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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stanhope v. Stanhope (8/9/2013) sp-6806
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
KENNETH T. STANHOPE )
) Supreme Court No. S-14596
Appellant, )
) Superior Court No. 3PA-10-03007 CI
v. )
) O P I N I O N
MARYNA V. STANHOPE )
) No. 6806 - August 9, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Carl D. Cook, Law Office of Carl D. Cook,
P.C., Anchorage, for Appellant. Notice of nonparticipation
filed by Appellee.
Before: Fabe, Chief Justice, Carpeneti, Winfree, Stowers,
and Maassen, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Maryna and Kenneth Stanhope married for a second time in 2007. Kenneth
filed for divorce in 2010. The superior court divided the marital property 50/50,
awarding the marital home to Maryna and ordering her to remove Kenneth from the
mortgage and make an equalization payment. Kenneth appeals. He challenges several
aspects of the court's findings of fact and disposition of property, but the primary relief
----------------------- Page 2-----------------------
he seeks is the award of the house, either as his separate non-marital property or under
an unequal division of the marital property. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Maryna and Kenneth Stanhope married for the first time in 2003. During
this marriage they owned a home on Muffin Street in Wasilla. They divorced in 2006,
reporting no property subject to division, and sporadically continued their relationship.
They married again in September 2007. In 2008 Kenneth and Maryna sold the Muffin
Street house for less than they still owed on the mortgage. They bought a new house,
located on West Sunrise Road in Wasilla, with settlement proceeds Kenneth had received
in injury claims against former employers. They took out a mortgage on the new house
in order to pay off the amount they still owed on the Muffin Street mortgage.
In October 2010 Kenneth filed a complaint for divorce, and a few months
later he ejected Maryna from the marital home on West Sunrise Road. Maryna
nonetheless made a $5,000 payment on the mortgage in December.
At an April 2011 motion hearing, the superior court awarded interim
possession of the house to Maryna and gave Kenneth 60 days to vacate. During this
grace period Kenneth filed several motions in an attempt to hold on to possession, but
none of his motions succeeded. He did not vacate the house when he was supposed to,
and Maryna obtained a writ of assistance from the court, finally gaining possession in
June 2011 with the aid of state troopers.
Trial of the couple's property issues occurred in September and December
2011, with both parties represented by counsel. Kenneth and Maryna provided
conflicting testimony as to which party had taken or destroyed various items of personal
property. Kenneth also sought repossession of the house, arguing that he needed it more
than Maryna did because he was mentally disabled due to head traumas from various
accidents.
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The superior court, in its written findings of fact and conclusions of law,
found that Kenneth was disabled and that he had been diagnosed with major depressive
and anxiety disorders. The court found that Maryna's current earning capacity was low
but Kenneth's was virtually nil. The court also found that when Maryna regained
possession of the property in June 2011, the house "appeared to be vandalized."
Weighing the disparity in the parties' earning capacities against a finding that Kenneth
had wasted marital assets, the court determined that an equal division of property was
appropriate. In making this division, the court characterized Kenneth's credit-card debts
as non-marital and awarded Maryna a half-credit for her post-separation mortgage
payment. The court found that Maryna was in a better position than Kenneth to pay off
the mortgage and make an equalization payment; it therefore awarded her the marital
residence and ordered her to refinance it, to remove Kenneth from the debt, and to make
the equalization payment within a year. The superior court also found that Kenneth had
taken some of Maryna's possessions, and it assessed their value against him in the
property division.
Kenneth appeals the court's final order. The primary relief he seeks is
possession of the house on West Sunrise Road. He argues first that the superior court
erred in characterizing the house as marital. Second, he argues that the superior court
erred in the legal analysis and factual findings that led to a 50/50 division of marital
assets. Third, he argues that the superior court erred in its findings about the parties'
contributions to the mortgage during the marriage and their respective abilities to pay it
afterwards. Finally, he disputes the court's characterization of the credit-card debts as
non-marital; its treatment of certain items of personal property; its award to Maryna of
a half-credit for her post-separation mortgage payment; and its grant to Maryna of a year
in which to make the equalization payment.
Maryna did not participate in the appeal.
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----------------------- Page 4-----------------------
III. STANDARD OF REVIEW
"There are three basic steps in the equitable division of marital assets: (1)
deciding what specific property is available for distribution, (2) finding the value of the
property, and (3) dividing the property equitably."1 The first step involves characterizing
the parties' property as separate or marital, a process that "may involve both legal and
2
factual questions." "Underlying factual findings as to the parties' intent, actions, and
contributions to the marital estate are factual questions."3 "Findings of fact are reviewed
for clear error, but whether the trial court applied the correct legal rule in exercising its
discretion is a question of law that we review de novo using our independent judgment."4
"The second step, valuation of assets, is a factual determination that we review for clear
5 "We review the trial court's third step, the equitable allocation of property, for
error."
an abuse of discretion."6
We have also held that " 'the trial court must render findings of ultimate
fact that support any decreed property division; the findings must be explicit and
sufficiently detailed to give this court a clear understanding of the basis of the trial
1 Beals v. Beals , ___ P.3d ___, Op. No. 6789 at 6, 2013 WL 3242376, at *3
(Alaska, June 28, 2013) (citing Doyle v. Doyle , 815 P.2d 366, 368 (Alaska 1991);
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)).
2 Id. (citing Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006)).
3 Id.
4
Hanson v. Hanson , 125 P.3d 299, 304 (Alaska 2005) (quoting Schmitz v.
Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)).
5 Beals , 2013 WL 3242376, at *3.
6 Id.
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----------------------- Page 5-----------------------
court's decision.' "7 "Whether a superior court's findings are sufficiently clear is a legal
question, which we review de novo."8
"A finding of fact is clearly erroneous if, upon review of the entire record,
9
we are left with a firm and definite conviction that a mistake has been made." "We will
grant especially great deference when the trial court's factual findings require weighing
10
the credibility of witnesses and conflicting oral testimony." "We review for abuse of
discretion a superior court's decision whether to give a credit to a spouse for payments
made to maintain marital property, such as the family home."11
IV. DISCUSSION
A. The Superior Court Did Not Clearly Err In Characterizing The
West Sunrise Road House As Marital Property.
Kenneth argues that the superior court erred in characterizing the West
Sunrise Road house as marital property. He contends that the house is his separate
property because it was purchased with proceeds from his settlement of personal injury
claims and it never became transmuted into marital property. Although the superior
court agreed that the West Sunrise Road house was purchased with Kenneth's settlement
proceeds, its other findings amply support its conclusion that the house was marital
property.
7 Id.
8 Id.
9 Fortson v. Fortson , 131 P.3d 451, 456 (Alaska 2006) (citing Schmitz, 88
P.3d at 1121)).
10 Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 178 (Alaska 2009) (citing
Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007)).
11 Berry v. Berry , 978 P.2d 93, 95 (Alaska 1999) (citing Rodriguez v.
Rodriguez , 908 P.2d 1007, 1013 (Alaska 1995)).
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----------------------- Page 6-----------------------
First, "[a]lthough holding joint title is not determinative of intent to treat
property as marital, it creates rebuttable evidence that the owner intended the property
12 Other factors that bear on the parties' intent with respect to real property
to be marital."
include whether they used the property as their personal residence and whether they both
contributed to its ongoing maintenance and management.13
Maryna and Kenneth held joint title to the West Sunrise Road house, and
the presumption that it is marital property therefore applies regardless of the source of
the funds used to pay for it. Kenneth argues that the parties demonstrated their intent to
treat the property as non-marital because Maryna was not allowed to use certain parts of
the house; she was the one who was ejected when the parties had disagreements; and she
only made mortgage payments after their separation. Yet the mortgage, like the title, was
in both parties' names, and the record supports the superior court's findings that Maryna
"assisted with the mortgage, utilities and upkeep of the residence." Maryna testified that
she sometimes gave Kenneth money to pay toward the mortgage. She also testified that
she worked with Kenneth to improve the property by helping build the greenhouse,
create a solar energy system, and set up a methane separator. The fact that Kenneth
occasionally ejected Maryna and controlled her use of the house does not negate the fact
that both parties used it as their primary residence. We conclude that the superior court
did not err in characterizing the West Sunrise Road house as marital property.
12 Johns v. Johns , 945 P.2d 1222, 1225 (Alaska 1997) (quoting Lundquist v.
Lundquist , 923 P.2d 42, 48 (Alaska 1996)) (internal quotation marks omitted).
13 Beals , 2013 WL 3242376, at *4.
-6- 6806
----------------------- Page 7-----------------------
B. The Superior Court Did Not Err In Its Merrill Factors Analysis.
14
Using the balancing test of Merrill v. Merrill , the superior court divided
the property equally. Kenneth challenges the court's finding that on one side of the
balance was his waste of marital assets. He also argues that the superior court erred by
not awarding the residence to him in an unequal division because of his disabilities, his
poor earning capacity relative to Maryna's, and his inability to qualify for a mortgage on
another residence.
1. The finding that Kenneth wasted marital assets was not clearly
erroneous.
The superior court found that when Maryna gained possession of the West
Sunrise Road property in June 2011, "the house appeared to be vandalized with large
quantities of trash, including a broken toilet, missing shower head, inoperable methane
system, broken wood stove, vandalized greenhouse, mold on the bathroom walls, one
wall missing, and missing generator to the solar system." The court's findings do not
explicitly state that all of this damage was Kenneth's fault, but they do find explicitly that
Kenneth "vandalized the greenhouse and the equipment that he sought to maintain when
Maryna . . . took over the residence." In its analysis of the Merrill factors, the court
found that Kenneth "wasted a number of marital assets following his exit from the
marital home," and the court appeared to weigh this finding heavily in concluding that
it was appropriate to "divide the marital property evenly."
Kenneth disputes the court's findings of vandalism and waste. He argues
that the house was in poor condition even before the parties separated, which Maryna
acknowledged in her testimony. She also testified, however, that the condition of the
house was much worse when she returned after the separation, when she discovered
14 368 P.2d 546, 547 n.4 (Alaska 1962).
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----------------------- Page 8-----------------------
various fixtures and hardware missing, broken, or destroyed. She also testified that a
room had been completely torn out unnecessarily. Kenneth testified that the room was
pulling off one side of the house, and that he accomplished part of the demolition work
before the separation. But granting the required deference to the superior court's
resolution of these conflicting oral accounts of the house's condition both before and
15
after the separation, we cannot conclude that the court clearly erred when it credited
Maryna's testimony on the subject.
Kenneth next argues that the court clearly erred in implying that the
extensive mold in the house was his fault. It is true that the record does not appear to
16
support such a finding, but we do not read the court's inclusion of mold in its long list
of problems with the house as central to its finding of waste or to its ultimate decision
to divide the property equally. Thus, even if the court clearly erred in finding that the
17
mold was Kenneth's fault, any such error would be harmless.
15 Bigley , 208 P.3d at 178 ("We will grant especially great deference when the
trial court's factual findings require weighing the credibility of witnesses and conflicting
oral testimony." (citing Vezey, 171 P.3d at 1128-29)).
16
Without specifying a time frame, Kenneth's evidence implies that much of
the work he did to address the mold problem predated the separation. One of Maryna's
friends testified that there was black mold up the walls of the bedroom when she
regained possession of the house; he did not state that this was a recent development,
though that could be implied from his testimony.
17 See Fortson v. Fortson, 131 P.3d 451, 464 (Alaska 2006) (declining to
reach issue of alleged error in superior court's classification of items as non-marital
where any error was minor in relation to the entire estate at issue and probably had no
"appreciable effect on the ultimate determination of equitable distribution"); Vachon v.
Pugliese , 931 P.2d 371, 376 (Alaska 1996) (holding that although the superior court
clearly erred in finding certain statements of the wife to be false, there was enough other
evidence bearing on her credibility that it was "highly improbable" that the superior
(continued...)
-8- 6806
----------------------- Page 9-----------------------
Kenneth argues that the superior court also erred in listing "missing
generator" among the problems with the house when Maryna regained possession,
though he makes note of Maryna's testimony that the generator was missing important
parts such as the statin battery and inverter. As Kenneth concedes, Maryna's testimony
does support a finding that the generator was missing enough essential elements as to be
inoperable upon her return, and again, if the court erred in identifying as "missing" the
generator itself rather than some of the parts it needed to function, the error is minor and
can only be viewed as harmless.
Kenneth also disputes the court's implication that he broke the couple's
system for separating methane; he relies on Maryna's testimony that it was inoperable
when she moved out in late 2010. But Maryna testified that the system had been able to
separate methane during the marriage even though there was no line to the house, and
when she regained possession it was completely unusable because all the pipes and
fittings were missing. Again, resolution of this conflict in the oral testimony was for the
superior court, and we see no clear error.
2. The superior court did not abuse its discretion in considering
the Merrill factors.
Pointing to his disability, his inability to work, and his resulting dependence
on the marital home, Kenneth argues that the superior court abused its discretion in
dividing the assets 50/50 and awarding the house to Maryna.
In dividing property the trial court must consider the Merrill factors,
18 Relevant factors concern the length of the marriage;
codified at AS 25.24.160(a)(4).
17(...continued)
court would have assessed her credibility more favorably but for the errors).
18 Hooper v. Hooper , 188 P.3d 681, 686 (Alaska 2008) (citing Tybus v.
(continued...)
-9- 6806
----------------------- Page 10-----------------------
the health, earning capacity, and financial condition of the parties; the conduct of the
parties, including whether they have unreasonably depleted marital assets; and the
19
circumstances and necessities of the parties. "While the trial court need not make
findings pertaining to each Merrill factor, its findings must be sufficient to indicate a
factual basis for the conclusion reached. Where the trial court makes these threshold
findings, we generally will not reevaluate the merits of the property division."20 An equal
21
division is presumed to be equitable.
Here, the superior court in its findings of fact explicitly considered the
length of the parties' marriage; Kenneth's health, his receipt of disability and other
benefits, his anticipated inheritance, his lack of any recent work history, and his current
inability to work; Maryna's recent immigration from Belarus, her employment as a
janitor, her modest earning capacity, the fact that she was seeking supplemental
unemployment insurance and a second job, and her lack of any health problems; the fact
that Maryna's earning capacity exceeded Kenneth's "at this time"; and Kenneth's waste
of "a number of marital assets following his exit from the marital home." As noted
above, the superior court went on to discuss in greater detail its finding that Kenneth had
depleted marital assets; it did not, however, explicitly discuss any of the special needs
that could arise from Kenneth's disability. It would have been better had the court done
18(...continued)
Holland , 989 P.2d 1281, 1286 (Alaska 1999)).
19 AS 25.24.160(a)(4).
20 Cartee v. Cartee, 239 P.3d 707, 713 (Alaska 2010) (footnote omitted)
(citing Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)).
21 Id. at 712 (citing Odom v. Odom, 141 P.3d 324, 339 (Alaska 2006);
Veselsky v. Veselsky, 113 P.3d 629, 637 (Alaska 2005)).
-10- 6806
----------------------- Page 11-----------------------
22
so, given his claims of dependence on the marital home. However, we conclude that
the superior court made sufficient findings to indicate the factual basis for its decision
to divide the property 50/50, and that division - a presumptively equitable one - was
therefore not an abuse of discretion.
C. The Superior Court Did Not Clearly Err In Its Findings Related To
The Mortgage.
Kenneth alleges two errors in the superior court's findings involving the
mortgage on the marital home. He first argues that the court clearly erred in finding that
he had not been regularly paying the mortgage. This finding appears to be irrelevant to
the issues on appeal, as the superior court was simply relating the basis for its earlier
award to Maryna of interim possession, an issue that was mooted by the final order
dividing the property. In any event, the finding is not clearly erroneous, as the conflict
in oral testimony was for the superior court to resolve. Kenneth testified that Maryna did
not make any mortgage payments prior to separation, but Maryna agreed only that
Kenneth was always the one who physically made the payments; she testified that she
sometimes gave him the money with which to do it.
Kenneth also argues that the court acted arbitrarily in finding that Maryna
was in a better position to pay off the mortgage. He testified at trial that he could pay off
the mortgage with money from an inheritance. But the superior court's other findings
provide support for its conclusion that Maryna was better equipped to pay it off. First,
the court found that Maryna works while Kenneth does not and apparently cannot, and
she is seeking to increase her income from various sources. Second, the court found
22
While the court did find that Kenneth was disabled, it did not say how his
disability affected the Merrill analysis other than that he received social security and had
no reasonable prospects of employment. Kenneth testified at trial that his disability also
made it difficult for him to function outside his home.
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----------------------- Page 12-----------------------
based on Kenneth's credit-card debts that he had probably spent any inheritance money
he had received. Based on this evidence, the finding that Maryna was better equipped
to pay off the mortgage was not clearly erroneous.
D. The Superior Court Did Not Clearly Err In Its Characterization Of
The Credit-Card Debts.
In Kenneth's asset spreadsheets, which were admitted into evidence, he
listed credit-card debts to Chase and Wells Fargo totaling approximately $30,000,
apparently all in his name alone. He argues that the superior court erred in declining to
characterize these debts as marital.
The asset spreadsheets indicated that the credit-card debts were supported
by certain exhibits, but Kenneth never moved to admit those exhibits into evidence. In
testimony, he asserted that "all of the credit card money went into the [marital] home."
Maryna disputed this: she testified that she did not know Kenneth had a credit card with
Chase, did not know what he did with it, and had no control over his credit-card
spending. She did, however, admit that Kenneth had paid for some furniture with a
credit card during the first marriage; that he had a Wells Fargo credit card at the time
they took out the mortgage on their first house, during the first marriage; and that
(apparently during one of the marriages) there were "multiple debt collectors who called
on the phone to him, but he never answered."
The superior court found that the credit-card debt was "not proven to the
court's satisfaction." The court noted that Kenneth "was unable to provide specifics
concerning the nature of the debt, the dates the debt occurred, or the dates of payments
made on the debt," and it also noted Maryna's testimony "that she was not aware of the
credit cards or any of the charges that were made."
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As Kenneth correctly points out, there is a presumption that debts incurred
23 and the fact that one spouse is unaware of the debts is
during marriage are marital,
immaterial. "Absent any showing that the parties intended a debt to be separate, the trial
court must presume that a debt incurred during the marriage is marital and should
24
Here, however, the superior court found
consider it when dividing the marital estate."
that there was insufficient evidence to prove the debt itself, including the critical question
of whether it had been "incurred during the marriage." Although Kenneth testified
generally that all the debt related to the marital home, the only evidence of amounts was
the numbers entered on the asset sheets prepared by his attorney. Kenneth apparently
had better evidence - the account statements - that may have supported the claimed
amounts and may have also shown when the debts were incurred, but he failed to
introduce this evidence at trial. And while Maryna conceded that some credit-card debt
was incurred during the first marriage, that marriage had been dissolved over five years
before trial, and the parties had divorced and spent some time apart before remarrying
in 2007. The court was not required to infer, without evidence, that the debts being
25
pursued by creditors during the second marriage were marital debts. The superior
court's conclusion that there was insufficient evidence to prove a marital debt is not
clearly erroneous.26
23 Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000) (citing McGee v.
McGee , 974 P.2d 983, 988-89 (Alaska 1999); Johns v. Johns , 945 P.2d 1222, 1225
(Alaska 1997); Jones v. Jones , 942 P.2d 1133, 1136 (Alaska 1997)).
24 Id. at 321-22.
25 The court also noted that there was apparently "no property subject to
division" at the end of the first marriage.
26 See Fortson v. Fortson, 131 P.3d 451, 461-62 (Alaska 2006) (affirming
finding that parental loans were not "bona fide [marital] debts" based on testimony that
(continued...)
-13- 6806
----------------------- Page 14-----------------------
E. The Superior Court Did Not Clearly Err In Its Valuation Of The
Russian Instruments.
The superior court assessed $1,000 against Kenneth for the value of items
identified in the court's final asset spreadsheet as "Russian instruments," which belonged
to Maryna but the court found had been taken by Kenneth. Kenneth contends that this
valuation was unsupported by the evidence and, though less clearly, that the court erred
in assessing the value against him.
"In general, the opinion of a lay owner as to the value of his or her property
27
is admissible evidence." Maryna's asset spreadsheet listed "Russian Therapeutic
Instruments" as belonging to her and gave them a value of $1,000. She did not testify
28
about the instruments at trial, but her spreadsheet was admitted as Exhibit K.
Kenneth's own spreadsheet was introduced as an exhibit at the close of trial, and he
expressly endorsed it as representing his preferred distribution of the marital estate. This
document also included "Russian Therapeutic Instruments," awarded them to Maryna,
and gave them Maryna's value of $1,000.
29
We considered a similar issue in Cartee v. Cartee. During divorce
litigation, a husband submitted several inventory lists giving different values for the same
26(...continued)
the husband had not signed promissory notes and did not consider the loans to be legal
debts, that the parents had never demanded payment, and that the parents never asked for
interest even though the notes provided for interest).
27 Ethelbah v. Walker , 225 P.3d 1082, 1092 (Alaska 2009) (citing Schymanski
v. Conventz, 674 P.2d 281, 286 (Alaska 1983)).
28
An amended spreadsheet was later admitted as Exhibit Q. The amended
spreadsheet also listed "Russian Therapeutic Instruments" but gave them no value; the
item had been moved from the "W[ife] says who gets it" column to the "Disputed Non-
Marital" column.
29 239 P.3d 707, 710 (Alaska 2010).
-14- 6806
----------------------- Page 15-----------------------
30
guns. He endorsed his most recent list in his trial testimony, but the trial court instead
31
selected the highest value on the different lists for each of the guns. We rejected the
husband's claim that these findings lacked a sufficient evidentiary basis: "As the court
explained, it valued the guns by selecting from among the values on the lists submitted
by Terry himself. Terry's first three lists, submitted at different phases of discovery, do
constitute evidence that the court may properly consider."32
The same is true here. Maryna's property list, admitted as an exhibit, was
evidence of value that the superior court was allowed to consider. There was no
testimony contradicting it. The fact that Kenneth used the same value in his own
spreadsheet, which he adopted in his testimony, gave it further credibility. We cannot
say that the court clearly erred in accepting the value of $1,000 for the Russian
instruments.
F. The Superior Court Did Not Clearly Err In Its Findings That Kenneth
Removed Personal Property.
Kenneth argues that the superior court erred in finding that he took a
number of Maryna's personal possessions (including the "Russian instruments") and in
assessing the value of these missing items against him in its property division.
Kenneth first contests the superior court's determination that "Maryna
Stanhope is more credible as to removal of marital property, because Kenneth Stanhope
returned to the property after he was no longer permitted access." Kenneth contends that
30 Id. at 710, 718. The husband submitted these gun inventories during his
initial disclosures, on a handwritten list generated at an unknown time, and on two
property spreadsheets, the most recent of which was provided with his trial brief. Id.
31 Id.
32 Id. at 719. See also Helen S.K. v. Samuel M.K., 288 P.3d 463, 471 (Alaska
2012) (relying on husband's listed value of exercise machines instead of wife's
testimony).
-15- 6806
----------------------- Page 16-----------------------
he had to return to the property because he had left some of his possessions on the
property's edge, having no other place to leave them. He also argues that the court
should have questioned Maryna's credibility because she misled the court about her need
for interim possession, blamed Kenneth unfairly for the poor condition of the house, and
treated his dogs inhumanely. But "we will generally accept the determinations of
witnesses' credibility that are made by the court as a trier of fact, since the court heard
33 Giving the appropriate deference to the court's
and observed the witnesses first hand."
determination of this issue, we see no clear error in the finding that Maryna was "more
credible as to removal of marital property."
Kenneth next argues that, assuming Maryna's possessions were missing,
there was no evidence that he took them. He and Maryna gave conflicting testimony at
trial. Kenneth testified that he did not have any of her things. Maryna testified that when
she returned to the house after gaining interim possession, pieces of her luggage that she
had packed for a planned trip to Belarus were missing, along with a number of her other
possessions. While Maryna's accusations against Kenneth were not detailed, she did
testify that "he took everything." An appraisal of personal property that Kenneth held
in a self-storage unit, which the parties commissioned jointly during a long break in the
evidentiary proceedings, failed to account for some non-marital items, including
Maryna's Russian instruments. Again giving deference to the superior court's weighing
34 we conclude that it did
of credibility and its resolution of conflicts in oral testimony,
not clearly err in attributing the loss of some of Maryna's personal property to Kenneth
and assessing its value against him.
33 Demoski v. New , 737 P.2d 780, 784 (Alaska 1987) (citing Curry v. Tucker,
616 P.2d 8, 12 n.3 (Alaska 1980)).
34 Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 178 (Alaska 2009) (citing
Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007)).
-16- 6806
----------------------- Page 17-----------------------
G. The Superior Court Did Not Clearly Err In Finding That The Four-
Wheelers Did Not Belong to Kenneth's Son.
Kenneth takes issue with the superior court's characterization of two four-
wheelers as marital property, arguing that they in fact belonged to his son. He and
Maryna gave conflicting testimony at trial about the four-wheelers' ownership. Kenneth
and a friend of his both testified that they belonged to Kenneth's son, the friend asserting
that he had seen a bill of sale for the four-wheelers and that the son had simply left them
with Kenneth for him to use. Maryna disputed this, testifying that the four-wheelers
were Kenneth's and that she was with him when he purchased them in 2004, during their
first marriage. She further testified that the four-wheelers had remained with the
household since their purchase and had never been in the son's possession. The court's
classification of the four-wheelers as marital property was based on its acceptance of
Maryna's testimony over Kenneth's. Given the great deference we grant to a trial court
when its "factual findings require weighing the credibility of witnesses and conflicting
oral testimony,"35 we conclude that the superior court did not clearly err in rejecting
Kenneth's argument that the four-wheelers belonged to his son.
The court's implicit finding that the four-wheelers were not the son's did
not, however, resolve the issue of whether they were marital at the time of the second
divorce. This presents a more difficult question, given the superior court's finding that
other property that was Kenneth's following the first divorce remained his at the time of
the second divorce. Kenneth does not address the issue in his brief, however. His
argument assumes that the four-wheelers, if not the son's, were marital. Any other
challenge to the court's resolution of this issue is therefore waived.36
35 Id.
36 State, Dep't of Rev., Child Support Enforcement Div. ex rel. P.M. v.
(continued...)
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H. The Superior Court Did Not Err In Giving Maryna A Half-Credit For
Her Post-Separation Mortgage Payment.
Kenneth disputes the superior court's award of a half-credit to Maryna for
post-separation mortgage and utility payments made "while she did not have access to
the property." He asserts that Maryna "did not have access to the property for only a
small amount of time during this matter" and that any credit should have been limited to
that brief period.
When one spouse has made payments to maintain marital property after
separation, a trial court is required to make factual findings as to whether a credit is
37
The court did so here. There is no fixed rule, however, as to whether a
appropriate.
credit should be awarded and if so in what amount.38 "Instead, the fact that one party has
made payments from non-marital income to preserve marital property should be
considered as one of the circumstances to be weighed by the trial court in dividing the
39
marital property."
Given the lack of a fixed rule, Kenneth's assertion that the credit must be
proportional to the time Maryna lacked access to the property is without support. In any
event, the record shows that the half-credit was roughly proportional, as Maryna lacked
36(...continued)
Mitchell , 930 P.2d 1284, 1288 n.8 (Alaska 1997) (failure to brief an issue on appeal
waives the issue).
37 Beal v. Beal , 209 P.3d 1012, 1023 (Alaska 2009) (quoting Berry v. Berry ,
978 P.2d 93, 96 (Alaska 1999)).
38 Id.
39
Ramsey v. Ramsey , 834 P.2d 807, 809 (Alaska 1992).
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40
access to the property for about half the period of separation. The award is not clearly
41
unjust and we will not disturb it on appeal.
I. It Was Not Error To Allow Maryna A Year To Make The
Equalization Payment.
Kenneth argues that the superior court's allowance of a year in which
Maryna can make the equalization payment is unreasonable because of his limited
income and his inability to work. We disagree. Any cash award made as part of a
42
It was not
divorce settlement must "not impose a hardship on the paying party."
unreasonable to give Maryna a year to make the equalization payment, given the
evidence of her earning capacity and the limited assets at her disposal.
V. CONCLUSION
We AFFIRM the superior court's decision.
40 Maryna lacked access to the house from the separation on December 14,
2010, until June 17, 2011, a period of roughly six months. Kenneth lacked access to the
house from June 17, 2011 until the divorce decree was entered on December 27, 2011.
41
See Beal, 209 P.3d at 1016, 1024 (holding that the award of a full, dollar-
for-dollar credit to husband for reduction of the mortgage principal, when he did not live
in the marital residence for the duration of the post-separation period, was not clearly
unjust).
42 Fortson v. Fortson , 131 P.3d 451, 459 (Alaska 2006).
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