affect the value of the land. In
addition, Jack testified that, at the time of the transfer to his
brother, he believed that his interest was worth $175,000. Shan
testified that the total value of the property was 700 and some
odd thousand the last time [she] checked.
27 The court describes the property as roughly one-half
mile to the southwest from the Tesoro station on Abbott Road
across from the new GCI office and Chilis restaurant.
28 It is unclear whether the court was discussing evidence
about the state of the neighborhood introduced by the parties, or
simply taking judicial notice, but its discussion shows that
there was not an evidentiary void, Root, 851 P.2d at 69, as to
the value of the commercial lot.
29 Moffitt v. Moffitt, 749 P.2d 343, 347-48 (Alaska 1988)
(holding that the trial courts findings were not supported by the
record in a property division case where one party testified that
an asset was worth $300,000, the other testified that it was
worth $10,000, and the trial court apparently chose a compromise
figure somewhere between the two).
30 Jacks request for this court to remand with
instructions to select a mutually agreeable appraiser is not, as
Shan claims, impossibly vague and absolutely unworkable, but it
is misplaced. Jack chose to rely on a tax assessment and the
contractors estimates, rather than presenting an appraisal. The
superior courts failure to be fully persuaded by this evidence,
and its decision to accord some weight to the evidence presented
by Shan, does not justify a remand. Brotherton, 941 P.2d at
1245.
31 Moffitt, 749 P.2d at 348.
32 It is unclear if this statement is intended as an
appeal of the superior courts decision to lift the lis pendens.
But Jack who is now represented by counsel does not point to
any evidence in support of this claim, and none appears in the
record.
33 See Internal Revenue Service, Like-Kind Exchanges,
http://www.irs.gov/businesses/small/industries/article/0,,id=9849
1,00.html (Generally, if you exchange business or investment
property solely for business or investment property of a like-
kind, no gain or loss is recognized under Internal Revenue Code
Section 1031.).
34 Shan also testified that the property belonged to Jack
before their marriage, but she claimed that mortgage payments had
been made from marital funds.
35 Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998)
(Notwithstanding the leeway given to pro se litigants, the
requirement that an issue be preserved by being presented in the
superior court arises out of notions of judicial finality and
efficiency as well as fairness to the opposing party.).
36 Cf. Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App.
2000) (noting that [t]o qualify as plain error, an error must be
so prejudicial that failure to correct it will perpetuate a
manifest injustice) (citations omitted). And even if the trial
court erred in classifying the $64,000 parcel as entirely marital
property, it does not appear to have erred in its classification
of the Washington State property. Although the Washington State
property was purchased using both marital and separate assets,
there was no evident intent to maintain it, or a particular
percentage of it, as separate property. Cf. Compton v. Compton,
902 P.2d 805, 811 (Alaska 1995) (holding, in spite of a
premarital agreement to the contrary, that one partys commingling
of separate and marital property showed an intent to make a gift
to the marital unit). Furthermore, the approach that, in
marriages of short duration, courts may treat the property
division as an action in the nature of rescission, aimed at
placing the parties in, as closely as possible, the financial
position they would have occupied had no marriage taken place is
inapplicable here. Rose v. Rose, 755 P.2d 1121, 1125 (Alaska
1988). The marriage at issue here lasted for nearly two decades,
and the Forshees owned the Washington State property for over
half of that time.
37 Jack testified that the property as a whole had been
for sale for [$]550,000 off and on for the last three years and
theyve never had a taker yet, but did not explain why he made no
attempt to sell his interest at a lower price. Barring a serious
defect in the property, common sense suggests that Jack would
have found a buyer long before the asking price reached zero.
38 See Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997)
(interpreting AS 25.24.160(a)(2)(E), which permits courts in
property division cases to take into account the conduct of the
parties, including whether there has been unreasonable depletion
of marital assets).
39 Cf. Pattee v. Pattee, 744 P.2d 658, 660 (Alaska 1987),
overruled on other grounds by Nass v. Seaton, 904 P.2d 412
(Alaska 1995) (Our reading of the record leaves us with the
definite and firm conviction that Richard intended to defraud Kim
when [shortly before the divorce] he sold his interest in [a
business held as marital property].).
40 Shan testified that the total value of the property was
[$]700 and some odd thousand.
41 Because of the superior courts stated goal of
divid[ing] the estate equally, Jack would only benefit from the
recalculation of the value of an interest imputed to him if the
recalculation yielded a lower value.
42 Unlike his argument regarding the PERS benefits, Jack
does not claim that he was unfamiliar with any accounting concept
that was necessary to determine the value of the Washington State
property.
43 Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).
44 Hartland v. Hartland, 777 P.2d 636, 641 (Alaska 1989).
Determining the present value of state retirement benefits
entails applying a series of actuarial and investment assumptions
relating to the employees life expectancy and probable retirement
age to the contractual or statutorily awarded benefit. In re
Marriage of Kelm, 912 P.2d 545, 551 (Colo. 1996) (citations and
quotation marks omitted).
45 See Miller v. Miller, 739 P.2d 163, 166 (Alaska 1987)
(A potentially more serious valuation error is that the superior
court did not discount to present value the retirement monies
that Monte will receive when he reaches the age of 55. On
remand, the parties should . . . be required to submit evidence
as to the present value of these funds, and the court should rely
on the present value in fashioning the property division.); but
see MacCampbell v. MacCampbell, Mem. Op. & J. No. 1048 (Alaska,
October 3, 2001), 2001 WL 34818261, at *1 n.5 (affirming the
trial courts acceptance of the face value of [one spouses]
marital contributions to [his] PERS account, and not a present
value determination where neither party challenged th[e]
valuation at trial or on appeal).
46 See Hartland, 777 P.2d at 640 (noting that a party who
fails to present sufficient evidence at trial should not be
allowed on appeal to challenge the inadequacy of evidence).
47 Jordan v. Jordan, 983 P.2d 1258, 1264 (Alaska 1999)
(quoting Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996)).
Had the parties reached a settlement on the question of present
value, the trial court could have accepted this settlement in
lieu of the usual process of (1) determining what assets are
marital; (2) valuing those assets; and (3) equitably dividing the
assets. Id. at 1263-64 (citing Wanberg v. Wanberg, 664 P.2d 568,
570 (Alaska 1983)).
48 The version marked as Exhibit 10 contains additional
markings, not all of them legible.
49 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1261 (Alaska
2001) (discussing the standard for granting a new trial under
Alaska Civil Rules 59 and 60(b)(2)).
50 Brotherton, 941 P.2d at 1245 (quoting Root, 851 P.2d at
69).
51 In one exchange, it is unclear whether Jacks response
indicated that he had new issues to raise or that he wanted to
think about whether he did.
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