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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krushensky v. Farinas (08/08/2008) sp-6296
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
| KEVIN KRUSHENSKY, | ) |
| ) Supreme Court Nos. S- 12395/12416 | |
| Appellant and | ) |
| Cross-Appellee, | ) Superior Court No. 3AN-04-12528 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| CHRISTINE FARINAS, | ) No. 6296 August 8, 2008 |
| ) | |
| Appellee and | ) |
| Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Andrew L. Josephson, Law
Offices of Dan Allan, Anchorage, for
Appellant and Cross-Appellee. Karla F.
Huntington, Eagle River, for Appellee and
Cross-Appellant.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
In accordance with Kevin Krushensky and Christine
Farinass property settlement agreement and a memorializing final
property order, qualified domestic relations orders (QDROs) were
to be entered for Kevins two retirement plans. The QDROs were to
designate Christine the surviving spouse to be awarded all pre-
retirement death benefits . . . for at least a 55% annuity. But
as ultimately entered, the QDROs also awarded Christine qualified
pre-retirement survivor annuities (QPSAs). Kevin appeals the
QPSA awards. Because the QDROs correctly used a separate
interest approach to divide each retirement plan, Christines
interests were separate from Kevins upon entry of the QDROs and
would not be reduced if he died before retiring. Awarding the
QPSAs to Christine therefore gave her more than what the parties
agreed to and more than what the memorializing final property
order required. We consequently vacate the bench order that
approved including QPSAs in the QDROs, and remand. Kevin also
appeals the denial of his request for a visitation credit.
Because Kevin has waived any challenge to the superior courts
ruling that his request was untimely, we affirm.
II. FACTS AND PROCEEDINGS
Kevin Krushensky and Christine Farinas married in
August 1993. They have one child, born in July 1999. In
November 2004 Kevin filed for divorce. Christine is a resident
of Hawaii but she submitted to the jurisdiction of the Alaska
court for all issues governing dissolution of the marriage,
division of the marital property, and child support. In June
2005 the parties reached a settlement of all property and
financial issues, including a division of Kevins British
Petroleum (BP) and ConocoPhillips defined benefit retirement
accounts, and orally placed the settlement on record.
In September 2005 the superior court issued a final
property order that was intended to memorialize the parties
settlement agreement. The final property order provides for
entry of qualified domestic relations orders (QDROs):
3. A QDRO shall issue awarding Ms.
Farinas-Krushensky 55% of Mr. Farinas-
Krushenskys work[-]related defined benefit
pension(s) earned by Mr. Farinas-Krushensky
from date of marriage through November 15,
2004. These are known as the BP Retirement
Accumulation Plan, and the Retirement Income
Plan of Phillips Petroleum. In each QDRO,
Ms. Farinas-Krushensky shall be designated
the surviving spouse to be awarded all pre-
retirement death benefits, and she shall be
designated the surviving spouse for at least
a 55% annuity benefit in the event that Mr.
Farinas-Krushensky dies before her. The cost
of the survivor annuity benefits shall be
shared equally between the parties. To the
extent allowed by the retirement plan, she
shall be allowed to begin receiving her
benefits at the earliest allowable date. Ms.
Farinas-Krushenskys attorney is responsible
for drafting the QDRO orders.
(Emphasis added.) The final property order also states that
[t]he monthly child support shall not be reduced for any reason
other than the medical premium.
Christine filed proposed QDROs for BP and
ConocoPhillips in the superior court. Kevins lawyer forwarded
Christines proposed QDROs to David Watson, a former employee of
the State of Alaskas Division of Retirement and Benefits, who was
deemed an expert in this case. Watson explained that the BP and
ConocoPhillips plans had particular technical requirements that
the proposed QDROs likely did not meet. Kevin filed a Limited
Opposition to Christines proposed QDROs, stating that he does not
oppose them but is skeptical about their prospects for plan
approval. The superior court signed the QDROs for both plans and
Christine promptly sent them to their respective plan
administrators for approval.
In December 2005 BPs plan administrator rejected the
signed BP QDRO as not qualified because the order which failed
to identify whether Christine was awarded a shared interest or a
separate interest in the retirement account was unclear
regarding Christines award.
Under a shared interest approach to dividing a
retirement account, the parties interests are intertwined and the
alternate payee can receive benefits only when the plan
participant chooses to retire and begins receiving benefits.1
Under this approach the alternate payees benefits terminate
completely upon the plan participants pre-retirement death.2 But
under a separate interest approach, the alternate payees interest
is severed from the plan participants interest upon the plan
administrators acceptance of the plan, and the alternate payee
may receive benefits when the plan participant reaches, or would
have reached, the plans earliest retirement age, regardless of
whether the plan participant continues working after reaching
retirement age or dies before reaching that age.3
Marsha Dunham of ConocoPhillips also informed
Christines lawyer that the ConocoPhillips QDRO would be rejected.
Dunham likewise indicated confusion over whether the QDRO was to
be a shared benefit award or a separate benefit award.
ConocoPhillips formally rejected the QDRO in December 2005.
Christine filed amended proposed QDROs in March 2006.
Her amended proposed BP QDRO contained language similar to the
language of the final property order. Her amended proposed
ConocoPhillips QDRO contained a survivorship provision in the
form of a qualified pre-retirement surviving spouse annuity
(QPSA).4 According to Watson a QPSA is typically awarded when a
retirement plan is divided under the shared interest approach;
the QPSA protects the alternate payee in the event of the plan
participants pre-retirement death. A QPSA is an annuity payable
to the alternate payee for her lifetime if the plan participant
dies before reaching retirement age.5
Kevin opposed the amended QDROs proposed by Christine,
arguing that granting Christine both a separate interest and a
QPSA would amount to double-dipping: in the event of Kevins pre-
retirement death, the award would enable Christine to receive, in
addition to her separate interest entitlement, a portion of
Kevins entitlement as the surviving beneficiary.
Kevin then filed proposed QDROs prepared by Watson.
These QDROs contained no QPSAs.6 Kevin also moved for attorneys
fees incurred in reviewing and challenging Christines amended
proposed QDROs.
In June 2006 the superior court held a hearing on the
retirement issue. Watson testified that Kevins proposed QDROs
accurately fulfilled the final property order because QPSAs were
not needed to protect Christines separate interest in the event
Kevin died before retirement. Watson also testified that
Christines amended proposed QDROs did not accurately reflect the
final property order because the final property order did not
state that pre-retirement benefits were to come out of Kevins
remaining separate interest.
The superior court ruled from the bench that Christine
was entitled to pre-retirement benefits in the form of QPSAs, but
limited the QPSA benefits to the period of coverture. The court
indicated that it would sign Kevins proposed QDROs in the interim
and directed Watson to prepare new QDROs conforming to the courts
bench ruling. The court signed Christines amended proposed
QDROs, not Kevins, the same day.
Kevin submitted the court-ordered QDROs on June 20,
noting his objections concerning the survivorship benefits issue.
Both court-ordered QDROs contain a QPSA provision. For example,
the court-ordered ConocoPhillips QDRO states:
(12) Pre-retirement Death of Participant:
In the event the Participant dies prior
to commencing his benefit, the Alternate
Payee will be treated as the Participants
spouse for the purpose of receiving a portion
of the Participants Qualified Pre-retirement
Survivor Annuity (QPSA) attributable to the
Participants remaining benefit. The
Alternate Payee is entitled to a share of the
QPSA proportionate to the Alternate Payees
share of the Participants total vested
accrued benefit as of the last day of the
month of November, 2004, in addition to the
awarded benefit.
(Emphasis in original.)
In October 2006 Kevin asked for a visitation credit on
the theory that the Hawaii court, which had jurisdiction over the
child custody issues, had awarded him twenty-eight days of
visitation each July. Kevin also requested a ruling on his
motion for attorneys fees. In February 2007 the court denied the
visitation credit motion, both because the time for seeking
reconsideration of the final property order or for appealing had
run, and because Kevin had not presented evidence to support a
finding of changed circumstances.
Kevin appeals the bench order awarding QPSAs to
Christine and the denial of his renewed motion for a visitation
credit. Kevin also alleges that the court committed plain error
when it signed Christines amended proposed QDROs after indicating
that it would sign Kevins proposed QDROs. Finally, Kevin argues
that he should be awarded attorneys fees incurred in monitoring
Christines proposed QDROs and drafting the court-ordered QDROs.
Christine cross-appeals the bench order limiting the QPSA awards
to the coverture period.7
III. DISCUSSION
A. Standard of Review
We construe property settlement agreements in divorce
actions in accordance with basic principles of contract law.8 If
contract language is unambiguous, we decide the meaning of the
contract as a matter of law.9 We determine de novo whether
relief requested by a former spouse constitutes enforcement or
modification of a property settlement agreement.10
This case requires us to interpret the final property
order that was intended to memorialize the parties settlement
agreement. The order was not intended to be the courts
independent determination of how the property should be divided.
We therefore apply to the final property order the same review
principles we apply to contract disputes. Likewise, in entering
the bench order that approved inclusion of QPSAs in the QDROs, it
appears the superior court was attempting to give effect to the
parties agreement as memorialized in the final property order.
We therefore give that bench order de novo rather than
deferential review.
The award of attorneys fees in a divorce action is
committed to the sound discretion of the trial court . . . [and]
will not be disturbed on appeal unless it is arbitrary,
capricious, manifestly unreasonable, or stems from an improper
motive.11 We also review a superior courts ruling on child
support for abuse of discretion.12 An abuse of discretion will be
found if, after reviewing the record as a whole, we are left with
a definite and firm conviction that a mistake has been made.13
B. Inclusion of Qualified Pre-Retirement Survivor
Annuities in the Qualified Domestic Relations Orders
1. Signing Christines orders
At the June 2006 hearing the superior court directed
Watson to prepare corrected QDROs conforming to his bench order.
Noting that a delay in the preparation of corrected QDROs might
cause the parties to miss BPs filing deadline, Christines lawyer
asked the court to sign either Christines amended proposed QDROs
or Kevins proposed QDROs as placeholders, with it being very
clear that this court, which retains jurisdiction to change the
orders, would change them almost immediately. The court
indicated that it would sign Kevins proposed QDROs but,
apparently inadvertently, instead signed Christines amended
proposed QDROs on the day of the hearing.
Kevin argues that the superior court committed plain
error when it signed Christines amended proposed QDROs. But as
Kevin himself acknowledges, any error that the superior court may
have committed is harmless because on September 7, 2007 the court
signed the court-ordered QDROs.
Kevin also argues that Christines amended proposed
QDROs added terms and provisions in favor of Christine that were
not granted in the courts final property order. Because the
court-ordered QDROs signed on September 7 supersede the
previously signed QDROs, it is irrelevant whether the previously
signed QDROs conflict with the final property order.
2. Awarding Christine pre-retirement benefits in
addition to a separate interest in Kevins
retirement plans
The final property order requires entry of QDROs
designating Christine the surviving spouse to be awarded all pre-
retirement death benefits . . . for at least a 55% annuity for
Kevins two retirement plans. The parties disagree on how to
functionally interpret the phrase all pre-retirement death
benefits. The superior court interpreted the phrase to refer to
a QPSA, and awarded Christine a QPSA under each QDRO, with
benefits limited to the amount earned during the period of
coverture.
Kevin argues that the final property orders inclusion
of the words pre-retirement death benefits merely indicates that
the parties intended to protect Christines entitlement in the
event of Kevins pre-retirement death. Kevin asserts that because
each retirement plan was a defined benefit plan under which each
party received a separate, disentangled interest, Christines
interest would be protected without including a QPSA in each
QDRO. Kevin argues that the segregation of interests nullifies
the survivorship provision by negating the need for it
altogether.
Kevin also argues that as a matter of public policy the
QPSAs should not be awarded. He points to David Watsons sworn
statement that [a] QDRO that awards the alternate payee a shared
interest in the participants separate interest in addition to her
awarded separate interest defeats the rationale for separate
interest QDROs. (Emphasis in original.) Kevin argues that this
type of award inequitably enriches the former spouse at the
expense of future beneficiaries.
Christine argues in response that parties can identify
and exchange assets in a settlement in a manner that, while
permissible, is not likely to occur in a judge[-]crafted order
after a trial. She asserts that the parties agree on the
technical wording of the final property order: they agree that
the phrase pre-retirement death benefits refers to a QPSA and
that the final property orders statement that she shall be
allowed to begin receiving her benefits at the earliest allowable
date indicates the parties intended a separate interest award to
Christine. Christine also argues that the public policy interest
in encouraging and supporting settlements14 supports the superior
courts interpretation of the final property order because the
QPSAs awarded to Christine resulted from a settlement agreement,
not from an equitable division by a court.
Even though the final property order memorialized the
parties settlement agreement, the court-ordered QDROs fail to
achieve what the parties intended. The parties agree that the
QDROs should be structured so that each party has a separate
interest in the retirement benefits. Watson explained in an
affidavit that
[a] properly drafted separate interest order
allows the parties to disentangle their
affairs and it is fair to both parties. A
separate interest QDRO means the alternate
payee owns her separate interest and can
commence her benefit when the participant
attains the plans earliest retirement age,
even though the participant may remain active
in the plan.
Watson also explained that defined benefit retirement
plans such as the BP and ConocoPhillips retirement plans that
apply a totally severed approach to separate interest QDROs
create the alternate payees separate interest immediately upon
acceptance and qualification of the order. He further explained
that a separate interest QDRO, in which the alternate payees
entitlement is severed from the plan participants entitlement
when the QDRO is entered, enables an alternate payee to begin
receiving her entitlement when the plan participant reaches
retirement age, whether the participant actually retires or
continues working. If the plan participant dies before
retirement, the alternate payee may begin receiving benefits when
the participant would have reached retirement age; the
participants death, whether it occurs before or after the
participant reaches retirement age, therefore does not affect the
alternate payees entitlement.15
But including a QPSA in a separate interest QDRO
affects the entitlements of both the alternate payee and the
participant if the participant dies before reaching retirement
age. On the date the participant would have reached retirement
age, inclusion of a QPSA would allow the alternate payee to
receive, for the rest of her life,16 both her separate entitlement
and a percentage of the participants separate entitlement.
Christine argues that QPSAs should be awarded here
because both parties agree on the technical meaning of pre-
retirement benefits. At the June 2006 hearing Kevin identified a
March 2006 email from ConocoPhillipss Marsha Dunham defining pre-
retirement death benefits as a qualified pre-retirement survivor
annuity (QPSA). But this does not establish that the parties
understood the ramifications of QPSAs or agreed to QPSAs when
they entered into their June 2005 settlement agreement. The
parties may have misapprehended the nature of the plans, and thus
did not understand that the plans were defined benefit plans that
fully protected Christine against the risk Kevin would die before
becoming eligible to retire. But in any event, the text of the
final property order, given the true nature of the plans, fully
protected Christine and no QPSAs were needed. The opportunity
for any misapprehension was significant. QPSAs are infrequently
encountered and Watson refers to awarding a QPSA in a QDRO that
provides each party a separate interest as a common drafting
error. But the agreed-upon goal of protecting Christine against
Kevins pre-retirement death did not justify or require QPSAs,
especially after Watsons affidavit revealed that the parties
misapprehended the nature of the parties interests under the two
plans.
Moreover, the text of the QDROs ultimately entered by
the court is inconsistent with paragraph three of the final
property order because the QDROs gave Christine substantially
more than the parties bargained for. The bargained-for benefit
as described in paragraph three gave Christine fifty-five percent
of Kevins defined benefit retirement plans for the coverture
period. But the court-ordered QDROs containing the QPSAs state
that Christine is entitled to a share of the QPSA proportionate
to the Alternate Payees share of the Participants total vested
accrued benefit or fifty-five percent of the QPSA if Kevin died
before retirement.
ConocoPhillipss Dunham informed the parties that the
QPSA for the ConocoPhillips retirement account is a 50% joint-and-
survivor annuity benefit; in other words, the QPSA under the
ConocoPhillips plan would award the alternate payee fifty percent
of the benefits earned in the retirement account if the plan
participant died before retirement. The QPSA percentage under
the BP account is not clear from the record. We assume for the
sake of discussion that the BP account also uses a fifty-percent
QPSA. In the event Kevin died before retirement and assuming
fifty-percent QPSAs in both accounts, the court-ordered QDROs
potentially gave Christine 67.4 percent of Kevins retirement
plans.17 This inconsistency further demonstrates that the court-
ordered QDROs did not achieve what the parties intended, as
memorialized in paragraph three of the final property order.
This does not mean that the parties could not have
settled on the terms Christine proposes. Watson testified that a
QDRO could award an alternate payee both a separate interest and
a shared interest in the participants remaining benefit; in other
words, he acknowledged that a separate-interest QDRO may
permissibly include a QPSA. But given that such a bargain would
have been unusual, and that such a bargain in this case would
have conflicted with the language in the final property order and
with the parties reasonable expectations, enforcement of such a
bargain would require much clearer language than is contained in
the final property order. We consequently vacate the bench order
approving QPSA awards and remand for entry of corrected QDROs.
Because the QPSA awards will be deleted on remand, we
do not need to address Christines argument that the superior
court erred in limiting the awards to the coverture period.
C. Denial of Kevins Visitation Credit Request
Kevin next argues that he is entitled to a child
support visitation credit because the Hawaii court granted him
visitation for twenty-eight days each July.18 Because Christine
was awarded the Hawaii home in the settlement and the home
carries no mortgage, Kevin argues that Christine bears no
increased expenses associated with their child when the child is
in Alaska with Kevin.
Kevin first argued in his Alaska Civil Rule 78
objections to the final property order that he was entitled to a
visitation credit. His objections asserted that the parties did
not discuss visitation credits during settlement. When they
settled, the parties had not resolved visitation issues in the
Hawaii court. After the Hawaii court granted Kevin visitation
for twenty-eight days each July, Kevin filed what he styled a
Renewed Motion for Visitation Credit Based on Change of
Circumstances.
The superior court denied this motion for two reasons.
The court concluded that the motion was untimely because the
court had already ruled on all issues and claims relevant to the
visitation credit. The court also determined that the parties
had been aware that a custody ruling was forthcoming but did not
reserve the visitation dispute as a reason to further reduce
child support; the visitation order therefore did not change the
parties circumstances. The court further determined that even if
Kevins motion was timely, he failed to present evidence regarding
additional costs he would likely incur during their daughters
visitation that would support a reduction in his support
obligation.
As Christine notes, Kevin does not address the
timeliness issue in his opening brief on appeal; he argues only
that the visitation award is a changed circumstance supporting a
visitation credit award. Kevins reply brief disputes that he
waived his timeliness argument. He points to his Amended Points
on Appeal, which include this point: Appellant contends that the
lower court erred when it denied a renewed motion for visitation
credits. Kevin argues that the high court could conclude that
this proffer is comprehensive enough to speak to any reason that
caused the denial. Although he argues that his appeal of the
motion was timely, Kevin does not address the timeliness of the
underlying motion. He merely asserts that the superior court
erred; he does not assert facts to support a contention that the
underlying motion was timely. We consequently consider this
argument waived.19 Because Kevin has waived his timeliness
argument, we do not need to reach his changed circumstances
argument.20 We therefore affirm the superior courts decision not
to award a visitation credit.
D. Denial of Kevins Attorneys Fees Request
Finally, Kevin asserts that he has had to circle the
wagons and spend thousands of dollars monitoring Christines
efforts to double-dip. He therefore argues that he should be
awarded attorneys fees.
Kevins opening brief on appeal states that his
attorneys fee motion has not been ruled on by the court.
Although the superior court did not explicitly deny Kevins motion
for attorneys fees or state that neither party prevailed, a
statement the court made to Christines lawyer at the end of the
July 2006 hearing implied that the court would not grant Kevins
motion.21
But because the court did not expressly rule on the
motion for attorneys fees, we cannot determine whether the court
exercised its discretion by deciding that no award of fees was
either justified or required. Even though this appellate issue
is mooted by our remand, Kevin may renew his motion on remand in
the superior court.
IV. CONCLUSION
We therefore AFFIRM as to the visitation credit but
VACATE the QPSA awards and REMAND for entry of corrected QDROs.
_______________________________
1 David Clayton Carrad, The Complete QDRO Handbook 70 (2d
ed. 2004).
2 Id.
3 Id. at 111-12; see also Pamela D. Perdue, Bankruptcy
and Qualified Plans, in ALI-ABA Course of Study, Fundamentals of
Employee Benefit Law 799, 823 (2007), available at SM058 ALI-ABA
799 (Westlaw).
4 The ConocoPhillips amended proposed QDRO stated:
If this Order is received by the Plan
Administrator prior to Participants death and
is subsequently determined to be a Qualified
Domestic Relations Order and Participant dies
before the Alternate Payee, Alternate Payee
shall be considered a surviving spouse of the
Participant under Section 401(a)(11) of the
Internal Revenue Code and Section 205 of
ERISA, and Alternate Payees share of the
qualified pre-retirement surviving spouse
annuity (QPSA) shall be 100%.
5 Gale S. Finley, Assigning Retirement Benefits in
Divorce 61 (2d ed. 1999). Section 417(c)(1) of the Internal
Revenue Code defines qualified preretirement survivor annuity as:
a survivor annuity for the life of the
surviving spouse of the participant if
(A) the payments to the surviving spouse
under such annuity are not less than the
amounts which would be payable as a survivor
annuity under the qualified joint and
survivor annuity under the plan (or the
actuarial equivalent thereof) if
(i) in the case of a participant who dies
after the date on which the participant
attained the earliest retirement age, such
participant had retired with an immediate
qualified joint and survivor annuity on the
day before the participants date of death, or
(ii) in the case of a participant who dies on
or before the date on which the participant
would have attained the earliest retirement
age, such participant had
(I) separated from service on the date of
death,
(II) survived to the earliest retirement age,
(III) retired with an immediate qualified
joint and survivor annuity at the earliest
retirement age, and
(IV) died on the day after the day on which
such participant would have attained the
earliest retirement age, and
(B) under the plan, the earliest period for
which the surviving spouse may receive a
payment under such annuity is not later than
the month in which the participant would have
attained the earliest retirement age under
the plan.
I.R.C. 417(c)(1) (2006).
6 Kevins proposed QDROs similarly granted Christine a
separate interest of fifty-five percent but stated:
(b) If the Participant dies or terminates
his employment with the Company after
satisfying the vesting requirements of
the Retirement Plan but before the
Alternate Payee has commenced her
benefit, the Alternate Payee shall be
entitled to the benefit provided above
as though the Participant has not died,
and no other benefit shall be provided
to the Alternate Payee under the Plan.
Once retirement benefit payments have
commenced to the Alternate Payee, the
Alternate Payees separate entitlement
under her separate interest award shall
not be affected by the death of the Plan
Participant. It is understood that the
Plan Administrator applies a totally
severed approach in administering their
separate interest QDROs, and that the
Participants death, either before or
after retirement, will not affect the
Alternate Payees rights to her benefits
as set forth herein. The retirement
benefit assigned to the Alternate Payee
under the Order shall not be reduced,
abated, or terminated upon the death of
the Plan Participant.
(Emphasis in original.)
7 The captions on the parties appellate briefs list their
names as Kevin Farinas-Krushensky and Christine R. Farinas-
Krushensky, but it appears that they have since returned to their
pre-marriage names.
8 Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993)
(holding that husband was not obligated to ex-spouse for payments
derived from investment income because dissolution agreement
excluded income earned outside of primary place of employment).
9 Id.
10 Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999)
(holding that agreement obligating former husband to name former
wife as recipient of pensions survivorship benefit did not
entitle former wife to guaranteed annuity in amount she would
have received had she remained statutorily eligible for
survivorship benefits).
11 Gallant v. Gallant, 945 P.2d 795, 803 (Alaska 1997)
(citation omitted) (holding that superior court did not err by
refusing to award ex-husband attorneys fees absent finding of bad
faith on part of ex-wife).
12 Duffus v. Duffus, 72 P.3d 313, 316 (Alaska 2003).
13 Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997).
14 In support, she cites Notkin v. Notkin, 921 P.2d 1109,
1111 (Alaska 1996), and Murphy v. Murphy, 812 P.3d 960, 965
(Alaska 1991).
15 Carrad, supra note 1, at 70.
16 Finley, supra note 5, at 61.
17 Applying those assumptions, Christine would receive her
fifty-five percent separate entitlement plus fifty-five percent
of the QPSA for each plan. Each QPSA would be fifty percent of
Kevins forty-five percent separate entitlement. The two awards
would therefore grant Christine 67.4 percent of each retirement
account (55% + 55% (50% 45%) = 67.4%).
18 Alaska Civil Rule 90.3(a)(3) provides:
The court may allow the obligor parent to
reduce child support payments by up to 75%
for any period in which the obligor parent
has extended visitation of over 27
consecutive days. The order must specify the
amount of the reduction which is allowable if
the extended visitation is exercised.
Commentary to the rule states that [i]n considering a visitation
credit, the court may consider the financial consequences to the
parties of the visitation arrangement and a credit. Alaska R.
Civ. P. 90.3 cmt. IV.B.
19 Bodkin v. Cook Inlet Region, Inc., 182 P.3d 1072, 1076
(Alaska 2008); Petersen v. Mut. Life Ins. Co., 803 P.2d 406, 410
(Alaska 1990) (Where a point is not given more than a cursory
statement in the argument portion of a brief, the point will not
be considered on appeal.).
20 See United States v. Hatchett, 245 F.3d 625, 644-45
(7th Cir. 2001) ([I]n situations in which there is one or more
alternative holdings on an issue, . . . [the appellants] failure
to address one of the holdings results in a waiver of any claim
of error with respect to the courts decision on that issue.)
(internal quotations omitted); see also San Antonio Press v.
Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App. 1993) (When a
separate and independent ground that supports a judgment is not
challenged on appeal, the appellate court must affirm.).
21 This exchange occurred at the end of the July 2006
hearing:
ms. huntington [Christines lawyer]: I
just have one last question, Your Honor,
thats more housekeeping. Mr. Josephson filed
a motion for costs and fees on the 13th. My
understanding is unless Your Honor makes a
decision of who prevail -- whos the
prevailing party, neither of us are going to
be paying costs and fees, and I dont want to
respond to a motion I dont have to respond
to.
the court: Save your money.
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