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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barnett v. Barnett (8/27/2010) sp-6506
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
ALENA BARNETT,
| ||||||||||||||||||||||||||||||||||||||||||
| Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. | ||||||||||||||||||||||||||||||||||||||||||
Appearances: Thomas
R. Wickwire, Law Office of Thomas Wickwire,
Fairbanks, for Appellant. Daniel L.
Callahan, Callahan Law Office, Fairbanks, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Alena and Timothy Barnett met on the internet in the
fall of 2004. In September 2005 Alena relocated to Fairbanks
from her home in Belarus with her 18-year-old daughter. Alena
and Timothy were married the next month. Timothy filed for
divorce in January 2007. In April 2008 the superior court issued
findings of fact and conclusions of law dividing the marital
property and establishing spousal support. Alena appeals. She
challenges the spousal support award on both federal and state
law grounds, alleges procedural error by the superior court, and
appeals the award of attorneys fees. We affirm the trial courts
conclusions that Alena is not entitled to spousal support or
attorneys fees under federal law, and we find no procedural error
by the trial court. But because the award of spousal support
made under state law was premised on an erroneous
characterization of courtship costs as marital debt and on
findings insufficient to allow us to review whether the award
meets Alenas needs, we reverse the award and remand for
reconsideration. We also vacate the award of attorneys fees made
pursuant to state law.
II. FACTS AND PROCEEDINGS
Timothy and Alena began a long-distance relationship
in the fall of 2004 after meeting on the internet. Alena was
living and working in Zhlobin, Belarus; she has a bachelors
degree in railroad transportation engineering, and she was
employed by a steelwork company. Timothy was living in
Fairbanks; he is the Vice-Chancellor for Academic Affairs at the
University of Alaska, Fairbanks (UAF).
Between January and September 2005 Timothy visited
Alena in Belarus several times. In March of 2005 he began
immigration paperwork for Alena to relocate to Fairbanks, and in
May or June of that year Timothy gave Alena $2,500 to complete
the purchase of her apartment in Belarus. In September 2005
Alena and her daughter Dasha moved from Belarus to Timothys home
in Fairbanks, where they lived with Timothy and his two teenaged
sons. Alena brought $1,000 with her when she moved, and she
maintained title to her apartment in Belarus. Timothy paid all
of the costs associated with the move. Alena and Timothy married
on October 8, 2005. At the time of the marriage, Dasha was 18
years old.
During the marriage, Alena earned between $10.50 and
$11.50 per hour working as a salesperson at a hardware store and
Timothy continued working at UAF. His income in 2004 was
$109,395. Timothy and Alena completed renovations to Timothys
pre-marital home, sharing the work and the expense of the
project. Timothy retained sole title to the home but took out a
home equity loan to pay down credit card debt, including the
costs incurred by Alena and Dasha in their move from Belarus. In
Fairbanks, Timothy and Alena purchased a Toyota RAV4 for Alena to
drive, and Alena and Dasha used Timothys tuition reimbursement
benefit to take English classes at UAF.
The Barnetts filed immigration paperwork requesting
permanent resident status for Alena and Dasha in March 2006.
Timothy served as sponsor for Alena and Dasha, and in that
capacity he signed an INS Form I-864 affidavit pledging to
support them at 125% of the federal poverty level.
Timothy filed a Complaint for Divorce and Motion for
Temporary Orders Regarding Possession of Home and Support on
January 10, 2007. Alena agreed with the allegations in the
complaint and moved out of the Fairbanks home in May 2007. The
court ordered that Alena and Timothy agree on an interim support
amount, which they did. By May 2007 Dasha was living in her own
apartment.
Trial was held in July 2007. On August 15, 2007, the
superior court issued an oral decision on record dividing the
parties property and establishing spousal support. The court
ordered that Alena receive $5,875 from the couples 2006 tax
refund (compared with Timothys $4,000 share), the RAV4 (with
approximately $20,000 in outstanding debt and $4,000 of equity),
cross-country skis, a couch, a diamond ring, and a sewing machine
purchased during the marriage. The court also ordered that
Timothy pay Alena $1,500 per month in spousal support for two
years or until she remarries or until she dies or until she is
living in the same house with another adult whose income she is
relying on. The court awarded Alena $2,000 in attorneys fees.
Timothys attorney raised an oral objection to the
courts spousal support award, observing that it seemed to have
been based on 125% of the poverty level for a family of five (the
size of the entire blended Barnett family pre-divorce), rather
than a family of one (the size of Alenas household after the
divorce). The trial court judge stated that he would reexamine
that portion of the decision and possibly reduce the award.
In March 2008 Timothy filed proposed findings of fact
and conclusions of law, mostly memorializing the courts oral
decisions regarding property division and attorneys fees. The
proposed findings granted Alena one-half of the marital portion
of Timothys retirement accounts, car payments on the RAV4
($482.46 per month) through July 2008, and spousal support of
$875 per month through the end of May 2008.1 On April 23, 2008,
the superior court adopted the proposed findings and conclusions
without alteration.
Alenas Motion to Reconsider and Vacate the April 23
findings of fact and conclusions of law was denied, and she
appeals. Alena challenges the superior courts award of spousal
support, some of its findings of fact, its adoption of
unsolicited findings and conclusions proposed by Timothys
attorney, and its award of attorneys fees.
III. STANDARD OF REVIEW
The trial courts interpretation of a statute is a
question of law to which we apply our independent judgment,
interpreting the statute according to reason, practicality, and
common sense, considering the meaning of the statutes language,
its legislative history, and its purpose.2
Trial courts have broad discretion in fashioning
property divisions.3 Trial courts allocations of property and
awards of spousal support are reviewed for abuse of discretion;
we reverse such awards only if they are clearly unjust.4
We review a trial courts findings of fact for clear
error, which is found only when we are left with a definite and
firm conviction based on the entire record that a mistake has
been made. 5
We review awards of attorneys fees for abuse of
discretion.6
IV. DISCUSSION
A. The Trial Court Correctly Concluded That Timothy Did
Not Owe Spousal Support Under Federal Law.
Alena argues that the superior court erred by failing
to follow the terms of 8 U.S.C. 1183a and the INS Form I-864
affidavit Timothy signed. 8 U.S.C. 1183a requires that a non-
citizens sponsor contractually commit to support the non-citizen
at 125% of the federal poverty level.7 The sponsors support
obligation lasts until the non-citizen works 40 qualifying
quarters under the Social Security Act or departs from the U.S.,
or until either the non-citizen or the sponsor dies.8 The
support obligation is enforceable in state or federal court
against the sponsor by the non-citizen or the federal or state
government. At the time of sponsorship, the required support
level is 125% of the federal poverty level for a family unit of a
size equal to the number of members of the sponsors household
(including family and non-family dependents) plus the total
number of other dependents and aliens sponsored by that sponsor.9
The Form I-864 affidavit instructions stipulate that [d]ivorce
does not end the sponsorship obligation.10
Alena argues that the superior court violated 8 U.S.C.
1183a by not awarding spousal support for 40 quarters. She also
questions the support award because it does not specify how and
when to adjust the support payments within the 40 quarters if her
circumstances change, whether 125% of the federal poverty line is
a gross or net measure, whether she is charged with an
affirmative duty to mitigate the need for support, and whether
the size of her household should include Dasha. We conclude that
the superior court did not err in its interpretation of 8 U.S.C.
1183a and that the other questions raised by Alena are waived
because they were inadequately briefed.11
Based upon Alenas work history in Fairbanks, the
superior court found that her earning capacity was approximately
$28,000 per year. The court also found that she would have the
capacity to earn approximately $18,000 per year even if she
scaled back to working 30 hours per week to continue university
classes in English and engineering. The court concluded that
because both of these amounts are greater than 125% of the
federal poverty line for a one-person household in Alaska,
neither 8 U.S.C. 1183a nor the INS Form I-864 affidavit required
that Timothy pay spousal support to Alena.12 We agree. Existing
case law supports the conclusion that a sponsor is required to
pay only the difference between the sponsored non-citizens income
and the 125% of poverty threshold.13 And the parties have
referred us to no authority supporting the proposition that
federal law requires a sponsor to pay spousal support when the
sponsored non-citizens earned income exceeds 125% of the federal
poverty threshold for a household the size of the sponsored non-
citizens household. We conclude that federal law does not
require Timothy to pay a spousal support award to Alena at this
time. If Alenas earned income falls below 125% of the federal
poverty threshold for a family of one before the occurrence of a
terminating event (completion of 40 quarters of work, Alenas
departure from the United States, or the death of Alena or
Timothy), she may bring suit in state or federal court to enforce
Timothys obligation.14
B. Spousal Support Was Incorrectly Calculated Under State
Law.
Alena argues that the superior court abused its
discretion under Alaska law because its award of spousal support:
(1) was premised upon a property award which erroneously included
Timothys courtship costs as a marital debt; (2) was not based
upon sufficiently specific findings; and (3) did not properly
consider her rehabilitative needs. She also argues that the
courts findings regarding her comparative welfare before and
after marriage to Timothy and the possibility of her return to
Belarus are erroneous. We agree that the spousal support award
was premised upon a flawed property award and that additional
findings are necessary to allow review of the courts award of
spousal support.
1. Courtship costs incurred before marriage are
presumptively separate debt.
We have repeatedly held that whenever possible a trial
court should provide for the needs of a divorced spouse through a
disproportionate division of marital assets; awards of spousal
support are disfavored and only appropriate when the marital
estate is insufficient to meet the needs of a disadvantaged
party.15 This precedent requires that we examine Alenas challenge
to the courts property division before reviewing her arguments
challenging the adequacy of the courts award of spousal support.
The amount of spousal support to which Alena is entitled, if any,
is dependent upon the value of the marital property awarded to
her and whether her needs can be met with an unequal division of
the marital estate.16
A trial courts equitable division of a marital estate
is a three-step process. First, the trial court must determine
what specific property is available for distribution. Second, the
court must find the value of this property. Third, it must
decide how an allocation can be made most equitably.17 Here, the
trial court acknowledged Timothys payment of travel and legal
expenses during the courtship and the pre-marital immigration
process as one of the factors it relied upon in making its
division of marital property. Alena argues that the trial court
erred by including the debt Timothy incurred during the parties
courtship (on his travel to Belarus, Alena and Dashas relocation,
and the legal aspects of sponsorship and immigration) as marital
debt. We agree.18
Under AS 25.24.160, courts are generally called upon to
divide property acquired only during marriage.19 Courts may look
to property acquired before the marriage when the balancing of
the equities between the parties requires it, but such property
should not be treated as part of the marital estate and available
for division unless the court specifically finds that balancing
of the equities requires invasion of the premarital holding.20
Here, the trial court did not invade a marital asset, but it did
treat a debt that was incurred prior to the marriage as a part of
the marital estate. We have never held that courtship expenses
are properly considered marital debt, and the trial court made no
findings explaining why it treated the courtship expenses as
marital debt. We conclude it was error to include courtship
expenses in the marital estate absent specific findings
explaining why the balancing of the equities required such
inclusion.
The trial court was aware of the great disparity in the
parties incomes, and found that [f]or that reason the greater
percentage of the marital assets should be distributed to Alena.
The superior court also entered a support award in her favor.
But because the superior courts assessment of the total marital
estate available for distribution was skewed by consideration of
the courtship costs, its calculation of spousal support was based
on a faulty premise. On remand, the superior court should
reassess the size of the net marital estate and consider whether
a disproportionate award of property can satisfy Alenas needs for
spousal support. If the court determines that spousal support is
warranted, it should enter findings regarding the appropriate
amount and duration of Timothys support obligation.
2. The spousal support award was based on
insufficient factual findings.
Alena argues that the superior courts award of spousal
support was not supported by adequate findings of fact. In
Alaska, spousal support is governed by AS 25.24.160. This
statute provides that a court may award spousal support for a
limited or indefinite period of time, in gross or in
installments, as may be just and necessary without regard to
which of the parties is in fault; such an award must fairly
allocate the economic effect of divorce.21 Before calculating
spousal support, a court must consider:
(A) the length of the marriage and station in
life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties,
including their educational backgrounds,
training, employment skills, work
experiences, length of absence from the job
market, and custodial responsibilities for
children during the marriage;
(D) the financial condition of the parties,
including the availability and cost of health
insurance;
(E) the conduct of the parties, including
whether there has been unreasonable depletion
of marital assets;
(F) the division of property under (4) of
this subsection; and
(G) other factors the court determines to be
relevant in each individual case;[22]
We have held that a trial courts award of spousal
support must be accompanied by adequate findings, particularly
with respect to the financial needs and abilities of both
parties. 23 Although a trial court need not make findings
regarding every factor, we have remanded awards of alimony when
there is an insufficient analysis of the needs of the alimony
recipient or the means of the paying party.24
Support awards are generally of two types:
reorientation and rehabilitative. The purpose of reorientation
alimony is to allow the requesting spouse an opportunity to
adjust to the changed financial circumstances accompanying a
divorce.25 Rehabilitative alimony is awarded when the recipient
spouse intends to apply the alimony toward job training designed
to lead to employment, in order to allow a recipient spouse who
exits a marriage with few job skills and little earning capacity
to secure a means of earned income.26 Rehabilitative alimony is
narrowly restricted to job training or other means directly
related to entry or advancement within the work force, and the
party seeking rehabilitative alimony must intend to use it for
such purposes.27
At the conclusion of trial on July 27, 2007, the
superior court issued preliminary oral findings and rulings
recognizing the need for Alena to complete further studies in
English and engineering in order to pursue employment as an
engineer in the U.S., and implying an intent to award
rehabilitative support.28 A few weeks after trial, on August 15,
2007, the court made oral findings explaining its award of $1,500
per month in spousal support and how it determined the duration
of Timothys obligation to pay it. The trial courts award was
made pursuant to 8 U.S.C. 1183a and the INS Form I-864
affidavit. The court estimated that it would be about two years
before Alena would be eligible for citizenship and calculated
that $1,500 per month in spousal support was necessary to fulfill
Timothys obligation to support her at 125% of the federal poverty
level. But the court rescinded this award when Timothys counsel
pointed out that it was based on a calculation for a household of
five people, not one. The parties left the August 15, 2007
hearing anticipating a set of corrected findings; the corrected
findings were not entered until late April 2008, and they did not
rely on federal law. Instead, the corrected findings referenced
factors from AS 25.24.160(a)(2), including the length of the
parties marriage, the lack of minor children, and the parties
relative financial positions. The court did not make findings
about Alenas specific financial resources and needs, about what
expenses Alena would incur if she attended university classes, or
about how long she would have to attend classes to achieve her
educational goals. As noted, trial ended in July of 2007 but the
court did not enter findings until April of 2008. The courts
written findings indicate its intention that Alena receive
assistance through the end of the 2008 academic year,29 but the
record does not reveal whether Alena was enrolled in classes
during the interval between July 2007 and April 2008. From this
record we cannot determine the scope of Alenas rehabilitation
plan, her needs during the rehabilitation period, or whether she
progressed toward or completed her educational goals in the
interval before the corrected findings were entered in April
2008. Because the court did not make findings concerning Alenas
needs or indicate how its award of spousal support would meet
those needs, we are unable to review the adequacy of the spousal
support award under state law. We therefore remand this issue to
the trial court for reconsideration and additional findings.
3. The courts factual findings regarding Alenas
ability to support herself in Belarus and her
relative position after this marriage were
supported by the record.
Alena argues that the superior courts findings
concerning her ability to support herself in the event she
returns to Belarus and her relative financial position before and
after this marriage are clearly erroneous. She also argues that
the courts written findings are contrary to its August 15, 2007
oral findings, and contrary to undisputed evidence concerning the
state of the economy in Belarus.30 We disagree.
Alena testified that she still owns her apartment in
Belarus and that the average pay in her former profession was
$100 per month. The court orally found that although Alena has
given up everything she has to come to this country, she could
pick up and leave and go back to Belarus if she wants. The court
recognized that it might be emotionally difficult for her to
return to . . . Belarus and it heard testimony that Alenas
relatives now live in her apartment, but the court found, she has
th[e] option [of returning to Belarus] and she can do what she
wants to. The court made no other factual findings on this
point. Alena offered only her own arguments as proof of the
economic situation in Belarus and conceded at trial that,
although difficult, she might be able to get a job paying the
average salary of $100 per month if she returned there. This,
coupled with the evidence that she now owns her apartment free of
any mortgage debt, supports the trial courts conclusion that its
award was sufficient to support Alena for a period of months in
Belarus; it was not clear error. Alena does not provide a
convincing argument that the trial courts April 2008 written
findings conflict with its August 2007 oral findings.
4. Alena waived her arguments regarding the trial
courts procedural decisions.
Alena also argues that the trial court made procedural
errors by issuing the written findings, including accepting
unsolicited findings drafted by counsel, entering written
findings which conflicted with the courts oral findings, and
delaying too long before issuing the findings. Timothy counters
that the written findings, which were drafted by his attorney,
were submitted in accordance with Alaska Rule of Civil Procedure
78(a)31 and were adopted by the court in keeping with this courts
existing case law on point.32 Alena only raises these arguments
in her reply brief. Because we deem waived any arguments raised
for the first time in a reply brief, we do not here reach the
merits of these issues.33
C. Alena Is Not Entitled To Additional Attorneys Fees
Under Federal Law.
Alena argues that the superior court erred by failing
to award her full attorneys fees for the time her attorney spent
on efforts to enforce Timothys federal support obligations.
Alena filed a record of her attorneys fees, as requested at trial
on July 12, 2007. She included a breakdown of the hours her
attorney worked overall, and specified the number of hours spent
on efforts to enforce the sponsors duty to support her under 8
U.S.C. 1183a and the INS Form I-864 affidavit.
8 U.S.C. 1183a(c) does provide that [r]emedies
available to enforce an affidavit of support under this section
include . . . payment of legal fees and other costs of
collection. The parties cite no precedent from any jurisdiction
providing for an award of attorneys fees to a party who was not
deemed entitled to spousal support under this federal statute.
Instructions for the INS Form I-864 affidavit comport with this
conclusion. In relevant part, the instructions state:
If you [the sponsor] are sued [for support
owed under INS Form I-864], and the court
enters a judgment against you, the person or
agency that sued you may use any legally
permitted procedures for enforcing or
collecting the judgment. You may also be
required to pay the costs of collection,
including attorney fees.[34]
In the absence of a judgment against Timothy under 8 U.S.C.
1183a to enforce an affidavit of support, the superior court
correctly ruled that Alena is not entitled to an award of
attorneys fees under federal law.
Because the relative position of the parties may change
on remand, we vacate the fee award made pursuant to state law.
The superior court should reassess the fee award after it
addresses the other issues remanded by this decision.
V. CONCLUSION
For the reasons stated above, we AFFIRM the superior
courts conclusions that Alena is not entitled to spousal support
or attorneys fees under federal law. We REVERSE the
characterization of courtship costs as marital debt and REVERSE
the award of spousal support under state law. We VACATE the
award of attorneys fees under state law and remand for further
proceedings in keeping with this decision.
_______________________________
1 The parties had agreed to $875 per month in spousal
support during the interim period.
2 Parson v. State, Dept of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008) (citing Grimm v.
Wagoner, 77 P.3d 423, 427 (Alaska 2003)).
3 Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000)
(citing Bellanich v. Bellanich, 936 P.2d 141, 143 (Alaska
1997)).
4 Id.; see also Beal v. Beal, 88 P.3d 104, 110 (Alaska
2004).
5 In re Protective Proceedings of W.A., 193 P.3d 743,
748 (Alaska 2008) (quoting Casey v. Secco Energy, Inc., 92 P.3d
379, 382 (Alaska 2004)).
6 Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009).
7 8 U.S.C. 1183a(a)(1)(A) (1996).
8 8 U.S.C. 1183a(a)(3) (1996); INS Form I-864
instructions, page 3.
9 8 U.S.C. 1183a(f)(6)(A)(iii) (1996).
10 INS Form I-864 instructions, page 3.
11 Alenas briefing only raises these questions as
potential problems with the spousal support order; it does not
argue that the superior court erred by incorrectly addressing
any of these issues. We do not reach these issues because
arguments are waived if they are inadequately briefed on appeal.
Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410
(Alaska 1990).
12 At trial, Alena argued that the spousal support
calculation should have been based on a household with five
members, the size of the Barnetts entire household at the time
Timothy signed the Form I-864 affidavit. The superior court
concluded that the calculation should be based on a household
with one person, relying on Stump v. Stump, No. 1:04-CV-253-TS,
2005 WL 2757329, at *5 (N.D. Ind. Oct. 25, 2005) (where parties
had no minor children, federal obligation to pay spousal support
after alien and sponsor divorce is not less than 125% of poverty
line for one person).
13 Younis v. Farooqi, 597 F. Supp.2d 552, 556 (D. Md.
2009) (To determine the appropriate [support due from the
sponsor], courts compare the [sponsored immigrants] annual
income for the particular years at issue . . . against the 125%
poverty threshold for each particular year.); Shumye v. Felleke,
555 F. Supp.2d 1020 (N.D. Cal. 2008) (calculating a sponsors
annual support obligation by comparing the sponsored immigrants
income against the 125% poverty threshold); Naik v. Naik, 944
A.2d 713, 717 (N.J. Super. 2008) ([T]he sponsor is not
necessarily required to pay the sponsored immigrant 125 percent
of the Federal Poverty Guidelines for the appropriate family
unit size. Rather, considering the sponsored immigrants own
income, assets and other sources of support, the sponsor must
pay any deficiency in order to meet this minimum level or
floor.).
14 8 U.S.C. 1183a(a)(1)(B) specifies that the terms of
the I-864 affidavit are enforceable by the sponsored alien, the
Federal Government, any State (or any political subdivision of
such State), or by any other entity that provides any
means-tested public benefit at any time during the period of
obligation specified by the affidavit. See also Cheshire v.
Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010, at *3-5
(M.D. Fla. May 4, 2006) (form I-864 creates a binding contract
between sponsored immigrant and sponsoring spouse, enforceable
by sponsored immigrant, which is unaffected by divorce);
Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171, at *2
(W.D. Okla. May 10, 2005) (sponsored immigrant may maintain
support action against ex-husband at any point during the period
specified by the I-864 affidavit; divorce does not destroy this
obligation); Moody v. Sorokina, 830 N.Y.S.2d 399, 402 (N.Y. App.
2007) (sponsored immigrant had a private cause of action against
her ex-husband for fulfillment of support obligation under I-864
affidavit).
15 See, e.g., Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska
1987) (We have announced a policy of encouraging trial courts to
provide for parties financial needs by property disposition,
rather than by alimony. (citing Hunt v. Hunt, 698 P.2d 1168,
1172 (Alaska 1985))); Schanck v. Schanck, 717 P.2d 1, 5 (Alaska
1986) (confirming that our decisions have established a
preference for meeting the parties needs with the division of
property, rather than with alimony, where the marital assets are
adequate to do so. (citing Russell v. Russell, 623 P.2d 1221,
1224 (Alaska 1981))).
16 See Messina v. Messina, 583 P.2d 804, 805 (Alaska
1978).
17 Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
18 Alena also argues that the trial courts property
division was error under federal law. She argues that inclusion
of courtship expenses violates Timothys support obligations
under 8 U.S.C. 1183a and the INS Form I-864 affidavit. We see
no merit in this claim: neither 1183a nor the INS affidavit say
anything about the division of debt or property upon the divorce
of a sponsor and sponsored alien. Nor do these documents
require a sponsor to pay for the cost of a sponsored aliens
relocation to this country.
19 AS 25.24.160(a)(4).
20 Id.
21 AS 25.24.160(a)(2).
22 Id.
23 Tollefsen v. Tollefsen, 981 P.2d 568, 572 (Alaska
1999) (quoting Davila v. Davila, 876 P.2d 1089, 1094 (Alaska
1994)).
24 Gallant v. Gallant, 882 P.2d 1252, 1255 (Alaska 1994).
25 Tollefsen, 981 P.2d at 572 (quoting Richmond v.
Richmond, 779 P.2d 1211, 1215 n.6 (Alaska 1989)).
26 Fernau v. Rowdon, 42 P.3d 1047, 1058 (Alaska 2002)
(internal citations and quotations omitted).
27 Id. (citing Edelman v. Edelman, 3 P.3d 348, 358
(Alaska 2000)).
28 The court noted Alenas desire to go to school and
discussed the need for financial support from Timothy to
supplement her loss of 10 hours a week at Lowes and so she can
go to school. The court went on to acknowledge that Alena would
require approximately two years of courses in English and
engineering in order to be able to work as an engineer in the
U.S., and, in response to questioning from Timothys attorney,
stated that it was probably a good thing to believe that the
courts support order would be rehabilitative spousal support
tied to Alena attending school.
29 The court ordered that Timothy pay spousal support of
$875 per month through May 31, 2008, the end of the 2007-08
school year. Because these findings were not executed until
late April 2008, the courts order only required one more month
of spousal support.
30 The findings Alena specifically objects to are 8
([Alena] has the opportunity to choose whether to return to
Belarus or to stay in this country. With the funds she is
receiving in this divorce, she could afford to support herself
in Belarus until she found new employment) and 14(f) (With this
property division and spousal support award, Alena is
substantially better off financially than she was before she
came to the United States.). The superior court relied in part
on these findings for its conclusion that the division of
marital assets was fair and equitable and fairly allocates the
financial impact of the divorce between the parties.
31 Rule 78(a) allows counsel for the successful party to
an action to prepare in writing and file and serve on each of
the other parties proposed findings of fact, conclusions of law,
judgments, and orders. Timothy and Alena had been awaiting
findings from the court since August 2007; in February 2008,
Timothy filed a Request for Hearing to resolve the outstanding
issues in the case and, on March 6, 2008, he filed draft
Findings of Fact and Conclusions of Law. These findings were
adopted by the court on April 23, 2008. According to the
certificate of service accompanying the draft findings, they
were served on Alenas attorney more than a month and a half
before the court signed and entered them, allowing ample time
for Alena to object.
32 See Harris v. AHTNA, Inc., 193 P.3d 300, 306 (Alaska
2008) (quoting Indus. Indemnity Co. v. Wick, 680 P.2d 1100, 1108
(Alaska 1984)); Miller v. Miller, 105 P.3d 1136, 1140 (Alaska
2005).
33 Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158
(Alaska 1992). In his briefing, Timothy responded to these
issues with particularity only, it seems, because Alena did
argue them in her Motion to Reconsider and Vacate. But the fact
that she mentioned these arguments more specifically below does
not change the fact that she failed to include them in her
opening brief on appeal.
34 INS Form I-864 Instructions, page 7 (emphasis added).
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