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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beal v. Beal (06/12/2009) sp-6380
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
| ANNETTE J. BEAL, | ) |
| ) Supreme Court Nos. S- 12811/12831 | |
| Appellant/ | ) |
| Cross-Appellee, | ) Superior Court No. 3AN-99-08146 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| DAVID D. BEAL, | ) No. 6380 June 12, 2009 |
| ) | |
| Appellee/ | ) |
| Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Justin Eschbacher and G. R.
Eschbacher, Law Offices of G. R. Eschbacher,
Anchorage, for Appellant and Cross-Appellee.
Jimmy E. White, Hughes Pfiffner Gorski
Seedorf & Odsen, LLC, Anchorage, for Appellee
and Cross-Appellant.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This is the second time this divorce case has come
before us. David and Annette Beal each appeal several of the
superior courts rulings on remand following our decision in Beal
v. Beal (Beal I).1 David appeals the superior courts educational
support order requiring him to pay for Annettes attendance at
Johnson & Wales University. Because the latest educational
support order conforms to the original educational support order,
which David did not appeal, we affirm it. David also appeals the
superior courts refusal to grant him an equitable adjustment to
the post-judgment interest he owes. Because David never appealed
the post-judgment interest rate, we affirm the superior courts
refusal to make the requested adjustment. Annette appeals the
superior courts revaluation of the appreciation of Davids pre-
marital artwork. Because the superior court exceeded the scope
of our remand in Beal I by revaluing the appreciation, we reverse
the revaluation and instruct the superior court to use the
original valuation. Annette also appeals the superior courts
recalculation of the interim support judgment against David so as
to give him $12,918.86 in credit for certain past payments to the
Child Support Enforcement Division made prior to the entry of the
judgment. Because the issue whether David was entitled to credit
for these payments should have been raised in Beal I, we reverse
this $12,918.86 credit. Finally, Annette appeals the superior
courts treatment of a $56,017 credit for mortgage principal
reduction caused by Davids post-separation mortgage payments and
the superior courts decision to grant David another $10,869.68
mortgage credit. Because the superior court acted within its
broad discretion in fashioning an equitable property division
when it awarded David these two credits, we affirm them.
II. FACTS AND PROCEEDINGS
Annette and David Beal were married in 1985 after
signing a prenuptial agreement.2 David was a successful ear,
nose, and throat doctor. Annette and David have two children
together, both of whom are now adults.
Annette filed for divorce in July 1999. This case was
originally assigned to Superior Court Judge Rene J. Gonzalez, who
issued an interim support order in October 1999 mandating that
David pay monthly child and spousal support to Annette. The
order also provided that during the pendency of the divorce
Annette would reside in the family home and David would pay the
mortgage on it. In January 2000 Judge Gonzalez found that David
had not complied with this order and issued a judgment against
him in favor of Annette for $64,722.99. Annette satisfied this
judgment by executing against various forms of Davids property.
A trial was held in August 2000, and Judge Gonzalez
issued a property division order on March 7, 2001, making
findings covering a wide range of issues. The parties marital
property was divided 55/45 in favor of Annette. The family home
was awarded to Annette, who sold it in March 2001.
In April 2001 Judge Gonzalez found that David had again
fallen behind on his obligations under the October 1999 interim
support order and issued a $230,034.32 judgment against David for
unpaid interim support, including unpaid mortgage payments on the
family home. Rather than paying the judgment, David deposited a
$220,000 supersedeas bond with the clerk of court in May 2001.
Further motions regarding Davids unpaid support obligations were
filed later in 2001.
In their first appeal before us, both parties appealed
numerous issues regarding the property division, the April 2001
interim support judgment, and the superior courts decisions on
later motions. Their appeals were consolidated, and in a 2004
opinion (Beal I), we affirmed many aspects of the superior courts
decision, remanded some to the superior court, and reversed
others. David petitioned for a rehearing regarding the specific
issue of the appreciation of his pre-marital artwork, and his
petition was denied.
Because Judge Gonzalez had retired, this case was dealt
with on remand from 2004 to 2007 by Superior Court Judge William
F. Morse, who held hearings and issued, among other things, two
sets of findings of fact, an order containing further findings,
and final judgments. Judge Morses findings covered a range of
issues, not limited to the topics remanded by this court in Beal
I.
Annette now appeals four of Judge Morses rulings on
remand, and David cross-appeals two.
III. STANDARDS OF REVIEW
David claims that the superior courts most recent
educational support order was erroneous. As David points out,
educational support for Annette is a substitute for alimony in
this case, and we review alimony awards for abuse of discretion,3
setting them aside only if they are unjust or unnecessary.4
David also argues that the superior court erred in not
granting him an equitable adjustment to the interest on the
interim support judgment against him. We apply an abuse of
discretion standard to the superior courts use of its equitable
power.5
Annette claims that the superior court exceeded its
authority on remand in several respects. Whether a lower court
on remand has correctly applied our mandate is a question of law
which we review de novo.6
Annette also argues that the superior court erred in
the manner in which it awarded credit to David for certain
mortgage payments on the parties home during the pendency of the
divorce. We review for abuse of discretion a superior courts
decision whether to give a credit to a spouse for payments made
to maintain marital property, such as the family home.7
IV. DISCUSSION
A. The Law of the Case Doctrine
Successive appeals should narrow the issues in a case,
not expand them.8 This is the second appeal in this case. In
Beal I we addressed in excess of twenty issues surrounding the
Beals divorce and property division.9 Several of the issues
currently before us were addressed, or could have been addressed,
in Beal I. Our perspective on those issues is thus heavily
influenced by the law of the case doctrine.
The law of the case doctrine, which is grounded in the
principle of stare decisis10 and akin to the doctrine of res
judicata,11 generally prohibits the reconsideration of issues
which have been adjudicated in a previous appeal in the same
case.12 Previous decisions on such issues even questionable
decisions13 become the law of the case and should not be
reconsidered on remand or in a subsequent appeal except where
there exist exceptional circumstances presenting a clear error
constituting a manifest injustice. 14
The law of the case doctrine applies not only to issues
explicitly addressed and decided in a prior appeal but also to
issues directly involved with or necessarily inhering in a prior
appellate decision15 as well as issues that could have been part
of a prior appeal but were not.16 That is, when a party appeals
some aspects of a trial court decision but not others, the trial
courts rulings on the non-appealed issues may become the law of
the case following the appellate decision.
The law of the case doctrine is a doctrine of economy
and of obedience to the judicial hierarchy.17 The strong policy
reasons behind it include (1) avoidance of indefinite
litigations; (2) consistency of results in [the] same litigation;
(3) essential fairness between the parties; and (4) judicial
efficiency.18 As we have noted, [j]udicial economy and the
parties interests in the finality of judgments are in no way
furthered if parties are allowed to engage in piecemeal appeals.19
Thus, in evaluating this second set of appeals we
accept as the law of this case our decision in Beal I as well as
the many rulings made by Judge Gonzalez prior to Beal I that
could have been appealed in Beal I but were not. A trial judge
who succeeds a prior trial judge in a case while the case is
still in the trial court may generally reconsider a decision made
by the prior judge without violating the law of the case
doctrine.20 But that freedom is not available where, as here, the
prior judges decision has been affirmed on appeal.
B. The Superior Court Did Not Err in Requiring David To
Pay for Annettes Attendance at Johnson & Wales
University Because the Original Educational Support
Order Was Affirmed on Appeal in Beal I.
The parties 1985 prenuptial agreement provided that in
lieu of alimony David would pay for Annettes tuition, books, and
all other expenses at a law school of her choice as well as
reasonable support during the period in which she is enrolled at
a law school of her choice. Annette decided not to pursue a
legal career and instead, around the time of the divorce, made
plans to attend a year of preparatory classes at the University
of Alaska in Anchorage (UAA) followed by a two-year master of
business administration (MBA) program at the University of
Washington (UW). In March 2001 Judge Gonzalez found that
Annettes decision to pursue an MBA program instead of attending
law school is reasonable and substantially meets the conditions
of the parties agreement and that $131,000 from David would be
sufficient to allow her to complete her MBA. David did not
appeal this educational support order, but Annette did. In Beal
I we addressed and affirmed the trial courts order, rejecting
Annettes contentions that it did not provide sufficient support
and that she should not have been forced to prove full-time
enrollment in order to enforce it.21 Once affirmed on appeal in
Beal I, the superior courts educational support order, which
required David to fund Annettes pursuit of an MBA, became part of
the law of this case.
After Beal I was decided, David paid $14,555.52 in
educational support to Annette while she was enrolled at UAA for
one semester. David stopped making payments to Annette when she
discontinued her enrollment and decided not to pursue the planned
program at UAA and UW. In 2007 Annette moved to enforce Judge
Gonzalezs educational support order following her decision to
enroll in a different MBA program at Johnson & Wales University
in Rhode Island.22 After holding a hearing, Judge Morse granted
Annettes motion to enforce Judge Gonzalezs 2001 educational
support order, rejecting Davids request that his educational
support obligation be terminated but reducing the amount of his
remaining obligation to $83,642 due to the lower cost of the
Johnson & Wales program.23
David now appeals, arguing that Judge Morses 2007 order
is inconsistent with the parties prenuptial agreement and with
Judge Gonzalezs 2001 order, which it purports to enforce. David
further argues that Judge Morses order is inappropriate because
he is financially unable to provide the required support.
Because Judge Morses order is consistent with Judge Gonzalezs
educational support order, which became the law of this case
following Beal I, we affirm it.
David asserts that Judge Gonzalezs educational support
order selectively modified and altered the parties 1985
prenuptial agreement and extended Annettes rights under the
agreement to include support for an MBA program rather than law
school. But Judge Gonzalezs conclusion that three years of
schooling in pursuit of an MBA was an acceptable substitute for
law school under the prenuptial agreement which David did not
appeal was affirmed in Beal I.24 We thus decline to question it.
David also argues that he is financially unable to pay
for Annettes education. But Judge Gonzalezs order requiring
David to pay $131,000 for Annettes education which David did not
appeal was affirmed in Beal I.25 And Judge Morse, in enforcing
that order, actually reduced the amount owed by David due to the
lower cost of the Johnson & Wales program. Whether Davids
financial situation has deteriorated since Judge Gonzalez entered
his 2001 order is irrelevant26 that order became the law of this
case following Beal I.27
Davids sole remaining contention is that Judge
Gonzalezs 2001 educational support order was specifically
contingent on Annettes attendance at UAA and UW, to the exclusion
of other potential MBA options like the Johnson & Wales program.
But such a rigid interpretation of Judge Gonzalezs order is not
appropriate. In his order, Judge Gonzalez stated as follows:
Under the parties agreement, David agreed to
provide for post-divorce support for Annette
to continue her education. . . . The
agreement provides that David shall pay
Annettes tuition, books, related expenses and
to provide reasonable support while attending
school. Annette has decided not to pursue a
legal career but instead has decided to
pursue a Masters Degree in Business
Administration at the University of
Washington. . . . The court finds that
Annettes decision to pursue an MBA program
instead of attending law school is reasonable
and substantially meets the conditions of the
parties agreement. The main area of
disagreement between the parties is the
amount of reasonable support that David is
required to provide while Annette is
attending three years of university study.
Though Judge Gonzalez based his $131,000 support figure
on the tuition at UAA and for the MBA program at UW, he used no
language that would suggest that this support would be contingent
on Annettes attendance at those specific schools. Accordingly,
we affirm the superior courts 2007 order requiring David to fund
Annettes pursuit of an MBA at Johnson & Wales.
C. The Superior Court Did Not Err in Refusing To Make
Equitable Adjustments to the Interest Rate on the
Judgment Against David Because the Interest Rate Was
Affirmed in Beal I.
In April 2001 Judge Gonzalez entered judgment against
David in the amount of $230,034.32, a total that included unpaid
mortgage payments, property tax, insurance, spousal support, and
child support under the October 1999 interim support order, plus
accrued interest. Judge Gonzalez provided that this judgment
would bear interest at a rate of 8.5% until paid in full. Rather
than paying the judgment, David deposited a $220,000 supersedeas
bond with the clerk of court, who placed the funds in an interest-
bearing account at First National Bank of Alaska. After Beal I
the bond funds were paid out, mostly to Annette, in July and
December 2004.
David did not challenge the interest rate applied to
the interim support judgment at any point prior to Beal I, nor
did he challenge it on appeal in Beal I.28 Davids first challenge
to the interest rate appears to have been on remand in February
2007 when he filed a Motion and Memorandum for Equitable
Adjustment of Interest Regarding Cash Supersedeas Bond Funds.
Judge Morse refused Davids request for an equitable adjustment to
the interest he owed, addressing the merits of Davids arguments
but nonetheless concluding that [e]quity does not require the
adjustment.
David appeals, renewing the arguments he made before
Judge Morse. His first argument is that different interest rates
should have been applied to the interim spousal and child support
judgments to account for a statutory 6% cap on interest for
overdue child support payments. His second argument is that
because the actual amount of interest earned on the supersedeas
bond funds while they were under the control of the clerk of
court was much less than 8.5%, it would be inequitable to make
him pay 8.5% interest. But because David did not appeal it, the
interest rate applicable to the interim support judgment became
part of the law of this case following Beal I.29 Accordingly, we
decline to address the merits of Davids arguments as to why the
interest rate was inappropriate.30
David contends that divorce proceedings are supposed to
be equitable proceedings in which the court has considerable
discretion to take equity into account. But while the superior
court does have broad equitable powers when fashioning property
divisions in divorce cases,31 the interest owing on the interim
support judgment against David is not an aspect of the parties
property division. And as Annette points out, if the superior
court were required to seriously consider all procedurally barred
arguments raised under the rubric of equitable adjustment to a
partys obligation under a judgment, achieving finality in this
kind of case would be nearly impossible. Accordingly, we affirm
the superior courts refusal to make an equitable adjustment to
the interest owed by David.
D. The Superior Court Exceeded Its Authority on Remand by
Using an Appreciation Value for Davids Pre-Marital
Artwork that We Rejected in Beal I.
Judge Gonzalez found that Davids pre-marital artwork
had appreciated $63,788 during the marriage, but he did not treat
that sum as a marital asset when fashioning the property division
despite a term in the parties prenuptial agreement providing that
the appreciation during the marriage of separate pre-marital
property would be considered a marital asset. In Beal I Annette
appealed Judge Gonzalezs failure to include the $63,788
appreciation in the property division in accordance with the
prenuptial agreement.32 David did not cross-appeal Judge
Gonzalezs valuation of the appreciation at $63,788 but instead
contended that Judge Gonzalez properly did not include the
appreciation in the property division because he actually agreed
with David that the appreciation was only $1,200,33 which David
characterized as de minimis in the context of this case.34 We
specifically rejected this argument, stating:
David suggests the superior court failed to
include the appreciation in its division of
the marital estate because it implicitly
agreed with his earlier claim that the
appraisal was incorrect, and the true amount
of appreciation was de minimis. This
assertion is unsupported in the record.[35]
Based on the prenuptial agreement, we reversed the superior
courts failure to treat the significant appreciation of Davids
pre-marital artwork as a marital asset.36 Following the Beal I
decision David filed a petition for rehearing, reviving his
argument that the appreciation of his pre-marital artwork was
only $1,200 and thus was properly excluded from the property
division as de minimis. We denied this petition. Thus,
following Beal I Judge Gonzalezs $63,788 valuation of the
appreciation of Davids pre-marital artwork subject to question
or not became final under the law of the case doctrine because
David did not directly appeal it in Beal I, and to the extent
that he did raise it on appeal, he lost.37
Nonetheless, on remand Judge Morse revisited the
valuation issue, finding it difficult to understand how Judge
Gonzalez derived the amount of appreciation as $63,788 and
interpreting our remand to permit [him] to correct errors that
Judge Gonzalez made in calculating the amount of appreciation.
Judge Morse then found, based on the same record that was before
Judge Gonzalez and before us in Beal I, that the only credible
evidence of appreciation is for a net value of $1200. He treated
that smaller appreciation value, rather than the $63,788 found by
Judge Gonzalez, as a marital asset, awarding 55% ($660) of it to
Annette. Annette appeals, arguing that Judge Morse exceeded his
authority by revisiting the valuation issue on remand. We agree.
Judge Morses decision to reject the $63,788 valuation
and instead use the $1,200 figure advanced by David in Beal I
based on the same analysis of the evidence advanced by David in
Beal I is inconsistent with Beal I and violates the law of the
case doctrine. We therefore reverse it. On remand the superior
court should account for the appreciation of Davids pre-marital
artwork in the property division using Judge Gonzalezs original
$63,788 valuation.
E. The Superior Court Exceeded Its Authority on Remand
when It Recalculated the Interim Support Judgment To
Account for $12,918.86 in Payments Made Prior to the
Entry of the Judgment Because the Judgment Was Affirmed
in Beal I.
In April 2001 Judge Gonzalez found that David had
fallen behind on his obligations under the October 1999 interim
support order and issued a judgment against him in favor of
Annette for $230,034.32. Davids various challenges to this
judgment were part of Beal I. In disposing of Davids arguments
that the judgment was inflated, we stated:
David claims that the superior courts
judgment for unpaid interim support is
overstated because the superior court did not
credit him for a number of payments made
either to or for Annette and because it
ordered him to make payments that were
Annettes responsibility. With one exception,
we reject these claims.[38]
Accordingly, following Beal I the amount of the April
2001 interim support judgment should have been essentially a
settled issue under the law of the case doctrine because any
claims David may have had that the basic judgment amount was
incorrect either were raised or could have been raised during
Beal I.39
Nonetheless, on remand the superior court appears to
have recalculated the April 2001 interim support judgment to
factor in support payments David made through the Child Support
Enforcement Division (CSED) that should have been, but were not,
factored into the original judgment. Annette asserts that David
was awarded an additional $12,918.86 in credit for such payments.
David does not deny that he was awarded this additional credit.
The superior court interpreted Beal I not to preclude a
re-accounting of Davids past CSED payments, stating that [t]he
supreme court did not address the total amount that David should
be credited for payments to CSED.40 In response to Annettes
objections that [t]he judgment is what it is and should only be
reduced pursuant to credits allowed by the Alaska Supreme Court,
the superior court remarked:
The [superior courts] authority to resolve
questions of credits toward the [interim
support judgments against David] is not
limited merely to the topics of the remand. .
. . If the supreme court addressed a
particular claim on appeal, then its holding
will govern. But if the supreme court did
not address a claim for a credit, then this
Court will rule on the claim.
But any claims that the interim support judgment did
not factor in payments David made to CSED before the judgments
entry either were41 or could have been dealt with in Beal I.42
Thus, absent a showing of exceptional circumstances presenting a
clear error constituting a manifest injustice43 sufficient to
overcome the law of this case, the superior court should not have
revisited the calculation of the interim support judgment other
than as specifically instructed in Beal I. While David may
believe that the judgment included mistakes that were not
discovered until after remand, any such mistakes could have been
discovered in 2001 and raised in Beal I. Successive appeals
should narrow the issues in a case, not expand them.44
Accordingly, because the $12,918.86 credit that Annette complains
of appears to reflect payments by David that should have been,
but were not, accounted for in the original April 2001 interim
support judgment, which was affirmed in Beal I, we reverse it.45
F. The Superior Court Did Not Abuse Its Discretion by
Deducting from the Interim Support Judgment a $56,017
Credit for Mortgage Principal Reduction due to Davids
Post-Separation Mortgage Payments.
During the pendency of the divorce, Annette resided in
the family home and David was ordered to pay the mortgage as part
of his interim support obligation. In the March 2001 property
division, Annette was awarded the home, which Judge Gonzalez
valued at $1,100,000, subtracting a mortgage principal balance of
$765,219 and selling costs of $66,000, to arrive at an equity
value of $268,781.46
In Beal I David argued that Judge Gonzalez had
undervalued the parties home in the property division because he
had used an outdated number for the net equity.47 David contended
that because the value of the homes equity had been augmented by
his post-separation mortgage payments, he should be given a
credit against the interim support judgment to offset the
undervaluation of the homes equity and to balance the property
division.48 David initially requested this credit in response to
Annettes post-trial filing of a judgment for unpaid interim
support.49 His request was denied, and he appealed its denial in
Beal I.50 This court rejected Annettes contention that Davids
request was untimely and remanded the issue to the superior court
to consider whether David should receive credit for post-
separation mortgage payments that were part of his interim
support payments.51
On remand, Judge Morse found that the home had indeed
been undervalued in the March 2001 property division because the
mortgage debt had been only $709,202 at the time of the August
2000 trial, not $765,219.52 Judge Morse also found that the
$56,017 reduction of the mortgage principal had been caused by
post-separation mortgage payments for June 1999 through August
2000 made from Davids separate property. The parties do not
dispute this finding. Judge Morse elected to credit David for
this $56,017 reduction of the mortgage principal, having been
made aware that Annette had sold the house for $200,000 more than
the value it was given in the property division.
The parties do not dispute Judge Morses decision to
award David some sort of credit for the $56,017 reduction of the
mortgage principal, but they dispute the manner in which he
awarded David the credit. Judge Morse awarded David the credit
by deducting $56,017 from the remaining amount owed by David
under the interim support judgment. Annette argues that Judge
Morse thus improperly treated the $56,017 as interim support.
David counters that because he was ordered to pay the mortgage as
part of his interim support obligation, the $56,017 reduction of
the mortgage principal can properly be characterized as interim
support.
Both parties fail to recognize that although Judge
Morse deducted the $56,017 from the amount David still owed on
the interim support judgment, there is no indication that he did
so because he considered the $56,017 to be a form of interim
support. Various credits to David in conjunction with the
property division have been treated as potential offsets to the
amount owed by David under the interim support judgment despite
the fact that they have nothing to do with interim support.53 To
the extent that there were errors in the property division that
resulted in Annette receiving more than her share, it makes sense
to account for these errors after the fact by simply deducting
the amount Annette was overpaid in the property division from the
amount that David still owes her on the interim support judgment,54
regardless of whether such deductions can be properly
characterized as interim support payments. Such accounting does
not, as Annette contends, constitute impermissible mixing of the
separate concepts of interim support and marital property.
The question thus becomes simply whether Judge Morse
erred by awarding David dollar-for-dollar credit for the entire
$56,017 post-separation reduction of the mortgage principal,
rather than dividing that amount 55/45 as Annette contends would
be proper. We review for abuse of discretion a superior courts
decision whether to give a credit to a spouse for payments made
to maintain marital property, such as the family home, in making
a property division.55 The trial court is required to make
factual findings on whether a credit is appropriate56 but there is
no fixed rule regarding whether a spouse should be given credit
for post-separation mortgage payments.57 Whether to award credit
for post-separation mortgage payments is within the discretion of
the superior court in carrying out its task of creating an
equitable distribution of property.58 In this case it is not
credit for the mortgage payments themselves that is at issue, but
credit for the principal reduction effected by those mortgage
payments. When fashioning a property division, the trial court
has the discretion, where equitable, to give a spouse dollar-for-
dollar credit for the entire amount of his or her post-separation
mortgage payments. It thus follows that the trial court also has
the discretion to give that spouse credit for the increase in
home equity created by those mortgage payments an invariably
smaller amount.
Judge Morse discussed the reasoning behind his
treatment of the $56,017 credit, explaining that he
did not divide [the $56,017] according to the
percentage division of the marital estate
because it was paid by the time of the sale
by Annette after she sold a variety of
marital and Davids separate assets. The
division of that equity has been done in
other aspects of the reconciliation with the
treatment of the assets used to pay the
principal.
Judge Morse apparently decided that the property
division would be best balanced if David were awarded credit for
the entire $56,017, given the treatment of the assets used to pay
the principal. The assets used to pay the principal were Davids
separate property, and thus the $56,017 in increased equity could
reasonably be treated as Davids separate property.59 Annette has
offered no argument as to why Judge Morses decision to credit
David with the entire $56,017 reduction in the mortgage principal
has made the overall property division inequitable. Because
[t]he trial court has broad discretion to make a property
division in the manner it determines to be most equitable, we
will not disturb a property division unless it is clearly unjust.60
Accordingly, we affirm the $56,017 mortgage reduction credit.
G. The Superior Court Did Not Abuse Its Discretion by
Awarding David a Further $10,869.68 Mortgage Reduction
Credit Against the Interim Support Judgment.
Though the trial was held in August 2000, Davids
obligation to pay the mortgage on the family home while Annette
resided there continued from September 2000 through March 6,
2001, when the divorce was finalized. David did not make any of
the required mortgage payments during those months, and neither
did Annette. In April 2001 a judgment was issued against David
in favor of Annette for unpaid interim support, which included
these unpaid mortgage payments. Once the house was sold and the
mortgage was no longer in existence, David was liable directly to
Annette for the unpaid mortgage payments because they were
incorporated into the interim support judgment against him. Most
of the interim support judgment was paid to Annette around July
and December 2004 when the supersedeas bond funds were
distributed, meaning that the mortgage payments from September
2000 to March 2001, which were meant to be payments to maintain
marital property, were effectively paid directly to Annette.
Davids accountant estimated that a $24,154.84 portion of these
mortgage payments would have gone to reduction of the mortgage
principal on the family home if they had been paid to the bank as
ordered, rather than to Annette.
As discussed in the previous section, our Beal I
decision instructed the superior court to consider whether David
should receive credit for post-separation mortgage payments that
were part of his interim support payments.61 Judge Morse decided
to give David both the $56,017 mortgage credit discussed above as
well as a $10,869.68 mortgage credit that represented 45% of the
$24,154.84 principal reduction portion of the mortgage payments
that were incorporated into the interim support judgment. Judge
Morse reasoned that Annette would gain a windfall if allowed to
retain the entirety of the mortgage payments incorporated into
the interim support judgment because those payments were meant to
maintain marital property for the benefit of both parties rather
than to go directly to Annette. Thus, in order to balance the
property division, Judge Morse decided to put the parties in the
positions they would have been in had David fulfilled his monthly
payment obligations in a timely manner by giving David a credit
for the portion of the marital equity that the payments would
have created if they had been made to the bank as originally
contemplated, rather than to Annette after the sale of the house.
Though Judge Morse was not required to give David this credit, it
was within his broad discretion in balancing the property
division to do so.62 We will not disturb a property division
unless it is clearly unjust.63 We note that David certainly has
not benefited from his failure to make the mortgage payments on
time, as he has been charged an 8.5% post-judgment interest rate
on the interim support judgment, which included the unpaid
mortgage payments. Accordingly, we affirm the $10,869.68
mortgage reduction credit.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior
courts educational support award, its refusal to make an
equitable adjustment to the interest owed by David, and its award
of $56,017 and $10,869.68 mortgage credits to David. We REVERSE
the superior courts revaluation of the appreciation of Davids pre-
marital artwork and its award of a $12,918.86 credit to David for
payments to CSED made before the interim support judgment was
entered.
_______________________________
1 88 P.3d 104 (Alaska 2004).
2 Some portions of the facts and proceedings are taken
from our first decision in this matter. See generally id. at 108-
10.
3 Hooper v. Hooper, 188 P.3d 681, 691 n.35 (Alaska 2008).
4 Broadribb v. Broadribb, 956 P.2d 1222, 1226 (Alaska
1998) (quoting Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska
1989)).
5 Carroll v. Carroll, 903 P.2d 579, 582 n.7 (Alaska
1995).
6 Williams v. Crawford ex rel. Estate of McVey, 47 P.3d
1077, 1079 (Alaska 2002).
7 Berry v. Berry, 978 P.2d 93, 95 (Alaska 1999).
8 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 873-74 (Alaska 2003).
9 88 P.3d 104, 108 (Alaska 2004).
10 Alaska R.R. Corp. v. Native Vill. of Eklutna, 142 P.3d
1192, 1201 (Alaska 2006).
11 Carlson, 65 P.3d at 859 n.52 (quoting Wolff v. Arctic
Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977)); see also 47 Am.
Jur. 2d Judgments 469 (2006).
12 Carlson, 65 P.3d at 859 n.52 (quoting Wolff, 560 P.2d
at 763).
13 See, e.g., Austin v. Fulton Ins. Co., 498 P.2d 702, 704
(Alaska 1972) (recognizing that insured was barred from
proceeding against insurance agent due to an erroneous ruling
that had become the law of the case when not disputed on a prior
appeal); see also E. H. Schopler, Annotation, Erroneous Decision
as Law of the Case on Subsequent Appellate Review, 87 A.L.R.2d
271 (1963).
14 Carlson, 65 P.3d at 859 (footnotes omitted) (quoting
Patrick v. Sedwick, 413 P.2d 169, 173-74 (Alaska 1966); Alaska
Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778
P.2d 581, 583 (Alaska 1989)).
15 Id. at 859 n.52 (quoting Wolff, 560 P.2d at 763).
16 See id. at 873-74 (declining to address an issue that
could have been raised in previous appeals of the same case but
was not); Dunlap v. Dunlap, 131 P.3d 471, 475-76 (Alaska 2006)
(Although our doctrine of law of the case generally refers to
issues that have previously been reviewed at the appellate level,
the doctrine is equally applicable to issues that have been fully
litigated in the superior court and as to which no timely appeal
has been made.).
17 Dieringer v. Martin, 187 P.3d 468, 473-74 (Alaska
2008).
18 Petrolane Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska
2007) (internal quotation marks omitted) (affirming lower courts
decision to treat first jurys negligence findings, which had been
affirmed in a prior appeal, as conclusive under the law of the
case doctrine).
19 Carlson, 65 P.3d at 874 (alteration in original and
internal quotation marks omitted).
20 See Bylers Alaska Wilderness Adventures, Inc. v. City
of Kodiak, 197 P.3d 199, 206 (Alaska 2008) ([W]hen one superior
court judge makes a ruling, that superior court judge is
succeeded by another superior court judge on the same case, and
the subsequent judge declines to follow a previous order from the
prior judge[,] we have held that the [law of the case] doctrine
does not apply.).
21 88 P.3d 104, 120-21 (Alaska 2004).
22 Though David characterizes the Johnson & Wales program
as a hotel management program, the record shows that Annette was
pursuing an MBA in Hospitality with a concentration in Finance.
23 In calculating the $83,642 figure David was given
credit for having already paid for Annettes semester at UAA, such
that his remaining obligation was for two and one-half years of
school (at the reduced Johnson & Wales tuition rate) rather than
three.
24 88 P.3d at 120-21.
25 Id.
26 Though we note that Judge Morse specifically found
that David is able to pay, having an income of roughly $100,000
and significant assets, or at least a mix of assets with which to
fund Annettes education. David has offered no argument as to why
these findings were erroneous.
27 See supra subpart IV.A.
28 See 88 P.3d at 110 (listing parties cross-appeals).
29 See supra subpart IV.A.
30 We note, however, that David could have avoided
incurring much of the interest he now owes had he simply paid the
judgment rather than depositing a supersedeas bond.
31 Conner v. Conner, 68 P.3d 1232, 1234 (Alaska 2003) (The
trial court has broad discretion to make a property division in
the manner it determines to be most equitable . . . .).
32 88 P.3d at 118-19.
33 Before Beal I the parties filed cross-motions for
reconsideration regarding the property division. Annettes motion
challenged Judge Gonzalezs failure to include the purported
$63,788 artwork appreciation in the property division. David
opposed Annettes motion, arguing that the true amount of the
appreciation was only $1,200. Judge Gonzalez denied Annettes
motion but did not elaborate on his reasoning. In Beal I David
theorized that Judge Gonzalez must have denied Annettes motion
based on his acceptance of Davids argument that the $63,788
figure was in error and that the true appreciation was
insignificant.
34 Beal I, 88 P.3d at 119.
35 Id.
36 Id.
37 See supra subpart IV.A.
38 Beal I, 88 P.3d at 113. The one exception was our
conclusion that the interim support judgment should have counted
half of the cost of the appraisal of Davids medical practice as a
support payment to Annette because David had paid for it and it
was a cost that the parties were supposed to share. Id. at 115.
39 See supra subpart IV.A.
40 One of Davids rejected claims in Beal I was that a CSED
adjustment worksheet used in calculating the interim support
judgment reflect[ed] no payments by David for child support or
spousal support prior to September 13, 2000, and that therefore
the judgment amount was inflated. This argument appears to have
been based on a simple misunderstanding of the adjustment
worksheet. David corrected this misunderstanding in his reply
brief by abandoning this portion of his argument. We nonetheless
ruled on the issue, concluding that David had failed to
demonstrate that the superior court did not credit him for the
payments made in April and May 2000. Beal I, 88 P.3d at 115.
41 See supra note 40.
42 See supra subpart IV.A.
43 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (footnotes and internal quotation
marks omitted).
44 Id. at 873-74.
45 To be sure, the superior court acted within its
authority to the extent that in determining the remaining amount
owed by David under the interim support judgment it accounted for
payments made towards the judgment after Beal I, such as the
payments to Annette out of the supersedeas bond funds. If the
$12,918.86 in question actually reflects such later payments,
rather than payments that should have been factored into the
judgment in the first place, the superior court should make this
clear on remand.
46 Beal I, 88 P.3d at 116-17.
47 Id. at 116.
48 Id.
49 Id.
50 Id.
51 Id.
52 The mortgage payments resulting in this principal
reduction were not actually made by David, but rather were made
by Annette with funds obtained from the sale of Davids separate
property.
53 See Beal I, 88 P.3d at 115-18 (discussing various
credits David requested to offset the amount of money he owed
Annette under the interim support judgment, including credits for
property division matters such as the selling costs of the
parties home and the valuation of a table).
54 Such a deduction should be made retroactive to the date
the overpayment occurred here, this would be the date the home
was sold because that is the date on which Annette received the
benefit of the undervaluation of the home in the property
division.
55 Berry v. Berry, 978 P.2d 93, 95 (Alaska 1999).
56 Id. at 96.
57 Id. (quoting Ramsey v. Ramsey, 834 P.2d 807, 809
(Alaska 1992)).
58 See id. ([T]he fact that one party has made payments
from non-marital income to preserve marital property should be
considered as one of the circumstances to be weighed by the trial
court in dividing the marital property. (quoting Ramsey, 834 P.2d
at 809)); see also 2 Brett R. Turner, Equitable Distribution of
Property 6:86, at 458-63 (3d ed. 2005) (recognizing that most
courts have treated this issue as completely discretionary,
though advocating a more structured approach).
59 See, e.g., Brown v. Brown, 914 P.2d 206, 208 (Alaska
1996) (affirming superior courts treatment of the equity created
by one spouses post-separation mortgage payments as that spouses
separate property).
60 Conner v. Conner, 68 P.3d 1232, 1234-35 (Alaska 2003).
61 88 P.3d 104, 116 (Alaska 2004).
62 Conner, 68 P.3d at 1234 (The trial court has broad
discretion to make a property division in the manner it
determines to be most equitable . . . .); Ramsey, 834 P.2d at 809
(holding that there is no fixed rule requiring credit for post-
separation payments made to maintain marital property).
63 Conner, 68 P.3d at 1234-35.
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