Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Herring v. Herring (5/13/2016) sp-7105

Herring v. Herring (5/13/2016) sp-7105

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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, email  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

KELLEY  PATTON  HERRING,                                         )  

n/k/a  Kelley  Patton,                                           )          Supreme  Court  No.  S-15886  



                                                                 )          Superior Court No. 3AN-13-05718 CI  



                                                                 )          O P I N I O N  



GARY DWAYNE HERRING,                                                                                           

                                                                 )          No. 7105 - May 13, 2016  


                                 Appellee.                       )  




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


                      Judicial District, Anchorage, Andrew Guidi, Judge.  


                      Appearances:  Douglas  C.  Perkins,  Hartig  Rhodes  LLC,  


                      Anchorage, for Appellant.  Rhonda F. Butterfield, Wyatt &  


                      Butterfield, LLC, Anchorage, for Appellee.  


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


                      Bolger, Justices.  


                      FABE, Justice.  



                      A divorcing couple reached a settlement agreement that was incorporated  


into a divorce decree issued by the superior court.   The settlement provided that the  


qualified marital portion of the husband's pension would be distributed to the wife and  


the nonqualified portion would be distributed to the husband, subject to a provision for  


equitable  reallocation  if  the  values  of  those  portions  changed  significantly.                                                 The  

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


settlement also described four firearms and ammunition that the husband would deliver  


to the wife.  After the decree issued, the wife's portion of the pension declined in value  


and the husband's portion increased, so the wife filed motions attempting to obtain  


information about the reasons for this change in value and attempting to enforce the  


settlement agreement's equitable reallocation provision to compensate for the changes.  


She also argued that the husband had not delivered the specific guns bargained for at  


settlement. After motion practice and an evidentiary hearing, the superior court ruled for  


the husband in all respects, and it awarded enhanced attorney's fees against the wife.  


The wife appeals.  


                    We conclude that the significant change in the relative values of the parties'  


pension accounts triggers the verification and reallocation provision of their settlement  


agreement. Accordingly, we reverse the superior court's denial of the wife's motion for  


an equitable reallocation and remand for an equitable reallocation according to the  


parties' agreement.   Because the husband is no longer the prevailing party, we also  


vacate the superior court's award of attorney's fees to the husband.   We affirm the  


superior court's decision as to the parties' firearms.  




          A.        Divorce Settlement  


                    Kelley Patton and Gary Herring were married in Texas in 1981.  Patton  


filed for divorce on March 11, 2013, and the parties legally separated on March 31, 2013.  


Patton and Herring were both residents of Alaska at the time.  


                    The  parties  participated  in  a  mediation  to  negotiate  the  terms  of  their  


divorce.        Leading  up  to  this  mediation,  Patton  had  attempted  to  obtain  financial  

information from Herring, and Herring appeared reluctant to provide full information.  


The superior court judge had informed Herring that he was required under Alaska Civil  


Rule 26.1 to provide signed releases allowing Patton to access his financial account  

                                                               -2-                                                         7105

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


information. When Herring failed to provide the required releases, Patton filed a motion  


to compel, and the superior court granted the motion on November 1, 2013, the day after  


the mediation.  


                    Despite the lack of complete financial information, the parties proceeded  


with the mediation on October 31, 2013. Both parties were represented by counsel at the  


mediation.          The  parties  reached  a  settlement  and  signed  a  document  listing  the  


agreed-upon distribution of their assets. Three of those assets are disputed in this appeal:  


Herring's Retirement Accumulation Plan from BP (BP pension), a Fidelity Roth IRA  


account, and several firearms. The parties' agreement was later typed and presented in  


a spreadsheet.  The agreement specified that 100% of the "qualified portion" of the BP  


pension  would  go  to  Patton,  while  the  "nonqualified  portion"  would  remain  with  


Herring. But the agreement contained the caveat that the parties needed to verify that the  


BP pension could be divided by a Qualified Domestic Relations Order (QDRO) and that  


they "must see numbers the percentages are based on[:] current values." The agreement  


next provided that 45% of the Fidelity Roth IRA account would be distributed to Patton  


and 55% would be distributed to Herring, but it explained that this transfer was subject  


to an equalization mechanism that the parties had created to deal with the uncertainty of  


the BP pension's value. Finally, the agreement provided that Patton would receive "four  


guns previously discussed plus ammo."  


                    After some discussions regarding the appropriate terms for dividing the BP  


pension account, the parties used the Fidelity website to generate a QDRO reflecting  


their agreement that 100% of the qualified marital portion of the BP pension would go  


to Patton, while 100% of the nonqualified and nonmarital portions would remain with  


Herring. Based on the parties' elections in filling out the QDRO form online, the QDRO  


also specified that Patton was "not entitled to any early retirement subsidy." At this point  

                                                                -3-                                                         7105

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


the parties did not know the exact amount that each would be awarded from the BP  


pension account because the QDRO had not yet been executed.  


                    The parties then submitted to the court their draft findings of fact and  


conclusions oflaw, representingtheir settlementagreement, along withthetypedversion  


of the original agreement. The superior court held a settlement hearing on December 10,  


2013.       Patton  was  represented  by  counsel  at  this  hearing,  but  Herring  represented  


himself.  At the hearing, the superior court discussed certain elements of the settlement  


with the parties to make sure they agreed on the terms.  


                    As the court described the settlement agreement, it provided that the parties  


would distribute the BP pension according to the terms set out in the property division,  


but that the exact amount of the qualified and nonqualified portions would not be known  


until a QDRO had been executed for the account.  The parties therefore agreed to hold  


part of their Roth IRA account in "escrow" and use that amount to make any necessary  


adjustments after the exact values of the qualified and nonqualifed portions of the BP  


plan were established.  The court explained that, "based on the extent to which their  


expectations were met or were unmet from the time of the mediation," the parties would  


"use the Roth IRA retained portion . . . to essentially compensate one or both parties to  


some extent for what they didn't get by way of the QDRO that they expected to get."  


Near  the  conclusion  of  the  hearing,  the  superior  court  verified  that  both  parties  


"underst[ood] that . . . except for the specific areas that [they were] leaving open as  


subject  to  further  negotiation,  which  relate  to  the  BP  QDRO  and  the  subsequent  


allocation of the Roth IRA, . . . everything [was] finalized and . . . concluded."  Both  


parties testified that they understood and that they agreed with the terms as the court  


described them.  


                    On the day of the hearing, the superior court signed the QDRO presented  


by the parties and issued a divorce decree.  Patton then moved for entry of her proposed  

                                                                -4-                                                         7105

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


findings and conclusions,which reflected theparties' agreementbyprovidingthat Patton  


would receive "100% of the qualified marital portion of the . . . BP pension . . . , which  


has an approximate present value of $1,388,856, subject to verification that the qualified  


marital portion of the pension can be transferred in whole to Plaintiff [Patton], including  


dividends, interest, gains and losses thereon."   They provided that Herring, in turn,  


would retain "100% of the marital and non-marital portions of the nonqualified amount  


of the . . . BP pension[], which has an approximate present value of $125,835, including  


dividends, interest, gains and losses thereon."  The proposed findings and conclusions  


then spelled out the mechanism for escrow and equitable reallocation in the event that  


these BP pension amounts differed significantly from the amounts estimated at the time  


of settlement.  It provided that Patton would receive:  


                    45% of the Fidelity GDH Roth IRA account . . . , which has  


                    a total approximate value of $350,234 . . . , except that:  


                    i.	        $140,000 will be held in escrow and not distributed  


                               from said Roth IRA account pending verification of  


                              the amounts distributed  according  to paragraphs 8j  


                               [regarding Patton's portion of the BP pension] and 91  


                               [regarding  Herring's  portion  of  the  BP  pension]  



                    ii.	      In  the  event  that  the  amounts  of  said distributions  


                              materially differ from the approximate values set forth  


                               in paragraphs 8j and 91 below, the parties may either  


                               agree on a reallocation of the Fidelity GDH Roth IRA  


                              to adjust for any such material difference, or if they  


                               cannot agree, they may submit this issue to the Court  


                               for it to determine an equitable reallocation . . . .  


The proposed findings and conclusions contained an essentially identical provision  


allocating the remaining 55% of the Roth IRA account to Herring and explaining this  


same "escrow" mechanism.  

                                                                -5-	                                                        7105

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


                    Finally, the proposed findings and conclusions provided that, "[u]nless  


otherwise  agreed  by  both  parties,"  Patton  would  receive  "four  guns  now  in  the  


possession of [Herring], including . . . a shotgun [and] an Uzi with folding stock in a  


black factory case," as well as "500 rounds of 9 mm ammo, one case of shells for the  


shotgun, [and] four magazines for the Uzi." The proposed findings and conclusions gave  


the parties 30 days to "work cooperatively and promptly to execute all documents and  


make all other arrangements necessary to transfer property awarded herein to the other  



                    Herring  objected  to  certain  terms  in  Patton's  proposed  findings  and  


conclusions.  At this point the parties still did not have final information about the value  


of the BP pension's qualified and nonqualified portions, and both parties appeared to  


believe that the value of Herring's portion had fallen.  But the court concluded that any  


such shortfall could be addressed through the equitable adjustment mechanism that had  


been designed by the parties as reflected in the findings and conclusions.   The court  


explained that "[t]he language in the proposed [findings and conclusions] accurately  


tracks the agreement . . . made during the December 10 settlement conference, which  


address[es]  uncertainty  concerning  the  amounts  the  parties  will  receive  when  [the]  


defendant's  [pension]  is  QDRO'd."                       The  superior  court  further  explained  that  the  


"[p]laintiff's description of how the parties agreed to address the issue, including the  


mechanism of holding back $140,000 in 'escrow,' is accurate."  Accordingly, the court  


entered these findings and conclusions in January 2014.  Neither party challenges the  


validity  or  accuracy  of  the  findings  and  conclusions,  though  they  debate  the  


interpretation of some of their terms.  


          B.        Subsequent Proceedings  


                    The  proceedings  following  the  divorce  settlement  focused  on  the  


verification of, and eventually the dispute over, the values of the two portions of the  

                                                               -6-                                                         7105

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


BP pension account. Despite the provision of the findings and conclusions allowing for  


"verification of the amounts distributed" from the BP pension account, it appears that  


Herring prevented Patton from immediately receiving the information she needed in  


order to verify the amounts that would be distributed under the QDRO for that account.  


In March 2014 Patton requested another signed release from Herring so that she could  


obtain the necessary information from Fidelity, which managed the pension account.  


When Herring did not provide the requested release, Patton filed a notice of records  


deposition in early April, indicating that she intended to subpoena Fidelity and take a  


records deposition directly from Fidelity.  Now represented by counsel, Herring filed a  


motion to quash the subpoena, which the superior court granted.  


                     Still  unable  to  access  information  on  the  amount  of  the  BP  pension  


distributions, in May 2014 Patton filed a motion to reopen discovery "for the limited  


purpose  of  identifying  and  quantifying  and  equitably  awarding  any  additional  or  


undistributed marital assets."  By the time she filed her reply brief, the QDRO had been  


processed and the parties' respective pension amounts had been divided between them;  


thus Patton learned for the first time that her award had decreased substantially.  Patton  


explained to the court that the value of her portion of the BP pension had "decreased by  


$374,000, i.e. a 27% loss in value."  She therefore asked the court to make an equitable  


reallocation  under  the  relevant  allocation  mechanism  in  the  divorce  settlement,  


emphasizingthat "the'escrowed' Roth IRAfunds stillremain[ed]undistributed"because  


final verification of the BP pension amounts had not yet occurred.  (Emphasis omitted.)  


Inresponse, Herring continued to opposePatton's verification efforts, including by filing  


a motion for an "order that [Patton] stop accessing . . . Herring's accounts."  


                    In June 2014 the superior court granted Herring's motion and ordered  


Patton not to access his accounts "unless specifically authorized by [the] court," but it  


also granted in part Patton's motion to reopen limited discovery on the amount of the  

                                                                -7-                                                         7105

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


disputed BP pension. Because of the "escrow" and reallocation mechanism designed to  


account for any difference in the amount of the BP pension distributions, the superior  


court concluded that the findings and conclusions "clearly impl[y] that . . . Patton is  


entitled to learn the amount of the non-qualified BP [pension account] that . . . Herring  

received or would receive."  The superior court added that "the total amount available  


in the BP [account] must be known so that the parties and court can  determine an  


equitable allocation."   The superior court then stayed Patton's request  to equitably  


reallocate assets pending further briefing and discovery.  


                    By  August  2014  Patton  had  not  received  the  information  she  sought  


regarding Fidelity's method of calculating the parties' shares of the BP pension. She had  


nonetheless learned that Herring's portion of the BP pension, rather than decreasing as  


the parties initially believed, had actually increased to roughly $609,000.  Given this  


significant increase over the $125,000 to $133,000 estimated at mediation - in contrast  


to the $374,000 decrease in her own portion - Patton continued her attempt to obtain  


information on how Fidelity had calculated the parties' shares. Herring, in turn, alleged  


that the reduction in Patton's share had resulted from the actuarial adjustment factors  


provided in the QDRO, coupled with Patton's own decision to begin receiving benefits  


before Herring retired, which reduced the amount of her share.   The superior court  


granted Patton's motion to compel discovery on this point, ordering Herring to sign a  


release authorizing Fidelity to provide information regarding the calculation of benefits,  


not just the final value of the distributions.  


                    Once  she  had  completed  the  authorized  discovery  and  obtained  the  


information she sought, Patton filed a motion to amend the QDRO in January 2015. She  


alleged that she had been "erroneously deprived" of the early retirement subsidy, and she  


requested that the court issue an amended QDRO with a "simple correction" awarding  


this subsidy to her. Herring opposed the motion for an amended QDRO, explaining that  

                                                               -8-                                                         7105

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


Patton's legal and financial advisors had prepared the original QDRO, which explicitly  


stated that Patton was "not entitled to any early retirement subsidy."  


                    Patton had also alleged that Herring had failed to comply with the court's  


property division order regarding theparties' firearms, claiming that shehadnot received  


the shotgun or the Uzi that  had been agreed upon at mediation.   Accordingly, she  


requested that the court order Herring to show cause why he should not be held in  


contempt. Herring countered that he had twice delivered an Uzi in compliance with the  


superior court's findings and conclusions but that Patton had refused it both times,  


claiming it was not the one she had bargained for in the divorce settlement.  Herring  


maintained that "[n]o specific Uzi was bargained for."   The superior  court granted  


Patton's motion that Herring appear before the court and show cause why he should not  


be held in contempt for failing to deliver the specified firearms.  


                    The superior court held an evidentiary hearing on Patton's motion for an  


amended QDRO, her request for equitable distribution of the "escrowed" Roth IRA  


funds (which had been stayed since the court's June 2014 order), and Herring's alleged  


failure to deliver the guns specified in the property division. The hearing took place over  


three days in February 2015. The superior court heard testimony from Patton's financial  


expert and from representatives of Fidelity and BP.  The court admitted into evidence a  


February  2015  letter  from  Fidelity  to  Patton's  attorney,  which  explained  how  the  


amounts of the BP pension benefits had been calculated.   The letter explained that  


Fidelity had applied its standard actuarial equivalence factors, which reduced the amount  


of Patton's benefit and increased Herring's benefit because (1) Patton had not received  


the early retirement subsidy and (2) she had begun receiving benefits before Herring.  


Accordingly, it explained that Patton's distribution had been reduced by $464,346.04.  


Importantly, the letter also clarified that "[t]he difference of $464,346.04 would be  


retained by . . . Herring."  

                                                                -9-                                                         7105

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

                                                      At the end of the evidentiary hearing the superior court issued a ruling from                                                                                                                                                                                                      

the bench, denying Patton's motion for an amended QDRO and declining to make an                                                                                                                                                                                                                                                                   

equitable reallocation based on Patton's reduced benefits. The court later issued written                                                                                                                                                                                                                                      

findings of fact and conclusions of law elaborating on its bench ruling.                                                                                                                                                                                                                       Focusing only   

on the reduction in Patton's benefits, and not the increase in Herring's, the superior court                                                                                                                                                                                                                                           

first concluded that "it wasn't . . . Herring's fault" that Patton's benefit had been reduced.                                                                                                                                                                                                                                                                  

Instead, the court relied on the letter from Fidelity to conclude that the reduction had                                                                                                                                                                                                                                                    

been the result of Fidelity's application of its standard actuarial factors, the effect of                                                                                                                                                                                                                                                        

Patton not receiving the early retirement subsidy in the QDRO, and Patton's decision to                                                                                                                                                                                                                                                             

take her benefits before Herring retired.                                                                                                                               The superior court also concluded that the                                                                                                                            

parties'   decision   not   to  award   the   early   retirement   subsidy   to   Patton   had   been   a  

bargained-for part of their divorce settlement, and thus that Patton "received what she                                                                                                                                                                                                                                                       

bargained for."   

                                                      Accordingly, the superior court concluded that there was no "basis for                                                                                                                                                                                                                   

 setting aside the settlement" by issuing an amended QDRO.                                                                                                                                                                                       It explained that a divorce                                             

 settlement agreement cannot be modified unless there is a mutual                                                                                                                                                                                                                        mistake by both                                

                           1  or a unilateral mistake coupled with "fraudulent or inequitable conduct" by the  


other party,2  and it concluded that those circumstances did not exist here.  


                                                      The superior court also concluded that there was no basis for making an  


equitable  reallocation  because  the  verification  period  and  adjustment  mechanism  


contained in the divorce settlement "either d[id] not apply or ha[d]  expired."   The  


 superior court found that it was "past the time for equitable adjustment to take place,"  


                           1                          See Cook v. Cook                                                       , 249 P.3d 1070, 1080-81 (Alaska 2011).                                                                                                   



                                                       Voss v. Brooks, 907 P.2d 465, 468 (Alaska 1995) (quoting 6A RICHARD  R.  

      OWELL, POWELL ON REAL PROPERTY  901[1][d], 81A-162-163).  


                                                                                                                                                                      -10-                                                                                                                                                              7105

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


concluding that because "over a year elapsed prior to . . . Patton's motion to amend the  


QDRO," any equitable adjustment was barred.  The superior court also concluded that  


the decreasein thevalueofPatton's account(and presumably the corresponding increase  


in Herring's) fell outside the equitable allocation provision of the settlement agreement.  


Because it concluded that no equitable adjustment was warranted, the superior court  


ordered the Roth IRA account to be distributed in accordance with the original divorce  


settlement (45% to Patton and 55% to Herring).  It ordered that the $140,000 held in  


"escrow" pending verification of the BP pension amounts also be released in the same  



                    Finally, the court briefly explained that it found Herring's testimony on the  


firearms issue to be "more persuasive" than Patton's testimony.   The superior court  


therefore concluded that "the weapons previously offered to [Patton] by . . . Herring"  


were sufficient to satisfy the terms of the settlement, and it gave the parties 30 days to  


arrange for transfer of the firearms.  


                    Herring then moved for an award of full attorney's fees, totaling nearly  


$30,000 plus over $500 in costs, alleging that "Patton engaged in both vexatious and bad  


faith conduct in initiating and continuing to pursue this post-divorce litigation over and  


over."  Patton opposed the motion for full fees, arguing that she had brought her claims  


in good faith and that Herring's own obstructive conduct had contributed to the lengthy  


litigation.  The superior court awarded Herring 80% of his fees (totaling approximately  


$22,000) and his full costs. It described Patton's litigation approach as "aggressive" and  


found that there had been "no evidence supporting [Patton's] allegations that . . . Herring,  


or Fidelity, or both, had anything to do with her reduced benefits."   Based on this  


ultimate result, the superior court concluded that "Patton engaged in this litigation in bad  


faith" and that she had "failed to make reasonable inquiry or exercise due diligence in  

                                                               -11-                                                         7105

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

obtaining facts before she began litigation."                                       The court therefore concluded that an                             

enhanced fee award was justified.                            3  

                        Patton appeals the superior court's denial of her motion for an amended  


QDRO, its denial of an equitable allocation from the Roth IRA account, its distribution  


of the parties' firearms, and its award of enhanced attorney's fees to Herring.  




                        We generally "review questions regarding a trial court's response to a  


motion to enforce a [divorce] settlement under the abuse of discretion standard."4 



"[i]n making this inquiry, the standard of review is necessarily intertwined with the  



substantive law governing settlement agreements."                                               When the parties have reached a  


settlement as to property division, "[w]e apply basic contract interpretation principles to  

                                                                                                                                         6   In turn,  



interpret a property division agreement incorporated into a divorce decree." 

"[w]e treat the interpretation of contract language as a question of law and interpret the  


language de novo."7                      To  the extent that other  relevant questions in a divorce case  


            3           See  Alaska R. Civ. P. 82(b)(3)(G) (allowing courts to increase an award of                                                     

attorney's fees for "vexatious or bad faith conduct").                      

            4           Ford v. Ford, 68 P.3d 1258, 1263 (Alaska 2003) (citing Dickerson v.  


 Williams, 956 P.2d 458, 462 (Alaska 1998)).  


            5           Colton v. Colton, 244 P.3d 1121, 1126 (Alaska 2010) (citing Notkin v.  


Notkin, 921 P.2d 1109, 1111 (Alaska 1996)).  


            6           Cook,  249  P.3d at 1077  (citing Burns v.  Burns,  157  P.3d  1037,  1039  


(Alaska 2007)); see also Mahan v. Mahan, 347 P.3d 91, 94 (Alaska 2015) (citing Villars  


v.  Villars, 277 P.3d 763, 768 (Alaska 2012)).  


            7           Cook,  249 P.3d at 1077 (citing Norton  v.  Herron,  677  P.2d  877,  880  


(Alaska 1984)).  


                                                                          -12-                                                                    7105

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

implicate   the   superior   court's   equitable   power,   "[w]e   apply   an   abuse   of   discretion  


standard to the superior court's use of its equitable power."                                               

                       We  review  an  award  of  attorney's  fees  under  Alaska  Civil  Rule  82,  


                                                                                                                           9   Therefore a fee  

including an award of enhanced attorney's fees, for abuse of discretion.                                                                           


award "will not be disturbed on appeal unless it is 'arbitrary, capricious, or manifestly  


unreasonable.' "10                But because an enhanced fee award under Rule 82(b)(3)(G) "calls  


into question  [a  party's] litigation conduct and the potential merits of [the party's]  


underlying . . .  motions, we assess de novo the legal and factual viability of his [or her]  


motions and review relevant findings of fact for clear error."11  


IV.	        DISCUSSION  

            A.	        Declining To Make An Equitable Reallocation, As Mandated By The  


                       Divorce Settlement, Was Error.  


                       Patton argues that the superior court erred by denying her motion for an  


equitable reallocation to compensate for the fact that she received 27% less, and Herring  


received correspondingly more, than the amounts bargained for  at settlement.   She  


maintains  that  the  parties'  agreement  contained  specific  estimated  values  with  a  


mechanism for equitable adjustment if they did not receive the amounts anticipated in  


the settlement agreement.  And she explains that her request for equitable reallocation  


            8          Beal v. Beal         , 209 P.3d 1012, 1016 (Alaska 2009) (citing                                 Carroll v. Carroll            ,  

903 P.2d 579, 582 n.7 (Alaska 1995)).                   

            9          Johnson v. Johnson, 239 P.3d 393, 399 (Alaska 2010) (citing Hopper v.  


Hopper, 171 P.3d 124, 133 (Alaska 2007)).  


            10         Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Ferguson  


v. Ferguson, 195 P.3d 127, 130 (Alaska 2008)).  


            11         Johnson, 239 P.3d at 399 (citing State, Dep't of Revenue, Child Support  


Enf't Div. v. Allsop, 902 P.2d 790, 795-96 (Alaska 1995)).  


                                                                        -13-	                                                                  7105

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

 is not a post-divorce modification motion; rather, it is the finalization of the parties'                                                                                                                                                                                                                                                                                                             

property distribution settlement. We                                                                                                                                                agree. The                                              parties' settlement agreement contained  

 an express provision creating an equitable reallocation mechanism using the Roth IRA                                                                                                                                                                                                                                                                                                                                   

 funds to deal with the uncertainty surrounding the value of the BP pension distributions.                                                                                                                                                                                                                                                                                   

 Because that mechanism was triggered by the decrease in Patton's portion and the                                                                                                                                                                                                                                                                                                                                            

 corresponding increase in Herring's portion of the BP pension, an equitable reallocation                                                                                                                                                                                                                                                                                           

 is the appropriate bargained-for remedy.                                                                                                                       

                                                                   Herring argues that the equitable reallocation mechanism in the settlement                                                                                                                                                                                                                                              

 agreement was not triggered because that provision was designed for only two purposes:                                                                                                                                                                                                                                                                                                        

 first, to protect each party against unauthorized withdrawals by the other, and second, to                                                                                                                                                                                                                                                                                                                                          

protect only Herring against a decrease in the value of his portion due to external factors.                                                                                                                                                                                                                                                                                                              

 He also contends that the parties agreed on distributions based on percentages, not dollar                                                                                                                                                                                                                                                                                                                       

values. Although the superior court agreed with these arguments, we conclude that they                                                                                                                                                                                                                                                                                                                                   

 conflict with the terms of the parties' settlement agreement as reflected in the original                                                                                                                                                                                                                                                                                                            

 findings and conclusions entered by the superior court.                                                                                                                                                                                             


                                                                   In our independent review of the terms of the settlement agreement,                                                                                                                                                                                                                                                                                        we  

 apply general principles of contract interpretation.13  First, as we recently explained in  

Baker v. Ryan Air, Inc., we give effect to every part of a contract.14   Here, the settlement  


reached by theparties expressly statedtheanticipatedapproximatevaluesofPatton's and  


 Herring's portions of the BP pension.                                                                                                                                                                          And the parties' original signed  agreement  


 included  a  handwritten  note  stating  that  the  parties  "must  see  [the]  numbers  the  


percentages [were] based on." Moreover, the parties' equitable reallocation mechanism  


                                  12                               See Cook                                       , 249 P.3d at 1077 (citing                                                                                                     Norton, 677 P.2d at 880).                                                                              

                                  13                              Id.  (citing  Burns v. Burns                                                                                                    , 157 P.3d 1037, 1039 (Alaska 2007)).                                                                                                                     

                                  14                               345 P.3d 101, 112 & n.32 (Alaska 2015).                                                                                                                                      

                                                                                                                                                                                                              -14-                                                                                                                                                                                                     7105

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


contained an express provision holding funds in "escrow" pending verification of those  


BP pension amounts.  To give effect to the anticipated dollar values and the verification  


provision of the parties' agreement, we conclude that the actual and relative values of the  


BP  pension  distributions  to  both  parties  are  an  integral  element  of  the  settlement  




                    Herring next contends that the reallocation mechanism does not protect  


Patton against a reduction in the value of  her  portion of the BP account.   But this  


interpretation, too, is at odds with the relevant provision of the settlement agreement.  


Herring's contention is based on a more general provision of the agreement, which  


requires  the  parties  to  verify  that  there  have  been  "no  significant  transfers  or  


withdrawals"  from  any  of  their  financial  accounts,  but  which  also  states  that  this  


verification was completed by the time the superior court's findings and conclusions  


were entered.  The reallocation provision relating specifically to the BP pension and the  


Roth  IRA  account,  by  contrast,  expressly  indicates  that  verification  of  the  BP  


distributions is still "pending" and provides for equitable reallocation in the event that  


the amounts received "materially differ" from the amounts contemplated at the time of  


settlement - regardless of the reason for that difference.  


                    The superior court appeared to believe that the broader provision relating  


to possible "transfers or withdrawals" applied to the BP pension, and thus it concluded  


that the reallocation mechanism was not triggered because Herring had not made any  


transfers or withdrawals from the BP account.  But this provision applies to the parties'  


other financial accounts rather than the funds at issue here, and it conflicts with the  


specific provision relating to the BP pension. Under the contract interpretation principle  

                                                               -15-                                                         7105

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


 that a specific provision takes precedence over a more general provision,                                                                                                                             we conclude   

 that   only   the   BP-specific   provision   applies   to   the   funds   disputed   here.    And   the  

 BP-specific provision contains no limiting language to suggest that it was designed to                                                                                                                                              

 protect only Herring and not Patton:                                                               It simply mandates equitable reallocation if                                                                         either  

party's  amount received "materially differs" from the amount anticipated by the parties.                                                                                                                                                    

 So we conclude that the Roth IRA reallocation mechanism was designed to protect both                                                                                                                                         

 parties against a change in value of their anticipated shares of the BP account, whatever                                                                                                                        

 the source of that change.                      

                                     This  interpretation  conforms   with  the   parties'  intent  at  the time of  

                              16       "In determining the intent of the parties the court looks to the written  


 contract as well as extrinsic evidence regarding the parties' intent at the time the contract  


                                 17      Here, the superior court's discussion with the parties at the settlement  

 was made."                                                                                                                                                                                                   


 hearing shows the parties contemplated that the reallocation mechanism could apply to  


 both  parties.  The  court  explained  that  the  adjustment  provision  could  be  used  "to  


 . . . compensate one or both parties to some extent for what they didn't get by way of the  


 QDRO." (Emphasis added.) And when the court recited the agreement at the end of the  


                   15               Norvillev.Carr-GottsteinFoods                                                          Co.,84              P.3d996,1004 (Alaska2004) ("In                                                   

 contracts, as in statutes, 'where one section deals with a subject in general terms and                                                                                                                                        

 another deals with a part of the same subject in a more detailed way, . . . if there is a                                                                                                                                             

 conflict,   the   specific   section   will   control   over   the   general.'  "   (quoting   Estate   of  

 Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978))).                                                                   

                   16                See Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1159 (Alaska 2016)  


 ("When interpreting contracts, the goal is to 'give effect to the reasonable expectations  


 of the parties.' " (quoting Larsen v. Municipality of Anchorage, 993 P.2d 428, 431  


 (Alaska 1999))).  


                   17               Id.  (quoting Municipality of Anchorage v. Gentile, 922 P.2d 248, 256  


 (Alaska 1996)).  


                                                                                                                -16-                                                                                                         7105

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


settlement hearing and asked for each party's acknowledgment that they understood and  


agreed with it, the court explained that the parties were "going to have to wait and see  


what happens with the BP QDRO and make an adjustment, where both parties may have  


to share in whatever loss occurs, but there [would] be some adjustment that occurs with  


the  Roth  IRA."             The  parties  testified  that  they  understood  and  agreed  with  this  


characterization of their settlement.  Based on these statements during the settlement  


hearing, we cannot conclude that the parties intended to limit the equitable adjustment  


mechanism to protect only Herring or to address only withdrawals or transfers made by  


the parties.  


                    Indeed, now that one portion of the BP account has decreased and the other  


has increased by a corresponding amount, this appears to be exactly the type of situation  


that the Roth IRA reallocation mechanism was designed to address.  The superior court  


concluded that Patton was not entitled to an equitable adjustment because the change in  


value was a result of her own decision to begin receiving benefits early:  In the court's  


words, "Patton effectively madeachoicebetween 'moremoneylater' versus'less money  


now,' and chose the latter."  But the QDRO did not explain, and the parties did not  


appear to understand, that Patton's election to begin receiving immediate distributions  


would also cause Herring's benefits to increase, resulting in an allocation of benefits  


significantly  different  from  the  amounts  contemplated  at  settlement.                                       The  parties  


expected that they would each receive a specified amount, and these amounts were a  


bargained-for part of their ultimate settlement. Instead Herring received both an amount  


that turned out to be higher than the $125,000-$133,000 estimated at settlement and the  


$464,346 that he received (and Patton lost) as a result of Patton's early benefit election,  


for  a  total  of  $609,000  of  pension  benefit  to  Herring.                               This  unanticipated  shift  


substantiallychangedthepercentages oftheoriginally estimatedtotalretirement account  


that each party was to receive.  

                                                               -17-                                                         7105

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

                              Now that Herring has received substantially more and Patton has received                                                                             

substantially less than the amounts that they bargained for, this disparity triggers the                                                                                                       

equitable reallocation provision relating to the BP pension and the Roth IRA "escrowed"                                                                                     

funds.     It was therefore error to conclude that the reallocation mechanism was not                                                                                                         

triggered.   And once that provision has been triggered, the appropriate remedy is the                                                                                                         

                                                                                                   18   Here, that means the court must make an  

contractual remedy specified by the parties.                                                                                                                                                     

equitable reallocation of the "escrowed" Roth IRA funds to account for the disparity in  


the BP pension distributions.  We therefore reverse the superior court's denial of the  


motion for equitable reallocation, and we remand for an equitable distribution of the  


"escrowed" Roth IRA funds in accordance with the parties' settlement agreement.  


                               On remand, the fact that Patton's elections played a role in her decreased  


benefits could be relevant to the amount she receives in an equitable distribution.  But  


it does not bar relief completely under the terms of the parties' settlement, particularly  


in light of the windfall that Herring received. While Patton may bear some of the burden  


of her own decision to take immediate benefits and any resulting decrease in value, the  


increased valueofHerring's distribution andtheparties' original anticipated percentages  


of the BP pension must also be considered in determining the appropriate amount of the  


equitable reallocation.  


                               The superior court also concluded that Patton's request for an equitable  


reallocation was time-barred because "over a year elapsed prior to [her] motion to amend  


the QDRO." But Patton had originally requested an equitable reallocation in May 2014,  


only a few months after entry of the original findings and conclusions confirming the  


               18             See, e.g.           ,  Pierce v. Catalina Yachts, Inc.                                      , 2 P.3d 618, 622 & n.18 (Alaska                          

2000) (allowing parties to prescribe contractual remedies);                                                                               Kelly v. Miller                    , 575 P.2d     

 1221,   1224   (Alaska   1978)   (holding   that   the   plaintiff   "was   limited   to   contractual  


                                                                                              -18-                                                                                        7105

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

parties' settlement agreement. Moreover, she had spent the intervening time attempting                                                                                                                                                                                                                                                                                  

to obtain full information about the amounts of the parties' BP distributions, so any delay                                                                                                                                                                                                                                                                                                      

was due to Herring's unwillingness to provide this information and not to any delay on                                                                                                                                                                                                                                                                                                                        

Patton's   part.     Finally,   the   superior   court   stayed   Patton's  request   for   an   equitable  

reallocation pendingfurther                                                                                                        briefinganddiscovery. Thepartiesundertookthis                                                                                                                                                                                            discovery  

and briefing over the following months, and the superior court ultimately addressed                                                                                                                                                                                                                                                                                      

Patton's motion for an equitable reallocation in March 2015 (at the same time as it ruled                                                                                                                                                                                                                                                                                                   

on her motion for an amended QDRO). Given that Patton's motion had been stayed until                                                                                                                                                                                                                                                                                                                 

that point, it was an abuse of discretion to conclude that the reallocation was then barred                                                                                                                                                                                                                                                                                                 

by the intervening passage of time.                                                                                                                                      

                                B.	                             The Superior Court Did Not Abuse Its Discretion In Denying Patton's                                                                                                                                                                                                                                             

                                                                Motion For An Amended QDRO.                                                                                                       

                                                               Patton's motion for an amended QDRO is properly viewed as a request for                                                                                                                                                                                                                                                                       

a different remedy addressing the same disparity in the BP pension distributions.  The   

 superior court was correct to conclude that the QDRO cannot be amended.                                                                                                                                                                                                                                                                                        Evidence in   

the record from BP representatives indicates that Patton is not permitted to "unwind" her                                                                                                                                                                                                                                                                                                                  

pension elections after initially executing a QDRO that did not award her the early                                                                                                                                                                                                                                                                                                              

retirement   subsidy.     Moreover,   as   explained   above,   the   parties   created   a   specific  

contractual remedy to account for any changes in the BP pension's value.                                                                                                                                                                                                                                                                                                    Where a   

contractual remedy has been specified and bargained for by the parties, the correct                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                       19              So the proper remedy here is not an amended  

approach is to apply that remedy.                                                                                                                                                                                                                                                                                                                                            

QDRO; it is the application of the contractual provision for equitable reallocation.  


                                                                Similarly, there is no need to analyze this case under the mistake doctrine,  


which sometimes permitsreformation ofcontractor settlement terms. Instead,theproper  


                                19                             See Pierce, 2 P.3d at 622 & n.18.  


                                                                                                                                                                                                    -19-                                                                                                                                                                                                                 7105  

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

approach is to give the parties the benefit of their bargain, which includes the contractual  


remedyoftheequitablereallocation mechanism. Wethereforeconcludethat thesuperior  


court did not abuse its discretion by denying Patton's motion to amend the parties'  


QDRO for the BP pension.  


          C.	       The Superior Court Did Not Abuse Its Discretion In Distributing The  


                    Parties' Firearms According To The Divorce Settlement.  


                    Despite Herring's attempts to deliver the firearms allocated to Patton in the  


divorce settlement, Patton contends that Herring has not yet delivered the particular Uzi  


she bargained for, which she refers to as the "marital Uzi."  But Patton has presented no  


evidence, other than her own arguments, to show that the gun Herring delivered to her  


was not a part of the marital estate.  Nor has Patton shown that the Uzi delivered to her  


failed to meet the terms of the parties' agreement as expressed in the superior court's  


findings and conclusions, which specified only that she was entitled to "an Uzi with  


folding stock in a black factory case."  Patton has not disputed that Herring offered her  


a gun technically conforming to this definition, but she argues that she is entitled to a  


different Uzi and that "she will recognize it once she receives it."  


                    Herring  has  countered  Patton's  contentions  by  offering  a  detailed  


description of the guns owned by the parties while they were married, in which he  


explained that the Uzi he offered her was indeed one of the guns in the marital estate at  


the time of separation.  To counter Patton's contentions that she is entitled to a specific  


Uzi chambered for 45 ACP ammunition, Herring points to the fact that the divorce  


settlement awarded Patton "500 rounds of 9 mm ammo" for her Uzi, and that the Uzi he  


attempted to give Patton is indeed chambered for 9 mm ammunition.  


                    Faced with this evidence, the superior court concluded that "Herring's  


account  of  the  settlement  with  respect  to  the  Uzi  is  superior  in  detail,  technical  


understanding, and internal-logic to that of . . . Patton."   The court therefore found  


                                                              -20-	                                                        7105

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

Herring's testimony "more persuasive" than Patton's.                                             Because "[w]e defer to a superior           


 court's credibility determinations,"                                                                                                  

                                                                 we do not overturn the superior court's conclusion  


regarding the parties' testimony on this point.  We thus conclude that the superior court  


did not abuse its discretion in denying Patton's contempt motion and ordering the parties  


to carry out the terms of the divorce settlement by "arrang[ing] for the transfer of the  


weapons previously offered to [Patton] by . . . Herring," which meet the description of  


the firearms provided in the settlement agreement.  


            D.          The Award Of Attorney's Fees Is Vacated.  


                        The superior court awarded Herring 80% of his attorney's fees and his full  


costs.  Alaska Civil Rule 82 generally permits an award of partial attorney's fees to the  



                                                                    but enhanced fees may only be awarded upon  

prevailing party in  a  civil dispute, 


 consideration of certain enumerated factors, including a party's "vexatious or bad faith  



                       Because we reverse and remand the superior court's denial of Patton's  


motion for equitable reallocation, Herring is no longer the prevailing party and the award  



 of attorney's fees in his favor must be vacated. 

            20          Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's                                        

Servs., 289 P.3d 924, 930 (Alaska 2012).                       

            21          Alaska R. Civ. P. 82(a).  Although divorce judgments are generally not  


 subject to attorney's fees under Rule 82, we have consistently held that "[t]he divorce  


judgment  exception  to  Rule  82  does  not  apply  to  post-judgment  modification  and  


 enforcement motions" like the proceedings on appeal here.  See McGee v. McGee, 974  


P.2d 983, 992 (Alaska 1999) (alteration in original) (quoting Lowe v. Lowe, 817 P.2d  


453, 460 (Alaska 1991)).  


            22          Alaska R. Civ. P. 82(b)(3)(G).  


            23          See, e.g., Cragle v. Gray, 206 P.3d 446, 452 (Alaska 2009) ("We . . . vacate  


the attorney's fees award because [the appellee] is no longer the prevailing party."). We  


take this opportunity to note that enhanced attorney's fees are not justified where, as  



                                                                         -21-                                                                    7105

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

V.        CONCLUSION  

                    We AFFIRMthe superior court's denial of Patton's motion for an amended  


Qualified Domestic Relations Order, but we REVERSE its denial of her motion for an  


equitable reallocation and REMAND for a determination of the appropriate equitable  


reallocation amount. Accordingly,weVACATEthesuperior court'sawardofattorney's  


fees to Herring.  We AFFIRM the superior court's denial of Patton's contempt motion  


regarding distribution of the parties' firearms.  




here, a party litigated in the good-faith pursuit of non-frivolous claims.  Even if a party  


does  not  prevail  on  some  (or  all)  of  his  or  her  claims,  we  have  cautioned  against  


conflating the ultimate success of a motion or claimwith the question whether the motion  


or claim was frivolous at the outset. See Johnson v. Johnson, 239 P.3d 393, 401 (Alaska  


2010).   Here, where Patton prevailed on several of her motions before the superior  


court - including motions to compel discovery necessitated by Herring's obstructive  


conduct - it is evident that her claims were not frivolous.  

                                                             -22-                                                        7105

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights