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Easley v. Easley (4/7/2017) sp-7165

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

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

KEVIN  M.  EASLEY,                                                )  

                                                                  )     Supreme  Court  Nos.  S-16061/16131  

          Appellant  and  Cross-Appellee,                         )  

                                                                  )     Superior  Court  No.  3AN-07-06831  CI  

          v.                                                      )  


                                                                  )     O P I N I O N  


TAMMY M. EASLEY,                                                  )  



                                                                  )     No. 7165 - April 7, 2017  


          Appellee and Cross-Appellant.                           )  



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


                     Judicial District, Anchorage, Catherine M. Easter, Judge.  


                    Appearances: Daniel I. Pace, Pace Law Offices, Anchorage,  


                     for Appellant/Cross-Appellee.  Jeffrey J. Jarvi, Anchorage,  


                     for Appellee/Cross-Appellant.  


                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                    BOLGER, Justice.  



                     In a 2008 divorce decree based on a settlement agreement, an ex-husband  


was ordered to sell the marital home and thereafter pay his ex-wife her share of the  


estate.  But by 2015 he had not yet done so.  The superior court ordered the ex-husband  


to sell the home in 90 days and entered judgment against him after the deadline passed.  


The ex-husband now appeals on due process and equity grounds, andtheex-wife appeals  

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

seeking   prejudgment   interest,  attorney's   fees,   and   costs.     Because   both   parties'  

arguments lack merit, we affirm the superior court's order.                                                                                       

II.                FACTS AND PROCEEDINGS                    

                                     Tammy Easley filed for divorce from Kevin Easley in 2007 after more than                                                                                                                       

a decade of marriage.  Paragraph 21(b) of their 2008 divorce decree, which was based                                                                                                                                           

on a settlement agreement, required Kevin to pay Tammy $325,000 after selling the                                                                                                                                                     

marital home. The settlement structure made the sale of the home a condition precedent                                                                                                                              


to the disbursement of most of Tammy's share of the estate.                                                                                                                                                                  

                                                                                                                                                                      Paragraph 22 of the decree  


required Kevin to pay Tammy $3,500 in spousal support each month until the sale.  


                                     As early as 2009, however,  Kevin  realized  that the marital home had  


substantially declined in value. That year he filed an Alaska Civil Rule 60(b) motion for  


relief from judgment asserting a mutual mistake of fact regarding the valuation of the  


home.  The motion was denied, but Kevin still delayed selling the home.  Accordingly,  


in the summer of 2014 the court requested briefs and oral argument regarding whether  


to read into the decree a term setting a date certain for sale of the home.  Following the  


hearing the court decided not to set a date at that time.  But later that year the case was  


transferred to a new judge, and at a December hearing the parties again discussed the  


issue.   Ultimately, at a "motion hearing" in June 2015, the court revisited the issue  


sua sponte, decided that "seven years is reasonable," and ordered Kevin to sell the home  


within 90 days, at which point Tammy would be entitled to the $325,000 owed to her  


regardless of whether the sale was made.  


                                     Kevin moved for reconsideration, objecting to the order on due process and  


equity  grounds.                                    The  court  denied  the  motion,  noting  that  it  could  "think  of  no  

                   1                 In addition to the$325,000, Kevin                                                            wasrequired to pay Tammy $2,560 each                                                             

month for 12 years after the sale in order to balance the property division.                                                                                                                                  

                                                                                                                    -2-                                                                                                          7165

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 circumstances under which it would be reasonable to require a financially disadvantaged                                                                                                                                                                                         

 divorcee to wait seven years (or more) before receiving financial recompense for her fair                                                                                                                                                                                                                                

 share of an estate that her former spouse has, in near entirety, continued to possess." The                                                                                                                                                                                                                           

 court further emphasized that Kevin "was given ample notice and opportunity to be                                                                                                                                                                                                                                          

 heard."   After 90 days passed and the home was not sold, Tammy moved for entry of                                                                                                                                                                                                                                           

judgment without opposition from Kevin.                                                                                                                        In October 2015 the court entered judgment                                                                                         

 against Kevin in the amount of $325,000 but denied Tammy's motion for prejudgment                                                                                                                                                                                                    

 interest, attorney's fees, and costs.                                                                                              

                                                   Kevin now appeals, arguing that he was not given notice or an opportunity                                                                                                                                                              

 to be heard regarding the sale of the marital home and the interpretation of the decree,                                                                                                                                                                                                    

 and that he was prejudiced by this lack of due process.                                                                                                                                                        In the alternative Kevin argues                                                              

 that equity requires offsetting the amount he owes Tammy by the amount of spousal                                                                                                                                                                                                                       

 support he has paid over the years.                                                                                                 Tammy also appeals, arguing that she is entitled to                                                                                                                                       

 prejudgment interest, attorney's fees, and costs.                                                                                                                                    

 III.                     DISCUSSION  


                          A.                       Kevin's Due Process And Equity Arguments Are Meritless.  


                                                    1.                      Due process  


                                                   Kevin argues that the superior court violated his due process rights "when  


 it failed to give him notice and an opportunity to be heard pertaining to the sale of the  


 marital home and the intent of the parties regarding the equitable distribution of marital  


 property."  Kevin's due process rights would be violated if the superior court did not  


 provide him with adequate notice and an opportunity to be heard and if Kevin suffered  

                                                                                                                                                               -3-                                                                                                                                                  7165

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actual prejudice as a result.                          "Whether the superior court violated a party's due process                                        

rights is a question of law, which we review de novo."                                                   3  

                          We conclude that Kevin received adequate notice and an opportunity to be  


heard and thus do not reach the prejudice argument.  Kevin's version of events - in  


which he was "ambushed" by a sudden order to sell the marital home - omits important  


aspects of the procedural history.  The record reveals that Kevin had notice of and was  


given numerous opportunities to be heard regarding the issue of enforcing the settlement  


agreement.  As early as 2009, Kevin had argued that the marital home could not be sold  


for its appraised value when he unsuccessfully asserted that a mutual mistake of fact  


underlay  the  settlement  agreement.4                                     Then  after  a  summer  2014  hearing  regarding  


whether the divorce decree required Kevin to sell the home by a certain date, the court  


issued an order stating that it "finds there is no basis for the court to take any action at  


this time regarding the sale of the marital home." But at two hearings in December 2014  


and June 2015, a new judge considered whether circumstances regarding continued  


             2            See Moody v. Royal Wolf Lodge                               , 339 P.3d 636, 643 (Alaska 2014); Alaska                           

Const. art. I,  7 ("No person shall be deprived of life, liberty, or property, without due                                                                     

process of law.").     

             3           McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013) (citing A.M. v. State ,  


945 P.2d 296, 302 (Alaska 1997)).  


             4            Kevin focuses on the word "proceeds" in paragraph 21(c) of the divorce  


decree, arguing that the $325,000 amount was based on the home's equity and that he  


was denied the opportunity to present evidence of this intent or the actual home value.  


He claims that "not in one instance was the issue of proceeds brought before the trial  


court."  But Kevin previously raised this issue in his motion for relief from judgment in  


2009; the court denied the motion, and Kevin did not appeal.  Kevin's argument is also  


against the plain meaning of the decree.  Tammy's right to the $325,000 comes from  


paragraph 21(b), which does not mention "proceeds"; it simply states that "[u]pon the  


sale of the property, Kevin Easley shall pay $325,000 to Tammy Easley."  


                                                                                 -4-                                                                         7165

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 litigation and the long delay in selling the home made necessary a date certain for the                                                                                                                   

 sale, and the court ultimately decided to order Kevin to sell the home and pay Tammy   

 her share of the estate. At the 2015 hearing, Kevin's attorney protested that the previous                                                                                                   

judge "ruled that there is no definitive date certain on the divorce decree," and the court                                                                                                           

                                                                                                                                    5    The attorney made no further  

 responded that it was "making a decision right now."                                                                                                                                     

 objection to the resolution of this issue during the proceeding.                                                                                                   Kevin also had an  


 opportunity to make his offset argument in response to Tammy's motion for judgment,  


but he did not file any opposition.6                                                     After so many opportunities to be heard, Kevin's  


 argument that his due process rights were violated must fail.  


                                 Furthermore, we have held that adequate notice gives "an aggrieved party  


 opportunity to present a case and have its merits fairly judged."7                                                                                              We have previously  


 found due process satisfied when an ex-husband alleged that he believed a hearing would  


 only be about visitation but instead resulted in a modification of physical custody.8   We  


 stated that the ex-husband in that case "had notice" that the ex-wife "sought equal time  


 with the children" because she had made such a statement in filings and testimony, and  


                 5               Cf. West v. Buchanan                                 , 981 P.2d 1065, 1067 (Alaska 1999) (recognizing                                              

 "the power of one trial court judge to overrule another, in the proper exercise of judicial                                                                                                     

 discretion"),  superseded by rule on other grounds as stated in Sellers v. Kurdilla                                                                                                                  , 377  

 P.3d 1, 11 (Alaska 2016).                      

                 6               Cf. Keenan v. Wade, 182 P.3d 1099, 1107 (Alaska 2008) ("Generally, a  


party's failure to file a timely opposition to a motion results in waiver of the right to  


 object on appeal unless there is plain error." (citing Kenai Peninsula Borough v. Cook  


Inlet Region, Inc., 807 P.2d 487, 500 (Alaska 1991))).  


                 7               Fidler v. Fidler, 296 P.3d 11, 13 n.5 (Alaska 2013) (citing Zok v. Estate of  


 Collins, 84 P.3d 1005, 1008 (Alaska 2004)).  


                 8               Siekawitch v. Siekawitch, 956 P.2d 447, 449-50 (Alaska 1998).  


                                                                                                      -5-                                                                                              7165

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he had shown he was aware of her intentions in his filings in opposition.                                                                       The facts are       

similar here: Because of the previous back-and-forth between the parties on the issue of                                                                              

enforcement of the divorce decree, Kevin lacked neither notice of Tammy's desire to be                                                                               

                                                                                                                                           10   We therefore  

paid her share of the estate nor an opportunity to oppose her arguments.                                                                                

conclude that Kevin was afforded adequate due process.  


                          2.           Equity  

                          As an alternative to his due process arguments, Kevin argued in his motion  


for  reconsideration  and  repeats  on  appeal  that  he  is  entitled  to  offset  the  property  


distribution  payments  by  the  total  amount  he  has  paid  in  spousal  support,  around  


$294,000 as of July 2015.11  We review a settlement agreement using contract principles,  


and the proper meaning of a contract is a legal question, which we review de novo.12  


             9            Id . at 450.     



                          Additionally, the facts here distinguish the principal case Kevin relies on  


in his brief, Cushing v. Painter, 666 P.2d 1044 (Alaska 1983).  In Cushing we vacated  


a permanent custody award due in part to lack of notice because the parties thought the  


hearing  involved  only  an  interim  custody  issue.                                                  Id .  at  1046.              We  noted  that  the  


"particular circumstances" of that case were crucial to its holding. Id . Kevin argues that  


this case is "even worse," but Cushing involved an expedited hearing and the sensitive  


issue of permanent custody of a child, while this case involves multiple hearings and the  


distribution of property under an existing agreement.  

             11           Kevinalso argues that the date of valuation of the marital home should have  


been closer to the original June 2008 trial date and asks us to correct the fact that the  


court overlooked "the dropping real estate market." But this argument is waived; Kevin  


was a party to the settlement agreement upon which the superior court relied in issuing  


its divorce decree and had prior opportunities to insist on a different valuation but did not  


successfully do so or timely appeal.  See Alaska R. App. P. 204(a)(1) (appeal must be  


filed within 30 days of judgment).  And Kevin does not persuade us that we should  


overlook this waiver "for equity purposes."  


             12           Gunn  v. Gunn,  367  P.3d 1146, 1150  (Alaska 2016).                                                            When  the court  


considers extrinsic evidence, we review its factual determinations for clear error and  


                                                                                  -6-                                                                           7165

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                          Kevin is not entitled to offset his spousal support payments against the                                                                 

property distribution payment.                                The divorce decree provided for marital property and                              

spousal support in separate provisions, and, as the superior court explained, the "spousal                                                               

support was not couched as, or otherwise implied to be, a component of the property                                                                      

                          13   One provision required Kevin to sell the marital home and "[u]pon sale  


of the property . . . pay $325,000 to Tammy."  A second provision stated that "until the  


marital home is sold and Tammy Easley receives her share of the proceeds, Kevin Easley  


shall pay $3,500 per month to Tammy Easley as spousal support."   Nothing in that  


language entitles Kevin to offset the spousal support he has paid to Tammy against the  


$325,000 she was entitled to receive upon sale of the home.  Kevin agreed to undertake  


the responsibility of selling the home, and he agreed to pay $3,500 a month in spousal  


support until he did so. The spousal support payments were not a substitute for the value  


of the marital home.  Rather, they took the form of an interim monthly award due until  


Tammy received her distribution from the sale of the home. We therefore conclude that  


Kevin is not entitled to offset the property distribution payments by the total amount he  


has paid in spousal support.  


             B.	          Tammy's                 Prejudgment                     Interest,             Attorney's                Fees,          And          Costs  


                          Arguments Are Also Meritless.  


                          1.	          Prejudgment interest  


                          Tammy argues that sheis entitled toprejudgment interestto compensateher  


for the delay between the 2008 divorce decree entitling her to $325,000 upon sale of the  


marital home and the 2015 judgment awarding her $325,000 from Kevin.  The superior  


court  did  not award  Tammy  prejudgment  interest,  reasoning  that  "[n]othing  in  the  



inferences for substantial evidence, but no extrinsic evidence is relevant here.  See id.  



                          Furthermore,"spousal support is separate and distinguishable from marital  


property."  Stevens v. Stevens, 265 P.3d 279, 288 (Alaska 2011).  

                                                                                  -7-	                                                                          7165

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divorce   decree   or   the   negotiated   settlement   indicates  that   [she]   is   entitled   to   such  


                       "Prejudgment interest in a divorce case is within the broad discretion of the                                           

                                                                                                    14    Prejudgment  interest  is  

trial   court   and   is   reviewed   for   an   abuse   of   discretion."                                                                       

"particularly appropriate" when the asset is cash,15 because "[t]he purpose of awarding  


prejudgment interest is not to penalize the losing party, but rather to compensate the  


successful claimant for losing the use of the money between the date he or she was  


entitled to it and the date of judgment."16                            In contrast, prejudgment interest "should not  


be awarded where it 'would do an injustice.' "17                                        Determining the date upon which  


Tammy was entitled to the payment requires us to interpret the terms of the divorce  


decree.  This is a legal question to which we apply our independent judgment.18  


                       Here, as the divorce decree made clear, Tammy was only entitled to receive  


$325,000 "[u]pon the sale of the property." When Kevin delayed his performance of the  


sale for seven years, the superior court issued its June 2015 order instructing Kevin to  


sell the marital home within 90 days "to effectuate the agreement." When Kevin still did  


not sell the home, Tammy filed a motion for entry of judgment, and the superior court  


            14         Hopper v. Hopper                , 171 P.3d 124, 129 (Alaska 2007) (citing                                    Ogard v.   

Ogard, 808 P.2d 815, 817 (Alaska 1991)).                     

            15         Morris v. Morris, 724 P.2d 527, 530 n.11 (Alaska 1986).  


            16         Id . at 529 (quoting Bevins v. Peoples Bank & Tr.,  671  P.2d 875, 881  


(Alaska 1983)).  


            17         Id. at 530 (quoting State v. Phillips, 470 P.2d 266, 274 (Alaska 1970)). We  


have also recognized "discretion to give credit to the party that maintains an asset post- 


separation." Heustess v. Kelley-Heustess, 259 P.3d 462, 475 (Alaska 2011) (citing Berry  


v. Berry, 978 P.2d 93, 96 (Alaska 1999)).  


            18         Gunn v. Gunn, 367 P.3d 1146, 1150 (Alaska 2016).  


                                                                       -8-                                                                 7165

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reduced Tammy's award from the divorce decree to a cash judgment in the amount of   

$325,000.   Accordingly, Kevin did not actually owe the amount - and therefore there                                                                          

was   no   cash   of   which   Tammy   lost   use   -   until   this   judgment  was  entered   in  


October 2015.                    

                          Furthermore, Kevin  owed  Tammy  $3,500  in  spousal support for  each  


month he did not sell the home, and he bore the burden of upkeep on the property.  


Given these facts, awarding prejudgment interest to Tammy might "do an injustice" to  


Kevin, and it was not an abuse of discretion for the superior court to decline to do so.  


                          2.           Attorney's fees  


                          Tammy argues that she is entitled to partial attorney's fees under Alaska  


Civil Rule 82(b)(1), which awards attorney's fees to a "prevailing party in a civil case"20  


                                                          21    However, Rule 82 "does not apply to judgments in  



based on a money judgment. 

divorce cases"22                                                                       

                                unless a party is successful in litigating a post-judgment modification  

             19           Tammy cites to                 Brotherton v. Brotherton                         , 142 P.3d 1187 (Alaska 2006),                   

for   the   proposition  that   prejudgment   interest   on   judgments   awarded   "after   lengthy  

noncompliance by an ex-husband" should be treated differently.                                                                     But  Brotherton   is  

distinguishable. The divorce decree in that case neither placed a condition precedent on                                                                           

the spouse's award, such as the sale of the property, nor awarded spousal support until                                                                        

that condition was satisfied.                           See id.       at 1188.   

             20           Alaska R. Civ. P. 82(a).  


             21           Alaska  R.  Civ.  P.  82(b)(1).                             Under  a  different  section  of  the  rule,  a  


prevailing party receives attorney's fees based on "reasonable actual attorney's fees  


which were necessarily incurred."  Alaska R. Civ. P. 82(b)(2).  


             22           L.L.M. v. P.M., 754 P.2d 262, 263 (Alaska 1988). "In such cases costs and  


fees are based on the 'relative economic situations and earning powers' of the parties,  


rather than on a prevailing party determination." Id. (quoting Cooke v. Cooke, 625 P.2d  


291, 293 (Alaska 1981) and Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska  



                                                                                 -9-                                                                          7165

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


 or enforcement motion.                                   The superior court did not award Tammy attorney's fees                                         

because they were not contemplated by                                              the settlement agreement and because her motion                                         

was "[p]remature," reasoning in the October 2015 order that "there has not been a                                                                                                     

judgment until this Order, [so] there can be no attorney's fees for a 'post-judgment . . .                                                                                             

                                                   24   Tammy argues that the superior court's interpretation of the  

 enforcement motion.' "                                                                                                                                                            

 law was "overly literal" and characterizes the years of litigation that ensued after the  


 divorce decree as "post-Decree enforcement proceedings which resulted in the money  


judgment."  "The superior court has broad discretion in awarding attorney's fees in a  


 divorce action, and we review any award for abuse of discretion."25  


                             The superior court's decision not to award Tammy attorney's fees was not  


 an abuse of discretion.  Tammy had already won her right to $325,000 upon the sale of  


the home when the divorce decree was finalized in 2008; this amount was thus awarded  


 in a divorce case.   Tammy now seeks attorney's fees based on that amount, but the  


                                                                                              26   and  she  provides  no  legal  authority  to  

 decree  did  not  award  fees  to  either  party,                                                                                                                                  


               23            McGee v. McGee                       , 974 P.2d 983, 992 (Alaska 1999) (citing                                               Lowe v. Lowe                  ,  

 817 P.2d 453, 460 (Alaska 1991)).                          

               24            Tammy subsequently timely filed a second motion after the October order,  


 and the superior court denied it without further explanation.  But the superior court's  


prior reasoning holds - there had been no enforcement motion filed against Kevin after  


the October order, so Tammy was not a prevailing party within the meaning of Rule 82.  


               25            Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (citing Hopper v.  


Hopper, 171 P.3d 124, 129 (Alaska 2007)).  


               26            We have previously "warned litigants that if they fail to address the issue  


 of fees in the settlement agreement, they may be precluded from claiming Rule 82 fees."  


Sanders v. Barth, 12 P.3d 766, 769 (Alaska 2000) (citing Coleman v. Coleman, 968 P.2d  


 570, 576-77 (Alaska 1998)).  


                                                                                        -10-                                                                                  7165

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


otherwise support such an award.                                                                     Accordingly, the superior court did not abuse its                                                                                  

discretion in declining to award Tammy attorney's fees.                                                                                       

                                     3.                Costs  

                                     Tammy   argues   that   she   is  entitled   to   partial   costs   under   Alaska   Civil  

                         28                                                                                      29  

Rule 79,                                                                                                                                                                                                                                

                               but this argument is waived.                                                                We review Rule 79 awards for abuse of  



discretion,                        and Tammy does not support her argument with any legal citations to show  


how the court abused its discretion here.  

IV.                CONCLUSION  


                                     We AFFIRM the superior court's order.  

                   27                Tammy cites three divorce cases which all involve an award of attorney's                                                                                                       

fees based on actual fees, not a cash judgment.                                                                                     See Hopper, 171 P.3d at 133;  McGee,  

974 P.2d at 992;                             Lowe, 817 P.2d at 460. We note that Tammy declined to bring a motion                                                                                                         

under Rule 82(b)(2), supported by an accounting of the fees she incurred while trying                                                                                                                                         

to enforce the decree, which could have demonstrated she had incurred such fees and                                                                                                                                                  

was therefore entitled to reasonable relief.                                                                         Tammy argues that the plain meaning of the                                                                        

rule dictates that fee awards are mandatory, but the case she cites,                                                                                                                            Beaux v. Jacob                               ,  

involved a real estate transaction, not a divorce decree, and refers to the rule for the                                                                                                                                              

calculation of fees, not whether such fees are required.                                                                                                      See   30 P.3d 90, 93, 99 n.28                                       

(Alaska 2001).                             

                   28                Alaska Civil Rule 79(a) states that "[u]nless the court otherwise directs, the  


prevailing party is entitled to recover costs . . . that were necessarily incurred in the  



                   29                See, e.g., Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991)  


("[W]here a point is given only a cursory statement in the argument portion of a brief,  


the point will not be considered on appeal.").  


                  30                 Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004).  


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