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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hartley v. Hartley (04/17/2009) sp-6366
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
| JOHN A. HARTLEY, | ) |
| ) Supreme Court No. S- 13002 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-11964 CI | |
| v. | ) |
| ) O P I N I O N | |
| TINA M. HARTLEY, | ) |
| ) No. 6366 April 17, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: G.R. Eschbacher and Justin
Eschbacher, Anchorage, for Appellant.
Jennifer L. Holland, Law Offices of Jennifer
L. Holland, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. John and Tina Hartleys pre-divorce property settlement
agreement awarded Tina fifty-seven percent of the monthly benefit
accrued in Johns Federal Employee Retirement System (FERS)
defined benefit plan. The agreement did not specify whether
Tinas payments should be based on Johns highest three salary
years during the marriage or upon his future retirement. Nor did
it specify who should bear the cost of Tinas FERS survivor
benefit or how that benefit should be divided.
The superior courts FERS qualified domestic relations
order (QDRO) based Tinas share on an average of Johns highest
three salary years at retirement. John contends that it should
instead be calculated using the average of his highest three
salary years during the marriage. He also argues that the
superior court should have held an evidentiary hearing to resolve
the dispute, that he should not have to pay part of the cost of
Tinas FERS survivor benefit, and that it was error to award Tina
one-hundred percent of that survivor benefit.
We affirm. The agreement did not expressly resolve
these disputes, and the superior court did not abuse its
discretion in resolving them. Nor did it err by failing to hold
an evidentiary hearing.
II. FACTS AND PROCEEDINGS
John and Tina Hartley married in August 1985 and
separated in March 2006. Tina sued for divorce in October 2006.
In June 2007 John and Tina entered into and filed with the court
a property settlement agreement that, among other things, divided
the benefits from Johns FERS defined benefit plan and from his
other three retirement plans.1 The agreements relevant paragraph
concerning the FERS plan reads:
Tina Hartley shall be awarded 57.0% of the
monthly benefit accrued as a result of John
Hartleys participation in the Federal
Employees Retirement System (FERS) between
August 3, 1985 and October 3, 2006, together
with any gains or losses on that 57.0%
interest that have accrued since October 3,
2006. John Hartley shall be awarded all
other interest in the FERS retirement. Tina
Hartleys interest will be addressed through a
separate interest QDRO or, if that is not
permitted by the Plan, a shared interest QDRO
with a survivors benefit.
In June 2007 the superior court held a settlement
hearing at which John and Tina both testified that they
understood the property settlement agreement, that it was fair
and equitable, and that they entered into the agreement
voluntarily. The superior court then orally found that [the
property] agreement represents a fair and equitable division of
the parties[] marital estate.
On the same day, the court issued written findings of
fact and conclusions of law in which it again found that the
parties property agreement was fair and equitable and ruled that
the property division provisions shall be ordered as set forth in
the parties Agreement[]. The court also then issued a divorce
decree.
In November Tina filed proposed QDROs for each of Johns
four retirement accounts. The proposed QDRO for Johns FERS
account stated that it was awarding to Tina fifty-seven percent
of the marital portion of Johns FERS retirement benefits, but did
not specify whether her portion would be based on Johns average
high-three salary years at the time of his future retirement or
at the end of their marriage. The proposed QDRO also stated that
it was awarding Tina a pro rata share of Johns survivor annuity
and that John and Tina would equally share the cost of that
benefit.
When the proposed FERS QDRO was filed in November 2007
John was fifty-one years old, and as of January 16, 2008 he was
still employed by the federal government and had not yet retired.
John filed a partial opposition motion in response to
Tinas proposed FERS QDRO.2 He argued that the proposed FERS QDRO
did not reflect his understanding of the parties agreement and
that the date for determining the high-three salary years needed
to be clarified. He contended that Tinas share should be based
on Johns high-three salary years as of October 3, 2006, when Tina
filed for divorce. He also argued that the property settlement
agreement did not define who would pay the cost of the survivor
benefit and that Tina should bear fifty-seven percent of that
cost. Finally, he requested an evidentiary hearing on his
partial opposition motion. Tina opposed Johns motion.
In January 2008 the superior court adopted Tinas
proposed FERS QDRO and implicitly denied Johns partial
opposition motion. The FERS QDRO, in relevant part, states:
7. Amount of Former Spouses Benefit: This
Order assigns to Former Spouse an amount
equal to fifty-seven percent (57.0%) of the
Marital Portion of the Employees Self-Only
Monthly Annuity determined as of the
Employees date of retirement. For purposes
of calculating Former Spouses share of
Employees benefit, the Marital Portion shall
be determined by multiplying the Employees
Self-Only Monthly Annuity by a fraction, the
numerator of which is the total number of
months of Creditable Service under the FERS
earned by the Employee during the marriage
(from August 3, 1985 to October 3, 2006), and
the denominator of which is the total number
of months of the Employees Creditable Service
accrued under the FERS (including military
service credited to the FERS should the
Employee opt out of receiving his military
retainer pay) based on Mr. Hartleys high-3 at
the time of retirement. See generally
Wainwright v. Wainwright, 888 P.2d 762 at 765
(Alaska 1995).
(Emphasis added.) The FERS order also contained the courts hand-
written notation that oral argument was not necessary to resolve
the disputed issues.
John moved for reconsideration, arguing that the order
did not reflect his understanding of the property settlement
agreement; that the order violated state law by giving Tina an
interest in Johns post-separation labor; that the court
misapplied Wainwright v. Wainwright;3 and that John should not be
required to contribute to the cost of the survivor benefit.
Johns reconsideration motion attached an experts letter
discussing the FERS QDRO and the Wainwright case.
The superior court denied Johns reconsideration motion.
The court held that it had permissibly based the distribution of
Johns FERS pension on his high-three years at the time of
retirement, that it had correctly applied Wainwright, and that
its holding was also supported by Faulkner v. Goldfuss.4 The
court declined to reconsider Johns other arguments.
John appeals.
III. DISCUSSION
A. Standard of Review
A. We construe property settlement agreements in divorce
actions in accordance with basic principles of contract law.5
Questions of contract interpretation are reviewed de novo.6
When the terms of a property settlement agreement are
ambiguous, the superior court must attempt to resolve [the
ambiguity] by determining the reasonable expectations of the
contracting parties.7 If the division of marital property is not
determined by an agreement between the parties, the superior
court has wide latitude in fashioning an appropriate property
division.8 We review these determinations for abuse of
discretion and reverse only if a review of the record leaves us
with the firm and definite conviction that the [superior] court
made a mistake.9
A superior courts decision to deny a motion requesting
an evidentiary hearing is subject to our independent review.10 A
hearing is not necessary if there is no genuine issue of material
fact before the court.11
B. The Superior Court Did Not Err by Applying the Time-Rule
Formula To Calculate Tinas Share of Johns FERS Pension.
This appeal concerns Johns FERS defined benefit plan.
A defined benefit plan, as its name implies, is one where the
employee, upon retirement, is entitled to a fixed periodic
payment.12 The size of the payment usually depends upon prior
salary and years of service.13 Johns FERS defined benefit plan
retirement payment will be based on his highest three salary
years at the date of his retirement.
The property settlement agreement specifies that Tina
is to receive fifty-seven percent of the monthly benefit accrued
as a result of John Hartleys participation in [FERS] between
August 3, 1985 and October 3, 2006, together with any gains or
losses on that 57.0% interest that have accrued since October 3,
2006. John asked the superior court to interpret this provision
as awarding Tina a fifty-seven percent interest in Johns FERS
pension based on the average of Johns three highest salary years
during the period of marriage. The superior court instead
interpreted the provision as awarding Tina a fifty-seven percent
interest in Johns FERS pension based on the average of Johns
three highest salary years at the time of his retirement.
John argues that the courts award was erroneous for two
reasons. First, because it is inconsistent with the parties
intentions as expressed by the plain meaning of the agreements
language. Second, because it impermissibly awards Tina a portion
of Johns post-separation earnings in contravention of our holding
in Schanck v. Schanck.14
Neither argument persuades us that the superior court
erred. First, we hold that the superior courts order was
consistent with the parties intentions. In resolving disputes
concerning the meaning of an agreement, a court begins by
viewing the contract as a whole and the extrinsic evidence
surrounding the disputed terms, in order to determine if those
terms are ambiguous that is, if they are reasonably subject to
differing interpretation. 15 Here, as the superior court found,
the property settlement agreement could be interpreted in more
than one way. One clause of the agreement specifies that Tinas
benefit should be based on Johns participation in the plan
between August 3, 1985 and October 3, 2006. This clause
implicitly supports basing her benefit on Johns high-three salary
years during the period of marriage. But another clause of the
agreement grants Tina any gains and losses on the benefit that
have accrued since October 3, 2006. This clause implicitly
supports including any gains (or losses) attributable to Johns
post-separation employment and basing Tinas benefit on Johns high-
three years at retirement. Johns reply brief acknowledges the
ambiguity by stating that the agreements relevant paragraph
contains within its first sentence, contradictory commands. We
review questions of contract interpretation de novo,16 and agree
with the superior courts holding that the provision was
ambiguous.
We hold that the superior court did not abuse its
discretion in resolving this ambiguity. A court must resolve any
ambiguity in contract language by determining the reasonable
expectations of the contracting parties in light of the language
of any disputed provisions, other provisions, relevant extrinsic
evidence, and case law interpreting similar provisions.17 The
superior court held that [a]lthough there is some logic to basing
the high-three-years calculation on Johns wages at the time of
separation, basing the calculation on Johns high-three years at
retirement is more equitable and more logical. In reaching this
conclusion, the superior court looked at a letter submitted by
Johns expert and at relevant precedent. The court noted that
using Johns approach would effectively award to him considerably
more than 43% of the monthly benefit accrued during the marital
years, in contravention of the parties agreement.18
As Tina concedes, the wording of the disputed term in
the settlement agreement was more appropriate to a defined
contribution plan . . . than a defined benefit plan. When a
trial court divides the marital portion of retirement benefits in
a defined benefit plan, it has two choices for distributing the
benefits: the immediate offset method and the deferred
distribution method.19 Under the immediate offset method, the
value of the marital portion of the pension is reduced to present
value and divided at the time of divorce, with the nonowning
spouse receiving a lump sum payment.20 Under the deferred
distribution method, [t]he distribution is based upon the
benefits actually received in the future, and not upon a
prediction of the benefits which would be received in the future.
. . .21 Turner notes in his treatise on equitable distribution of
property that an advantage of the deferred distribution method is
that the division is based only upon actual facts. . . . In
every case, the nonowning spouse will receive his or her exact
correct share of the retirement benefits.22 Under the terms of
Johns defined benefit retirement plan, calculation of his actual
future retirement benefit will be accomplished by applying a
percentage to the average of his top three earning years at the
time of retirement. If some other benefit formula not reflective
of Johns actual retirement benefit calculation were to be
substituted in the QDRO,23 as John advocates, Tina would not
receive her equitable share of the marital portion of Johns
retirement benefit.
The language of the parties agreement is consistent
with the intent to defer distribution of an equitable share of
the marital portion of the retirement benefit to be paid to John
upon his retirement. We are not left with the firm and definite
conviction that the superior court made a mistake,24 and its
determination that using Johns high-three salary years at
retirement is consistent with the parties intentions was not an
abuse of discretion.
The result would be the same had the superior court
held that the parties did not reach an agreement as to what years
the high-three salary should be based on, and that the property
settlement agreement therefore did not address the issue. When
there is no agreement between the parties as to the division of a
particular item or class of property, the superior court has
discretion to divide that property equitably.25 The superior
court here correctly reasoned that granting Tina an interest
based on Johns high-three salary years at retirement was the most
equitable approach because it most closely effectuated the
parties intention to award fifty-seven percent of the four
pensions to Tina. That decision was not an abuse of discretion.
We also disagree with Johns argument that the superior
courts order impermissibly awarded Tina an interest in Johns post-
marital property. He argues that this award violates our holding
in Schanck v. Schanck,26 and punishes him for continuing to work
for his current employer. Schanck held that [a]s a general rule
. . . property accumulated with income earned after a final
separation that is intended to, and does in fact, lead to a
divorce is excluded from the category of marital property, as
long as it is obtained without the invasion of any pre-separation
marital asset.27 Schanck addressed a question not at issue here:
whether marital property includes property accumulated after
separation but before divorce. Schank did not address defined
benefit plans or classify a retirement benefit as non-marital
property, and does not bar using Johns high-three salary years at
the time of retirement. Schanck does not apply here.
Nor does the award penalize John for remaining with his
current employer. We rejected a similar argument in Tillmon v.
Tillmon.28 The former husband in that case contended that the
property division allowed his former wifes share of his
retirement to increase in value as a result of later promotions
and pay raises.29 But as we explained, the marital share of the
retirement will continue to decrease as a percentage of the
entire retirement as he extends the duration of his service with
his current employer.30
The superior court cited Wainwright v. Wainwright31 and
Faulkner v. Goldfuss32 in support of its decision to use Johns
high-three salary years at the time of retirement. Wainwright
held that the non-employee spouse was entitled to receive a
portion of the employee spouses cost of living increases after
separation.33 Faulkner endorsed the use of a retirement account
division formula based on the entire length of the employee
spouses career.34 Although neither case is squarely on point,
both support the superior courts decision to divide Johns FERS
pension using his high-three salary years at retirement.
Turners property division treatise supports the
superior courts approach, which is known as the marital
foundation theory.35 This theory reasons that a post-divorce
merit increase is based upon the employees entire history of
service to the employer. In other words, the postdivorce
increases are built upon a foundation of prior marital efforts
and therefore the increases are not separate property.36 The
commentator describes this approach as better policy because it
avoids undervaluation of contributions made early in a marriage
and gives more dollars to the spouse who assisted in the
development of the employees career, and less dollars to the
spouse who was the passive beneficiary of that career after it
was established.37 We approve this policy and conclude that this
approach is generally the most equitable. Absent clear language
to the contrary in a property division agreement, a court should
base the division of retirement benefits on the employee spouses
high-three salary years at the time of retirement.
C. The Superior Court Permissibly Declined To Conduct an
Evidentiary Hearing To Determine the Intent of the Parties.
John argues that the superior court erred by not
granting his request for an evidentiary hearing to determine the
meaning of the ambiguous terms in the property settlement
agreement. The superior court held that oral argument was not
necessary to resolve the disputed issues and also implicitly
rejected Johns request for an evidentiary hearing. We exercise
our independent judgment in reviewing a refusal to grant an
evidentiary hearing.38
John cites Burns v. Burns39 to support his contention
that [w]hen a contract provision is ambiguous, the intent of the
parties is to be determined by a resort to extrinsic evidence as
determined at a hearing wherein evidence is presented. But Burns
does not stand for this proposition. The parties there disputed
an ambiguous term in a property division agreement, and the trial
court resolved the dispute after conducting an
evidentiary hearing.40 We affirmed, but never stated that an
evidentiary hearing was required there, or that an evidentiary
hearing is invariably required to resolve every dispute about
ambiguous terms in a settlement agreement.41
An evidentiary hearing is not necessary if there is no
genuine issue of material fact.42 Here there was no genuine
factual dispute, only a legal dispute over the proper
interpretation of the property settlement agreement. John points
to no evidence that would have resolved the ambiguity in the
settlement agreement by establishing the parties intent. The
only extrinsic evidence John proposed below was testimony from
his expert, and the court considered the experts extensive
analysis and quoted from it in denying Johns reconsideration
motion. Because there was no genuine issue of material fact, we
hold that the superior court did not err in denying Johns request
for an evidentiary hearing.
D. The Superior Court Permissibly Ordered John To Pay a Portion
of the Cost of the FERS Survivor Benefit.
John argues that the superior court erred by ordering
him to pay half the cost of the FERS survivor benefit. He argues
that either Tina should bear the full cost of the benefit, or the
issue should be remanded for an evidentiary hearing. The
superior court held that dividing the cost equally was
appropriate because Tinas survivor benefits would revert to John
if she predeceased him.
John cites Berry v. Berry43 for the proposition that
this court has held that it was not error for the trial court to
require the wife to pay for the cost of the survivor benefit.
Berry is factually distinguishable and does not support Johns
argument. In Berry, as in this case, the parties disagreed about
who should pay the cost of the survivor benefit.44 But there the
superior court declined to grant a survivorship benefit to the ex-
wife.45 We held in Berry that the superior court implicitly ruled
that the ex-husband should not pay for survivor benefits.46
Because the ex-husband had offered to carry a survivor benefit at
the ex-wifes expense, we held that he should facilitate covering
her under the plan.47 Berry does not support Johns argument that
Tina should be required to pay the full cost of the survivorship
benefit.
John and Tinas property settlement agreement did not
address the cost of the FERS survivor benefit. If there is no
agreement as to the division of a particular piece of property,
the superior court has discretion to divide that property
equitably.48 The superior court therefore had discretion to
select an appropriate division based on what the court knew about
the parties economic situations.
The superior courts decision is also supported by the
agreements treatment of Johns other retirement accounts. The
paragraph dividing Johns Southern Alaska Carpenters Retirement
Plan states that it awards Tina a fifty-seven percent interest in
the plans survivor benefit and requires her to bear fifty-seven
percent of the cost of that benefit.49 This provision gives rise
to opposite inferences regarding the parties agreement concerning
the FERS plan. This provision could imply that the parties must
also have intended to impose fifty-seven percent of cost on Tina
for the FERS survivor benefit. But it could also be read to
imply that the parties were intentionally silent about the cost
of the FERS plan survivor benefit because they could not agree
how to divide the cost. Or it could imply that they simply
overlooked the issue. Regardless, their failure to express an
agreement on this aspect of the FERS plan means that the superior
court had discretion to divide the cost equitably.
The agreement grants Tina fifty-seven percent shares of
the balances in two of Johns four retirement accounts, and fifty-
seven percent shares of the pension benefits payable under Johns
FERS plan and Southern Alaska Carpenters plan. Imposing on Tina
a large percentage of the cost of the survivor benefit for the
FERS plan would make it impossible to achieve the fifty-
seven/forty-three division intended by the parties both globally
and for the FERS benefits specifically. We therefore hold that
the superior court did not abuse its discretion by requiring John
and Tina to split the cost of the FERS survivorship benefit.
Likewise, we decline to remand for an evidentiary
hearing. John did not specify what additional extrinsic
evidence, apart from the experts letter considered by the court,
he would have offered had the superior court granted such a
hearing. He fails to show that there was a genuine issue of
material fact, and that the superior court erred by not granting
a hearing.50
E. The Superior Court Permissibly Awarded Tina One-Hundred
Percent of the Survivorship Benefits.
John argues that the superior court erred by awarding
Tina one-hundred percent of his FERS survivor annuity. He argues
that the agreement limits her to 57 percent of the accrued
survivor benefit.51 This latter contention is not an accurate
characterization of the agreement. Although the parties
generally agreed that Tina should receive only fifty-seven
percent of Johns four retirement plans, the agreement is silent
about how to divide the FERS survivorship benefit. The superior
court cited Section 8445 of the United States Code in awarding
the FERS survivor benefit to Tina.52 That statute states that a
former spouse of a deceased employee . . . is entitled to an
annuity under this section, if and to the extent expressly
provided for . . . in the terms of any decree of divorce or
annulment or any court order or court-approved property
settlement agreement incident to such decree.53
The parties agreement limits Tinas share of the
survivor benefit for a different retirement account to an amount
equal to her proportional interest, but does not explicitly limit
Tinas share of the FERS survivor benefit in any way.
Because the parties agreement did not squarely address
the division of the FERS survivor benefit, the superior court had
discretion to divide the property equitably in light of the
parties circumstances.54 The superior court could have chosen to
do as John wished: award Tina fifty-seven percent of the FERS
survivorship benefits, allowing John to leave his remaining forty-
three percent to another person. The property agreements
division of Johns Southern Alaska Carpenters Retirement Plan
stated that it was awarding to Tina a survivors benefit equal to
her proportional interest. By expressly addressing an issue the
FERS provision did not mention, this passage permits different
inferences.55 The parties choice in dealing with the Southern
Alaska Carpenters plan might justify adopting a similar approach
for the FERS plan. But John does not argue that the superior
court should have looked to the division of that retirement plan
in deciding how to divide the FERS survivor benefit. Instead, he
argues that the FERS survivor benefit award impermissibly grants
Tina a portion of his future earnings. We addressed and rejected
that contention in Part III.B above.
We have consistently recognized that the superior court
is in the best position to assess each partys circumstances and
to determine what division of property is most equitable.56 The
record does not leave us with the firm and definite conviction
that the superior court made a mistake, and we therefore affirm
the superior courts decision.
IV. CONCLUSION
We therefore AFFIRM the superior courts FERS QDRO.
_______________________________
1 John and Tina also agreed to divide Johns interest in a
Southern Alaska Carpenters Retirement Plan, a Carpenters Fund
defined contribution plan, and a Thrift Savings Plan. Per the
agreement, for these plans Tina received fifty-seven percent of
the benefits accrued during the marriage.
2 Johns partial opposition motion discussed all four of
the proposed QDROs. John only appeals the courts decision to
adopt Tinas proposed FERS QDRO.
3 Wainwright v. Wainwright, 888 P.2d 762 (Alaska 1995).
4 Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).
5 Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (citing
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)).
6 Id. at 1147.
7 Id. at 1147 n.4.
8 Tillmon v. Tillmon, 189 P.3d 1022, 1031-32 (Alaska
2008) (reviewing for abuse of discretion superior courts
implementation of parties agreed-upon fifty-fifty division of
marital portion of husbands military retirement). The husband
there argued that the implementation wrongfully allowed his wife
to benefit from his future pay raises because it did not limit
the marital portion of the retirement benefit to his current pay
level. Id. at 1031. The parties disputed what pay level the
marital portion of the benefit should be based on. Id. at 1031-
32.
9 Id. at 1032.
10 Cf. Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska
2001) (applying independent judgment standard of review to
superior courts decision not to hold an evidentiary hearing
before calculating child support income); see also Acevedo v.
Burley, 944 P.2d 473, 476 n.2 (Alaska 1997) (For purposes of
determining the standard of review applicable to deciding whether
the superior court erred in denying Acevedos motion without an
evidentiary hearing, we draw analogy to review of summary
judgment decisions. . . . [T]he question in this case is whether
there is a genuine issue of material fact that, if established,
would entitle Acevedo to the relief sought. This is similar to
our focus in reviewing summary judgment cases. Therefore, as
with summary judgment decisions, we review the superior courts
decision using our independent judgment.) (internal citations
omitted).
11 Routh, 19 P.3d at 596.
12 Commr, Internal Revenue v. Keystone Consol. Indus.,
Inc., 508 U.S. 152, 154 (1993).
13 Id. at 154.
14 Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986).
15 Zito v. Zito, 969 P.2d 1144, 1147 n.4 (Alaska 1998)
(quoting Wessells v. State, Dept of Highways, 562 P.2d 1042, 1046
(Alaska 1977)).
16 Id. at 1147 n.4.
17 Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993).
18 Johns expert calculated how much Tina would receive
using Johns high-three salary years at the time of his
retirement, versus how much she would receive using his high-
three salary years during the period of marriage. He assumed for
purposes of the calculation that John would remain with his
current employer until retiring at age sixty and that the average
of his high-three salary years at retirement would be $100,000.
Using these numbers, Johns monthly annuity, based on his high-
three salary projected at his future retirement, would be $2,131.
In contrast, his high-three average salary at the time of the
divorce was $67,844, and his monthly annuity at retirement based
on that amount would be $1,446.
Using Johns approach, Tina would get $502 a month.
This is fifty-seven percent of the $880 marital portion of what
the total annuity would be using Johns high-three salary years
during the marriage. (The marital portion is calculated by
dividing the portion of Johns employment that occurred during the
marriage (fifteen years and seven months) by the total duration
of his employment (twenty-five years and seven months), and
multiplying the result by the total annuity.)
But Tinas $502 award would be only thirty-nine percent
of the $1,298 marital portion of what the total annuity at
retirement would be using the hypothetical numbers above
($2,131). As the superior court noted, this is not the 57% share
as to which both parties agreed.
19 2 Brett R. Turner, Equitable Distribution of Property
6:32, at 192-93 (3d ed. 2005).
20 Id.
21 Id. at 197.
22 Id.
23 Turner has described the use of QDROs to direct the
plan administrator to send separate retirement checks to each
spouse as the preferred method of paying a deferred distribution
award, id. at 203, and this was the method used by the trial
court in this case.
24 Tillmon v. Tillmon, 189 P.3d 1022, 1032 (Alaska 2008).
25 Id. at 1030-32 (see note 8 above).
26 Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986).
27 Id. at 3.
28 Tillmon v. Tillmon, 189 P.3d 1022, 1032 (Alaska 2008).
29 Id. at 1032 n.35.
30 Id.
31 Wainwright v. Wainwright, 888 P.2d 762 (Alaska 1995).
32 Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).
33 Wainwright, 888 P.2d at 765-66.
34 Faulkner, 46 P.3d at 1003 n.36.
35 Turner, supra note 19, at 171-73, 183. The time rule
formula used by the superior court in this case is analogous to
the marital foundation theory. See In re Marriage of Hunt, 909
P.2d 525, 534 n.8 (Colo. 1995).
36 Turner, supra note 19, at 171. Among other states,
Colorado, Delaware, Indiana, New Hampshire, and Illinois apply
the marital foundation theory to dividing post-divorce increases
in salary and cost of living payments. Id.
37 Id. at 183.
38 Cf. Routh v. Andreassen, 19 P.3d 593, 595-96 (Alaska
2001) (see note 10 above).
39 Burns v. Burns, 157 P.3d 1037 (Alaska 2007).
40 Id. at 1039-41.
41 Id.
42 Routh v. Andreassen, 19 P.3d 593, 596 (Alaska 2001).
43 Berry v. Berry, 978 P.2d 93 (Alaska 1999).
44 Id. at 97.
45 Id.
46 Id. at 97-98.
47 Id. at 98.
48 Tillmon v. Tillmon, 189 P.3d 1022, 1030-32 (Alaska
2008) (see note 8 above).
49 The agreements paragraphs dividing Johns Carpenters
Fund defined contribution plan and his Thrift Savings Plan do not
address survivor benefits.
50 See Part III.C above.
51 John also argues that the award impermissibly grants
Tina a portion of his future earnings. This argument was
addressed and dismissed above. See page 12 above.
52 5 U.S.C. 8445 (2007).
53 Id. 8445(a).
54 Tillmon v. Tillmon, 189 P.3d 1022, 1030-32 (Alaska
2008) (see note 8 above).
55 See Part III.D.
56 Tillmon, 189 P.2d at 1030; see also, e.g., Zito v.
Zito, 969 P.2d 1144, 1146 (Alaska 1998).
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