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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richter v. Richter (8/1/2014) sp-6931

Richter v. Richter (8/1/2014) sp-6931

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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MATTHEW RICHTER,                                     )  

                                                     )        Supreme Court No. S-15088  

                           Appellant,                )  

                                                     )        Superior Court No. 3PA-11-02920 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

SHELLEY RICHTER,                                     )  

                                                     )       No. 6931 - August 1, 2014  

                           Appellee.                 )  


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


                  Judicial District, Palmer, Vanessa White, Judge.  

                  Appearances:  Richard W. Postma, Jr. and Mitchell K. Wyatt,  

                  Law Offices of Mitchell K. Wyatt, Anchorage, for Appellant.  


                  Elizabeth-Ann  Neufeld  Smith,  Law  Offices  of  Kenneth  

                  Goldman, PC, Palmer, for Appellee.  

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


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  The superior court granted a divorce to Shelley and Matthew Richter and  


equitably  divided  their  marital  property.    Matthew  appeals,  challenging  the  court's  


jurisdiction and its finding that a loan from Matthew's mother was marital debt.  We  


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



                    Shelley Richter (now Sailer) and Matthew Richter married in California in  


January 2010.  They separated in October 2011, and Shelley filed for divorce.  At the  


three-day divorce trial in December 2012, Matthew argued that the superior court lacked  

jurisdiction over him because he is a resident of Idaho.  He contended that he had not  


resided in Alaska for at least six consecutive months while in a marital relationship with  


Shelley, as is required by Alaska law before the court can acquire personal jurisdiction  


over the parties in a divorce action.     

                    Matthew and Shelley are both helicopter pilots, and their work requires  


frequent travel.  According to Matthew, he moved to Alaska five or six years before trial  

but "was only there seasonally" until he and Shelley got married, when he began living  

in Alaska year-round.  At trial he identified Idaho as his residence, but he also testified  


that he had had an Alaska driver's license for about three years, that he applied twice for  


an Alaska Permanent Fund Dividend but never qualified, and that he used an Alaska  


address for his 2010 federal income tax return.  He testified that because he and Shelley  


both traveled frequently, there was no continuous six-month period of time when they  

lived together in Alaska during their marriage.   


                    Shelley testified that Matthew rented out his house in Idaho and brought  


most of his belongings to Alaska shortly after they got married, and that they bought a  


condo together in Anchorage in April 2010. She testified that Matthew told her in March  

2011 that he wanted to move back to Idaho, but he did not actually leave until October  

2011, when they agreed to separate.  

          1         See AS 09.05.015(a)(12).  

                                                               -2-                                                           6931  

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                    After  hearing  this  testimony,  the  superior  court  concluded  that  it  had  


personal  jurisdiction  over  Matthew  because  "[h]e  was  a  resident  [of  Alaska]  from  


January of 2010 until at least September of 2011 in a marital relationship and he resided  

in this state consecutively during that time."  


                    Other issues at trial involved the parties' marital property and debts.  Their  

main disagreement concerned a $100,000 loan from Matthew's mother, Patricia Richter.  


Shelley entered the marriage with over $100,000 in debt for student loans, bearing a  


variable interest rate that could go as high as 16 percent.  According to Matthew, his  

mother offered to help Shelley with refinancing the student loan debt and co-signing a  

new  loan  at  a  lower  interest  rate;  he  testified  that  he  had  no  involvement  in  that  


transaction. Shelley testified, on the other hand, that Matthew's mother "made $100,000  


available  to  [her  and  Matthew]  to  use  as  investment,"  which  they  first  considered  

investing  in  commercial  properties  in  Girdwood.    Shelley  testified  that  "[t]hose  


properties didn't work out[,] and as we sat there empty handed, not sure what our next  


move was, we started analyzing our finances and looking at where our liabilities were."  


Concluding that reducing Shelley's student loan debt was their wisest financial move,  

they jointly decided to use the $100,000 from Matthew's mother to pay off that debt.  


Whatever the impetus, Patricia Richter took out a loan from a family trust at about 2.25%  


interest and wired the money to Matthew and Shelley's joint bank account, from which  


Shelley paid off her student loans.  Repayments to Patricia Richter for the loan were also  

made from the couple's joint account.  


                    Despite testimony by both Matthew and his mother that the loan was a non- 


marital  transaction  solely  between  Patricia  Richter  and  Shelley,  the  court  credited  


Shelley's testimony that the parties had incurred the loan as a couple to improve their  

                                                                -3-                                                         6931

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overall financial situation and were jointly liable for its repayment.  Finding it to be  

marital debt, the court divided it equally between Shelley and Matthew.  

                    Matthew timely2 appealed the superior court's rulings on jurisdiction and  

the marital nature of the $100,000 debt.  He also contends that he was denied due process  


because he went to trial without knowing that it might result in an equitable property  




                    We review de novo issues of law, including whether the superior court has  

                                       3                                                            4  

subject matter jurisdiction  and whether it has personal jurisdiction.    


                    "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  

          2         Shelley argues in her brief that Matthew's appeal is not timely as to the  

jurisdiction  issue  because  the  appeal  was  not  filed  within  30  days  of  the  court's  


judgment. The final decree and written findings were distributed on January 16, 2013.  


Matthew had filed motions for reconsideration and for a new trial a day earlier, based on  


the  court's  oral  decision  made  on  the  record  on  January  2.                              Matthew's  motions  


terminated the running of the time for appeal.  See Alaska R. App. P. 204(a)(3).  Shelley  


argues that the motions did not affect the time for appealing the jurisdiction issue because  


they did not address it.  But Rule 204(a)(3) does not extend the time for appealing only  


those issues that are addressed in post-trial motions; such a rule would needlessly foster  

piecemeal appeals.  Matthew's post-trial motions were denied on February 26, and he  

timely filed this appeal on March 13.  

          3         Hawkins v. Attatayuk , 322 P.3d 891, 894 (Alaska 2014).  



                    Vanvelzor v. Vanvelzor, 219 P.3d 184, 187 (Alaska 2009) (citing S.B. v.  

State, Dep't  of  Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10  

(Alaska 2002)).  

                                                              -4-                                                        6931

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


property, and (3) dividing the property equitably."   This appeal concerns only the first  



                    "In the first step, '[t]he characterization of property as separate or marital  


                                                                           We review the "[u]nderlying factual  

may involve both legal and factual questions.' " 


findings as to the parties' intent, actions, and contributions to the marital estate" for clear  

error.7  "A finding of fact is clearly erroneous if, upon review of the entire record, we are  


                                                                                                           "[W]hether the  

left with a firm and definite conviction that a mistake has been made." 

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."   


          A.        The Superior Court Had Jurisdiction Over This Divorce Case.  

                    1.        The superior court had subject matter jurisdiction.  


                    Matthew  claims  that  the  superior  court  did  not  have  subject  matter  


jurisdiction over the  "personal claims in the divorce."  He is incorrect.  "Subject matter  

jurisdiction  is  'the  legal  authority  of  a  court  to  hear  and  decide  a  particular  type  of  



case.'  "         "[W]here  the  legislature  has  authorized  a  court  to  enter  judgment  in  a  

          5         Beals v. Beals , 303 P.3d 453, 458 (Alaska 2013).  

          6         Id. at 459 (quoting  Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006))             

(alteration in original).  

          7         Id.

          8         Stanhope v. Stanhope, 306 P.3d 1282, 1287 (Alaska 2013).

        Id. at 1286 (internal quotation marks omitted).  



                    Nw. Med. Imaging, Inc. v. State, Dep't of Revenue , 151 P.3d 434, 438


(Alaska  2006)  (quoting  ERWIN  CHEMERINSKY ,   FEDERAL  JURISDICTION   257  (3d  ed.


                                                               -5-                                                        6931

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particular class of cases, the court properly has subject matter jurisdiction."                                   Alaska  


Statute 25.24.050 sets out the grounds for divorce, and AS 25.24.160(a) describes what  


the superior court may include in its judgment in an action for divorce.  These statutes  

clearly  grant  the  superior  court  the  authority  to  enter  judgment  in  a  divorce  action,  

thereby giving the court subject matter jurisdiction.12  

                   2.        The superior court had personal jurisdiction.  

                   Alaska Statute 09.05.015(a)(12) grants a court personal jurisdiction over  

a nonresident party for the personal claims in a divorce action if:  


                   (A) the parties resided in this state in a marital relationship  

                   for not less than six consecutive months within the six years  

                   preceding  the  commencement  of  the  action;  (B)  the  party  


                   asserting the personal claim has continued to reside in this  

                   state;  and  (C)  the  nonresident  party  receives  notice  as  

                   required by law.  

Here, in response to the court's questioning, Matthew confirmed that he lived in Alaska  

"more or less continuously" for the first eight months of his marriage to Shelley.  He  


moved  most  of  his  belongings  to  Anchorage,  obtained  an  Alaska  driver's  license,  


identified his residence as Alaska for federal tax purposes, and applied for the Permanent  


Fund Dividend.  He and Shelley together bought an Anchorage condo, which Shelley  

testified was their "home base."  Although Matthew still owned his house in Idaho, he  


rented it out during the marriage.  Considering all this evidence, the court did not clearly  




          11       Id. (citing Rodriguez v. Rodriguez , 908 P.2d 1007, 1011 (Alaska 1995)).  

          12       Cf. Rodriguez, 908 P.2d at 1011.  

                                                            -6-                                                      6931

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

err in finding that Matthew resided in Alaska for more than six consecutive months of  

the marital relationship.  

                   Matthew reads the statutory phrase "in a marital relationship for not less  


than six consecutive months" as requiring a couple to have lived under the same roof for  


that amount of time, a requirement he fails to meet because of his and Shelley's constant  

travel.  But his reading of the statute is unreasonable.  If it were accepted, an Alaska  

court would lack jurisdiction over long-time Alaska couples simply because one spouse  


travels regularly to Juneau or the North Slope, or because their employment requires that  


they maintain separate residences and see each other on weekends.  The statute simply  

requires six consecutive months of Alaska residency while in a marital relationship; it  


does not require that the married couple share a home, let alone that they spend every day  

together for the required six months.  Here, once the superior court found that Matthew  


had resided in Alaska for six consecutive months during his marital relationship with  

Shelley, it properly exercised jurisdiction under AS 09.05.015(a)(12).  

          B.        The Superior Court Properly Classified The Loan As Marital Debt.  


                   Matthew argues that the $100,000 debt owed to his mother was Shelley's  


separate obligation and that the court erred by classifying it as marital and allocating it  


between them.            

                   In a judgment for divorce, the court may provide "for the division between  


the parties of their property, . . . whether joint or separate, acquired only during marriage,  

          13       Matthew cites to AS 25.15.050, which provides that "neither spouse is  

liable for the . . . separate debts of the other," and to AS 25.15.100, which  allows a  


married person to make contracts and incur liabilities which can then be enforced "to the  


same extent and in the same manner as if the person were unmarried."  Neither of these  

statutes is relevant unless the loan is Shelley's separate debt; they do not help determine  


whether the debt is separate or marital in the first instance.  

                                                             -7-                                                       6931

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 in a just manner."                Debt incurred during marriage is presumptively marital; the party  



  claiming otherwise must show that the parties intended it to be separate. 


 property includes property acquired by one spouse before marriage, property acquired  


                                                                                   "Whether an initially nonmarital debt  

 by gift, and property acquired by inheritance."  


 transmutes into a marital liability is a question of intent and acceptance."                                                  


                      Neither party disputes that Shelley's student loan debt was separate debt that  


she brought to the marriage.  But it is also undisputed that this debt was paid off during  


the marriage:  Matthew testified that he paid $13,500, expecting Shelley to make up for  


it by making future mortgage payments and paying other household expenses; and the  

remaining $100,000 was paid off with the loan from Matthew's mother, Patricia Richter.  

             14        AS 25.24.160(a)(4).  

             15        Stanhope v. Stanhope, 306 P.3d 1282, 1290 (Alaska 2013);                                          Beals v. Beals,  

  303 P.3d 453, 460 (Alaska 2013) ("Generally, 'all assets acquired by the parties during             

 their marriage are marital property' except for gifts and inheritances.")(quoting                                                 Johns v.  

 Johns , 945 P.2d 1222, 1225 (Alaska 1997)).  

             16        Bilbao v. Bilbao , 205 P.3d 311, 313-14 (Alaska 2009) (citing Schmitz v.  

 Schmitz, 88 P.3d 1116, 1127 (Alaska 2004)).  



                        Ginn-Williams v. Williams, 143 P.3d 949, 956 (Alaska 2006).  Matthew  

  claims that  Ginn-Williams requires this court to conclude that the $100,000 debt was  

  separate.  Ginn-Williams held that where property transmuted to marital property, the  

  debt associated with that property must also transmute.  This holding does not apply here  


 because no property transmuted. The loan from Patricia Richter was incurred during the  


 marriage and was therefore presumptively marital debt.  

                                                                      -8-                                                                6931

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The loan from Patricia was acquired during the parties' marriage and therefore became  


                                          18                                                                       19 

presumptively marital debt.                   It is Matthew's burden to prove it is separate.  

                    The evidence on this issue at trial was conflicting.  Matthew denied any  


involvement with Shelley's student loans "other than paying down the $13,500."  He  


testified that he had no authority to "negotiate or compromise this debt between Shelley  


and [his] mother."  Patricia supported her son's view of the transaction, testifying that she  


"sent $100,000 to [Shelley's] bank account in the name of Shelley Richter in June 2011,"  


that  Matthew  did  not  sign  anything  related  to  the  loan,  and  that  Matthew  was  not  

responsible for the loan in any way - the loan "was only intended to help Shelley."  

                    But the superior court did not find the testimony of Matthew and Patricia  


credible on this issue.  The court credited instead Shelley's testimony that Patricia had  


offered the couple $100,000 to invest and that after considering and rejecting the idea of  


buying commercial real estate, they together decided it would make better financial sense  


to pay off Shelley's high-interest student loan debt.  Shelley maintained that she would  


not have asked Patricia for help but that Matthew wanted to use the money in this way.  


The money loaned by Patricia was transferred to the couple's joint bank account, and  

repayments to Patricia on the loan were made from the same joint account.  Shelley  

testified that the amount of the loan would be subtracted from Matthew's inheritance if  

Patricia died before it was paid off, indicating that she saw the loan as benefitting her son;  


Patricia testified that she never would have loaned Shelley the money if she had known  

about the couple's marital difficulties, again indicating that benefit to Matthew was part  

of Patricia's calculus.  The evidence also showed that Patricia only attempted to document  

           18        Stanhope, 306 P.3d at 1290; Beals, 303 P.3d at 460 (quoting                                   Johns , 945  

 P.2d at 1225).  

           19        Id.  See also Brandal v. Shangin , 36 P.3d 1188, 1192 (Alaska 2001).  


                                                                -9-                                                             6931  

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the transaction - drawing up a promissory note between herself and Shelley alone -  


after she learned that the couple had decided to separate; Shelley refused to sign the note.  

Given the evidence on both sides of the issue and the great deference we give to a trial  


court's factual findings when they require "weighing the credibility of witnesses and  



conflicting oral testimony,"                we cannot say the superior court clearly erred when it found  

that the parties intended the debt to be marital.21  


                    Matthew  also  argues  the  debt  is  nonmarital  because  Shelley  incurred  it  

during a period of separation that led to divorce.  As a general rule, "property acquired  



after separation is properly excluded from the category of marital property." 


occurs when a married couple ceases to function as a single economic unit, which requires  



a fact-specific inquiry.              Here, Patricia Richter loaned Shelley and Matthew the money  


in June 2011.  Matthew is correct that this transaction occurred after he proposed that the  


parties separate, but the evidence showed that they did not actually do so until October  

2011.  The debt remains presumptively marital.  

                    Matthew  makes  a  few  other  arguments  challenging  the  superior  court's  

findings, none of them meritorious.  He argues first that the superior court improperly  

           20        Stanhope, 306 P.3d at 1287 (quoting                   Bigley v. Alaska Psychiatric Inst.               , 208  

 P.3d 168, 178 (Alaska 2009)).  

           21        Matthew separately argues that he was not a party to Shelley's agreement  

 with Patricia and that "a third-party cannot be held liable on a debt for merely helping  

 a debtor make a payment."  But these arguments simply restate his central tenet - that  

 the debt to his mother was not incurred by the marital unit - an argument the superior  


 court rejected as a factual matter.   

           22        Ramsey v. Ramsey , 834 P.2d 807, 809 (Alaska 1992) (citing Schanck v.  

 Schanck, 717 P.2d 1, 3 (Alaska 1986)).  

           23        Hatten v. Hatten , 917 P.2d 667, 671 (Alaska 1996).  

                                                               -10-                                                         6931

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

relied  on  an  unadmitted  exhibit,  Exhibit  23,  in  making  its  oral  findings.    But  after  


Matthew's  attorney  pointed  this  out,  the  court  acknowledged  its  mistake  and  stated,  


"[T]he fact that [Exhibit] 23 is not part of the record doesn't change my ruling. . . .  I  


found  [Shelley's]  testimony  to  be  highly  credible  on  this  point.    I  did  not  find  Mr.  


Richter's testimony to be credible.  I did not find his mother's testimony to be credible  


on this point."  The testimony  on which the court relied was sufficient to support its  

findings of fact.  


                      Finally, Matthew argues that the debt to his mother is unenforceable because  


there was no consideration given for it except possibly a promise to Patricia that the  

couple  would  have  grandchildren,  a  promise  Matthew  contends  was  illusory.    But  

Matthew did not raise this issue before the superior court, and it is therefore waived.24  

           C.         The Superior Court Did Not Violate Matthew's Due Process Rights.  

                      Matthew claims that his due process rights were violated because he went  


to trial believing that Shelley did not intend to ask the court for anything other than a  


rescission of their relatively short marriage, and he was surprised when she sought an  

equitable  distribution  of  their  marital  property.    He  argues  that  "because  (a)  Shelley  


alleged Matthew was a resident of Idaho and not Alaska [in her complaint]; (b) Matthew  


agreed that he was an Idaho resident [in his answer]; and (c) Shelley never alleged any  


set of facts that would invoke the long-arm statute for divorce, Matthew did not have  


sufficient notice that Shelley would contradict her own pleadings and seek anything more  


                                                                                           Matthew claims that with proper  

than a Rose v. Rose-type rescission of the marriage." 

            24         Alaska State Emps. Ass'n/AFSCME Local 52, AFL-CIO v. State                                                , 74 P.3d   

  881, 886 (Alaska 2003).  

            25         See Rose v. Rose, 755 P.2d 1121 (Alaska 1988).  Whether to apply a Rose- 



                                                                     -11-                                                               6931

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

notice that a property division was contemplated, he would have presented additional  

evidence proving that the $100,000 loan from his mother was Shelley's separate debt.  


                     Matthew's argument fails for a number of reasons.  Most obviously, it is  


unreasonable to read the complaint's allegation that Matthew was then "a resident of  

Victor,  Idaho,"  as  an  affirmative  assertion  that  the  superior  court  therefore  lacked  


jurisdiction over the parties' divorce, particularly given that the complaint was captioned  


"Complaint for Divorce" and asked the court to adjudicate "[c]ertain property rights and  


obligations [that] have been acquired and certain debts and obligations [that have been]  


incurred by the parties during the course of the marriage."  And Matthew was clearly on  


notice that the $100,000 debt would be an issue at trial; he specifically addressed it both  


in his answer (asserting that he would not agree to a divorce until Shelley had refinanced  


the loan, which "is her loan, it has nothing to do with my mother and I") and in his trial  


brief (asserting that the student loans had been refinanced with the help of his mother but  

that "Matthew did not co-sign the refinance").  Shelley's trial brief listed the loan as a  


joint obligation of the parties and asked on her property spreadsheet that it be split 50/50.  

Matthew testified about the loan at trial, cross-examined Shelley on the subject, and  


presented the supporting testimony of his mother.  There is no basis in these facts to  


conclude that Matthew lacked fair notice that responsibility for the loan was at issue or  

that he lacked a fair opportunity to litigate it.  His claim that he was denied due process  

is without merit.  


  type rescission remedy rather than make an equitable distribution is left to the court's  

  discretion.  Id. at 1125 ("stating that the trial court may, without abusing its discretion"  


  treat the divorce as a rescission); see also Nicholson v. Wolfe , 974 P.2d 417, 421 (Alaska  


  1999) ("Since Rose , we never have held that it would be clearly unjust to adopt equitable  


  rather than rescission principles.").  

                                                               -12-                                                         6931

----------------------- Page 13-----------------------


             We AFFIRM the judgment of the superior court.  

                                        -13-                                   6931

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