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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Boulds v. Nielsen (4/25/2014) sp-6901

Boulds v. Nielsen (4/25/2014) sp-6901

         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,  

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RAYMOND BOULDS,                                            )  

                                                           )    Supreme Court No. S-14887  

                            Appellant,                     )  

                                                           )    Superior Court No. 3PA-09-01717 CI  

         v.	                                               )  

                                                           )    O P I N I O N  

ELENA NIELSEN,                                             )  

                                                           )    No. 6901 - April 25, 2014  

                            Appellee.	                     )


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Palmer, Vanessa White, Judge.  

                  Appearances:            Kenneth        J.  Goldman,         Law     Office      of  

                  Kenneth        J.    Goldman,        P.C.,     Palmer,       for    Appellant.  

                  Marguerite  Humm,  Alaska  Legal  Services  Corporation,  

                  Anchorage, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  WINFREE, Justice.  


                  Raymond Boulds and Elena Nielsen were unmarried cohabitants for 16  

years and raised children together.  	When their relationship ended, they litigated child  


custody and property ownership. The superior court determined which tangible personal  



property was domestic partnership property and divided that property equally between  


----------------------- Page 2-----------------------


the parties.  The superior court also considered three employment benefits that Boulds  


accumulated during his relationship with Nielsen:  an insurance death benefit, a 401(k)  

retirement account, and a union pension.  The court determined that the insurance death  

benefit  and  the  401(k)  retirement  account  were  not  domestic  partnership  assets  and  


belonged  to  Boulds  alone.              But  the  court  determined  that  the  union  pension  was  a  

domestic partnership asset and was subject to division.  Because Boulds appealed to this  

court, the superior court has not yet issued an order dividing the union pension.  


                   Boulds argues that federal law prohibits dividing his union pension with a  


non-spouse,  and  that  the  superior  court  misapplied  Alaska  law  by  examining  only  


Boulds's own initial intent to share the union pension with Nielsen for the benefit of their  


children.  We conclude that federal law does not bar Nielsen from receiving a share of  


the union pension and that the superior court did not err in determining Nielsen was  


entitled to half of the union pension under Alaska law.  We therefore affirm the superior  

court's decision and remand for the final division of the union pension.  


                   Raymond  Boulds  and  Elena  Nielsen  began  cohabiting  in  1993  and  

separated in 2009; they never married.  Boulds and Nielsen have three children together.  


Boulds also raised Nielsen's son from a prior relationship as his own child.  During their  

relationship, Boulds worked on the North Slope and Nielsen was a stay-at-home mother.  


Although  Nielsen  worked  as  a  waitress  when  the  parties  met,  she  began  receiving  


disability income in 1996.  This money was spent on the household and children.  Boulds  

claimed Nielsen as a dependent on his taxes for at least some of the years they were  


                   During the relationship Boulds accumulated three employment benefits  

through his employer:  an insurance death benefit, a 401(k) retirement account, and a  

union  pension  governed  by  the  federal  Employee  Retirement  Income  Security  Act  

                                                             -2-                                                      6901

----------------------- Page 3-----------------------


(ERISA).     When  Boulds  was  first  hired  by  his  employer,  he  listed  Nielsen  as  his  


intended pre-retirement death beneficiary for the union pension, even though the form  


specified that only a spouse, child, parent, or sibling could be listed.  Boulds's employer  


told him approximately one year later that he could not list a cohabitant.  He then listed  

his children as the beneficiaries.  


                    After the relationship ended the parties engaged in a series of child custody  


and property division proceedings. Trial was held on several days from December 2010  


to June 2012.   The superior court entered findings of fact and conclusions of law on  

August  30,  2012,  incorporating  its  July  28,  2011  oral  property  division.    The  court  

determined  that  the  employment  death  benefit  and  401(k)  account  were  Boulds's  


separate property and that the union pension was partnership property. The court divided  

the domestic partnership assets equally, but has not yet issued an order dividing the  

union pension.  



                    Boulds argues that the superior court erred in determining that Nielsen was  

entitled to part of his union pension for two reasons:  (1) ERISA prohibits division of a  


                                                                        and (2) the court erred by determining  

federal retirement account with a non-spouse; 

          1         29  U.S.C.    1001-1461  (2006).    ERISA  governs  payment  of  federal  

pension plans to individuals other than the pension holder (termed "alternate payees"),  

id.  1056(d)(3)(A), and defines a "qualified domestic relations order" as "creat[ing] or  


recogniz[ing] the existence of an alternate payee's right to . . . receive all or a portion of  


the benefits payable with respect to a participant under a plan," id.  1056(d)(3)(B)(i).  


An "alternate payee" is defined as "any spouse, former spouse, child, or other dependent  


of a participant who is recognized by a domestic relations order as having a right to  


receive . . . the benefits." Id.  1056(d)(3)(K).  



                    ERISA's effect on division of a retirement account is a question of law we


review de novo.  Madonna v. Tamarack Air, Ltd. , 298 P.3d 875, 878 (Alaska 2013)


                                                               -3-                                                         6901

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that the parties intended the union pension to be a partnership asset.   We conclude  

neither argument has merit.  

          A.        ERISA  

                    ERISA prohibits assignments of pensions except pursuant to a qualified  


domestic relations order (QDRO).   ERISA defines a QDRO as a domestic relations  


order that "creates or recognizes the existence of an alternate payee's right to, or assigns  

to an alternate payee the right to, receive all or a portion of the benefits payable with  



respect to a participant under a plan,"                   and that fulfills several other requirements which  



are not disputed in this appeal.                A domestic relations order "[r]elates to the provision of  

. . . marital property rights to a spouse, former spouse, child, or other dependent of a  

          2         (...continued)  

(citing Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831 (Alaska 2001)) (statutory  


interpretation reviewed de novo).  "[W]e adopt the rule of law that is most persuasive in  


light of precedent, reason, and policy."  Wood v. Collins, 812 P.2d 951, 955 n.5 (Alaska  


 1991) (quoting  Langdon v. Champion , 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (internal  


quotation marks omitted)).  



                    "When two people reside together in an intimate relationship, the property  


they acquire while cohabiting should be distributed according to the parties' express or  

implied intent."  Jaymot v. Skillings-Donat , 216 P.3d 534, 544 (Alaska 2009) (citing  


Bishop v. Clark , 54 P.3d 804, 811 (Alaska 2002)).  We determine the parties' intent by  

applying law to facts,  a  de  novo review.  Id. (citing Bishop , 54 P.3d at 810-11, 811 n.11).  

In the absence of an express agreement, we " 'closely examine the facts in evidence to  

determine what the parties implicitly agreed upon.' "  Id. (quoting Bishop , 54 P.3d at  



          4         29 U.S.C.  1056(d)(1), (3).  

          5         Id.  1056(d)(3)(B)(i)(I).  

          6         See id.  1056(d)(3)(B)(i)(II), (d)(3)(C)-(D).  

                                                               -4-                                                         6901

----------------------- Page 5-----------------------



participant."         "Alternate payee" as used in the definition of a QDRO is identical to the  

categories of recipients listed in the domestic relations order definition.8  


                    Boulds argues that the superior court lacked authority to award any of the  

union pension to Nielsen because "it is illegal under ERISA," which Boulds argues  



preempts state law.   We assume Boulds is contending that  cohabitants cannot hold  


"marital property" and that Nielsen does not qualify under the enumerated domestic  


relations order recipient categories.  Boulds is incorrect.  The superior court did not err  

when  it  divided  the  union  pension  between  cohabitants  under  Alaska  law,  and  this  

outcome is not inconsistent with ERISA.10  


                    The Court of Appeals for the Ninth Circuit examined a similar situation in  


Owens v. Auto Machinists Pension Trust, which concerned an unmarried couple who had  

          7         Id.  1056(d)(3)(B)(ii)(I).  

          8         See id.  1056(d)(3)(K) (alternate payee is "any spouse, former spouse,   

child, or other dependent of a participant").  Given this, Boulds apparently only disputes   

whether the QDRO will satisfy the prerequisite definition of a domestic relations order.  

          9         Boulds also argues that the division is not permitted under Alaska law  


because authority for courts to divide pensions comes from AS 25.24.160(a)(4) and is  


strictly limited to dividing pensions between formerly married couples.  We made clear  


in Bishop that AS 25.24.160(a)(4) applies only to married couples, and does not apply  


to cohabiting couples. 54 P.3d at 812.  But in Reed v. Parrish we upheld a trial court's  

determination   that   many   assets,   including   a   retirement   account,   were   domestic  

partnership assets.  286 P.3d 1054,1057-58 (Alaska 2012).  There is no reason under  

Alaska law to hold that the union pension is not subject to distribution under domestic  


partnership law.  



                    We are not quick to find preemption.  In Clauson v. Clauson we cautioned  


against using federal law too freely, noting that the U.S. Supreme Court "has refused to  

override state law unless preemption is 'positively required by direct [federal] enactment'  


or the particular law does 'major damage' to 'clear and substantial' federal interests."  

831 P.2d 1257, 1262-63 (Alaska 1992) (alteration in original) (quoting Hisquierdo v.  

Hisquierdo , 439 U.S. 572, 581 (1979)).  

                                                                -5-                                                         6901

----------------------- Page 6-----------------------



cohabited for 30 years.               A Washington state court determined that the woman should  

receive half of the man's monthly payments from an ERISA-covered pension acquired  


during  the  relationship.               When  the  woman  sought  her  portion,  the  pension  fund  

administrator notified her that because the couple had not been married, the trial court's  


                                                              The woman filed and prevailed on a declatory  

order was not enforceable under ERISA. 


judgment action in federal district court, and the plan administrator appealed to the Ninth  



                    The Ninth Circuit started its analysis by noting that ERISA only recognizes  

orders that relate to "marital property rights" and concern an "alternate payee," which  


                                                                  The case therefore turned on the meaning  

is defined to include an "other dependent." 

of "marital property rights" and whether the woman was an "other dependent."  The  

court reasoned that because federal law does not define "marital property rights," the  


court  must  apply  Washington  law  to  define  the  term.                             The  court  concluded  that  

"Washington recognizes quasi-marital relationships for purposes of property division."17  

          11        551 F.3d 1138, 1139-40 (9th Cir. 2009).

          12       Id. at 1141.

          13       Id.

          14       Id. at 1141-42. 

          15       Id. at 1144-46; see 29 U.S.C.  1056(d)(3)(B)(i)(I) (QDRO "recognizes the

existence of an alternate payee's right"); id.  1056((d)(3)(B)(ii)(I) (domestic relations  

order relates to "marital property rights"); id.  1056(d)(3)(K) (alternate payee includes  

"other dependent").  

          16        Owens, 551 F.3d at 1144-46.  



                   Id. at 1145 (citing In re Marriage of Pennington , 14 P.3d 764, 769 (Wash.  


2000)); see also  Connell v. Francisco, 898 P.2d 831, 834-37 (Wash. 1995) (en banc).  

                                                             -6-                                                      6901

----------------------- Page 7-----------------------

It explained that Washington acknowledges that these quasi-marital relationships occur  


when the relationship is stable, cohabitative, and both parties know they are not lawfully  

            18  Washington limits property division between cohabitants to what would have  



been possible " 'had the parties been married.' "                            The Ninth Circuit concluded that  


because Washington allows property to be distributed after a cohabitative relationship  


                                                                                                  Under Washington  

ends, the state provides "marital property rights" to cohabitants. 

law, the pension was a "marital property right."21  


                   Next, the court looked to the Internal Revenue Service's definition of an  

"other dependent" to determine whether the woman was an "other dependent" under  


ERISA.            The  Internal  Revenue  Code  defines  "other  dependant"  to  include  "[a]n  


individual (other than . . . the spouse . . . of the taxpayer) who, for the taxable year of the  


taxpayer, has the same principal place of abode as the taxpayer and is a member of the  



taxpayer's  household."                  The  Ninth  Circuit  held  that  the  woman  was  an  "other  

dependent" as defined by the IRS, and therefore an "alternate payee" under ERISA.24  


                   We adopt the Ninth Circuit's reasoning.  First, we ask whether Alaska  

provides a "marital property right" to cohabitants.  Alaska, like Washington, provides  

          18       Id. 

          19       Id. (quoting Connell, 898 P.3d at 836).

          20       Id . at 1146. 

          21       Id . at 1145.  

          22       Id. at 1146.  

          23       I.R.C.  152(d)(2)(H) (2012).  

          24        Owens, 551 F.3d at 1147.  

                                                             -7-                                                       6901

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for marital-like property distribution following a cohabitative relationship.                                   Whether  


Nielsen and Boulds's  relationship satisfies the requirements necessary for their property  


to be "marital" for ERISA's purposes under Alaska law is addressed below.  We then ask  


whether Nielsen falls into one of the qualifying classes of payees under ERISA.  Boulds  

claimed  Nielsen  as  a  dependent  on  his  taxes  and  they  shared  a  residence;  Nielsen  

therefore  qualifies  as  an  "other  dependant"  under  I.R.C.    152(d)(2)(H),  one  of  the  

                                                                          26   Boulds's argument that an order  

classes of  alternate payees permitted under ERISA.                           

dividing the union pension cannot meet the requirements of 29 U.S.C.  1056(d)(3)(B)  


therefore fails.  Federal law does not preclude distribution of part of the union pension  


to Nielsen, provided Nielsen is entitled to it under Alaska law.  We now address this  


          B.       The Parties' Intent  


                   We  made  clear  in  Bishop  v.  Clark  that  the  first  step  in  dividing  an  

                                                                                       27  We quoted our adoption  


unmarried couple's property is to examine the couple's intent. 

of the Oregon Supreme Court's standard that " 'a division of property accumulated  


during a period of cohabitation must be begun by inquiring into the intent of the parties,  

                                                                                                                  28   We  

and  if  an  intent  can  be  found, it should  control  that  property  distribution.'  " 

summarized the types of evidence courts have reviewed when determining explicit and  

implicit intent:  

          25       See, e.g.,  Bishop v. Clark,        54 P.3d 804, 811 (Alaska 2002); Wood v. Collins,  

812 P.2d 951, 956 (Alaska 1991).  

          26       29     U.S.C.           1056(d)(3)(B)(i)(I);            id.        1056(d)(3)(B)(ii)(I),            id.  


          27       54 P.3d at 811.  



                   Bishop , 54 P.3d at 811 (quoting  Wood, 812 P.2d at 956 (quoting Beal v.  

Beal , 577 P.2d 507, 510 (Or. 1978) (en banc))).  

                                                            -8-                                                      6901

----------------------- Page 9-----------------------

                   In   determining   the   intent   of   cohabiting   parties,   courts  

                    consider,  among  other  factors,  whether  the  parties  have  

                    (1) made joint financial arrangements such as joint savings or  


                    checking accounts, or jointly titled property; (2) filed joint  

                   tax  returns;  (3)  held  themselves  out  as  husband  and  wife;  


                    (4)  contributed  to  the  payment  of  household  expenses;  

                    (5) contributed to the improvement and maintenance of the  

                    disputed  property;  and  (6)  participated  in  a  joint  business  


                   venture.    Whether  they  have  raised  children  together  or  


                   incurred joint debts is also important.  

                   In the present case, the superior court expressly applied Bishop to determine  


the parties' intent with respect to various assets and debts.  The court held that the union  

pension was intended to be a partnership asset and thus subject to division between  

Boulds and Nielsen.  Specifically, the court explained:  


                   Mr. Boulds did, at one point in time during the relationship,  


                   list Ms. Nielsen as his beneficiary for this policy.  That . . . is  

                    significant evidence to this Court of his intent to hold that  


                    asset as a partnership asset.  Now Mr. Boulds has testified  

                   that that was not his intent, that his intent was merely . . . to  

                   list Ms. Nielsen so that when she received the benefit, she  

                    could use it for the benefit of the children.  

                             And I heard that testimony, but it doesn't really change  

                   my   analysis   because   that   testimony   tells   me   that   he  

                    considered her to be a trusted partner in that he would trust  

                   her to use the benefit for the benefit of their children.  And so  


                   that demonstrates to me that there was an intent for them to  

                   work together toward a mutual goal, a [meritorious] goal, the  


                   protection of their children, the financial protection of their  

                    children.  And so I find that Ms. Nielsen has met her burden  


                    of proof to establish that the [union pension] is a partnership  



          29       Id. at 811 (citations omitted).  

                                                             -9-                                                       6901  

----------------------- Page 10-----------------------

Boulds contends that the superior court misapplied Bishop by considering only his intent,  


when case law  requires that both parties' intent be examined.  In Boulds's view the  


required intent is "akin to a 'meeting of the minds' in contract theory."  Boulds makes  


much of the fact that Nielsen was uninvolved in the couple's financial decisions, Nielsen  

did not contribute directly to the union pension, and listing Nielsen as a beneficiary to  


the union pension "was a unilateral act which Nielsen only became aware [of] after it  


was done according to her testimony."  We reject Boulds's assertion that evidence of  

Nielsen's intent or knowledge with respect to the particulars of the parties' financial  

situation is necessary to determining intent under Bishop .  


                    Our holding in Reed v. Parrish is instructive.                        There we explained that  


"the [Bishop ] factors are not exclusive; they reflect the factual circumstances of the  

         31   Today we further clarify that the intent of the cohabiting parties as articulated  


in Bishop does not mean that each party's intent necessarily must be analyzed separately  



for every individual piece of property.                     In some cases, the parties' intent with respect  

to all or broad classes of property will be easy to infer based on evidence that "the parties  


formed a domestic partnership and intended to share in the fruits of their relationship as  


                                                                                                  We emphasize that  

though married, justifying an equal division of their property." 

simply living together is not sufficient to demonstrate intent to share property as though  


married,  and,  moreover,  that  parties  who  intend  to  share  some  property  do  not  

          30        286 P.3d 1054 (Alaska 2012).  

          31       Id. at 1058 (citation omitted).   

          32       When we have focused on a single asset it was because the parties have  

disputed only one asset.  See, e.g., Tolan v. Kimball, 33 P.3d 1152, 1154-56 (Alaska  


2001) (examining whether parties intended house to be partnership asset).  

          33       Reed , 286 P.3d at 1057.  

                                                            -10-                                                       6901

----------------------- Page 11-----------------------


presumptively intend to share all property - even when the Bishop factors tilt heavily  


toward finding partnership property, other evidence may show that the parties had no  


such intent for particular pieces of property.  But when the parties have demonstrated  

through  their  actions  that  they  intend  to  share  their  property  in  a  marriage-like  


relationship, a court does not need to find specific intent by each cohabitant as to each  

piece of property.  

                    The superior court's determination that the parties intended to share the  


union pension as if they were married, like they shared their other property, was not in  

error.  There was testimony that the parties wore wedding and engagement rings at  

various times.  The court heard undisputed testimony that Boulds supported Nielsen  


financially.  Boulds claimed Nielsen as a dependent on his taxes for at least some of the  

years they were together.  Boulds worked outside the home, while Nielsen worked inside  


the  home  raising  their  children.    Boulds  apparently  took  on  much  of  the  financial  


responsibility for the couple, while Nielsen saw to other matters.  Boulds listed Nielsen  


as  his  intended  pre-retirement  death  beneficiary  until  he  was  told  she  could  not  be  


             The superior court concluded that the couple had a common goal of using the  


pension fund to finance raising the children.  Ample evidence "support[s] a finding that  


          34        Our  holding  does   not   rest   on  the   fact   that   Nielsen  was   listed  as  a  

beneficiary; there was ample evidence before the superior court that the parties intended  

to share the union pension under Bishop , even if Boulds had never listed Nielsen as his  


beneficiary.  We note that under this analysis, Boulds's 401(k) account actually may  

have been partnership property as well.  The superior court concluded that the 401(k)  

was Boulds's alone because there was no evidence in the record that he had ever listed  

Nielsen as a beneficiary.  Such a listing is not necessary when there is sufficient evidence  


showing  that  under  the  Bishop  factors  the  couple  intended  to  share  property.    But  


because the ownership of the 401(k) account was not cross-appealed, we do not reach  

this question.  

                                                             -11-                                                        6901

----------------------- Page 12-----------------------

the parties were in a domestic partnership and intended to share property as though  


                   Boulds  also  implies  that  the  superior  court  erred  when  it  held  that  the  

parties intended to share the union pension without making specific findings supporting  

each of the Bishop factors.  Such specific findings are not necessary.  We will remand  


for additional fact-finding when "there are not sufficient findings to allow our review of  



.  .  .  the  parties'  intent."        But  that  is  not  the  case  here.    The  superior  court  made  

sufficient findings of intent for our review; it applied Bishop and concluded that the  


parties intended to share the union pension.  The superior court's analysis was correct.  



                   We AFFIRM the superior court's determination that Nielsen is entitled to  

half of Boulds's union pension and we REMAND for the superior court to determine  



         35       Reed , 286 P.3d at 1057.  

         36       Jaymot v. Skillings-Donat , 216 P.3d 534, 546 (Alaska 2009).  

         37        If there is concern that the pension administrator will refuse to honor the  

domestic relations order even in light of Owens v. Auto Machinists Pension Trust, 551  

F.3d  1138,  1147  (9th  Cir.  2009),  discussed  supra  pp.5-8,  the  court  may  require  an  


equalization payment from Boulds to Nielsen reflecting the present value of her share of  

the union pension.  

                                                         -12-                                                       6901  

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