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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 (9/24/2010) sp-6511
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-13512
Appellant, )
) Superior Court No.
v. )
) O P I N I O N
Kathleen Finnerty JOHNSON, )
) No. 6511 - September 24, 2010
Appellee. )
)
Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellant.
Appellee did not participate.
Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices, and EASTAUGH,
Senior Justice pro tem.FN*
FN* Sitting by assignment made pursuant to article IV, section 11
of the Alaska Constitution and Rule 23(a) of the Rules Governing
the Administration of All Courts.
OPINION
EASTAUGH, Senior Justice pro tem.
I. INTRODUCTION
This appeal concerns post-divorce efforts by both parties to enforce, correct,
or modify their property division. Sam Johnson challenges various post-divorce
superior court rulings, including: an award of Alaska Civil Rule 82(b)(3) full
attorney's fees to Kathleen Johnson after Sam made three unsuccessful motions to
enforce their property division; the denial of Sam's show-cause motion to force
Kathleen to produce or account for his personal property; and the denial of his
motion for Rule 82 fees on the judgment entered after remand from a prior appeal.
Because Sam's three enforcement motions were in part potentially meritorious and
thus not “vexatious or bad faith conduct,” we reverse part of Kathleen's first full
fees award. We also vacate the denial of Sam's show-cause motion, because it raised
unresolved genuine, material issues of fact. We otherwise affirm.
II. FACTS AND PROCEEDINGS
A. Prior Proceedings
Kathleen and Sam Johnson married in 1972 and divorced in June 2007, after a four-day
trial. The superior court explained in its findings and conclusions that it was making
an “approximately” 50/50 division of the parties' property. It divided, among other things,
the parties' “Azalea” and “Glacier” real properties and the associated personal property.
As to the Azalea personalty, the superior court seems to have largely accepted the appraised
value of $121,927.50, because it awarded each party $60,000 of the Azalea personalty without
awarding either party specific items.
The court also entered a qualified domestic relations order (QDRO) for Sam's military retire-
ment; it ordered Sam to pay Kathleen 50 percent of his military retirement each month until
the QDRO payments began. The court entered a similar, but not identical, QDRO for Kathleen's
retirement.
Sam timely sought clarification, but did not raise the issues now before us.
This is Sam's third appeal relating to the divorce.FN1 The issues he now raises require a
detailed description of the parties' post-divorce motion practice.
FN1. Johnson v. Johnson, Mem. Op. & J. No. 1335, 2009 WL 564692 (Alaska, Mar. 4, 2009),
resolved his first appeal. We there remanded for correction of the double-counting of a truck
awarded to Sam and for consideration of Sam's claim for credits for post-separation costs he
allegedly incurred to maintain marital property. Id. We otherwise affirmed. Id.
Johnson v. Johnson, 214 P.3d 369 (Alaska 2009), resolved his second appeal. We there rejected
Sam's argument that Kathleen's QDRO contained a clerical mistake warranting correction, and
affirmed. Id.
B. Sam's First Motion To Compel
In March 2008, while his first appeal was pending, Sam asked the superior court to compel Kathleen
to: (1) return geotechnical road fabric Sam had purchased after separation; (2) reimburse him for
heating fuel he purchased for the Glacier property during the divorce proceedings and pay for a later
fuel delivery; and (3) “return” some 28 items of Azalea personalty listed in his motion papers and
described as “non-marital.” FN2
FN2. For example, Sam sought his father's oil can, kitchen items that had belonged to his grandmother,
and a dresser his mother had given him before he married.
Kathleen responded that Sam's motion was frivolous, was deficient as not identifying the order to be
enforced, raised disputes litigated at trial, and sought untimely reconsideration.
Sam replied that relief was authorized by Civil Rule 70. He also asserted that the superior court's
findings and conclusions “require transfer” of the disputed items.
By order dated July 30, 2008, the superior court denied Sam's motion as to the road fabric, noting
that because Sam thought his brother had taken it, Sam should pursue a claim against his brother, not
Kathleen. It also denied the motion as to the fuel, finding it was Kathleen's because it went with the
Glacier realty awarded to her. But as to the disputed Azalea personalty, the order provided that “[t]he
heirlooms from [Sam's] family are to be returned to him if [Kathleen] has them. If [she] no longer has
the items, she is to provide an account for what happened to them, if she knows.”
C. Sam's Motion To Correct Clerical Mistake
Also in March 2008 Sam, citing Civil Rules 60(a) and 60(b)(1), moved to correct what he called a “clerical
mistake” or error in Kathleen's QDRO (the QDRO dividing Sam's retirement payments). He contended that the
court made a clerical mistake in ordering that even if Kathleen remarried, she would receive payments under
her QDRO, whereas if he remarried he would receive no benefits under the QDRO dividing her pension.
Kathleen's opposition argued that Sam's motion was frivolous and of “no merit” under either rule. She denied
any error and asserted that as a matter of law her remarriage would not affect her benefits. She also argued
that Sam had waived the issue, because every draft of the proposed QDRO had contained the same provision, Sam's
expert had reviewed the provision, and Sam's trial objections had not addressed it.
The superior court denied Sam's motion. The denial order essentially agreed with Kathleen. Sam appealed. We
affirmed, because “the remarriage provisions were neither a clerical error nor a mistake.” FN3
FN3. See Johnson, 214 P.3d at 372.
D. Sam's Second Motion To Compel
While his first motion to compel was pending, Sam filed a second motion to compel. It asserted that: he had
been awarded $60,000 of the Azalea personal property; he “did not receive his personal property as was awarded”
to him; most of the items were “personal” to his family and had been owned by him before the marriage; and the
remaining items were “attached to his military career.” This motion again listed the 28-some items. His supporting
affidavit asserted that he had received Azalea items whose value was much less than his $60,000 award, and that
he was seeking return of items including “pre-marital, inherited and other items.”
Kathleen argued in opposition that, as to the Azalea items, the second motion to compel was identical to the first
and thus redundant, and should be summarily denied. Her unsworn opposition also inferentially denied that she
possessed any of Sam's personal property.
On July 30, 2008, the same day it denied Sam's first motion to compel, the court denied his second motion to
compel as “redundant.”
E. Kathleen's First Award Of Actual Attorney's Fees
After the superior court denied Sam's motion to correct and his two motions to compel, Kathleen sought Civil
Rule 82(b)(3) actual attorney's fees as to those three motions. Over Sam's opposition, the superior court
awarded Kathleen actual fees of $7,272.87. We elaborate on this fees dispute and the court's rulings in Part
III.A, which considers whether it was error to grant Kathleen's first full-fees motion.
F. Kathleen's Motion For Order To Show Cause
Before her first fees motion was finally resolved, Kathleen filed a show-cause motion to enforce Sam's interim
post-divorce obligation to pay her half of his retirement pay each month until she began receiving direct payments
from the Defense Finance and Accounting Service (DFAS). She claimed that Sam did not pay her in October, November,
and December 2007, and asked the court to order Sam “to show cause why he should not be held in contempt for
willfully violating the Court's order....”
Sam opposed the motion. After considering documentary evidence admitted without objection at a hearing, the
superior court found that Sam had not made the October, November, and December payments. It founded its ruling
on Sam's admission that he had not paid in October, “the lack of proof of payment in November,” and Sam's
December bank statement that showed that he received the full DFAS payment on December 2.
We elaborate on the arguments and ruling below in Part III.C, which addresses Sam's argument that it was error
to find that he did not make the December payment.
G. Sam's Cross-Motion For Order To Show Cause
When he opposed Kathleen's show-cause motion, Sam cross-moved for an order requiring her to show cause “why she
should not be held in contempt for willful violation of the court orders requiring her to file an accounting of
the personal property in her possession [from] the Azalea residence.” The cross-motion also argued that if Kathleen
did not give him those items, their value should be offset against the retirement payments awarded to Kathleen.
Kathleen opposed the cross-motion and, after Sam replied, the superior court denied the cross-motion without
explanation. The court also denied Sam's motion to reconsider the denial. We elaborate on the parties' superior
court arguments in Part III.B, which addresses Sam's argument that it was error to deny his cross-motion.
H. Kathleen's Second Award Of Actual Attorney's Fees
In a second motion for actual fees, Kathleen sought the fees she incurred in pursuing her show-cause motion
and in opposing Sam's motions for reconsideration of her first full fees award and his motion for reconsideration
of the denial of his show-cause cross-motion. The superior court granted her motion and awarded her “full
reasonable” attorney's fees of $4,141. The court explained that “Sam's motion[s] were repetitive and not well
taken, and raised no issues not previously decided by the Court. Under Civil Rule 82, Kathleen is entitled to full
fees on these motions.” Citing AS 09.50.040, the court also stated it was awarding her full fees on her show-cause
motion as damages caused by Sam's failure to comply with the court's QDRO.
I. Remand Proceedings After First Appeal
On March 4, 2009, we issued our MO & J in Johnson v. Johnson.FN4 We there remanded because the property division
erroneously double-counted a truck awarded to Sam and did not resolve all of Sam's claims for credit for his post-
separation expenses.FN5
FN4. Mem. Op. & J. No. 1335, 2009 WL 564692 (Alaska, Mar. 4, 2009).
FN5. Id. at *3, 5-6.
Following an evidentiary hearing on remand, the superior court ordered Kathleen to pay Sam $24,418 (the value
of the truck plus a partial credit for post-separation expenses), minus $6,352.17 (what Sam owed Kathleen as
retirement payments). When Kathleen then asked the court to offset her unpaid attorney's fees awards, Sam
opposed, on the grounds the fees were awarded before we issued our MO & J and were being appealed in the case,
S-13512, now before us. Nonetheless, the final judgment offset Kathleen's prior fees awards against the value
of the truck and Sam's credits, giving Sam a net judgment of $6,132.19.
Sam then moved for Rule 82 attorney's fees on the theory that he had recovered a money judgment in a case
contested without trial. The superior court denied Sam's fees motion, explaining that fees were not appropriate
because the corrections “were not due to post-trial litigation or enforcement,” but rather to correction of a
trial error. We elaborate on these facts in Part III.D, which addresses Sam's contention that it was error to
deny his fees motion.
Sam appeals some of these rulings. Kathleen has filed no brief on appeal.
III. DISCUSSION
A. Whether It Was An Abuse Of Discretion To Award Kathleen Full Reasonable Attorney's Fees On Sam's First Three
Post-Trial Motions
1. The award and Sam's contentions
After denying Sam's first three post-trial motions, the superior court granted Kathleen's motion for full
reasonable fees of $7,272.87. Sam argues that it was error to award full fees.FN6
FN6. He does not contend that the fees incurred were unreasonable in amount.
The January 2009 full-fees order cited four subparagraphs of Civil Rule 82(b)(3) in support and largely
accepted Kathleen's contentions.FN7
FN7. Rule 82(b)(3) provides:
The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon
consideration of the factors listed below, the court determines a variation is warranted:
(A) the complexity of the litigation;
(B) length of the trial;
(C) the reasonableness of the attorneys' hourly rates and the number of hours expended;
(D) the reasonableness of the number of attorneys used;
(E) the attorneys' efforts to minimize fees;
(F) the reasonableness of the claims and defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of work performed and the significance of the matters at stake;
(I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would
deter similarly situated litigants from the voluntary use of the courts;
(J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by
considerations apart from the case at bar, such as a desire to discourage claims by others against the
prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
If the court varies an award, the court shall explain the reasons for the variation.
Citing Rule 82(b)(3)(F), the order found that the claims Sam made in those motions “were not reasonable,”
and that full fees were “therefore necessary.” It stated that Sam's first motion to compel was largely an
untimely motion to reconsider, and that to the extent it sought compliance with an earlier order, his motion
“did not cite the earlier order or explain his failure to do so.” It found that Sam's motion to correct “was
also an untimely motion to reconsider,” was founded “on an incorrect legal premise,” and identified a mistake
that “was not clerical.” And it found that Sam's second motion to compel was “redundant” and that “Kathleen
never should have been put to the expense of defending the motion at all.”
Citing Rule 82(b)(3)(G), it concluded that awarding full fees was “also appropriate ... for vexatious and bad
faith litigation conduct, as set forth above.”
Citing Rule 82(b)(3)(H), it found that awarding full fees was appropriate because the effort and fees imposed
on Kathleen were “unreasonably large compared to the value of the items at stake.”
Citing Rule 82(b)(3)(K)'s “other equitable factors” provision, it found that awarding full fees was appropriate
because Sam's decision to “continu[e] the litigation of matters that could or should have been litigated at
trial, or that were in fact litigated to conclusion at trial,” effectively “devalue[d] the assets awarded to
Kathleen by requiring her to litigate repeatedly over the same issues.”
Sam argues that the record does not support the finding that his motions were ill-founded or made in bad faith.
He asserts that his motions were directed at items of personal property that he had been awarded but never
received, and did not challenge the original property award.FN8 He also implies that full fees were not warranted
as a matter of law on his first motion to compel because it partially succeeded.
FN8. Sam's brief asserted that the court made no findings of fact justifying full reasonable fees, and his excerpt
did not contain the superior court's January 25, 2009 order containing the findings discussed above. Independently
finding the January order in the record, we ordered Sam's attorney to address the oversight at oral argument on
appeal. We describe his corrected contentions above.
We usually review for abuse of discretion a Rule 82 award of full reasonable attorney's fees.FN9 An abuse of
discretion exists if an award is “arbitrary, capricious, manifestly unreasonable, or the result of an improper
motive.” FN10 Because the award of actual fees calls into question Sam's litigation conduct and the potential
merits of Sam's underlying three motions, we assess de novo the legal and factual viability of his motions and
review relevant findings of fact for clear error.FN11
FN9. Hopper v. Hopper, 171 P.3d 124, 133 (Alaska 2007) (applying abuse of discretion standard in reviewing
award of full reasonable fees on post-divorce Rule 60(b) motion).
FN10. McGee v. McGee, 974 P.2d 983, 987-88 (Alaska 1999) (applying abuse of discretion standard in reviewing
award of fees on post-divorce Rule 60(b) motion).
FN11. See State, Dep't of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790, 795-96 (Alaska 1995)
(assessing viability of CSED's defense de novo and reviewing factual findings for clear error in reversing
decision to award presumed father Rule 82 full fees in child support collection case).
A prevailing party in a civil case is normally entitled to an award of attorney's fees, per Rule 82.FN12 Divorce
cases are usually excepted from this general rule; fees awards in divorce cases are typically based on the parties'
relative economic situations and earning powers, rather than prevailing party status.FN13 This “divorce exception”
to Rule 82 is based on a broad reading of AS 25.24.140(a)(1), and on the reality that there is usually no prevailing
party in a divorce case.FN14 Nonetheless, we have held that Rule 82 applies to post-judgment modification and
enforcement matters in domestic relations disputes FN15 and that fees are appropriately awarded under the prevailing-
party standard of Rule 82 as to post-judgment money and property disputes.FN16 Rule 82 consequently applies to the
parties' post-judgment enforcement motions in this case.
FN12. Rule 82(a) provides:
Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be
awarded attorney's fees calculated under this rule.
FN13. Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (explaining divorce exception to Rule 82).
FN14. Id.
FN15. Powell v. Powell, 194 P.3d 364, 372-73 (Alaska 2008) (applying Rule 82 when former wife filed Rule 60(b)
motion to modify property division); McGee, 974 P.2d at 992 (applying Rule 82 when former wife filed Rule 60(b)
motion to modify dissolution decree); Saltz v. Saltz, 903 P.2d 1070, 1071 (Alaska 1995) (applying Rule 82 when
former wife alleged former husband had not paid spousal support, and moved to reduce her spousal support claim
to judgment); Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991) (citing L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988))
(holding Rule 82 applied when former wife moved to modify dissolution decree to award her share of former husband's
military retirement); Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989) (holding that Rule 82, not divorce
exception, applied when former wife moved to enforce property division).
FN16. Lowe, 817 P.2d at 460.
Normally only partial fees are awarded under Rule 82,FN17 but Rule 82(b)(3) lists factors that may permit a court
to depart from a partial fees award calculated under Rule 82(b)(1) and (2), and to award enhanced or even full
reasonable fees.FN18 We have held that “[i]n general, a trial court has broad discretion to award Rule 82 attorney's
fees in amounts exceeding those prescribed by the schedule of the rule, so long as the court specifies in the record
its reasons for departing from the schedule.” FN19
FN17. Alaska R. Civ. P. 82(b)(1) (scheduling partial fees awards for parties recovering money judgments); Alaska R.
Civ. P. 82(b)(2) (specifying percentages of actual fees for partial fees awards to parties not recovering money
judgments).
FN18. Rule 77(j) also allows awarding attorney's fees against a party presenting a “frivolous or unnecessary” motion.
It is not necessary in this case to distinguish between full fees awards under Rule 77 and Rule 82.
FN19. United Servs. Auto. Ass'n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 535 (Alaska 2001) (quoting State v. Johnson,
958 P.2d 440, 445 n. 10 (Alaska 1998)) (affirming Rule 82(b)(3) award of enhanced fees because superior court
adequately explained why it deviated from rule's schedule).
A Rule 82(b)(3) award of full fees is “manifestly unreasonable” absent a finding of bad faith or vexatious conduct.
FN20 Black's Law Dictionary defines “bad faith” as “[d]ishonesty of belief or purpose.” FN21 In the attorney's fees
context, we have equated “bad faith” with “devoid of good faith.” FN22 Therefore, enhanced fees may be awarded under
any of the subparagraphs of Rule 82(b)(3), but full fees may be awarded under Rule 82(b)(3) only if the “vexatious
or bad faith conduct” standard of Rule 82(b)(3)(G) is satisfied.
FN20. Cf. Crittell v. Bingo, 83 P.3d 532, 537 & n. 20 (Alaska 2004) (affirming Rule 82(b)(3) full fees award because
record supported findings of vexatious and bad faith conduct).
Our cases may also allow full reasonable fees awards under Rule 82 if a claim is frivolous, even absent bad faith.
Compare State Farm Ins. Co. v. Am. Mfrs. Mut. Ins. Co., 843 P.2d 1210, 1212 (Alaska 1992) (stating that full fees
are permitted if party asserts frivolous claim, litigates in bad faith, or is liable under indemnity clause, or if
award is made per express contract provision), Van Dort v. Culliton, 797 P.2d 642, 644 (Alaska 1990) (stating that
“departure from the [Rule 82] fee schedule, even to the extent of a full award of actual fees, may be justified where
the court finds that a losing party's claim or defense was ‘frivolous, vexatious, or devoid of good faith’ ”), and
Crawford & Co. v. Vienna, 744 P.2d 1175, 1178 n. 4 (Alaska 1987) (stating that because case was frivolous, “full or
substantially full attorneys' fees may be imposed” on remand, even though plaintiffs had not acted in bad faith),
with Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1003 (Alaska 1999) (implying that full fees could not be
awarded based on finding of only frivolousness).
The superior court did not expressly find that Sam's motions were “frivolous.” It characterized the claims in the
motions as “not reasonable.” It also noted that it had not awarded fees after trial and that Sam's motions litigated
matters that had been or could have been litigated at trial. It then stated that “[h]ad Sam pursued the type of
baseless and unsupported claims made in motions since trial, at or before the time of trial, the Court would likely
have awarded fees to Kathleen on that basis.” If frivolousness alone does justify full fees awards under Rule 82,
it nonetheless does not affect the result we reach as to Kathleen's first full fees award. That is so because our
ultimate conclusions about the potential merits of two of Sam's motions preclude characterizing those two motions
as frivolous.
FN21. BLACK'S LAW DICTIONARY 149 (8th ed. 1999).
FN22. See Van Dort, 797 P.2d at 644 (quoting State v. Univ. of Alaska, 624 P.2d 807, 818 (Alaska 1981)).
As we stated above, whether it was error to award full reasonable fees as to Sam's first three motions turns on
their potential merit.FN23
FN23. See supra note 11 and accompanying text.
2. First motion to compel
We first consider Sam's initial motion to compel. It made three requests: (1) return of the road fabric purchased
for the Glacier property; (2) reimbursement for fuel Sam purchased for the Glacier property and imposition on Kathleen
of an unpaid Glacier property fuel invoice; and (3) “return” of some 28 items of Azalea personal property. The superior
court largely denied the three requests, but denial does not in itself establish that the requests were made vexatiously
or in bad faith. The issue is not whether they were ultimately unsuccessful, but whether they were collectively or
individually so lacking in merit that it is permissible to infer that Sam or his lawyer acted in bad faith or engaged in
vexatious litigation conduct.FN24 If a request was either legally or factually so deficient as to reasonably permit an
inference of vexatious or bad faith litigation conduct, we must affirm the award as to that request. Conversely, to
prevail on appeal, Sam must demonstrate that the request was neither legally nor factually so deficient as to permit
such an inference.
FN24. See State, Dep't of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790, 795-96 (Alaska 1995)
(assessing viability of defendant's argument and reversing plaintiff's full fees award because “[defendant's]
legal position [was] tenable and not so devoid of merit as to indicate a bad faith or vexatious intent”).
Although we have never said so explicitly, our cases suggest that a motion to compel is procedurally appropriate
if the moving party has an established legal right to the relief sought.FN25 The question is therefore whether it
would have been unreasonable for a litigant in Sam's position to believe that he had an established legal right
to the requested items.
FN25. See, e.g., Edelman v. Edelman, 61 P.3d 1, 3-4 (Alaska 2002) (affirming denial of former wife's motion to
compel husband to assign Exxon claims because property division did not establish her right to those claims);
Vill. of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266, 1268-69 (Alaska 1988) (affirming grant of motion
to compel party to make payments in accordance with prior judgment); Uhl v. Uhl, Mem. Op. & J. No. 0110, 1982
WL 889009 at *2 (Alaska, July 1, 1982) (affirming grant of former husband's motion to compel former wife to
return particular items of personal property awarded him in divorce).
The disputed rolls of road fabric appear to have been part of the Glacier personalty, which the findings and
conclusions had expressly awarded to Sam. Sam's road fabric request thus sought items that arguably had been
awarded to him. This request was not so legally deficient as to warrant an inference of vexatiousness or bad
faith.
The road fabric request was also factually sufficient. The exhibits supporting the motion included letters
between the parties' lawyers discussing the road fabric. Kathleen's lawyer's letters did not deny the existence
of the rolls, or that they had been on the property, although one denied any concealment or interference with
Sam's opportunities to recover the fabric. Admissible facts therefore reasonably permitted inferences that at
least three rolls of road fabric were missing, that Kathleen possessed the Glacier property at relevant times,
and that she might have somehow prevented Sam from recovering the missing rolls or knew what had happened to
them. Whether Kathleen permitted Sam's brother to take the rolls or whether the rolls were still at the Glacier
property during her possession, the request seeking an accounting of the road fabric was potentially meritorious.
We turn to Sam's fuel request. Sam had argued at trial that he should get an offset for one-half the cost of a
tank-load of fuel for the Glacier property, but his first motion to compel asserted that Kathleen was responsible
for the cost of the entire tank-load, and that she should also pay for another billed, but unpaid for, delivery.
The divorce findings and conclusions did not specifically mention Sam's reimbursement request; they instead
generally provided that “the utility obligations” would “simply go with their respective properties,” and awarded
the Glacier realty to Kathleen.
That general provision could reasonably be read as imposing the fuel obligation, at least as to any unpaid fuel
invoice, on Kathleen. Because it relied on that provision, Sam's post-trial fuel request was at least in part not
so legally deficient as to give rise to a reasonable inference of vexatiousness or bad faith.FN26
FN26. At trial Sam did not ask the court to require Kathleen to pay for the unpaid-for fuel. The unpaid-for load
was delivered April 12, 2007; trial ended May 18, 2007. The invoice supporting Sam's first motion to compel was
dated “06/30/07.” The record contains no earlier invoices for the April delivery. The record does not establish
that Sam was obliged to raise the unpaid-for delivery claim at trial, or that he was unreasonable in first raising
that claim in his 2008 motion to compel.
Sam's fuel request was also factually sufficient, at least in part. Trial testimony supported the request for
reimbursement of the fuel Sam had paid for, and exhibits filed with his motion included the unpaid invoice and
correspondence between the lawyers discussing the fuel dispute. Kathleen's memorandum in opposition did not even
mention the unpaid invoice. Even though they denied any legal basis for Sam's fuel claims, the letters from
Kathleen's lawyer did not deny any salient facts. The exhibits therefore reasonably permitted inferences that Sam
had filled the tank after separation, and that when Kathleen took possession of the Glacier home following the
divorce, she acquired fuel that Sam had paid for and fuel that no one had yet paid for. These facts would have
supported the grant of his fuel request had Sam succeeded in convincing the court that the “utility obligations”
that went with the Glacier property included either or both of the fuel bills.
Finally, we turn to the sufficiency of the request for the Azalea items. Sam asserted below that they were “non-
marital” or “inherited.” Even though the parties ultimately waived the opportunity to litigate the division of the
Azalea personalty on that basis,FN27 by ordering Kathleen to return the “heirlooms” if she had them, the superior
court implicitly concluded that the “heirlooms” were indeed Sam's. Because neither party appealed the heirloom order,
we do not independently inquire into that aspect of Sam's request; instead, we accept as law of the case the superior
court's conclusion that Sam had a right to those items.FN28 We therefore conclude that Sam's request was not so
legally deficient as to warrant an inference of vexatious or bad faith litigation conduct.
FN27. Very late in the divorce trial, Sam argued for the first time that many Azalea items were not marital property-
and thus not to be “charged against [him]” in the property division-because he received them as gifts or inheritance
or acquired them before marriage. Kathleen's attorney argued that because it was “a wash,” the court should treat all
the Azalea items as marital rather than differentiating marital and non-marital items. The court noted in response
that it had to address the characterization issue after Sam raised it. Neither party presented a transmutation argument
as to any of these items.
After testimony ended, each party submitted a spreadsheet distinguishing marital and non-marital Azalea items. The
findings and conclusions did not differentiate items on that basis, but simply awarded $60,000 of the Azalea personalty
to Sam, and $60,000 to Kathleen, apparently treating it all as marital. Neither party sought clarification or
reconsideration of the characterization issue.
FN28. The law of the case doctrine prohibits review of “issues that have been fully litigated in the superior court and
as to which no timely appeal has been made” absent “exceptional circumstances presenting a clear error constituting
manifest injustice.” Dunlap v. Dunlap, 131 P.3d 471, 475-76 (Alaska 2006) (considering child support order settled and
unreviewable because appellant failed to seek timely review) (internal quotation marks omitted).
It is unclear whether the superior court used “heirlooms” rigorously FN29 or as a short-hand reference to all of the
items Sam sought. Some were not heirlooms, and Sam had no legitimate claim to others.FN30 But it does not matter
precisely what the court intended, because the heirloom order established the substantial legal sufficiency of Sam's
request as to most of the disputed Azalea items.
FN29. Black's Law Dictionary, 742 (8th ed. 1999), defines “heirloom” as:
1. An item of personal property that by local custom, contrary to the usual legal rule, descends to the heir along
with the inheritance, instead of passing to the executor or administrator of the last owner.... 2. Popularly, a
treasured possession of great sentimental value passed down through generations within a family.
FN30. For example, at trial, Sam had waived any claim to a painting by Kathleen's mother, the compact collection,
and the bed in the master bedroom. See Jaymot v. Skillings-Donat, 216 P.3d 534, 546 (Alaska 2009) (holding issue
not raised in trial court is waived on appeal).
Nor was the Azalea request factually deficient. The heirloom order necessarily accepted Sam's contention that
these items were his. Admissible facts reasonably permitted an inference that Kathleen either still had the items
or knew what had happened to them. Sam's motion with respect to the Azalea items was therefore not so factually
deficient as to give rise to an inference of vexatious or bad faith conduct.
Thus, with minor exceptions, each of Sam's three requests had potential legal and factual merit. Because most of
the requests actually or ostensibly sought to recover items Sam could have reasonably believed had been awarded
to him in the property division, Sam's first motion to compel was not so legally deficient as to support an award
of full fees. We do not need to consider whether a finding of vexatious or bad faith conduct could stand if a
party's litigation efforts largely had no potential merit or were not fairly disputable. The three requests made
in Sam's first motion to compel were not, individually or collectively, so lacking in legal or factual merit that
full fees could be awarded under Rule 82(b)(3)(G).FN31
FN31. The record contains correspondence between the parties' lawyers regarding the Azalea items, the fuel, and
the road fabric. That correspondence, even when reviewed deferentially to the findings awarding full fees, provides
no support for finding that Sam asserted his three requests vexatiously or in bad faith.
The January 2009 order granting full fees also made findings under other subparagraphs of Rule 82(b)(3). But because
full fees may not be awarded under Rule 82(b)(3) except under Rule 82(b)(3)(G),FN32 these other findings could support
an award of full fees only if they reasonably permit an inference of vexatious or bad faith litigation conduct satisfying
Rule 82(b)(3)(G). The order states that a full fees award was “also appropriate under Rule 82(b)(3)(G), for vexatious and
bad faith litigation conduct, as set forth above.” (Emphasis added.) Several of these prior-“as set forth above”-findings
were relevant. Thus, the order had found that the “claims made by Sam in the motions at issue were not reasonable.” And
it had found that the first motion to compel was made “long after trial,” was largely an untimely reconsideration motion,
and cited no order to be enforced. In a subsequent finding-and thus not one “set forth above”-the order characterized
Sam's conduct as pursuing “baseless and unsupported claims” after trial. FN33 To the extent these other findings pertain
to the potential legal or factual merit of the first motion to compel, they do not warrant an award of full fees, for the
reasons we discussed above.
FN32. We consequently do not need to consider the superior court's conclusions that full fees were also justified
under Rule 82(b)(3)(F), (H), and (K). See supra note 20 and accompanying text.
FN33. The order also awarded full fees under Rule 82(b)(3)(H), finding that Kathleen was forced to incur fees that
were “unreasonably large compared to the value of the items at stake.” This finding is in part factually incorrect:
the fuel and road fabric disputes were together worth more than $3,500. It is also in part irrelevant: Sam conceded
that some of the Azalea items had minimal economic value, but many items had significant emotional value to Sam. For
example, the “thousands” of family photographs Kathleen allegedly refused to share (or copy) had non-financial value
that justified Sam's motion. Cf. Beal v. Beal, 88 P.3d 104, 118 (Alaska 2004) (acknowledging relevance of sentimental
value in affirming superior court's decision to award “painting of almost entirely sentimental value to the spouse who
does not receive primary physical custody of the child”).
We therefore conclude that it was error to award full reasonable fees as to Sam's first motion to compel.
3. Second motion to compel
We turn to Sam's second motion to compel, filed while his first was pending. Both were decided the same day, some
three months after Sam filed the second motion; the court denied the second as “redundant,” and later awarded Kathleen
full fees as to it because she “never should have been put to the expense of defending [against] the [second] motion at
all.”
In response to a question from this court at oral argument, Sam's lawyer agreed that the second motion was redundant.
But we note that the second motion addressed only the Azalea items (not the road fabric or fuel claims), and that it
elaborated on the Azalea items request legally and factually, in asserting that most of the items were personal to
Sam's family and were owned by Sam before the marriage, and that the remaining items were “attached” to his military
career. It was also accompanied by Sam's affidavit, which explained the provenance of many of the disputed items. The
second motion was filed April 18, 2008, several days before Kathleen filed her opposition to Sam's first motion. No
doubt many or all of the contentions advanced in Sam's second motion to compel and its supporting papers could or
should have been raised in the first. Kathleen therefore might have been awarded enhanced fees for having to address
the Azalea items twice, initially in opposing the first motion, and then in addressing the expanded contentions in the
second. But even though both motions sought the same 28-some items, the second motion and the supporting affidavit
helpfully clarified the potential merit in Sam's request. Mere redundancy, under the circumstances, does not justify
awarding full reasonable fees as to the second motion.
Moreover, the heirloom order established that at least some of the claims made in Sam's second motion had merit. And
because Sam filed the second motion before the heirloom order granted him partial relief on his first motion, bad faith
cannot be inferred from his effort to refine his as-yet unresolved contentions.
Our comments about Sam's first motion to compel and the Rule 82(b)(3)(F), (G), (H), and (K) findings apply equally to
his second motion to compel. We therefore conclude that Kathleen was not entitled to full fees on Sam's second motion
to compel.
4. Motion to correct clerical mistake
The superior court also awarded Kathleen full fees as to Sam's motion to clarify the alleged clerical mistake,
characterizing it as an untimely reconsideration motion that did not address any mistake that could be considered
“clerical.” That characterization was correct: Sam's motion identified an asymmetry in the two QDROs, but identified
no clerical error or mistake correctable under Civil Rule 60(a) or Civil Rule 60(b)(1). And Sam could have raised the
issue when he sought clarification of the findings soon after they were entered.
We affirm the award of full fees as to Sam's motion to correct. FN34
FN34. In Johnson v. Johnson, 214 P.3d 369, 372 (Alaska 2009), we affirmed the denial of Sam's motion to correct
because the remarriage provisions “were neither a clerical error nor a mistake.” We also noted that “it is not
contested on appeal” that remarriage was irrelevant. Id. at 372-73. In context of the superior court's full-fees
award, it is significant that Sam failed to rebut, or even reply to, Kathleen's superior court contention that
remarriage was legally irrelevant.
5. The collective merit of Sam's first three motions
Because the court described Sam's three motions as “baseless and unsupported,” we consider whether they
collectively justified an award of full fees. That finding addressed only the three motions, not Sam's post-
trial conduct generally.
We are well aware that trial courts are in the best position to accurately assess the parties' motives and
decide whether post-trial claims were or could have been raised at trial. And trial courts must have the tools
to keep litigants from sparring on after the closing trial bell has rung. But we conclude that Sam's three
motions were not collectively so “baseless and unsupported” as to justify full fees under the vexatious or bad
faith conduct standard of Rule 82(b)(3)(G). We reaffirm that trial courts are not without tools to provide
substantial relief: they can award enhanced Rule 82(b)(3) fees-although not full fees-even absent vexatious or
bad faith conduct.
In short, we reverse the full fees award as to Sam's two motions to compel and affirm the award as to Sam's
motion to correct.
Kathleen supported her fees request with a certificate of counsel and an exhibit specifying the legal services
required by each of Sam's motions, and Sam's appeal raises no dispute about the value of services performed in
opposing each motion. We therefore affirm the $2,299.50 award of fees incurred in opposing his motion to correct,
and reverse the $4,842 award of full fees incurred on his two motions to compel. We do not foreclose the superior
court on remand from awarding Kathleen enhanced fees on Sam's motions to compel. But we observe that a rapid and
economical close to this entire dispute is in the interest of both parties and that tertiary fees litigation is
unlikely to be productive.
B. Whether It Was An Abuse Of Discretion To Deny Sam's Cross-Motion For An Order To Show Cause
The July 2008 order on Sam's first motion to compel resolved his request for the Azalea items as follows: “The
heirlooms from his family are to be returned to him if [Kathleen] has them. If [she] no longer has the items,
she is to provide an account for what happened to them, if she knows.” An October 2008 order noted that “some
elements of the court's [July] order appear to yet be performed.”
In December 2008 Sam cross-moved for an order requiring Kathleen to show cause why she should not be held in
contempt for failing to account for the Azalea personalty in her possession. To establish that the property had
been in her possession, Sam's supporting memorandum referred to his trial testimony and contended that Kathleen
had submitted no response to either order. His reply memorandum referred the court to his April 2008 affidavit
and noted that Kathleen had submitted no affidavit or sworn testimony in opposition, but only copies of letters
from her lawyer. A January 2009 order denied Sam's motion without explanation.
Sam argues on appeal that the superior court abused its discretion by failing to require Kathleen to show what
happened to his Azalea personalty and by failing to hold a hearing to determine why he did not receive the property.
He invokes only Civil Rule 70 on appeal, but in the superior court he relied on only Civil Rule 90(b) and AS
09.50.010(5).FN35
FN35. Rule 70 provides in part:
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to
perform any other specific act and the party fails to comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by some other person appointed by the court and the
act when so done has like effect as if done by the party.
Rule 90(b) sets out the procedure for cases of indirect contempt:
For every contempt other than that [which occurs in actual presence of the court], upon a proper showing on
ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some
reasonable time, to be therein specified, why the accused party should not be punished for the alleged contempt,
or shall issue a bench warrant for the arrest of such party.
AS 09.50.010(5) provides that disobedience of a lawful court order constitutes contempt.
We have described the requirements for a contempt order as follows:
(1) the existence of a valid order directing the alleged contemnor to do or refrain from doing something and
the court's jurisdiction to enter that order; (2) the contemnor's notice of the order within sufficient time
to comply with it; and in most cases, (3) the contemnor's ability to comply with the order; and (4) the contemnor's
wilful failure to comply with the order.[[FN36]
FN36. Hartland v. Hartland, 777 P.2d 636, 647 (Alaska 1989) (quoting L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976)).
Sam asserts that we should review the denial of his motion for abuse of discretion, but the appropriate standard
of review is not completely self-evident.
Although we have reviewed a decision not to hold a party in contempt after the lower court conducted a Rule 90(b)
hearing,FN37 we have never reviewed a decision declining to hold a hearing. Rule 90(b), which Sam does not invoke
on appeal, states that the court “shall” order the accused party to show cause or issue a bench warrant upon
“a proper showing,” supported by affidavits.FN38
FN37. See Stuart v. Whaler's Cove, Inc., 144 P.3d 467, 468-69 (Alaska 2006) (affirming denial of motion for
order to show cause where court had conducted hearing and determined non-moving party was not in contempt).
FN38. The rule's text ostensibly requires entry of a show-cause order if an ex parte motion is supported by
affidavits. We have held that because the purpose of the affidavit requirement “is to afford the one charged
with contempt the procedural due process requirement of notice of the charge against him,” no affidavit is
required if that notice is given by other means, such as the motion for an order to show cause. See Taylor v.
Dist. Ct. for the Fourth Judicial Dist., at Fairbanks, 434 P.2d 679, 681-82 (Alaska 1967); see also Cont'l Ins.
Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 403 (Alaska 1976). Sam's motion was not ex parte and was supported
by his affidavit and trial testimony. We express no opinion whether a show-cause motion unsupported by an affidavit
or equivalent admissible evidence satisfies Rule 90(b).
Likewise, we decline to decide here whether Rule 90(b) always mandates entry of a show-cause order if a “proper
showing” is made, that is, if the movant has alleged admissible facts satisfying the legal requirements for civil
contempt. Because Kathleen's response to Sam's motion included no sworn statements, we do not need to decide
whether Rule 90(b) invariably requires entry of a show-cause order, even if the opponent proffers admissible
evidence controverting the motion. We only need to consider whether a show-cause order is warranted if the
opponent submits no such sworn statements.
It is conceivable that we should apply a less deferential standard-such as de novo review-than the abuse of
discretion standard Sam proposes. After all, whether Rule 90(b) mandates a show-cause order upon a “proper
showing” and whether the moving party has made out a prima facie showing of contempt FN39 are legal questions;
the interpretation of the civil rules presents a legal question that we review de novo; FN40 and we exercise
our independent judgment in determining whether there are genuine, material factual disputes that cannot be
resolved without an evidentiary hearing.FN41 On the other hand, we review for abuse of discretion an order
enforcing or declining to enforce the trial court's own decree.FN42 And we generally review a superior court's
procedural decisions for abuse of discretion.FN43
FN39. See Universal Motors, Inc. v. Waldock, 719 P.2d 254, 259 (Alaska 1986) (holding that whether party
presented evidence sufficient to establish prima facie case is question of law).
FN40. Duffus v. Duffus, 72 P.3d 313, 316 (Alaska 2003) (applying de novo review to superior court's interpretation
of civil rules in post-divorce child support dispute).
FN41. See Hartley v. Hartley, 205 P.3d 342, 346-47, 350 (Alaska 2009) (applying independent judgment review to
denial of former husband's motion requesting evidentiary hearing to address parties' differing interpretations
of property division). Similarly, whether a parent has made out a prima facie showing sufficient to justify a
child custody support modification hearing presents a question of law that we review de novo. Schuyler v. Briner,
13 P.3d 738, 741 (Alaska 2000).
FN42. Horchover v. Field, 964 P.2d 1278, 1282 (Alaska 1998) (reviewing for abuse of discretion order enforcing
property division provision of divorce decree where same court had issued decree).
FN43. Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).
There is also a substantial question whether such a dispute is best analyzed under Rule 70, Rule 90, or AS 09.50.010.
It is not necessary to decide here either what review standard or what analytical standard should apply. Even
under the deferential abuse of discretion review standard Sam proposes, it was error not to require Kathleen to
show cause-and, if necessary, provide admissible evidence-explaining why she had not complied with the heirloom
order. Given that order's words, and the course of dealings regarding the Azalea items as reflected in Sam's
trial testimony, his affidavit, and the lawyers' correspondence, Kathleen should have been ordered to comply with
the order requiring that she explain what she knew about the location and disposition of the items Sam sought.
Sam had identified a valid order-the heirloom order-that required Kathleen to respond, and there was no dispute
Kathleen had ample time in which to comply. The heirloom order was sufficiently clear that neither the issuing
court nor the parties could have read it to permit Kathleen to avoid responding. The order's only possible
material ambiguity concerns its phrase “if she knows.” But that phrase did not excuse her from at least producing
admissible evidence demonstrating that she did not know what had happened to the items.
Kathleen opposed the show-cause motion, but did not demonstrate either that she was legally excused from complying
with the heirloom order or that undisputed facts established her lack of knowledge. Her lawyer's unsworn opposition
could not rebut permissible inferences that Kathleen did know what had happened to the items. Instead, her lawyer's
letters submitted as exhibits imply that her reasons for not complying were invalid.FN44 Kathleen could have readily
complied with the heirloom order by explaining what she knew of the 28-some items. And if she indeed knew nothing of
them or what happened to them, saying so would have complied with the order.
FN44. In letters to Sam's lawyer, Kathleen's lawyer argued that Kathleen should not have to return items that had
not been awarded to Sam. But as to the “heirlooms,” this contention was not viable after Kathleen was ordered to
return the heirlooms if she had them. She was thereafter obliged to transfer the items in her possession to Sam or
account for them if she knew what had happened to them.
We have recognized in other contexts that it is error not to hold an evidentiary hearing when there is a genuine
issue of fact that is material. FN45 If an appellant did not request an evidentiary hearing below, we will hold
that it was error to fail to conduct such a hearing only if the failure was plain error.FN46 Plain error exists
if “an obvious mistake has been made which creates a high likelihood that injustice has resulted.” FN47 Sam requested
a show-cause hearing, and did not specifically ask for an evidentiary hearing on the Azalea items claim. Nevertheless,
it should have been apparent from the parties' motion papers and exhibits that there were genuine, material factual
disputes concerning Kathleen's compliance with the heirloom order, and that a show-cause hearing was needed to resolve
those disputes.
FN45. See, e.g., Brooks Range Exploration Co., Inc. v. Gordon, 46 P.3d 942, 944-45 (Alaska 2002) (holding that
superior court may not summarily enforce settlement agreement without conducting evidentiary hearing unless there
are no genuine issues of material fact regarding terms of agreement); Goliver v. McAllister, 34 P.3d 324, 325-26
(Alaska 2001) (holding it was error not to conduct evidentiary hearing because there were genuine issues of material
fact as to whether limitations period had expired); Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that
issues concerning application of discovery rule that present “genuine issues of material fact ... must be resolved
[by trial court] at an evidentiary hearing”).
FN46. See In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009) (affirming, because appellants did not request
evidentiary hearing below and failure to hold evidentiary hearing was not plain error).
FN47. Id.
Because we conclude that even under a deferential abuse-of-discretion standard of review it was error not to take
steps to enforce the heirloom order, we vacate the order denying Sam's show-cause motion and remand for further
proceedings.FN48
FN48. This result makes it unnecessary to consider Sam's argument that he was entitled to a “credit” for the
$60,000 of personalty “he never received.” It is premature to consider what, if any, remedy would be appropriate
for a violation of the heirloom order.
C. Whether The Superior Court Erred In Handling Kathleen's Motion To Show Cause On Her Claim For Unpaid Retirement
In response to Kathleen's show-cause motion, the superior court conducted an evidentiary hearing and found that
Sam had not paid Kathleen her share of his military retirement in October, November, and December 2007. Sam raises
two issues concerning that finding.
He first argues that it was error to find that no payment was made “for” December, because, as a matter of federal
law, the January 2, 2008 payment of Sam's military retirement was “for” December.FN49 If, as Sam implies, the
superior court based its finding on an interpretation of federal statutes, we would review the interpretation
ruling applying our independent judgment. FN50 But the order dividing Sam's retirement entitled Kathleen to a
payment every month following the divorce.FN51 Kathleen's motion did not seek compensation she should have received
for December-rather, it sought the payment she should have received in December. Therefore, whether federal statutes
established that the military disbursed payments for a month at the beginning of the next month-and thus, whether
the payment Kathleen received in early January was “for” December-was irrelevant if she received no payment during
December.
FN49. Sam cites, among other statutes, 37 U.S.C. § 212 (2006) and 10 U.S.C. § 1408(a) (2006).
FN50. See Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006) (“The interpretation of a statute is a question of law
which involves this court's independent judgment.”).
FN51. The order's relevant passage reads:
Whereas incident to the termination of the marriage of the Parties, the Court enters this Order dividing the
military retirement of [Sam].... As her property interest in [Sam's] disposable pay, [Kathleen] is awarded fifty
percent of said pay.
Thus, before the military began paying Kathleen directly in January 2008, she was entitled to receive each month
half of Sam's military retirement. Sam does not contend that the superior court erroneously interpreted its own
order.
We consequently review for clear error the factual finding that Kathleen was not paid in December.FN52 The evidence
supported that finding. Sam's December 2007 bank statement showed that he received in that month a $3,561.90 payment
from the DFAS-about twice what he would have received had Kathleen's portion been deducted. The bank statement did
not show that he paid Kathleen anything that month.
FN52. See Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008) (citing Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005))
(applying clear error review to factual findings in property division).
There was some contrary evidence: a December DFAS statement indicated that the spousal deduction had been made,
and a DFAS letter stated that “direct payments to [Sam's] former spouse should tentatively commence December 2007.”
But the superior court could permissibly resolve in Kathleen's favor any factual conflict between those exhibits
and the evidence Kathleen was not paid in December.
The finding was consequently not clearly erroneous.
Sam next argues that it was error not to offset the retirement payments he owed Kathleen against the amount he
was “awarded” on remand. FN53 We read Sam's brief as contending that his proposed offset would have established
that Kathleen was not the prevailing party, and was therefore not entitled to Rule 82 fees on her motion to show
cause.FN54 He states: “Kathleen ... was not entitled to actual attorney[']s fees on an amount of money she would
have owed to [Sam] as a set off for [the] amount he owed her.” FN55
FN53. Our March 4, 2009 MO & J remanded for correction of the double-counting error. See Johnson v. Johnson, Mem.
Op. & J. No. 1335, 2009 WL 564692 at *2-3 (Alaska, Mar. 4, 2009). Correcting that error benefitted Sam in the
principal amount of $25,500.
FN54. The offset would have subtracted the amount awarded Kathleen on her show-cause motion ($6,352.17) from the
amount of Sam's property division correction entered on remand ($24,418). Because the latter amount exceeded the
former, Sam apparently regards himself as the prevailing party on remand. He makes the same argument more explicitly
in seeking Rule 82 fees on what he calls his “monetary judgment.” We discuss that argument in Part III.D.
FN55. The second full-fees order awarded Kathleen fees of $4,141 on her show-cause motion and on two of Sam's
reconsideration motions. This order did not find vexatious or bad faith litigation conduct, but Sam does not argue
that the absence of that finding barred a Rule 82(b)(3) full fees award.
Sam's brief does not explain how he raised this argument in the superior court. The record, including superior
court filings not contained in Sam's excerpt (such as the motion and opposition papers relating to Kathleen's
second motion for an award of actual fees), persuades us that Sam did not preserve this issue below. We therefore
review it only for plain error.FN56
FN56. See Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981) (declining to review claims not raised below except
for plain error).
Sam's cursory briefing on the point does not convince us that Sam was legally entitled to a set-off that would
have foreclosed awarding Kathleen attorney's fees on her show-cause motion. Sam cites no relevant authority to
support his claim of error. And, as the superior court later noted when it denied Sam's own fees motion, Sam did
not receive an “award” on remand; there was simply a correction in the property division. Furthermore, the
correction was largely ministerial, and the dispute on remand about the truck's value was highly circumscribed.
The error and its correction concerned pre-trial events and pleadings, the property division, and findings and
conclusions entered when trial ended. In comparison, Kathleen's motion to show cause was occasioned by Sam's post-
divorce failure to pay her half of his retirement. We are reluctant to do anything to encourage domestic support
obligors to engage in self-help by assuming that their failures to comply with the judgment will eventually be
offset by correction of unrelated errors.
And we are certainly unconvinced by the briefing before us that it was plain error to award Kathleen Rule 82(b)
fees on her successful motion to show cause.
D. Whether It Was An Abuse Of Discretion To Deny Sam's Motion For Rule 82 Attorney's Fees On The Remand Judgment
Sam argues that it was an abuse of discretion to deny his motion for Rule 82 attorney's fees on the “monetary
judgment” he “obtained” on remand after a contested hearing.
Our MO & J remanded for correction of two property division errors.FN57 After conducting a hearing on remand,
the superior court ordered Sam to pay Kathleen $18,285.81 for unpaid retirement, interest, and actual attorney's
fees, and ordered Kathleen to pay Sam $24,418 to correct the property division. This gave Sam a net judgment of
$6,132.19. He then moved for Rule 82 attorney's fees. He reasoned that the “monetary judgment” awarded him in a
contested proceeding without trial entitled him to fees of $4,395.24 (18 percent of $24,418), based on “his” judgment
before offsetting Kathleen's awards.FN58 The superior court denied Sam's motion, because the corrections favoring
Sam were not “due to post-trial litigation or enforcement,” but to “acknowledgment” of the double-counting trial
error. In effect, it treated Sam's motion as being governed by the “divorce exception” and AS 25.24.140(a)(1), not
Rule 82.
FN57. Johnson v. Johnson, Mem. Op. & J. No. 1335, 2009 WL 564692 at *1 (Alaska, Mar. 4, 2009).
FN58. Per Rule 82(b)(1), the fees award for a party recovering a money judgment in a contested matter decided
without trial is 18 percent of the judgment's first $25,000.
A trial court has broad discretion in awarding fees in divorce cases. FN59 We apply our independent judgment to
the legal question whether a fees motion is governed by the “divorce exception” or Rule 82.FN60
FN59. Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007) (applying abuse of discretion standard to trial court's denial
of husband's request for fees in divorce action).
FN60. See Sanders v. Barth, 12 P.3d 766, 767-68 (Alaska 2000) (applying independent judgment standard in reviewing
whether Rule 82 or divorce exception applies to particular case).
We discern no abuse of discretion or legal error. The superior court correctly identified the flaw in Sam's fees
request: the amounts favoring Sam were not the result of new, post-trial litigation or efforts to enforce the
original judgment. They were instead the result of correcting errors in the original property division. We have
held that Rule 82 does not apply to divorce proceedings because “there is usually no prevailing party in a divorce
case.” FN61 The property division corrections made on remand did not fundamentally alter the original property
division; indeed, the court made adjustments to more closely achieve the 50/50 division originally intended. Sam
was no more the prevailing party when the property division was corrected on remand than he was originally.
FN61. McDonald v. Trihub, 173 P.3d 416, 429 (Alaska 2007) (citing Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003)).
In comparison, this rationale does not apply on appeal, where the prevailing party “can be identified with ease.”
Hilliker v. Hilliker, 768 P.2d 115, 115-16 (Alaska 1988) (holding that divorce exception does not apply on appeal
of divorce judgment).
Sam describes no circumstance compelling the superior court to deviate from the divorce exception after correcting
the original property division. It is of no consequence that on remand Kathleen's lawyer cross-examined Sam or that
there was some dispute about the value of the truck. The remand disputes and proceedings were not extensive, and the
end result reflects what would have occurred had the issues been correctly raised and resolved at trial. And
Kathleen's argument on remand-that the court should divide the assets equally-resembled the argument a party would
make in a divorce trial.
We have never held in a divorce case that a superior court must apply Rule 82 to remand proceedings when correcting
errors in the original property division. And we do not have to decide here whether a superior court could, in its
discretion, apply Rule 82 to a post-appeal remand proceeding in a divorce case.
The superior court did not err in implicitly applying the divorce exception to Sam's fees motion, and in denying
Sam's motion on that basis.FN62
FN62. This conclusion renders irrelevant any question whether Sam recovered a “money judgment” on remand, cf.
Rule 82(b)(1), or whether his fees request, if meritorious, should have been based on his net award, after
deducting Kathleen's awards.
IV. CONCLUSION
For these reasons, we REVERSE Kathleen's award of full fees on Sam's two motions to compel, VACATE the denial
of Sam's motion for a show-cause order, and REMAND for further proceedings on his motion to show cause.
We otherwise AFFIRM the rulings Sam challenges on appeal, including: the award of $2,299.50 on Kathleen's first
motion for full fees; the order finding that Sam did not pay Kathleen support in December 2007; the award of
$4,141 on Kathleen's second motion for full fees; and the order denying Sam's motion for Rule 82 fees on the
judgment on remand.
CARPENETI, Chief Justice, not participating.
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