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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. Johnson (08/28/2009) sp-6403
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
| SAMUEL CORBIN JOHNSON, III, | ) |
| ) Supreme Court No. S- 13251 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05- 14155 CI | |
| v. | ) |
| ) O P I N I O N | |
| KATHLEEN FINNERTY JOHNSON, | ) |
| ) No. 6403 - August 28, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Robert C. Erwin, Law Offices of
Robert C. Erwin, LLC, Anchorage, for
Appellant. Mary A. Gilson, Allison E. Mendel,
Law Offices of Mendel & Associates,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Kathleen and Samuel Johnson divorced in 2007. During
the divorce proceedings, Kathleen drafted a proposed order
regarding the division of Sams military retirement benefits. Sam
filed objections to some of the documents provisions with the
superior court; Kathleen responded to the objections and filed a
revised proposed order. A month later, the court signed the
revised order along with the couples divorce decree. Nine months
after the entry of the order, Sam filed a motion to correct it.
Sam argued that a provision stating that Kathleen will continue
to receive half of Sams retirement benefit payments, even if she
remarries, was inappropriately included in the order. The
superior court denied the motion. Sam appeals, making a
different argument about the burden he will face should he ever
cease to receive the retirement benefits. Because the superior
court did not abuse its discretion in denying Sams motion and
because Sam raises a new argument for the first time on appeal,
we affirm the superior courts order.
II. FACTS AND PROCEEDINGS
Samuel Corbin Johnson, III and Kathleen Finnerty
Johnson were married in 1972; Kathleen filed for divorce in 2005.
A trial regarding custody of one minor child, child support, and
the division of assets took place in the superior court in
Anchorage in May of 2007.1 The focus of this appeal is Sams
military retirement pension, which he and Kathleen agreed to
split 50/50 in keeping with the parties mutual understanding that
they would evenly divide their marital estate.
On the second day of the trial, Kathleens attorney told
the court that Kathleen had a proposed order dividing the
military pension and Sams attorney acknowledged that he had
received a copy of it. Sams attorney asked for time to send the
order to an expert for review. The court granted permission,
instructing Kathleens attorney to send the order that day and to
request a prompt response. The court directed the parties to
submit [the order] to the court by next Thursday, giving Sam
eight days to respond. On the final day of the trial, Kathleens
attorney again raised the issue of the retirement benefits order,
telling the court that he had given it to Sams attorney but had
not received any response despite the courts deadline having
passed. Sams attorney stated that his expert had the order,
called the expert from the courthouse, and then reported to the
court that there was information missing from the document. The
court gave Sam another deadline for submitting objections to the
draft order and Kathleen a date by which to respond to Sams
objections.
Sam filed objections to the proposed order. The
objections related to personal information that was not included,
as well as some concerns about extraneous language.2 There was
no objection to provisions regarding continued payment of
benefits to Kathleen in the event she remarries or if Sam stops
receiving payments from the military. Kathleen filed a response
addressing each of Sams objections and asked that the court
approve the First Revised Order Dividing Military Retired Pay and
Benefits, which she filed contemporaneously.3 On June 26, 2007,
the superior court issued a divorce decree as well as findings of
fact and conclusions of law. On the same day, the court signed
the First Revised Order.
Sam filed a Motion to Correct Clerical Mistakes in
Judgment on March 26, 2008. He asked the superior court to
correct a clerical mistake in the First Revised Order which
awards 50% of husbands federal pension even on remarriage of the
wife.4 He cited Civil Rule 60(a) and (b)(1) in support of his
motion. The memorandum in support included little additional
argument or explanation, although it did indicate that Section[s]
8 & 9 of the First Revised Order contained the language to which
Sam objected.5 It also asserted that the order finds that the
pension payments continue from Sam Johnson even if Kathleen
remarries even though Air Force Retirement benefits cease on
remarriage. (Citation omitted.)
Kathleen filed an opposition to Sams motion. She noted
that the paragraphs in dispute in this motion practice,
paragraphs eight (8) and nine (9) are identical in the original
proposed order and in the first revised order.6 (Emphasis in
original). Kathleen argued that Sams claims under Civil Rule
60(a), which allows for the correction of clerical errors in
court orders, and Civil Rule 60(b)(1), which allows for
corrections in cases of mistake, inadvertence, surprise or
excusable neglect, were without merit. Kathleen further noted
that according to an American Bar Association publication,
remarriage does not impact military retirement benefits.
On July 30, 2008, the superior court denied Sams
motion. The court noted that the order was carefully crafted by
the parties and reviewed by the defendants expert and reasoned
that the particular care of the parties here leads the court to
the conclusion that the Motion to Correct the Order should be
denied.
Sam appeals.
III. STANDARD OF REVIEW
Interpretations of court rules, including whether a
judgment or court order can appropriately be corrected under Rule
60, are questions of law.7 We review issues of law with
independent judgment, adopt[ing] the rule of law that is most
persuasive in light of precedent, reason, and policy.8
After resolving any legal issues, we review the trial
courts decision to amend the judgment under Rule 60(a) for an
abuse of discretion.9 We have also stated that we will not
disturb a trial courts ruling on a Rule 60(b) motion unless an
abuse of discretion is demonstrated.10
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Denying the Rule 60 Motion.
Alaska Civil Rule 60(a) allows a court to correct
clerical errors in judgments or orders.11 We have interpreted
clerical errors to mean accidental omissions, a copying or
computational mistake, or the like.12 Rule 60(b) allows a court
to change a judgment or order if doing so would be just, and
based on mistake, inadvertence, surprise or excusable neglect.13
Sams Rule 60 motion concerned only the provision he
interprets as providing that Kathleen will continue to receive
fifty percent of Sams military retirement benefits if she
remarries. He argued that the provision constituted a clerical
error or was entered improperly by mistake. In denying the
motion, the superior court noted that the parties carefully
crafted the order before the court signed it. It is clear from
the record that both parties had time to review the language of
the order, and in particular that the court gave Sam additional
time to seek the advice of an expert before submitting objections
to it. These facts indicate that the remarriage provisions were
neither a clerical error nor a mistake. Thus, we hold that the
superior court did not abuse its discretion in deciding not to
make any change to the order pursuant to Rule 60.14
Sam now asserts that the remarriage provision was
slipped into the revised order. Kathleen counters that the only
changes to the order were in response to Sams objections. The
original draft is not in the record, so we have no way to assess
whether Kathleens claim is correct. But whether the provisions
were unchanged or not, Sam did not make this assertion below.
Because the superior court was not presented with that issue, it
is not properly before us.15
Furthermore, we note that it is not contested on appeal
that the Uniformed Services Former Spouses Protection Act,16 which
allows for the division of military retirement benefits between
divorcing spouses, makes the remarriage of a former spouse
irrelevant for purposes of the continued right to receive a
portion of military retirement benefits accrued during a
marriage.17 The policy behind this statute is sound:
The spouses of military members make
important sacrifices for our national
defense. Military members must move
frequently, and these moves make it
difficult for their spouses to establish
traditional careers and large earning
capacities. Military members must also
be away from home for unusually long
periods of time, and thus are not able
to perform homemaker and child care
duties as consistently as spouses with
more flexible schedules. . . . Former
spouses of service members certainly
make greater sacrifices for our country
than former spouses of civiliansand that
is why it is fundamentally wrong to give
former spouses of service members less
property rights than former spouses
generally. For purposes of dividing
retirement benefits upon divorce, all
retirement benefits, both military and
non-military, should generally be
subject to the same set of rules.[18]
Even if paragraphs eight and nine were not in the order signed by
the superior court, the consequence of any future marriage of
Kathleen would be the sameshe would continue to receive half of
Sams military retirement benefits.
B. Sams Argument Regarding Shortfall Provisions Is Waived.
Sam claims that provisions in the order place a life
long obligation on Sam Johnson to pay fifty percent of his
military pension to his ex-spouse; even if for some reason that
pension is not paid to him by the United States. Sam is
concerned about such provisions because [t]he present economic
crisis and the extraordinary demands for federal funds to cure
the present economic crisis could lead to a diminution of spousal
pension benefits. In such even[t], Sam Johnson would be liable
for such reduction . . . . Sam argues that this requirement did
not appear in the draft [order] submitted for counsel approval.
Sam does not indicate which language in the order might lead to
this result, but he does not contest Kathleens assumption that
the relevant paragraphs are numbers sixteen, seventeen, and
twenty-one.19
Sam did not raise this argument below, and so it is
waived.20 If the military ever reduces or eliminates Sams
retirement benefits, any dispute that arises between Sam and
Kathleen about whether and how much Sam is required to continue
to pay Kathleen should be brought to the superior court for
resolution.
V. CONCLUSION
For the reasons explained above, we AFFIRM the superior
courts order denying Sams Rule 60 motion.
_______________________________
1 Most of what occurred at trial is irrelevant to the
appeal here. Sam filed a separate appeal regarding several
aspects of the division of marital property, and this court ruled
on that appeal on March 4, 2009. Johnson v. Johnson, Mem. Op. &
J. No. 1335, 2009 WL 564692 (Alaska, March 4, 2009).
2 The objections were: (1) Sams address, his date of
birth and all of his service information were not included in
Paragraph 1 of the order; (2) in Paragraph 2, Kathleen was
incorrectly listed as the defendant in the divorce and necessary
biographical information about her was missing; (3) Paragraph 3
did not state the full dates of marriage; (4) Paragraph 4 reached
a conclusion about the length of marriage that was unsupported
because of the information missing from Paragraph 3; (5)
Paragraph 5 provides that Ms. Johnson is to receive 50% of Mr.
Johnsons military retired pay, which is defined in Paragraph 6 as
retired pay before any statutory, regulatory, or elective
deductions are applied, but the Uniformed Services Former Spouses
Protection Act (USFSPA) calls for dividing retirement pay as
defined therein; and (6) Paragraph 24 inappropriately referred to
an agreement regarding life insurance. Attached to the document
was a letter from Sams expert describing the six objections as
well as information from a handbook about the definition of
retirement pay under the USFSPA.
3 Neither party claims, nor does the record indicate,
that Sam filed a reply to Kathleens response or in any other way
indicated further objections to the proposed order or the First
Revised Order.
4 Sam also noted that the [order] for the husband does
not include any such provisions as to wifes pension awarded to
the husband. Attached to the motion was a copy of an order,
signed by the court and the parties in late 2007, giving fifty
percent of Kathleens federal retirement benefits to Sam.
5 Paragraph 8 of the First Revised Order reads:
Former Spouse will receive the same
proportionate share of any cost-of-
living or other increases as part of her
property interest in Members military
retired pay. Said payments shall
continue during the joint lives of the
parties regardless of the future marital
status of either party. They shall
terminate only upon the death of either
Former Spouse or Member.
Paragraph 9 reads:
The appropriate pay center shall pay the
sums called for above directly to Former
Spouse to the extent permitted by law at
the same time the Member receives
retired pay.
6 The original proposed order was purportedly attached to
the opposition filing, but the exhibit contains only the first
page of that document, on which Paragraphs 8 and 9 do not appear.
The complete original proposed order does not appear anywhere in
the record before us.
7 Jensen v. Froissart, 982 P.2d 263, 266 (Alaska 1999)
(citing DeVaney v. State, Dept of Revenue, Child Support
Enforcement Div. ex rel. DeVaney, 928 P.2d 1198, 1200 (Alaska
1996)); see also DeVaney, 928 P.2d at 1200 (Whether an error is
properly classified as a clerical error as that term is used in
Rule 60(a) involves interpretation of that rule and therefore is
a question of law.).
8 Jensen, 982 P.2d at 266 (citing State, Dept of Revenue,
Child Support Enforcement Div. v. Wetherelt, 931 P.2d 383, 390
n.11 (Alaska 1997)).
9 Frost v. Ayojiak, 957 P.2d 1353, 1355 (Alaska 1998);
see also Gibson v. GEICO General Ins. Co., 153 P.3d 312, 320
(Alaska 2007) ([D]emonstrating an abuse of discretion requires a
showing that the [outcome] was arbitrary, capricious, manifestly
unreasonable, or improperly motivated. (quoting Sourdough Dev.
Servs., Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004)) (internal
quotation marks omitted)).
10 Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995).
11 Alaska R. Civ. P. 60(a) (Clerical Mistakes. Clerical
mistakes in judgments, orders, or other parts of the record and
errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative or on
the motion of any party and after such notice, if any, as the
court orders.).
12 See Jensen, 982 P.2d at 267-68 (quoting In re W. Tex.
Mktg. Corp., 12 F.3d 497, 504-05 (5th Cir. 1994)) (upholding
superior courts decision to correct judgment to insert date on
which interest began to accrue where court had made clear on
record it intended the judgment to include that information);
DeVaney, 928 P.2d at 1200-01 (upholding superior courts decision
to correct child support order in which uncorrected text
conflicted with parties and courts clear intent).
13 Alaska R. Civ. P. 60(b) (On motion and upon such terms
as are just, the court may relieve a party or a partys legal
representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; . . . .).
14 Sam also makes an argument regarding additional
statements in the superior courts order, but the portions of the
ruling to which he refers were not the basis for the courts
decision. He further contends that the lack of a parallel
remarriage provision in a separate order regarding Kathleens
retirement benefits is significant, but we are affirming the
superior courts ruling that the provision in Sams order was not a
mistake because the parties had thoroughly reviewed its contents.
15 See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001) (A party may not raise an issue for the first time
on appeal.).
16 10 U.S.C. 1408 (2006).
17 See id.; Marshal Willick, Military Retirement Benefits
in Divorce 172-73 (1998). Sams counsel acknowledged as much at
oral argument on appeal.
18 2 Brett R. Turner, Equitable Distribution of
Property 6:3, at 21-22 (3d ed. 2005) (emphasis in original).
19 Paragraph 16 of the First Revised Order reads:
If the amount paid by the military pay
center to Former Spouse is less than
fifty percent of Members gross retired
pay Member shall initiate an allotment
to Former Spouse in the amount of any
such difference to be paid from any
federal entitlements due Member, with
said allotment to be initiated by Member
immediately upon notice of such
difference, and making up any arrearages
in installments not less in amount or
longer in term than the arrearages
accrued.
Paragraph 17 reads:
If in any month direct payment is not
made to Former Spouse by the military
pay center, and federal entitlement
exists against which such an allotment
may be initiated, or for whatever reason
full payment by allotment is not made in
that month, or amount paid through the
allotment is insufficient to pay the
difference specified above, Member shall
pay the amounts called for above herein
directly to Former Spouse by the fifth
day of each month in which the military
pay center and/or allotment fails to
[do] so, beginning upon entry of this
Order.
Paragraph 21 reads:
Member will pay Former Spouse her
interest as herein provided. Member is
not relieved of this obligation except
to the extent that he is notified that
the interest of Former Spouse has been
paid directly to her by the servicing
Finance Center.
20 See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001) (A party may not raise an issue for the first time
on appeal.).
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