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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olivera v. Rude-Olivera (2/16/2018) sp-7224

Olivera v. Rude-Olivera (2/16/2018) sp-7224

          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  

                                                                                                                   

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



ANTHONY  RUBEN  OLIVERA,                                    )  

                                                             )         Supreme  Court  No.  S-16260  

                              Appellant,                    )  

                                                                                                                              

                                                             )         Superior Court No. 3AN-14-10538 CI  

                    v.                                       )  

                                                             )                            

                                                                       O P I N I O N  

                                  

RONALDA RENEE                                                )  

RUDE-OLIVERA,                                                )                                                 

                                                                      No. 7224 -  February 16, 2018  

                                                             )
  

                              Appellee.                     )
  

                                                             )
  



                                                                                                        

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

                                                                                         

                    Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                            

                    Appearances:               Anthony         Olivera,   pro         se,   Anchorage,  

                                                                                                    

                    Appellant.          Adam  Gulkis,  Law  Office  of  Adam  Gulkis,  

                                             

                    Anchorage, for Appellee.  



                                                                                                    

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

                                                       

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                           

                    An  ex-husband  challenges  three  decisions  made  by  the  superior  court  



                                                                                                                               

during divorce proceedings.  He argues that the court erred by (1) failing to enforce the  



                                                                                                                      

mandatory disclosure requirements of the Alaska Civil Rules with regard to his ex-wife's  



                                                                                                                     

financial  information;  (2)  improperly  valuing  the  marital  home;  and  (3)  awarding  


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

attorney's fees against him for vexatious and bad faith conduct.                                                                                             We find no abuse of                           



discretion or clear error in the court's rulings and therefore affirm the judgment.                                                                                      



II.             FACTS AND PROCEEDINGS               



                A.              Facts  



                                Anthony Olivera and Ronalda Rude-Olivera (now Ronalda Rude) were                                                                                                    



married   in   December   1999   and   separated   in   May   2014.     They   initially   sought   a  



dissolution but were unable to agree on the division of their marital assets; in December                                                                                              



2014 Ronalda filed for divorce.                                               



                                Ronalda   was   the   primary  wage   earner   for   the   household   during   the  



                                                                                                                                                                                                  

marriage.  Anthony's employment was "less consistent," and the parties' marital estate  



                                                                           

was burdened with "numerous debts."  



                                                                                                                                                                                        

                                Anthony and Ronalda had sold their Wasilla home in 2010 for $204,000,  



                                                                                                                                                                                            

and  they  used  $90,000  of  the  proceeds  to  purchase  a  foreclosed  home  in  Campo,  



                                                                                                                                                                                                           

California, so that Anthony could "be near the U.C. San Diego Medical Center where he  

                                                                                                               1  Ronalda did not consistently live in the  

                                                                                                                                                                                                         

was supposedly undergoing cancer treatment." 



Campo house, returning to Alaska periodically for employment opportunities.  

                                                                                                                                                           



                                In 2013 Anthony and Ronalda used the Campo house as security for a  

                                                                                                                                                                                                             



$75,000 loan.   In June 2014 the lender filed a notice of foreclosure. Anthony told  

                                                                                                                                                                                                      



Ronalda that he would return the house to the bank to pay off the loan if she quitclaimed  

                                                                                                                                                                                    



her interest in the property to him, and in July 2014 she did so. But rather than return the  

                                                                                                                                                                                                         



property to the bank, Anthony borrowed money to bring the loan current. In September  

                                                                                                                                                                                      



2014  Anthony's  girlfriend  took  over  the  loan  payments  for  the  property,  and  in  

                                                                                                                                                                                                          



November Anthony quitclaimed the property to her for $100.  

                                                                                                                                                      



                1               The superior court observed that there was conflicting evidence in the                                                                                                  



record about whether Anthony really had cancer but did not make a finding one way or                                                                                                                       

the other.               



                                                                                                     -2-                                                                                            7224
  


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          B.        Proceedings  



                                                                                                                               

                    Once the divorce proceedings were commenced in December 2014, the  



                                                                                                                        

parties exchanged financial declarations.  In March 2015 Anthony moved to compel  



                                                                                                                          

production of additional financial information from Ronalda. The superior court denied  



                                                                                                                         

Anthony's motion, finding that Ronalda had complied with the requirements of Alaska  



                                                                                                                       

Civil  Rule  26.1  but  noting  that  Anthony  was  free  to  make  requests  for  specific  



                                                                                                            

information  under  the  discovery  rules.                      Anthony  followed  up  with  interrogatories,  



                                                                                                                         

requests for production, and requests for admission, then filed asecond motionto compel  



                                                                                                                         

in September 2015 seeking updated financial information. The court granted this motion  



             

in part.  



                                                                                                                         

                    Trial was held over three days in late 2015 and early 2016.  The parties  



                                                                                                                         

primarily contested the characterization and value of the Campo property, a Native  



                                                                                                                      

allotment in Trapper Creek, some vehicles and firearms, bank and retirement accounts,  



                                                                                                                                     

and debt.   Both Anthony and Ronalda testified about the Campo property's value.  



                                                                                                                     

Anthony used the tax assessment to argue that it was worth $95,600; Ronalda countered  



                                                                   

that in her opinion it was worth $208,000.  



                                                                                                                         

                    The superior court made preliminary findings orally and invited written  



                                                                                                                              

closing arguments from the parties.  It then issued extensive written findings of fact and  



                                                                                                                

conclusions of law along with a two-page property spreadsheet. The court characterized  



                                                                                                                         

the Campo property, three out of five vehicles, two firearms, and most of the debt as  



                                                                                                                           

marital.       It found that the Native allotment,  two vehicles,  four  firearms,  and some  



                                                                                                                       

personal loans were the separate property of one spouse or the other. The court accepted  



                                                                                                                               

Ronalda's $208,000 valuation of the Campo property and voided her quitclaim of the  



                                                                                                                         

property to Anthony.  It then awarded 58% of the marital estate to Anthony, to include  



                                                                                                                                 

the Campo property, and it ordered him to make a $53,375.89 equalization payment to  



                                                     

Ronalda secured by that property.  



                                                               -3-                                                         7224
  


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                                           Ronalda moved for an award of over $45,000 in attorney's fees and costs,                                                                                                                                              



including enhanced fees for Anthony's allegedly vexatious and bad faith conduct.                                                                                                                                                                                    The  



court granted the motion in part. It observed that under ordinary circumstances it would                                                                                                                                                                    



not award Ronalda any fees because she was "in a stronger financial position" than                                                                                                                                                                                  



Anthony.   But it found that many of Anthony's "actions throughout the case [had] been                                                                                                                                                                              



conducted in bad faith, [had] been vexatious, and were largely for the purposes of delay                                                                                                                                                                         



and harassment," and for                                                              that reason it awarded Ronalda the "very modest fee" of                                                                                                                              



 $5,000; it noted                                      that the award                                      was  "relatively   small because of [Anthony's] poor                                                                                                   



 financial position."                                          



                                          Anthony appeals.   



III.                  STANDARDS OF REVIEW                                            



                                           "The                  equitable                           division                        of           marital                      assets                   involves                          three                 steps:   



 (1) determining what property is available for distribution, (2) finding the value of the                                                                                                                                                                               

                                                                                                                                                             2  We review the valuation of property  

property, and (3) dividing the property equitably."                                                                                                                                                                                                     

 for clear error because it is a factual determination.3 

                                                                                                                                                                       Clear error exists "only when we  



                                                                                                                                                                                                                                                                        

are left with a definite and firm conviction based on the entire record that a mistake has  



                                        4  

                 

been made." 



                     2                    Limeres v. Limeres                                          , 320 P.3d                     291, 296(Alaska2014)                                                      (citing  Beals v. Beals                                           ,  



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



                     3                    Id. (citing Beals, 303 P.3d at 459).  

                                                                                                                                       



                     4                     Urban v. Urban, 314 P.3d 513, 515 (Alaska 2013) (quoting Barnett v.  

                                                                                                                                                                                                                                                                            

Barnett, 238 P.3d 594, 597 (Alaska 2010)).  

                                                                                                                   



                                                                                                                                     -4-                                                                                                                           7224
  


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

                     "We review discovery rulings and awards of attorney's fees for abuse of                                          



                  5  

discretion."                                                                                                            

                      "A decision constitutes abuse of discretion if it is 'arbitrary, capricious,  



                                                                                                          6  

                                                                                                         

manifestly unreasonable, or . . . stems from an improper motive.' " 



IV.	       DISCUSSION  



                                                                                                                         

           A.	       The Superior Court Did Not Abuse Its Discretion In Its Discovery  

                     Rulings.  



                                                                                                                                       

                     Anthony first argues that the superior court erred by allowing Ronalda to  



                                                                                                                                    

circumvent the mandatory disclosures requirement of Alaska Civil Rule 26.1, which lays  



                                                                                                                                      

out in some detail the financial and asset information that each party "in a divorce or  



                                                                                                                          

legal separation case" is required to provide the other "without awaiting a discovery  

              7   Anthony argues that his first motion to compel should have been granted  

request."                                                                                                                    



because Ronalda had not yet provided all the required information.  He also argues that  

                                                                                                                                    



Ronalda never produced her 2014 tax return, which, he claims, meant that her "true  

                                                                                                                                 



financial position" was "hidden . . . from the [c]ourt," thereby "bias[ing]" the court's  

                                                                                                                              



decision on the equitable division of the marital estate.  

                                                                                        



                     Under  our  civil  rules,  "a  party  who  fails  to  make  required  pretrial  

                                                                                                                             



disclosures  'without  substantial  justification'  may  not  be  permitted  to  use  that  

                                                                                                                                  

information as evidence at trial, 'unless such failure is harmless.' "8                                         To prove error,  

                                                                                                                                 



therefore,  Anthony  must  show  that  Ronalda  failed  to  disclose  "without  substantial  

                                                                                                                        



           5         Gunn  v.   Gunn,   367  P.3d   1146,   1150   (Alaska  2016)   (quoting  Kestner  v.  



Clark,   182  P.3d   1117,   1121-22  (Alaska  2008)).  



           6         Id.  (quoting  Roderer  v.  Dash,  233  P.3d   1101,   1107  (Alaska  2010)).  



           7         Alaska  R.  Civ.  P.  26.1(a),  (b)(1).  



           8         Urban,  314  P.3d  at  517  (quoting  Alaska  R.  Civ.  P.  37(c)(1)).  



                                                                  -5-	                                                           7224
  


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

                                                                                                         9  

justification," that the failure was not harmless,                                                         and that the court abused its discretion                        

 in declining to impose a sanction.                                        10  



                              Anthony's motion to compel contended that Ronalda's initial financial  

                                                                                                                                                                            



 declaration  had  failed  to  supply  required  bank  and  pension  account  information,  

                                                                                                                                                                   



 information about her Native corporation stock, and a list of personal goods and "[o]ther  

                                                                                                                                                                               



 [a]ssets" as required by Rule 26.1. In her opposition to the motion Ronalda claimed that  

                                                                                                                                                                                        



 she had produced all the information then reasonably available to her, that she gave  

                                                                                                                                                                                     



Anthony signed releasesfor other information, andthat shesupplementedherdisclosures  

                                                                                                                                                                        



 as she acquired more information about her Native corporation stock and bank accounts.  

                                                                                                                                                                                                  



 The superior court denied Anthony's motion, but - because he was self-represented -  

                                                                                                                                                                                           



 it appropriately advised him that he was "at liberty to propound specific records and  

                                                                                                                                                                                        



 information  requests  as  Civil  Rule  34  requests  for  production  and  Civil  Rule  33  

                                                                                                                                                                                         



 interrogatories, which may be enforced by separate motion if necessary."   Anthony  

                                                                                                                                                                           



 served interrogatories, requests for production, and requests for admission the next day.  

                                                                                                                                                                                                  



                              Anthony contends on appeal that the superior court erred in denying his  

                                                                                                                                                                                          



motion to compel because he "should not [have] had to use Civil Rule 33 and 34 to  

                                                                                                                                                                                            



 obtain documentation and discovery that is REQUIRED under Civil Rule 26.1."  But to  

                                                                                                                                                                                            



the extent that there may been deficiencies in Ronalda's initial disclosures, Anthony has  

                                                                                                                                                                                         



not shown that he was harmed by them.  The court did not limit his ability to obtain  

                                                                                                                                                                                  



 discovery; rather, it invited him to make focused requests for information through the  

                                                                                                                                                                                         



               9              Alaska R. Civ. P. 37(c)(1) ("A party that without substantial justification     



 fails to disclose information required by Rule[] . . . 26.1(b) shall not, unless such failure                                                                                    

 is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any                                                                                                

witness or information not so disclosed.").                        



               10             Id. ("In addition to or in lieu of this sanction, the court, on motion and after  

                                                                                                                                                                                       

 affording an opportunity to be heard, may impose other appropriate sanctions.").  

                                                                                                                                                        



                                                                                             -6-                                                                                     7224
  


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

other channels available to him.                             Discovery rules are to be liberally construed, and "the                                      



                                                                                                                        11  

superior court has discretion whether or not to order discovery."                                                            



                         Anthony  appears  to  have  obtained  most  of  the  additional  financial  

                                                                                                                                                



information  he  sought  through  this  supplemental  discovery,  including  Ronalda's  

                                                                                                                                              



employment records, account information, and 1099 tax forms from 2014. But he points  

                                                                                                                                                       



out on appeal that he never received Ronalda's 2014 tax return.  Ronalda's attorney  

                                                                                                                                                  



represented at trial that the return had not yet been filed, and the court did not rule on  

                                                                                                                                                             



Anthony's outstanding motion to compel its filing before the trial ended.  

                                                                                                                                          



                         Anthony argues that Ronalda's failure to provide the return was an effort  

                                                                                                                                                        



to "knowingly mislead the [c]ourt and withh[o]ld important financial information that  

                                                                                                                                                           

is relevant to this case."12                     But the record suggests there were other means of obtaining  

                                                                                                                                                



the same information.  Anthony argues, for example, that the tax return would have  

                                                                                                                                                         



demonstrated that Ronalda voluntarily left a job that was paying her over $100,000  

                                                                                                                                                

                 13 but Ronalda does not contest that income history; she admitted at trial that she  

annually,                                                                                                                                                   



once had an annual salary of $105,000 and in her trial brief that at one time it was  

                                                                                                                                                          



$120,000.  And even without Ronalda's 2014 tax return the superior court appears to  

                                                                                                                                                              



have acquired an accurate picture of the parties' income history and income potential,  

                                                                                                                                                



as  well  as  an  accurate  picture  of  their  overall  financial  position.                                                     These  and  other  

                                                                                                                                               



equitable considerations led the superior court to award Anthony the greater share of the  

                                                                                                                                                             



marital estate - 58%.  Anthony has not shown that the court's understanding of the  

                                                                                                                                                            



             11          Douglas v. Glacier State Tel. Co.                             , 615 P.2d 580, 593 (Alaska 1980).                    



             12  

                                                                                                                                                             

                         Because Anthony is representing himself on this appeal, we construe his  

                                                                                                                                                         

arguments liberally despite the underdeveloped briefing. See Erkins v. Alaska Tr., LLC,  

355 P.3d 516, 518 (Alaska 2015).                    



             13          Ronalda testified that she left the job after being given a choice to either  

                                                                                                                                                       

resign or be terminated because of Anthony's continual harassment of her at work.  

                                                                                                                                                             



                                                                              -7-                                                                       7224
  


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

parties' financial positions was incorrect or that he was prejudiced in any other way by                                                                                                                                                                                                                                                                                                                                                                                 



Ronalda's failure to produce her 2014 tax return.                                                                                                                                                                                                                             



                                                                         Again, given the information available to the parties and the court, we see                                                                                                                                                                                                                                                                                                                 



no abuse of discretion in the court's discovery rulings.                                                                                                                                                                                                                                                   And even if there were gaps in                                                                                                                                   



Ronalda's disclosures that the court could have required her to fill through appropriate                                                                                                                                                                                                                                                                                                                                



 discovery orders, Anthony has not demonstrated that the omissions harmed his case,                                                                                                                                                                                                                                                                                                                                                                        



requiring reversal.   



                                     B.	                                 The Superior Court Did Not Clearly Err Or Abuse Its Discretion In Its                                                                                                                                                                                                                                                                                                                          

                                                                         Valuation Of The Campo Property                                                                                                                                                                              .  



                                                                         Anthony next contends that the superior court erred in setting a value of                                                                                                                                                                                                                                                                                                                         



 $208,000 on the marital property in Campo, California.                                                                                                                                                                                                                                                        Neither party had the property                                                                                           



 appraised before trial; Anthony argues that "the only evidence entered showing the                                                                                                                                                                                                                                                                                                                                                                                 



 current value of the home" was a 2014 tax assessment of approximately $95,600.                                                                                                                                                                                                                                                                                                                                                                               



                                                                         But the court did have other evidence of value, including the testimony of                                                                                                                                                                                                                                                                                                                        



both parties.                                                           Anthony testified that in his opinion the property was worth between                                                                                                                                                                                                                                                                                           



 $100,000 and $130,000 - more than the tax-assessed value. And Ronalda testified that                                                                                                                                                                                                                                                                                                                                                                              



in her opinion, based in part "on information from a local realtor" and in part on her own                                                                                                                                                                                                                                                                                                                                                                      



 online research, the property was worth between $205,000 and $208,000.                                                                                                                                                                                                                                                                                   



                                                                         Anthony argues that Ronalda's testimony was either inadmissible or not                                                                                                                                                                                                                                                                                                                     



 credible because it was based on hearsay. But "[i]n Alaska, lay testimony offered by the                                                                                                                                                                                                                                                                                                                                                                              



landowner   as   to   property   value   is   admissible   because   of   the   owner's  presumed  

                                                                                                                                                                                                                                                                   14                Because the owner's knowledge is  

knowledge about the value of such property."                                                                                                                                                                                                                                                                                                                                                                                                                                



                                     14                                  Schymanski v. Coventz                                                                                                      , 674 P.2d 281, 286 (Alaska 1983) (citing                                                                                                                                                                                   Wernberg  



v.  Matanuska Elec. Ass'n                                                                                                                    , 494 P.2d 790, 795 (Alaska 1972);                                                                                                                                                                     Gregory v. Padilla                                                                                      , 379   

P.2d 951, 953 (Alaska 1963)).                                                                                               



                                                                                                                                                                                                                                     -8-	                                                                                                                                                                                                                    7224
  


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

                                                                                                                                                                                                           15  

"presumed,"   admissibility   need   not   rest   on   a   foundation   in   research   or   expertise.                                                                                                          



                                                                                                                                                                                                          

Furthermore, the foundational requirements of Alaska Evidence Rule 701 applicable to  



                                                                                                                                                                                      

lay witness opinion generally - that the opinion be "rationally based on the perception  



                                                                                                                                                                                                        

of the witness and . . . helpful to a clear understanding of the witness's testimony or the  

                                                                                                                                      16   The fact-finder must still, of  

                                                                                                                                                                                                          

determination of a fact in issue" - are deemed satisfied. 



course, consider "the adequacy of the foundation" for the owner's opinion in assessing  

                                                                                                                                                                                         

"the evidentiary weight to be accorded to such opinion";17  thus, although an "owner's  

                                                                                                                                                                                         

opinion of the value of his property is competent," it "may not be very persuasive."18  

                                                                                                                                                                                                                 



                15              Briggs v. Cityof                      Palmer, 333P.3d746,747,748-49 (Alaska2014) (holding                                                                  



it was reversible error to rule that, in a condemnation case, a landowner "could not testify                                                                                                    

about damages based on the value of his property before and after [an] alleged taking"                                                                                                       

because of his lack of "expertise in property valuation");                                                                                  Osborne v. Hurst                          , 947 P.2d     

 1356, 1357, 1361 (Alaska 1997) (applying "presumed knowledge" rule to affirm the                                                                                                                      

admission of value testimony by out-of-state owners of Homer cabin over defendant's                                                                                                

objection "that, beyond the actual purchase of the land, they had no 'basis upon which                                                                                                          

either of them could offer an opinion regarding its value' ").                                                                            



                16              See  Keenan  v.  Wade,  182  P.3d  1099,  1106  (Alaska  2008)  (rejecting  

                                                                                                                                                                                       

argument that landowner's opinions of value were inadmissible as failing to meet the lay  

                                                                                                                                                                                                        

witness requirements of Evidence Rule 701 "because we have held that a property  

                                                                                                                                                                                          

owner's testimony regarding the value of his own land is admissible"); see also In re  

                                                                                                                                                                                                          

Biddlescombe Int'l, L.L.C., 392 B.R. 909, 919 (Bankr. M.D. Fla. 2008) (explaining that  

                                                                                                                                                                                                      

FederalEvidenceRule701 "hasbeen interpreted to allowtraditional forms of lay witness  

                                                                                                                                                                                             

testimony, including the traditional practice of allowing an owner of property to testify  

                                                                                                                                                                                                

as to its value").  

                                          



                17              Ethelbah   v.   Walker,   225   P.3d   1082,   1092   (Alaska   2009)   (citing  

                                                                                                                                                                                             

Schymanski, 674 P.2d at 286).  

                                                             



                18              Gregory, 379 P.2d at 953, cited with approval in Keenan, 182 P.3d at 1106  

                                                                                                                                                                                                   

n.16.  



                                                                                                    -9-                                                                                            7224
  


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

But the adequacy of the foundation and the evidentiary weight to be given the opinion                                                                                        

"are matters which fall squarely within the trial court's discretion."                                                                             19  



                              There was therefore no abuse of discretion in admitting the parties' lay  

                                                                                                                                                                                       



testimony  as  to  property  value.                                          As  for  the  court's  decision  to  rely  on  Ronalda's  

                                                                                                                                                                       



testimony, we "grant especially great deference when the . . . findings require weighing  

                                                                                                                                                                          

the credibility of witnesses and conflicting oral testimony."20  

                                                                                                                                        



                              The court noted that Anthony's estimate was based on the tax-assessed  

                                                                                                                                                                   



value, but it concluded that "Anthony's valuation is too low to be accepted as reliable"  

                                                                                                                                                                           



because  of  other  evidence  in  the  record.                                                   Ronalda's  testimony  is  based  in  part  on  

                                                                                                                                                                                        



inquiries she had made into the area real estate market, both through online research on  

                                                                                                                                                                                         



Zillow, a real estate website, and by contacting a local realtor.  Both of these sources  

                                                                                                                                                                              

                                                                                                                                                        21    The court also  

took into account comparable property sales and listings in the area.                                                                                                                

                                                                                                                                             



noted that Ronalda's valuation "is supported by the transaction history of the property,  

                                                                                                                                                                          



which indicates that it sold for $192,500 in 2002 and sold for $392,000 in 2005."  And  

                                                                                                                                                                                     



               19            Schymanski, 674 P.2d at 286 (citing                                                  Greenwood Ranches, Inc.                                      v. Skie   



 Constr. Co., Inc.                   , 629 F.2d 518, 522-23 (8th Cir. 1980));                                               see also Cartee v. Cartee                              , 239   

P.3d 707, 719 (Alaska 2010) ("[T]he evidentiary weight to be given to an owner's                                                                                            

opinion testimony as to the value of his property falls squarely within the trial court's                                                                                      

discretion." (citing                      Schymanski, 674 P.2d at 286)).                          



               20            Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 178 (Alaska 2009), cited  

                                                                                                                                                                                    

with approval in Stanhope v. Stanhope, 306 P.3d 1282, 1287 n.15 (Alaska 2013); see  

                                                                                                                                                                                       

Limeres v. Limeres, 320 P.3d 291, 301 (Alaska 2014) ("[G]iven that the court had only  

                                                                                                                                                                                     

the parties' competing opinions on which to decide the property's value, we cannot see  

                                                                                                                                                                                       

that it clearly erred by accepting Amy's.").  

                                                                         



               21            See Keenan, 182 P.3d at 1104, 1106 (affirming superior court's reliance on  

                                                                                                                                                                                         

lay owner's opinion of value that the superior court found "seems well[-]based on recent  

                                                                                                                                                                                 

like property transactions" even though owner "is not an appraiser and has contempt for  

                                                                                                                                                                                        

them").  

                   



                                                                                           -10-                                                                                    7224
  


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

Ronalda's higher value reflected facts about the property that the superior court found  



relevant, including that the house "is on a large parcel, [is] in relatively good condition,  

                                                                                                                      



and has its own well."  On this evidence, the court accepted "Ronalda's valuation as the  

                                                                                                                                 



most credible."  

                          



                     The record does not leave us "with a definite and firm conviction that a  

                                                                                                                                    

mistake has been made"22 in the court's valuation of the Campo property at $208,000.  

                                                                                                                                       



The superior court weighed the testimony, considered its foundation, and arrived at a  

                                                                                                                                    



number that is supported by the evidence.  Because the superior court did not abuse its  

                                                                                                                                  



discretion in admitting owner testimony of value or clearly err in determining that value,  

                                                                                                                             



we affirm its decision on this issue.  

                                               



          C.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Making An  

                                                                                                                                 

                     Enhanced Attorney's Fees Award.  

                                                                  



                     Anthony's final argument on appeal is that the superior court abused its  

                                                                                                                                  



discretion in awarding Ronalda $5,000 in enhanced attorney's fees based on a finding  



of vexatious and bad faith conduct.  Generally, a superior court may award costs and  

                                                                                                                                



attorney's fees in a divorce action "based on the relative economic situations and earning  

                                                                                                                          

powers of the parties" to ensure a "fairly equal plane" for litigation.23                                   Anthony argues  

                                                                                                                            



that the superior court ignored this principle when it awarded fees to Ronalda despite her  

                                                                                                                                 

superior economic position.24   But the court clearly explained that its fee award was not  

                                                                                                                                 



          22        Limeres, 320 P.3d at 296 (quoting                     Millette v. Millette, 177 P.3d 258, 261               



(Alaska 2008)).   



          23        Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991) (first citing  

                                                                                                                             

Burrell v. Burrell, 537 P.2d 1 (Alaska 1985); then quoting Lone Wolf v. Lone Wolf, 741  

                                                                                                                                

P.2d 1187, 1192 (Alaska 1987)).  

                                        



          24         Anthony also argues that attorney's fees should not have been awarded to  

                                                                                                                                   

Ronalda because she was represented pro bono.  But pro bono representation does not  

                                                                                                                         

                                                                                                                (continued...)  



                                                               -11-	                                                         7224
  


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

intended to even the playing field; rather, it relied on an exception to the general rule that                                                    



permits an increase in "an award of attorney's fees where a party has acted in bad faith                                                        

                                                           25   If a "court chooses to enhance a fee award, it must  

or engaged in vexatious conduct."                                                                                                              



first identify the fees that would be awarded in the absence of bad faith, and then identify  

                                                                                                                                           

the nature and amount of the increase assessed due to the bad faith behavior."26 An award  

                                                                                                                                              



of enhanced fees does not require that some amount of fees would have been awarded  

                                                                                                          

in the absence of bad faith.27  

                                       



                       The superior court followed the required two-step process in this case.  It  

                                                                                                                                                      



first noted that "[i]n the absence of vexatious conduct, [it] would not award attorney's  

                                                               



fees in this case because [Ronalda] is in a stronger financial position than [Anthony]."  

                                                                                                                                                          



But it then found "that many of [Anthony]'s actions throughout the case had been  

                                                                                                                                               



conducted in bad faith, have been vexatious, and were largely for the purposes of delay  

                                                                                                                                               



and harassment."  The order specifically incorporated the court's earlier findings about  

                                                                                                                                              



Anthony's conduct in the litigation, including his efforts to "hide marital assets" like the  

                                                                                                                                                   



Campo house and his "attempt to damage Ronalda's reputation at work." The court also  

                                                                                                                                                  



relied on "reasons stated in [Ronalda]'s motion," which included the fact that Anthony  

                                                                                                                                         



"used undue influence to obtain" title to the Campo house from Ronalda; "fraudulently  

                                                                                                                                 



            24(...continued)  



                                                                                                                                                    

preclude recovery of fees.  Cizek v. Concerned Citizens of Eagle River Valley, Inc., 71  

                                                                                                                                        

P.3d 845, 849 (Alaska 2003); Gregory v. Sauser, 574 P.2d 445, 445 (Alaska 1978).  



            25         Kowalski, 806 P.2dat 1373(citing Hartland v.Hartland, 777 P.2d 636,644  

                                                                                                                                                  

(Alaska 1989);  Horton v. Hansen, 722 P.2d 211, 218 (Alaska 1986)).  

                                                                                                               



            26          Urban v. Urban, 314 P.3d 513, 516 (Alaska 2013) (citing Kowalski, 806  

                                                                                                                               

P.2d at 1373).  

              



            27         See Mellard v. Mellard, 168 P.3d 483, 488 (Alaska 2007) (affirming award  

                                                                                                                                              

of fees for bad faith and vexatious conduct where no award would have been made  

                                                                                                                                              

otherwise); Rodvik v. Rodvik, 151 P.3d 338, 351-52 (Alaska 2006) (same).  

                                                                                                                       



                                                                        -12-                                                                   7224
  


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

transferred"   title   to   the   Campo   house   to   his   girlfriend;   harassed   Ronalda   at   her  



workplace; failed to comply with discovery orders; "interfered with the delivery of                                                                                                                                           



subpoenas"; and delayed trial by filing numerous motions, "a meritless [interlocutory]                                                                              



appeal," and an impliedly meritless grievance against Ronalda's lawyer.                                                                                                                       Anthony does   



not challenge these underlying findings on appeal.                                                                                     Taken together they amply support                                        



the superior court's award of enhanced attorney's fees.                                                                                            



                                   We do note that "one party's misconduct does not authorize the court to                                                                                                                     

                                                                                                                                                                                                          28     But the  

disregard the relative economic situations and earning powers of the parties."                                                                                                                                              



superior court remained sensitive to Anthony's "poor financial position" in setting the  

                                                                                                                                                                                                                            



enhanced fee award  and cited that circumstance to explain why it was awarding "what  

                                                                                                                                                                                                                     



it believe[d] [was] a very modest fee" of approximately 11% of what Ronalda had  

                                                                                                                                                                                                                          

requested.  This was not an abuse of discretion.29  

                                                                                                  



                                   Finally, we reject Anthony's contention that he was entitled to a hearing on  

                                                                                                                                                                                                                              



attorney's  fees.                              The court was allowed to  decide the issue on  the parties'  written  

                                                                                                                                                                                                                



                  28               Kowalski, 806 P.2d at 1373.                                 



                  29               Anthony reiterates on appeal his argument before the superior court that  

                                                                                                                                                                                                                          

$30,000  of  the  requested  $45,000  in  fees  was  at  best  questionable  and  at  worst  

                                                                                                                                                                                                                    

fraudulent.  But the superior court's fees award - $5,000 - is significantly less than  

                                                                                                                                                                    

the $15,000 in fees that Anthony does not specifically dispute.  We therefore do not  

                                                                                                                                                                                                                           

consider further his arguments about the other $30,000.  

                                                                                                                            



                                                                                                             -13-                                                                                                      7224
  


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

                                                                                                                                                                                                                                      30  

 submissions even if Anthony had asked for a hearing, which he did not do.                                                                                                                                                                   The court   



                                                                                                                                                                                                  31  

 did not plainly err when it failed to order a hearing sua sponte.                                                                                                                                       



 V.                   CONCLUSION  



                                                                                                                                                                               

                                          We AFFIRM the judgment of the superior court.  



                     30                  Alaskan Crude Corp. v. State, Alaska Oil & Gas Conservation Comm'n                                                                                                                                                                ,  



 309 P.3d 1249, 1258 n.34 (Alaska 2013) (noting that "ordinarily there is no right to a                                                                                                                                                                                  

 hearing on the issue of attorney's fees"); Alaska R. Civ. P. 77(e)(2) (listing motions on                                                                                                                                                                           

 which oral argument is a matter of right:                                                                                         "motions to dismiss; motions for summary                                                                    

judgment; motions for judgment on the pleadings; other dispositive motions; motions for                                                                                                                                                                             

 delivery and motions for attachment").                                                                                    



                     31                   See Moore v. Olson, 351 P.3d 1066, 1077-78 (Alaska 2015) ("[W]hen a  

                                                                                                                                                                                                                                                                         

 party fails to request an evidentiary hearing we will review a court's failure to sua sponte  

                                                                                                                                                                                                                                                         

 conduct an evidentiary hearing only for plain error." (citing In re Estate of Fields, 219  

                                                                                                                                                                                                                                                                 

 P.3d 995, 1011 (Alaska 2009); Owen M. v. State, Office of Children's Servs., 120 P.3d  

                                                                                                                                                                                                                                                              

 201, 2013 (Alaska 2005))).  

                                                            



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