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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Young v. Kelly (8/22/2014) sp-6944

Young v. Kelly (8/22/2014) sp-6944

         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  


ANNA YOUNG,                                          )  

                                                     )        Supreme Court Nos. S-14857/14858  

                          Appellant and              )        and S-14897 (consolidated)  

                          Cross-Appellee,            )  

                  v.                                 )        Superior Court Nos. 3AN-12-06299 CI  

                                                     )                                    3AN-11-05669 CI  

                                                     )        O P I N I O N  

DAVID KELLY,                                         )  

                                                     )       No. 6944 - August 22, 2014  

                          Appellee and               )  

                          Cross-Appellant.           )  


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


                  Judicial District, Anchorage, Mark Rindner, Judge.  

                  Appearances: Ted Stepovich, Law Office of Ted Stepovich,


                  Anchorage,  for  Appellant  and  Cross-Appellee.                    John  E.

                  Casperson,  Holmes,  Weddle  &  Barcott,  P.C.,  Seattle,  for


                  Appellee and Cross-Appellant.

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


                  Bolger, Justices.  

                  MAASSEN, Justice.

                  FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.


                  Anna Young and David Kelly fished together on David's boat during their  


marriage, which lasted from 1982 to 1985.  Eight years after the marriage was dissolved,  

the federal government established a program assigning individual fishing quotas (IFQs)  


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


to certain commercial fishers; David qualified for the program and was awarded quota  


shares.  In 1995 he approached Anna and asked whether they could reach an agreement  


that would prevent litigation over her right to a marital share of the IFQs.  Anna agreed  


to forgo suit; David began paying her money, sporadically and  in varying amounts.  


After 13 years of this, David's payments stopped.  Anna filed suit in 2011, alleging that  


David  had  breached  their  contract.    She  also  filed  a  motion  under  Alaska  Civil  

Rule 60(b)(6), seeking to reopen their 1985 property division and allocate the IFQs as  

a marital asset.  

                   The superior court granted summary judgment to David, deciding that any  


contract for something other than a marital share was too indefinite to be enforced, that  


the IFQs were not marital property, and that Anna therefore had no right of recovery.  

We affirm.  


                   Anna Young and David Kelly were married in 1982. During their marriage  


they both worked on David's fishing boat, the F/V A 

                                                                          RROW .  In January 1985 the couple  

dissolved the marriage, agreeing in the dissolution that they had no marital property and  


that the F/V A 

                    RROW  belonged to David.  

                   Eight  years  later,  in  1993,  the  federal  government   enacted  regulations  

assigning individual fishing quotas to vessel owners or lessees who had made fixed gear  

landings of halibut or sablefish (black cod) during certain "qualifying years," 1988,  

1989, or 1990.1                                                                     

                        David had fished during the qualifying years and thus qualified for  

          1        50 C.F.R.  679.40(a)(2)(i)(A), 679.40(a)(3)(i) (2013); Pacific Halibut  

Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian  


Islands; Limited Access Management of Fisheries Off Alaska, 58 Fed. Reg. 59,376 (Nov.  

9, 1993).  

                                                           - 2 -                                                       6944  

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

IFQs.    The  amount  of  his  quota  shares  for  halibut  was  calculated  under  the  federal  


regulations using his five highest annual landings from the seven "base years," 1984 to  



           One of David's highest-yielding base years was 1984, one of the years of his  

marriage, when he and Anna fished together on the F/V A 

                                                                                     RROW .  

                    In 1995, David learned that other ex-spouses had reopened their divorce  

proceedings for the purpose of allocating IFQs as marital property.  David approached  


Anna about reaching an agreement that would dissuade her from litigating the ownership  


of his IFQs.  The substance of their resulting agreement is in dispute.   

                    Anna  described  the  agreement's  terms  in  her  complaint,  deposition  

testimony, answers to interrogatories, and affidavits.  The contract she alleged in her  

complaint was an agreement that she "was entitled to her marital share of the IFQs and  


that payments as to such would be made to [her] over time until paid in full."   The  

complaint alleged that David had agreed to make the payments "when [Anna] needed  


[money] upon a reasonable request," and that his commitment would end ultimately by  


"a lump sum payment to be made [when Anna] started a business [and] settled down."  


                    At her deposition, Anna testified that she and David never agreed on a  


specific amount that he owed her, and she still had no firm figure in mind.  She testified  


that at the time they made their agreement no one knew what an IFQ was worth:  "We  


didn't even know if [the IFQ program] was going to stick."  She and David also never  


agreed that she was entitled to any particular percentage of the IFQs, were they to be  

someday valued.  What they agreed to instead of a dollar figure, according to Anna's  

          2         50 C.F.R.  679.40(a)(4)(ii) (2013).  Unlike halibut, the base years for  


sablefish began in 1985, after David and Anna had separated.  There is no dispute that  


Anna has no marital rights to sablefish IFQs, though she does claim an interest in them  

as a remedy for David's alleged breach of contract.  

                                                             - 3 -                                                         6944  

----------------------- Page 4-----------------------


deposition testimony, was that "I would not bring lawyers into our business as long as  

he was fair with me, and we made a deal that he was going to be fair."   


                    Anna further testified that on the day they reached this agreement, David  

wrote  her  a  check  for  $6,000.    She  testified  that  the  next  payment  was  to  be  made  

"[w]henever I needed money," and that "for almost another ten years" she and David  


adhered to an arrangement by which he was "to give me money whenever I needed it,  

for a real good reason, because he didn't want me to dwindle my money away."  She  

testified that there was no set amount David was to pay; she just made sure they made  


contact every year "and that he made some kind of a payment to me," the payments  


being "bigger in the beginning and . . . gradually [getting] smaller, down to two thousand  


the last time he made a payment."  She also testified that David made some payments in  


"goods," entertaining her and her granddaughters at a restaurant in Seward and buying  


them "the most expensive wines," "[a]nd he worked on my boat quite a bit, bought a lot  

of stuff for my boat," such as a radar.  

                    Anna testified at her deposition that she considered all these payments,  


"during that period of time until we settled," to be interest on what David owed her; she  

calculated that these interest payments eventually totaled about $30,000.   


                    Anna also testified that she and David probably never would have had to  


place a value on the IFQs as long as David had "kept his agreement" -  that is, as long  


as he had "kept paying me until I was ready to start my business."  She testified that at  


the time of her deposition she was ready to start her own business, a film-making studio,  


and she needed $100,000 to do it; that she might need more money next year; and that  


David "would have been obliged to [keep] supporting me with my business, as far as I'm  

concerned," because the IFQs "put him way up there [as] king of the mountain."  She  


testified that there was "no limit" on what she could ask David for under their agreement.  

                                                              - 4 -                                                        6944

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

She also testified that since David had broken their agreement, what she wanted now was  


"the IFQs and . . . fifty percent of the money he's made with the IFQs so far."  

                    Anna also described the parties' agreement in answers to interrogatories.  


She again acknowledged that "[t]here was no set agreed amount as it was impossible to  

set a [dollar] value on [the IFQs] at that time."  She again described a promise by David  


that  he  would  get  her  started  "in  any  business  [she]  want[ed]  that  doesn't  involve  


fishing," and in the meantime she should "just ask [whenever] [she] need[ed] money for  

something  legitimate."    However,  "I  always  had  to  have  a  good  reason  for  why  I  


need[ed] the money[;] he didn't want me to spend any of it on something that wasn't a  


necessity."  She attested that David would usually pay only about 75% of what she asked  


for.  She described one incident in which she demanded that David pay $1,500 for the  


down payment on a friend's hospitalization in Seattle, "or else our agreement not to get  

lawyers involved was off."  

                    When David moved for summary judgment on Anna's contract claim, Anna  

filed two affidavits in opposition:  her own and one by Peggy Parker, president of a  


research firm with extensive experience in fisheries.  In Anna's affidavit, she asserted  


that  David  "promised  me  that  I  would  get  my  share  of  the  IFQs  earned  by  the  

          RROW while I was married to him and working as a crew member";  she also  

F/V  A 


characterized her agreement with David as that "I would get money as I needed it" and  


"that he would provide a significant payment toward his debt once I was ready to settle  

down or started another business as long as it wasn't fishing."  In addition, she asserted  


that "[n]ow I'll be asking for some of the black cod IFQs since I paid for the gear that got  

                                                         3  Parker, Anna's expert, calculated the value of  


the 'Arrow' started fishing black cod."  

          3         Anna  had  testified  at  her  deposition  that  her  agreement  with  David  


encompassed only halibut IFQs, not black cod IFQs.  

                                                             - 5 -                                                          6944  

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

Anna's marital share of the halibut IFQs on the assumptions that Anna's active fishing  


during one of the five base years represented 20% of the IFQ shares; that in the divorce  


she would have received half of those shares; and that she would then have fished those  


shares herself as an IFQ holder on a halibut vessel and received a 40% share of the  



                     In Anna's answers to interrogatories, however, she took issue with the  


position of her expert as to the percentage of IFQs she was entitled to.  Asserting that her  


"attorney worked it out to be 5%," she stated that "I personally feel that it should be  


closer to 10% in light of the way [David] forced me out of our marriage. . . .  [I] still  


believe I should get 10% of the IFQs and 50% boat share of the money made using those  


[IFQs] since 1994 [plus] interest in the gold David bought with his extra money since  


[the IFQs] started."   

                     It is undisputed that beginning in the fall of 1995, David made a number of  


payments to Anna in varying amounts. The amount of the payments gradually decreased  


over  time,  until  eventually  David  stopped  making  payments  altogether  and  avoided  


further contact with his former wife.   

                     In February 2011, Anna filed suit against David, alleging breach of contract  

and  promissory  estoppel.    A  year  later  she  filed  a  motion  under  Alaska  Civil  

Rule 60(b)(6), seeking to reopen the 1985 dissolution and allocate the IFQs as marital  

property.    The  superior  court  initially  ruled  that  Anna's  descriptions  of  the  parties'  


contract were in many respects too indefinite and uncertain to be enforced, but her claim  

that David had promised her a marital share of the IFQs survived summary judgment  


          4          The source of the 5% figure is unclear from the record.  The calculations  

of Anna's expert, Parker, result in a 4% share (20% of David's total IFQ shares x .5  


(Anna's marital share) x .4 (Anna's IFQ holder share)).    

                                                               - 6 -                                                             6944  

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

because the court could determine her marital share; it further ruled that although the  

statute of frauds applied, so did the full-performance exception to the statute of frauds.  


The superior court also ruled that promissory estoppel could apply to David's promise  


to pay Anna a share of the quotas.  In a subsequent order, however, the superior court  


ruled that the IFQs were not marital, because David did not qualify for the IFQs until  


years after the marriage had been dissolved, and Anna's marital share of the IFQs was  


therefore zero.  Accordingly, the superior court dismissed Anna's suit for breach of  


contract and denied her Rule 60(b)(6) motion to reopen the dissolution.  

                    Anna  appeals,  arguing  that  a  portion  of  the  IFQs  was  marital  property  

because she was married to and fished with David during one of the base years used to  


determine the IFQs' value.  David cross-appeals, arguing that he has no contract with  

Anna, that any contract was barred by the statute of frauds, and that promissory estoppel  


does not apply to any promise he may have made.  


                    We  recently  clarified  the  standard  of  review  for  decisions  whether  to  


classify property as marital.   

                    The characterization of property as separate or marital may  

                    involve both legal and factual questions.  Underlying factual  


                    findings as to the parties' intent, actions, and contributions to  


                    the marital estate are factual questions.  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  




          5        Beals v. Beals , 303 P.3d 453, 458-59 (Alaska 2013) (footnotes, internal  

quotation marks, and alterations omitted) (quoting Odom v. Odom, 141 P.3d 324, 330  


(Alaska 2006); Hanson v. Hanson , 125 P.3d 299, 304 (Alaska 2005)).  

                                                             - 7 -                                                         6944  

----------------------- Page 8-----------------------

                   We review motions for summary judgment de novo, affirming the superior  


court if the record presents no genuine issues of material fact and if the movant is entitled  



to judgment as a matter of law.   In making this assessment, we draw all reasonable  


inferences in favor of the non-moving party.7  We review for abuse of discretion an order  

denying a Rule 60(b) motion.8  



          A.	    With  The  Possible  Exception  Of  An  Agreement  To  Pay  Anna  Her  

                   Marital Share, The Alleged Contract Is Not Enforceable Because It  


                   Lacks Definite And Certain Terms.  

                   In an action to enforce a contract, "Alaska plaintiffs must show: 'an offer  


encompassing all essential terms, unequivocal acceptance by the offeree, consideration,  


and an intent to be bound.' "9  

                                            To be enforceable a contract must also "have reasonably  


definite and certain terms."               "The contract amount, in particular, must be definite and  



specific."        "The terms of a contract are reasonably certain if they provide a basis for  

          6        Beegan   v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138  

(Alaska 2008).  

          7	       Id.  

          8        Frost v. Ayojiak , 957 P.2d 1353, 1355 (Alaska 1998) (citing Benedict v.  

Key Bank of Alaska , 916 P.2d 489, 491 (Alaska 1996); McCall v. Coats , 777 P.2d 655,  

657 (Alaska 1989)).  

          9        Magill v. Nelbro Packing Co. , 43 P.3d 140, 142 (Alaska 2001) (quoting  

Davis v. Dykman , 938 P.2d 1002, 1006 (Alaska 1997)).  

          10       Madonna  v.  Tamarack  Air,  Ltd. ,  298  P.3d  875,  879  (Alaska  2013);  

Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 485 (Alaska 1981).  

          11       Magill , 43 P.3d at 142.  

                                                           - 8 -	                                                    6944

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



determining the existence of a breach and for giving an appropriate remedy."                                          Courts  


will fill in gaps where parties' reasonable expectations are clear, but they cannot impose  

performance where it is not clear the parties had a meeting of the minds.13  

                    As explained above, the evidence Anna submitted described the parties'  


agreement in various ways, including (1) that David would pay Anna her marital share  

                  14 and (2) that in lieu of determining Anna's marital share, David would give  

of the IFQs,                                         

Anna money upon reasonable request, including the money to set her up in business  


when she was ready, and he would continue to support her thereafter without limit as  

long as she did not "bring lawyers into our business."  

                    The  superior  court  carefully  sifted  through  Anna's  descriptions  of  the  


parties'  agreement  in  its  order  denying  summary  judgment.                                  The  superior  court  


concluded  that  Anna  "has  provided  at  least  one  description  of  her  agreement  with  


[David] that has sufficient definition for the Court to identify a breach and to craft a  


remedy," that agreement being "that [Anna] would receive her share of the [IFQs]."  The  

other agreement described by Anna was essentially that David would pay indefinite sums  


of money for an indefinite time (but only if he agreed that the payments were necessary,  


and then not always in the amounts requested); the payments were either installments or  

interest  payments  on  a  principal  amount  that  was  itself  undetermined.    Any  such  

agreement  lacks  the  "reasonably  definite  and  certain  terms"  necessary  for  contract  

          12        Hall v. Add-Ventures, Ltd. , 695 P.2d 1081, 1087 (Alaska 1985) (quoting  

Stenehjem, 631 P.2d at 485).  

          13        Magill , 43 P.3d at 142.  

          14        In  her  pleadings  in  the  superior  court,  Anna  also   characterized  the  

agreement as one for "her fair share"; she appears to equate this with her marital share.     

                                                             - 9 -                                                       6944

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

                15                                             16 


formation,         including the contract amount,                 and leaves the court without sufficient basis  

for determining whether the contract has been breached and, if so, how to formulate a  



                    Because there is no enforceable contract, we need not discuss the statute of  


frauds or its exceptions for part performance or full performance.  Nor does promissory  


estoppel provide an alternate remedy; the doctrine requires an actual promise that "must  

                                                                                               18  The "actual promise"  

be definitive, must be very clear, and must use precise language." 

necessary for the application of promissory estoppel "is 'analytically identical' to the  


acceptance of an offer in contract law."                        

                    However, we agree with the superior court that a promise to pay the marital  


share of the IFQs - with the amount left to be determined - could ordinarily be definite  


enough to be enforced, since the law of marital property provides a basis for determining  



whether there is a breach and for creating an appropriate remedy.                                       But this is not an  

ordinary case, given that (1) Anna herself at times described a different contract,21 (2)  


Anna's own testimony was in conflict over whether David's periodic payments over the  


          15        Madonna , 298 P.3d at 879.

          16        Magill , 43 P.3d at 142.

          17        See Hall, 695 P.2d at 1087.

          18        Alaska Trademark Shellfish, LLC v. State, Dep't of Fish & Game                                 , 172 P.3d

764, 767 (Alaska 2007) (internal footnote and quotation marks omitted).  

          19        Id. (quoting Brady v. State , 965 P.2d 1, 6, 11 (Alaska 1998)).  

          20        See Hall, 695 P.2d at 1087.  

          21        For example, Anna testified at her deposition that she and David would  


never have had to value the IFQs if David had "kept paying me until I was ready to start  


my business."  

                                                             -  10 -                                                      6944

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


course of 13 years were part of her marital share or only interest on that undetermined  


amount, and (3) Anna disagreed with the value of the marital share reached by her own  


              Even so we do not need to decide whether Anna's contract claim to a marital  


share properly survived summary judgment.  Like the superior court, we conclude that  


the IFQs were not marital; there was thus no marital share to which Anna could have  

been contractually entitled.    

          B.	       The IFQs Were Not Acquired During Marriage And Therefore Are  


                    Not Marital Property.  

                    We have held IFQs to be marital property and divided them between the  


divorcing parties on three previous occasions.                           In Ferguson v. Ferguson , the parties  

married in 1988 and divorced in 1994; their marriage spanned all the qualifying years.                                        24  

The parties in both Johns v. Johns and McGee v. McGee were married through all the  



base years and the qualifying years.                     These cases are thus readily distinguished from  


this one.  Anna and David's marriage had been dissolved for eight years before the IFQ  


program  even  began;  the  first  qualifying  year  was  not  until  three  years  after  the  


          22        Stating  that   her   "attorney  worked  [her  marital  share]  out  to  [be]  5%"  

(apparently in reference to her expert's calculations), Anna asserted in an interrogatory  

answer that "it should be closer to 10% in light of the way [David] forced me out of our  



          23        Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996); Johns v. Johns ,  


945 P.2d 1222, 1224 (Alaska 1997); McGee v. McGee , 974 P.2d 983, 986 (Alaska 1999).  




                    Ferguson , 928 P.2d at 598.  

          25        See  Johns,  945  P.2d  at  1224  (stating  that  parties  "were  married  in  


September 1984, and separated in October 1993"); McGee , 974 P.2d at 986 (stating that  

parties "married in 1978" and "filed for dissolution in March 1993").  

                                                            -  11 -	                                                     6944

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


                     Determining whether property is marital begins with AS 25.24.160(a)(4).  


The statute authorizes courts to "provide . . . for the division between the parties of their  


property, including retirement benefits, whether joint or separate, acquired only during  


marriage" (emphasis added). "The invasion of post-marital acquisitions for purposes of  


property  division  is  obviously  not  permitted  by  the  statute."                                      And  "the  date  for  


segregating marital from post-marital property is ordinarily the date of the functional  


                                                   Thus, we may consider the IFQs at issue here to be  

termination of the marriage." 

marital only if they were "acquired" during Anna and David's marriage.  


                     We have broadly interpreted the term "acquired" in order to accomplish the  



statutory goal that property division "fairly allocate the economic effect of divorce." 


For example, although pension benefits might not be received until long after divorce,  

we deem them acquired during marriage to the extent the working spouse earns them  



during marriage;              we held in Laing v. Laing that this is so "regardless of whether they  


have vested" before  divorce.                     We adopted this rule because "[p]ension benefits are  


generally  viewed  as  deferred  compensation  for  services  rendered  and  the  employee  

           26        Bandow v. Bandow , 794 P.2d 1346, 1347 n.2 (Alaska 1990).  

           27        Hanlon v. Hanlon , 871 P.2d 229, 231 (Alaska 1994).  

           28        AS  25.24.160(a)(4)  (stating  that  "the  division   of  property  must  fairly  

allocate the economic effect of divorce by being based on consideration of" various listed                     




                     Schmitz v. Schmitz, 88 P.3d 1116, 1129-30 (Alaska 2004) (citing Edelman  


v. Edelman , 3 P.3d 348, 356 (Alaska 2000)) (holding that the IRA in question was a  


marital  asset  subject  to  equitable  division  because  it  increased  in  value  during  the  

marriage).  See also Williams v. Crawford, 982 P.2d 250, 254 (Alaska 1999) (holding  

that  pensions  earned  during  marriage  are  marital  property  subject  to  division  upon  


           30        741 P.2d 649, 655 (Alaska 1987).  

                                                                -  12 -                                                         6944

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

spouse's right thereto is a contractual right,"31  and " '[t]he fact that a contractual right is  


contingent upon future events does not degrade that right to an expectancy.' "32  In short,  


under Laing , the contingent contractual right to a future benefit is sufficient basis on  


which to conclude that the benefit is "acquired" during marriage and is therefore marital.  

                    It is undisputed in this case that the parties, during their marriage, lacked  


even the "expectancy" of a future benefit related to the IFQs.  Anna acknowledged in the  

superior court that at the time of divorce the fishing business "had an uncertain[] but  


limited value"; she asserted in her affidavit that David assured her of her fair share "if  


IFQs ever happened."  This uncertainty and speculation fall far short of an "expectancy,"  


let alone the contingent contractual right that we held in Laing was sufficient to show  

that a future benefit was "acquired . . . during marriage."   


                    In  Winther v. Samuelson, we interpreted McGee  and Johns  to mean that  

"[quota]  shares  should  be  considered  marital  property  to  the  extent  that  the  [quota]  


entitlement  was  earned  during  the  marriage."                            This  is  consistent  with  our  pension  


cases;       it  is  also  consistent  with  Ferguson ,  where  the  IFQ  was  acquired  during  a  


marriage  that  spanned  the  qualifying  years,  and  this  court  looked  to  the  husband's  


premarital labor during the base years to determine whether a portion of the IFQ was his  

          31        Id. at 656 (citing Johnson v. Johnson , 638 P.2d  705, 708 (Ariz. 1981) and   

In re Marriage of Brown , 544 P.2d 561, 567 n.8 (Cal. 1976)).  

          32        Id. at 656 (quoting Brown, 544 P.2d at 566 n.8 (Cal. 1976)).  

          33         10 P.3d 1167, 1171 (Alaska 2000) (emphasis added).  

          34        See Conner v. Conner, 68 P.3d 1232, 1235 (Alaska 2003) ("[R]etirement  


benefits earned during the marriage are marital property subject to equitable division.").  

                                                              -  13 -                                                       6944

----------------------- Page 14-----------------------


separate property.              The claim in Ferguson - that premarital work enhanced the value  


of an asset that was plainly earned during the marriage - is unlike the claim here:  that  


marital work enhanced the value of an asset that did not even come into existence until  


years after the marriage was over.36  


                     Anna contends that it is unfairly restrictive for the court to consider only  


the qualifying years in determining whether the IFQs are marital, since it is undisputed  


that marital labor during one of the base years did add to the asset's value once the asset  


came into being.  We have recognized that property acquired outside of marriage can  


become marital property to the extent marital efforts contribute to its value.                                           But cases  

applying this principle address premarital property brought into the marriage or separate  


property acquired during marriage; they do not address property that did not even exist  



during marriage, even in the sense of a contract right to someday receive it.                                             We have  


never held that property acquired after divorce may become marital if, in retrospect, it  


can  be  seen  to  have  more  value  than  it  would  have  had  absent  the  marriage,  and  


AS 25.24.160(a)(4) does not allow it.  Practically speaking, there are few acquisitions  

and  achievements  in  life  that  cannot  be  traced  to  life's  earlier  stages.    Every  

advancement, bonus, and business success is founded on a personal history that may well  


include marriage and divorce.  But if at the time of divorce the parties can only speculate  


that  certain  property  might  come  to  exist  in  the  future,  with  not  even  a  contingent  

          35         See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska 1996) (holding that     

a fishing quota is marital property to the extent that "the size of the quota share" is  

attributable to labor performed during the marriage).  

          36         Id.  

          37         Harrower v. Harrower , 71 P.3d 854, 858 (Alaska 2003).  

           38        See id.    

                                                                -  14 -                                                         6944

----------------------- Page 15-----------------------

contractual right to                   ensure that it does, such property was not "acquired . . . during  

marriage."  We would do a major disservice to the express statutory language if we were   


to hold that such property was marital.                                        

                         The  dissent  argues  that  our  decision  today  "ignor[es]  the  definition  of  


'acquisition' adopted in almost all equitable distribution states," i.e., "that property is  


acquired whenever contributions create real value, and not only at the moment when  


legal title passes."                    But if the dissent's understanding of the general definition were  


correct,  one  would  expect  to  find  case  law  from  other  equitable  distribution  states  


holding that property not existing yet at the time of divorce - even in the inchoate sense  


of a contract right or expectancy - was nonetheless marital.  Our decision is consistent  


with the majority definition as we understand it.  The "real value" at issue in this case is  


the value Anna's work added to the value of the IFQ shares; that value was not created  

until the IFQ program came into existence, eight years after the marriage ended.  

             39          For example, if a spouse holds an interest in intellectual property at the time         

of divorce, future                  royalties flowing                  from  that property                  are marital "so                long  as  such  

proceeds . . . are neither 'indefinite nor speculative.' "   Lynch v. Lynch , 43 A.3d 667, 675  

(Conn. App. 2012) (holding that where an author during marriage secured "a contractual       

right to royalties from the sale of his book," the royalties were marital property subject  

to division); In re Marriage of Heinze , 631 N.E.2d 728, 731 (Ill. App. 1994) (holding  


that where "the book royalty contracts were executed by petitioner and [her publisher]  


during  the  marriage"  and  future  royalties  were  not  "unproven  or  speculative,"    the  

royalties were "analogous to pension payments to be made in the future" and "should  


have been classified as marital property").  Similarly, "[c]ourts have generally held that  


the mere possibility of a future inheritance or gift does not constitute divisible property";  


"[t]he lack of a legally enforceable right distinguishes future inheritances and gifts from  


other  contingent  assets  such  as  unvested  pensions,  where  the  owning  spouse  has  a  

presently  existing  legal  right."  2  B 

                                                                      RETT  R.   TURNER ,   EQUITABLE   DISTRIBUTION  OF  


PROPERTY  6.91, at 476 (3rd ed. 2005) (emphasis omitted).  

             40          Dissent at 24 (quoting TURNER , supra note 39,  5.21, at 345).  

                                                                             -  15 -                                                                            6944  

----------------------- Page 16-----------------------

          C.	      The  Superior  Court  Did  Not  Err  In  Denying  Anna's  Civil  Rule  

                   60(b)(6) Motion.  

                   We held in McGee that a motion to reopen a property division and allocate  


                                                                           41  We reasoned that the creation  

IFQs was properly brought under Civil Rule 60(b)(6).  


of the IFQ program in 1993 was the type of "extraordinary circumstance" contemplated  


by Rule 60(b)(6) because the couple "did not address or anticipate" the program when  


                                     But since the quotas here are not marital property, there is no  

dividing their property.                                                                                   

justification for reopening Anna and David's 1985 dissolution.  The superior court did  


not err in denying the Rule 60(b)(6) motion.  

V.	       CONCLUSION  

                   The judgment of the superior court is AFFIRMED.  

          41       McGee v. McGee , 974 P.2d 983, 990 (Alaska 1999).  

          42       Id.  

                                                         -  16 -	                                                   6944  

----------------------- Page 17-----------------------

FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.  

                        I agree with the court that the only potentially enforceable promise made  



by David Kelly was his promise to pay Anna Young her marital share of the IFQs. 

court avoids deciding whether that promise included sufficiently definite and certain  


terms to be enforceable because it concludes that there was no marital share of the IFQs  


to divide.   It is with that latter conclusion that I disagree.   

                                                                                                                     RROW  in 1984, they  

                        When Anna and David fished together on the F/V A 

were married. The product of their labor in that year was indisputably marital property.                                                               3  

Yet the court concludes that the IFQs at issue here belong entirely to David, despite the  


fact that the IFQs' value increased - and increased directly and measurably - as a  

result of marital labor.   

                        This unfair result is inconsistent with the explicit purpose of the applicable  

statute,  is  not  required  by  our  prior  decisions,  and  runs  counter  to  the  principles  of  


equitable distribution. In my view, because marital labor increased the value of the IFQs,  

Anna is entitled to her marital share of that increase in value, even if the IFQs are not  

themselves marital property.  

            1           Op. at 9-11.  

            2          Id. at 11-15.  

            3           See   Schmitz  v.  Schmitz,  88  P.3d  1116,  1125  (Alaska  2004)  ("Marital  

property includes all property acquired during the marriage, excepting only inherited  

property  and  property  acquired  with  separate  property  which  is  kept  as  separate  


property." (internal quotation marks and citation omitted)); see also Lewis v. Lewis, 785  


P.2d 550, 558 (Alaska 1990).  

                                                                        -  17 -                                                                      6944  

----------------------- Page 18-----------------------

          A.        The Explicit Purpose Of AS 25.24.160 Is Equitable Distribution.  

                    Alaska  Statute  25.24.160(a)(4)  instructs  that  when  a  court  distributes  


property after a married couple parts ways, "the division of property must fairly allocate  


the economic effect of divorce."  I acknowledge that the statute also instructs courts to  

divide  "property  .  .  .  acquired  only  during  marriage,"  but  we  must  understand  that  

language in the context of the legislature's clear statement of the statute's purpose.4  


Fairness  was  the  legislature's  intent,  and  that  goal  must  be  our  guide.    Equitable  


distribution of property is no vague policy concern conjured up to avoid unappealing  


results in particular cases; rather, it is an explicit statutory command that the legislature  


has indicated must drive our analysis in all cases.     

                    The circumstances of the present case are unusual in that the property at  

issue was not formally acquired while the parties were married, nor was it acquired by  


one of the parties before marriage.  Instead, it was formally acquired after the marriage  


was over, but the extent of the property was partly determined by contributions of labor  

during the marriage.  The legislature could not easily have anticipated these unusual  


          4         AS 25.24.160(a)(4).  

          5         For example, the legislature has recognized that in order to achieve a fair  


division of property, it may be necessary for the court to "invade the property . . . of  


either spouse acquired before marriage when the balancing of the equities between the  


parties requires it."  Id.  In creating such a significant exception, the legislature has  

expressed  its  policy  that  in  dividing  property  during  a  divorce  proceeding,  fairness  

should prevail over formalism.  

                                                            -  18 -                                                         6944  

----------------------- Page 19-----------------------

          B.	        We  Have  Previously  Interpreted  The  Phrase  "Acquired  During  

                     Marriage" Broadly When Necessary To Fulfill The Statutory Mandate  

                     Of Equitable Distribution.  

                     As  the  court  acknowledges,  in  our  prior  cases  we  have  emphasized  


equitable distribution over a strict interpretation of the phrase "acquired . . . during  


                    In particular, our prior decisions relating to pensions, and our application  


of active appreciation analysis to pre-marital assets, favor the conclusion here that Anna  


is entitled to compensation for the increase in the value of the IFQs attributable to marital   

labor in 1984.   


                     In our decisions addressing equitable distribution of pension benefits, we  


have repeatedly  interpreted AS 25.24.160(a)(4) as permitting the conclusion that an  


ex-spouse is entitled to a share of the marital portion of an employee-spouse's retirement  



benefits, to the extent that the employee-spouse earned those benefits during marriage. 

We have held that pension benefits earned for labor performed during marriage may be  



deemed "acquired . . . during marriage" even if they vest after divorce.   The court tries  


to  distinguish  nonvested  pension  benefits  from  the  IFQs  at  issue  here,  noting  our  

observation in Laing v. Laing that "[p]ension benefits are generally viewed as deferred  


compensation  for  services  rendered  and  the  employee  spouse's  right  thereto  is  a  

                            9  The court also concludes that Anna is ineligible for a marital share  


contractual right."  

          6          Op. at 12.  

          7          See, e.g., Schmitz, 88 P.3d at 1129-30; Williams v. Crawford, 982 P.2d 250,   

254 (Alaska 1999).  

          8	         Laing v. Laing , 741 P.2d 649, 656 (Alaska 1987).  

          9	         Op. at 12-13 (alteration in original) (quoting Laing , 741 P.2d at 656).  

                                                               -  19 -	                                                            6944  

----------------------- Page 20-----------------------

because while nonvested pension benefits constitute a contractual (even if contingent)  


right, the parties in this case lacked even an "expectancy" in the IFQs.                                                

                      But why is it significant that nonvested pension benefits are viewed as  


deferred compensation?   It may be more obvious that an ex-spouse is entitled to the  



deferred compensation of the other spouse because a salary is clearly marital property, 

but the claim in this case is not really so different.  The underlying reason that deferred  


compensation is treated as marital property is that the product of labor during marriage  


                                12   And this reason supports the conclusion that IFQs are marital  

is marital property.  


property to the extent their value was determined by marital labor.  Here, while the IFQs  


themselves are not compensation for marital labor, there is no question that their size was  


determined by labor in the base years, including the marital labor in 1984.  


                      We did remark in Laing  on the contractual nature of nonvested pension  


benefits,         and  as  the  court  notes,  the  present  existence  of  a  legal  right  may  help  

distinguish property subject to distribution from things of value that should not be so  


                   14  But we did not say in Laing that a contractual right was necessary to show  


           10         Id. at 13.  

           11         See  Schmitz, 88 P.3d at 1124 ("Assets acquired during marriage . . . - most                                

commonly salaries earned by either spouse during marriage - are considered marital                             


263 (2d ed.1994)).  

           12         See  1 BRETT R. TURNER , EQUITABLE DISTRIBUTION OF PROPERTY  5.22,  


at 356 (3rd ed. 2005) (noting that "the primary reason for treat[ing a pension] as marital  


property  is  .  .  .  that  the  benefit  is  commonly  awarded  to  employees  as  actual  

compensation for marital efforts").  

           13         Laing , 741 P.2d at 656.  

           14         Op. at 15 n.39.  

                                                                  - 20 -                                                                 6944  

----------------------- Page 21-----------------------

that a future benefit was "acquired . . . during marriage"; we merely concluded that in  


that case it was sufficient .  


                    And we also indicated in Laing  that our focus was a fair distribution of  


assets under AS 25.24.160(a)(4).  In reaching our conclusion in Laing that nonvested  


pensions could be marital assets, we explained that regardless of the label placed on the  

employee-spouse's interest - "a mere expectancy, or a contingent future interest" -  

"[t]he non-employee spouse's contribution to the pension asset is exactly the same."16  

The formal designation of the asset was relevant in that case to address whether the  


contingent nature of the right made it too speculative to be considered marital property.17  


But we indicated that allowing "the contingencies that may prevent the employee spouse  


from ever collecting his or her nonvested pension . . . [to] bar the non-employee spouse  


from recovering a share if the pension is in fact paid out . . . would frustrate the statutory  

command   that   Alaska   courts   effect   a   'just   division   of   the   marital   assets.'   "18  

Emphasizing the legislature's intent to favor equitable distribution, we noted that "[i]t  


would be wholly inconsistent with this policy to ignore the existence of so substantial an  

          15       Laing , 741 P.2d at 655-56.  

          16       Id.   (italics   removed)   (quoting   LAWRENCE                        J.   GOLDEN ,       EQUITABLE  


          17       Id. at 655.  

          18       Id. at 656 (quoting AS 25.24.160(a)(4)).  As we noted in Laing , at least at  


the  time  of  that  decision  many  jurisdictions  considered  nonvested  pensions  "too  

speculative" to treat them as property subject to equitable distribution at divorce.  Id. at  


655.  Yet we rejected that view, noting that the potentially speculative nature of the  

pension  rights  has  no  bearing  on  the  non-employee  spouse's  rights  vis-à-vis  the  

employee.  Id. at 656.  

                                                            - 21 -                                                         6944  

----------------------- Page 22-----------------------




asset as a party's pension rights."                      And we reached that conclusion in Laing  even  


though there was still uncertainty at the time of the divorce proceeding as to whether the  


                                         Here there is no uncertainty at all - the asset now exists -  

asset would materialize.                                                                         

and the statutory command of equitable distribution remains unchanged.    

                    Our  precedents  applying  active  appreciation  analysis  are  also  relevant  

        21   In  a  nod  to  our decisions in this area, the court acknowledges that property  


acquired  outside  of  marriage  can  become  marital  to  the  extent  that  marital  efforts  



increase its value.            As we explained in Hanson v. Hanson , under active appreciation  


analysis "the asset's value at the inception of the marriage retains its separate character,  


but any subsequent increase in value is treated as marital property to the extent that it  


results from active marital conduct."                       

                    The court stresses that our decisions applying active appreciation analysis  


"address premarital property brought into the marriage or separate property acquired  


during marriage" rather than "property [like the IFQs here] that did not even exist during  

          19        Id.   

          20        Id.  

          21        See Hanson v. Hanson,  125 P.3d 299, 305 (Alaska 2005) (applying active  

appreciation analysis and characterizing as marital property the increase in value of  

business attributable to husband's marital labor); Harrower v. Harrower , 71 P.3d 854,  


860 (Alaska 2003) (remanding to trial court for active appreciation analysis); Martin v.  


Martin ,  52  P.3d  724,  727  (Alaska  2002)  (explaining  and  approving  the  doctrine);  

Lowdermilk v. Lowdermilk , 825 P.2d 874, 877 (Alaska 1992) (explaining that "[t]he time  

and energy of both spouses during the marriage is to be considered in dividing marital  



          22        Op. at 14 (citing Harrower , 71 P.3d at 858).  

          23         125 P.3d at 304 (quoting Harrower , 71 P.3d at 858).  

                                                             - 22 -                                                            6944  

----------------------- Page 23-----------------------



marriage."         The court interprets our decisions as permitting characterization of IFQs as  


marital only if the "entitlement was earned during marriage" or the "asset . . . was plainly  

                                          25  I recognize that in the typical active appreciation scenario  


earned during the marriage." 

the separate asset exists before it appreciates in value due to a marital contribution, and  


I do not suggest we should apply that analysis unaltered to the present case.  But our  


active appreciation analysis decisions establish that increases in asset value attributable  


to marital labor should be treated as marital property, even if the asset itself remains the  


separate property of the other spouse. And active appreciation analysis counsels against  

giving undue consideration to formal designations, as our overarching approach has  


been - and must be - equitable distribution and fairness to the parties whose marital  

contributions  have  increased  the  value  of  an  asset.    Thus  under  active  appreciation  


analysis, the disputed IFQs should remain David's separate property, but Anna should  


be entitled to her marital share of the increase attributable to the couple's labor in 1984.  

                    Our  decisions  relating  to  pensions  and  our  decisions  applying  active  


appreciation analysis demonstrate that we have frequently used a broad definition of the  

phrase "acquired . . . during marriage" in carrying out the legislature's instruction to  

divide property in a way that "fairly allocate[s] the economic effect of divorce."26  There  


are good reasons to continue to do so.  As one commentator has explained, "substantial  

disparities often exist between the legal title to an asset and the contributions made to  


obtain it."    To address that disparity, courts in many equitable distribution states have  

          24        Op. at 14.  

          25        Id. (emphasis removed).  

          26        AS 25.24.160(a)(4).  

          27        TURNER ,   supra note 12,  5.21, at 344.  The typical factual situation in   

which this concern arises is one in which the economic value of an asset accrues after  


                                                             - 23 -                                                          6944  

----------------------- Page 24-----------------------

concluded that "the . . . definition of acquisition must be entirely independent of legal  



title."     Defining "acquisition" in a way that provides for fairer outcomes, "[e]quitable  

distribution  states  have  almost  uniformly  held  that  property  is  acquired  whenever  


contributions create real value, and not only at the moment when legal title passes."                                           



                    Here, labor during the base years fed directly into the value of the IFQs.  


Moreover, in the IFQ context we have previously held that labor during the base years  



should  have  some  bearing  on  the  determination  of  a  marital  share  in  IFQs. 

decision in Ferguson v. Ferguson indicated that labor during the base years - which can  


only affect the size  of the entitlement, not  whether  it is granted - must have some  


bearing  on  how  the  quotas  are  characterized.                         In  concluding  that  Anna  cannot  be  


entitled to any of that value, the court loses sight of the principle behind Ferguson .  And  


by ignoring the definition of "acquisition" adopted in almost all equitable distribution  


states, the court makes an unduly strong distinction between the qualifying years (which  


led to the passing of legal title) and the base years (which contributed real value to the  



legal title is taken, for instance in   the   case   of   a purchase of real property, with title  

passing at the time of purchase a   nd  mortgage p                   ayments building equity over time.  See  

id. at 339.  

          28        Id. at 344  (italics removed).  

          29        Id. at 345 (italics removed).  

          30        See Ferguson v. Ferguson,  928 P.2d 597,  600 (Alaska   1996) (concluding  

that proportion of marital  to separate  property in IFQ depended on extent to which value  

was determined by marital labor).  

          31        Id. ;  see  also  T 

                                          URNER ,  supra  note   12,      5.22,  at   377  (interpreting  our  

decision in Ferguson to mean that "the proportion  [of m                         arital t  o separate property] must  

be based on the period used in determining value, and not the period used in determining  


                                                            - 24 -                                                          6944  

----------------------- Page 25-----------------------


                     The court reasons that if my understanding of "acquisition" were correct,  

"one would expect to find case law from other equitable distribution states holding that  


                                                                                                                         But the  

property not yet existing at the time of divorce . . . was nonetheless marital." 


court should not take much solace in the fact that no other jurisdiction has yet dealt with  


the very unusual factual situation of this case involving IFQs.  And the court identifies  


no  decisions  within  an  IFQ  or  other  fishery  management  context  in  which  any  


jurisdiction, faced with the novel issue of timing presented here, has taken the position  

the court now adopts.  


                     The IFQs at issue here are a property right with identifiable dimensions and  


a definite market value:  They entitle David to harvest up to a certain amount of halibut  

                                                                        33  If David and Anna had not fished in  

each year, or to sell that right to someone else.                                

                                                                                         RROW 's next-best year when  

 1984, David presumably would have substituted the F/V A 



he applied for IFQs, and he would likely have received some smaller entitlement.  But  


David and Anna did fish in 1984, putting their labor - marital labor - into the fishing  


enterprise.  The IFQs David actually received are partly the product of that labor; their  


increased value can be specifically and precisely traced to the fish that Anna and David  


caught in 1984.  The argument that their labor in that year did not create real value is  


belied by the inclusion of the 1984 catch, rather than some other year's catch, as a base  


year in the formula used in calculating the size of the IFQs.  If that cold mathematical  


formula comprehends that marital labor in 1984 created real value, then surely we should  


          32         Op. at 15.  

          33         S e e       I n d i v i d u a l       F i s h i n g       Q u o t a         ( I F Q )       P r o g r a m ,   


   LASKAFISHERIES .NOAA .GOV , (last visited  

August 5, 2014).  

                                                              - 25 -                                                            6944  

----------------------- Page 26-----------------------


                               I would therefore reverse the superior court with respect to its dismissal of  

Anna's  suit  for  failure  to  state  a  claim  and  its  denial  of  her  petition  to  reopen  the  


                34             However, contrary to Anna's assertion, she is not entitled to half of a 20%                   

share of the IFQs.  Marital labor in 1984 increased the value of the IFQs that David   

received by some proportion.  Anna should be entitled to half the value of that increase,   

that is, half the difference between the value of the IFQs that David actually received and       

the value of the IFQs David would have received   if he had used a non-marital year,                                                                              

rather than 1984, as one of his base years.  

                                                                                               - 26 -                                                                                                   6944  

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