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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gross v. Wilson (7/27/2018) sp-7262
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
ROBERT C.O. GROSS )
) Supreme Court No. S-16302
Appellant, )
) Superior Court No. 1JU-12-00783 CI
v. )
) O P I N I O N
DAWN ALEXIA WILSON, )
) No. 7262 - July 27, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Louis J. Menendez, Judge.
Appearances: Joseph W. Geldhof, Law Office of Joseph W.
Geldhof, Juneau, for Appellant. Dawn Alexia Wilson, pro se,
Juneau, Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
I. INTRODUCTION
Robert Gross and Dawn Wilson married in August 1992, and Gross filed
for divorce in August 2012. The parties resolved the issues raised in the divorce action
in a written settlement agreement incorporated into a divorce decree in March 2014. The
final agreement provided that Wilson was to receive an amount equal to 50% of the
military retirement and Veterans Administration (VA) disability pay that Gross received
for his service in the United States Coast Guard (USCG). A little over a year later Gross
----------------------- Page 2-----------------------
reduced his monthly payment to Wilson by an amount equal to 50% of his disability
payments, and Wilson filed a motion for enforcement of the terms of the settlement
agreement. Gross opposed the motion, arguing that the Uniformed Services Former
1 exempts VA payments from allocation during
Spouses' Protection Act (USFSPA)
divorce as marital property; he also argued that he had misunderstood the agreement.
The superior court ordered Gross to resume payments pursuant to the agreement and to
pay arrearages. Gross appeals. We affirm the superior court's order because Gross had
no procedural basis for bringing a collateral attack on his divorce decree.
II. FACTS AND PROCEEDINGS
A. Facts
Gross enlisted in the USCG in February 1987. Gross and Wilson married
in August 1992, and they have four children. Gross filed for divorce in August 2012.
In a November 2013 hearing before a magistrate, after a full day of mediation with
retired Superior Court Judge Patricia A. Collins, the parties and their attorneys reached
an agreement; both attorneys and Judge Collins described on record how the parties
planned to address Gross's military retirement benefits. Both attorneys explained that
Gross's retirement payments, including disability payments, would be divided 50/50
between the parties. Judge Collins also articulated the parties' understanding and
agreement:
[T]he final language of the agreement that the parties
anticipate submitting to the court will provide that, in the
future, should Mr. Gross elect to take any action that might
reduce what would otherwise be retirement benefits for
which Ms. Wilson would have a claim, he will be responsible
for reimbursing her. As Your Honor may know, disability
payments are viewed as separate, not marital property, by the
1 10 U.S.C. § 1408 (2012).
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----------------------- Page 3-----------------------
federal government; but [the] divorce court, in its equitable
jurisdiction, can ensure that there's fairness. The parties
today tried to reach a fair result, such that they have, in
essence, agreed to divide the retirement, which includes
disability, which is received in lieu of what would have
otherwise been retirement, on a 50-50 basis.
At a second hearing, held in December 2013, Gross indicated through his
attorney that he was prepared to go forward as long as the property settlement agreement
reached with Judge Collins's assistance in November was not reopened. When Gross
was given an opportunity to comment, he responded, "I'm good."
The court issued a Judgment and Decree of Divorce in March 2014. The
divorce decree incorporated the parties' Child Custody, Child Support and Property
Settlement Agreement signed on the same day. When the settlement agreement was
placed on the record, both Gross and Wilson testified that they were familiar with the
terms of the agreement and were satisfied with it. Paragraph 11 of the settlement
agreement required Gross to pay Wilson $888.22 per month based on his USCG
retirement program:
[Wilson] shall receive 50% of the total USCG military
retirement monthly pay (sometimes referred to as the
aggregate of the retirement and disability pay) that [Gross]
receives from the USCG after the SBP premium for the
survivor benefit covering [Wilson] has been paid . . . . The
parties understand that the USCG will directly pay [Wilson]
50% of what it defines as the "disposable retirement pay
(DRP)." However, this DRP figure does not include the VA
compensation/disabilitymoniesreceivedby [Gross]. [Gross]
therefore agrees to pay to [Wilson] on the first day of each
and every month throughout his lifetime an amount, over and
above the 50% portion of the DRP paid to her by the USCG,
sufficient to accomplish [Wilson's] receipt of fifty percent
(50%) of the total USCG monthly military retirement pay
(including the VA Comp. and/ or disability portions) reduced
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----------------------- Page 4-----------------------
only by payment of the SBP premium. . . . If [Gross] or the
USCG does anything that results in a reduction of [Wilson's]
above-described share of the military retirement, [Gross] will
reimburse [Wilson] for the reduction. [2]
B. Proceedings
In May 2015 Wilson, now proceeding pro se, filed a motion for
enforcement of the terms of the March 2014 settlement agreement. She stated that Gross
had made appropriate retirement payments pursuant to the parties' settlement agreement
until May 2015, but that he then unilaterally reduced the amount of monthly retirement
benefits by $170, citing statutes pertaining to the division of disability pay. Gross
opposed the motion and filed a cross-motion for an order denying enforcement of the
"claim" for disability, stating that it would be a violation of the USFSPA because that
statute "exempts [VA] payments from allocation during divorce as marital property."
Gross also attached an affidavit declaring that he did not know how paragraph 11 was
included in the settlement agreement and that he had not understood the settlement
agreement to divide disability payments.
The court referred the cross-motions to a superior court special master.
Neither party requested an evidentiary hearing, and after oral argument themaster issued
his report and recommendation to the superior court. The master recommended that
Wilson's motion be granted and Gross's denied. Gross filed objections to the report, and
the superior court issued an order granting Wilson's motion to enforce.
2 The settlement agreement also included a grid outlining the division of
marital property. In the "Retirements" column, the grid listed "Robert's total USCG
military retirement pay minus SBP premium for former spouse (as an example, currently
$1,900.00/month minus $123.57 equals $1,776.43). See para. 11." In the corresponding
column for Dawn, the grid states "50% of the total retired pay reduced only by payment
of the SBP premium (currently $888.22 per month)."
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----------------------- Page 5-----------------------
First, the superior court found that "[n]owhere in [Wilson's] motion or in
the record of the case is it stated [Gross] was required to make payments from his
disability retirement pay to[Wilson]." Thecourtexplainedthat what it "understood from
what is contained in the record of the hearings . . . is that the parties negotiated a
settlement agreement that did not include [Gross's] disability retirement pay as a direct
source for [Gross's] monthly payments to [Wilson]." The court also found there was no
order directing that the USCG pay Wilson from Gross's disability pay, nor was there any
statement that Wilson was to receive any portion of Gross's disability pay. The court
reasoned that Gross's aggregate disability and retirement pay was but a means through
which the parties arrived at a fair payment amount as part of what they agreed was a fair
and equitable allocation of assets and debt.
Second, the superior court found that the United States Supreme Court's
3 regarding the USFSPA and our decision in Clauson v.
decision in Mansell v. Mansell
4 did not preclude enforcement of the retirement provision in the parties'
Clauson
settlement agreement. While acknowledging that those cases hold that state courts do
not have any power to "equitably divide veterans' disability benefits received in place
of waived retirement pay,"5 the court reasoned that the master's recommendation simply
enforced a contractual obligation requiring Gross to pay Wilson a specific amount from
any of his resources. Moreover, the court concluded that, even if the payments
originated from Gross's disability pay, nothing in the USFSPA or Mansell prevents a
veteran from voluntarily contracting to pay a former spouse a sum of money that may
originate from disability payments.
3 490 U.S. 581 (1989).
4 831 P.2d 1257 (Alaska 1992).
5 See id. at 1262.
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----------------------- Page 6-----------------------
Third, the court found Gross's assertions that he was taken by surprise
when he learned the contents of paragraph 11 "both hard to accept and inconsistent with
thesettlement agreement,"on-record affirmations bytheparties, clear statements byboth
counsel and Judge Collins at the November 2013 hearing, and Gross's attorney's
reaffirmation of the settlement agreement at the December 2013 hearing. Thus, the court
concluded that Gross was well aware of the contents of paragraph 11, including its
indemnification provision requiring him to reimburse Wilson if he took any action that
would reduce payments to Wilson.
Finally, the court noted that Gross had offered no basis under Alaska Civil
Rule 60(b) for bringing a collateral attack seeking to set aside the property settlement
more than a year after it was filed and after both parties testified affirming the agreement.
The superior court ordered Gross to resume monthly payments to Wilson pursuant to the
agreement, and it ordered the parties to submit further briefing on the amount of
arrearages owed to Wilson. Gross appeals.
III. STANDARD OF REVIEW
We review a trial court's response to a motion to enforce a divorce decree,
as well as most decisions on a request for relief from final judgments, under the abuse
6 "We will find an abuse of discretion only if the trial court's
of discretion standard.
decision was 'manifestly unreasonable.' "7 However, we review de novowhether a party
is entitled to relief fromjudgment under Alaska Civil Rule 60(b)(4) "because the validity
8 "[T]he intent of the parties when entering
of a judgment is strictly a question of law."
6 Johnson v. Johnson , 394 P.3d 598, 600 (Alaska 2017)
7 Id. at 601 (quoting In re Jacob S., 384 P.3d 758, 763 (Alaska 2016)).
8
Blaufuss v. Ball, 305 P.3d 281, 285 (Alaska 2013) (quoting Leisnoi, Inc.
(continued...)
-6- 7262
----------------------- Page 7-----------------------
a contract is a question of fact and is thus reviewed under the clearly erroneous
9
standard."
But "[w]e review a trial court's rulings on questions of law, and the
application of law to fact, de novo and adopt the rule of law that is most persuasive in
10
light of precedent, reason, and policy."
IV. DISCUSSION
The USFSPA governs how state courts may treat military retirement and
disability payments received by veterans.11
The statute was passed in response to the
Supreme Court's decision in McCarty v. McCarty, which held that federal statutes then
governing militaryretirementpaypreventedstatecourtsfromtreatingmilitary retirement
12
pay as community property. The USFSPA grants some, but not all, power back to the
states, and it provides that a state may treat as community property, and divide at divorce,
13 But the act exempts from this grant of
a military veteran's disposable retirement pay.
authority any amount the government deducts as a result of a waiver that the veteran
must make to receive disability benefits.14 In other words, an eligible veteran can
voluntarily shift a portion of retirement pay to disability pay, and this portion is not
8 (...continued)
v. Merdes & Merdes, P.C., 307 P.3d 879, 884 (Alaska 2013)).
9 Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005) (quoting K & K
Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 712 (Alaska 2003)).
10 Id.
11 10 U.S.C. § 1408(c)(1) (2012).
12 453 U.S. 210, 232-36 (1981); see Mansell v. Mansell, 490 U.S. 581, 584
(1989) (explaining that Congress enacted USFSPA in response to McCarty).
13 Mansell, 490 U.S. at 589.
14 10 U.S.C. § 1408(a)(4)(ii).
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----------------------- Page 8-----------------------
divisible upon divorce. Because disability pay, in contrast to retirement pay, is not
15 16
taxed,
many veterans choose to do so. Gross was receiving nondivisible disability
benefits from the VA at the time of his divorce.
In Mansell v. Mansell the Supreme Court held that "the [USFSPA] does not
grant state courts the power to treat as property divisible upon divorcemilitary retirement
17 We applied Mansell
pay that has been waived to receive veterans' disability benefits."
in Clauson v. Clauson, holding that "state courts [do not] have any power . . . to
equitably divide veterans' disability benefits received in place of waived retirement
pay."18 But we subsequently held that superior courts are permitted to order
indemnification for any reduction caused by a service member in divisible retirement
payments to a former spouse, such as a reduction due to voluntary waiver of retirement
pay in exchange for disability pay.19
Gross argues that the superior court's decision ordering him to pay Wilson
a portion of his disability payments was erroneous for three reasons. First, he did not
believe he was agreeing to divide his disability payments or indemnify Wilson for a
reduction in payments caused by something other than waiving retirement benefits in
exchange for disability benefits. Second, the USFSPA precluded the court's division of
disability payments in his divorce, and the division of those payments is therefore
unenforceable. Andthird,thesuperior courtwas allowed to requireindemnification only
15 26 U.S.C. § 104(a)(4) (2012).
16 See Howell v. Howell , 137 S. Ct. 1400, 1403 (2017).
17 490 U.S. at 594-95.
18 831 P.2d 1257, 1262 (Alaska 1992).
19 See Young v. Lowery , 221 P.3d 1006, 1012-13 (Alaska 2009).
-8- 7262
----------------------- Page 9-----------------------
for a reduction in Wilson's portion of his retirement pay caused by voluntarily waiving
retirement pay in exchange for disability benefits, which he did not do.
Gross does not address the superior court's conclusion that he had no
procedural basis under Rule 60(b) for seeking to set aside the settlement agreement.
Because we find no legal or factual error or abuse of discretion in the superior court's
reasoning on this issue, we affirm the court's enforcement order.
A. The Superior Court Did Not Abuse Its Discretion By Denying Gross's
Cross-Motion To Deny Enforcement.
In a divorce proceeding where marital property has been divided, a divorce
20
decree incorporating a property division constitutes a final judgment.
"Other than a
Civil Rule 77(k) motion for reconsideration, which must be made within ten days of the
court's order, an Alaska Civil Rule 60(b) motion provides the only available means for
21
seeking relief from a final judgment of property division." In this case Gross filed a
"cross-motion for order denying enforcement of claim for disability payments," which
the superior court treated as a Rule 60(b) motion for relief. Because a Rule 60(b) motion
was the only available means for seeking relief from the property division, the superior
court was correct in doing so. Rule 60(b) permits relief only for specified reasons:
(1) mistake, inadvertence, surprise or excusable
neglect;
(2) newly discovered evidence which by due
diligence could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether heretoforedenominatedintrinsic
or extrinsic), misrepresentation, or other misconduct of an
adverse party;
20 Williams v. Williams, 252 P.3d 998, 1005 (Alaska 2011).
21 Id.
-9- 7262
----------------------- Page 10-----------------------
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or
(6) any other reason justifying relief from the
operation of the judgment.
The party seeking relief from the judgment need not specify which of these reasons
22 but the burden of establishing a basis for relief nonetheless falls on the party
applies,
seeking it.23 The request for relief from judgment must be made "within a reasonable
time," and if the request is on the basis of subsections (1), (2), or (3) it must be made not
more than one year after the date of notice of the judgment.24
Gross has made no claimof newly discovered evidence or fraud that would
support relief under Rule 60(b)(2) or (3). And because his cross-motion was filed more
than a year after the divorce decree and property division, Gross was also time-barred
from seeking relief under Rule 60(b)(1), (2), and (3). Furthermore, Gross does not
indicate any change in circumstances that would make continued enforcement
inequitable and justify relief under Rule 60(b)(5). The remaining two subsections are
discussed in more detail below.
22 See Clauson v. Clauson , 831 P.2d 1257, 1259-61 (Alaska 1992) (granting
relief to ex-wife under Rule 60(b)(6) though she had cited no statute for her motion to
modify a final divorce decree).
23 Erica G. v. Taylor Taxi, Inc., 357 P.3d 783, 789 n.19 (Alaska 2015).
24 Alaska R. Civ. P. 60(b).
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----------------------- Page 11-----------------------
1. The property division, even if erroneous, was not void.
Gross argues that the superior court's directive that he pay Wilson a portion
of his disability payment was "based on [the erroneous assumption] that Gross's military
pension and VA disability benefits could be combined and divided." He contends that
under our case law "a court may not equitably divide total retired pay; it may equitably
divide only the amount of retired pay remaining after the court deducts waived retired
25
pay and the cost of purchasing survivor benefits."
And he argues that "[d]isability
benefits should not, in either form or substance, be treated as marital property subject to
26
division upon the dissolution of marriage." Therefore, he asserts that the settlement
provision requiring him to pay a portion of his military disability payments to Wilson is
unenforceable. In essence Gross argues that the divorce decree was issued in violation
of the USFSPA. If Gross is correct, and if as a consequence of this the March 2014
judgment was void, Gross would be entitled to relief under Rule 60(b)(4).
We clarified in Clauson that "neither theUSFSPAnor prior Supreme Court
decisions require [Alaskan] courts to completely ignore the economic consequences of
27
a military retiree's decision to waive retirement pay in order to collect disability pay."
Consequently, we held it was proper to consider "the economic consequences of a
decision to waive military retirement pay in order to receive disability pay."28 But we
cautioned that, when considering these economic consequences, the superior court may
not "simply shift an amount of property equivalent to the waived retirement pay fromthe
25 Young v. Lowery , 221 P.3d 1006, 1011 (Alaska 2009) .
26 See Guerrero v. Guerrero , 362 P.3d 432, 440 (Alaska 2015) (quoting
Clauson 831 P.2d at, 1264).
27 831 P.2d at 1263.
28 Id. at 1264; see also Guerrero, 362 P.3d at 445 (reaffirming Clauson).
-11- 7262
----------------------- Page 12-----------------------
military spouse's side of the ledger to the other spouse's side. . . . Disability benefits
should not, either in form or substance, be treated as marital property subject to division
29 Unlike this case, the parties in Clauson did not
upon the dissolution of marriage."
agree to divide military disability pay; the "shifting" that we disapproved of in Clauson
arose entirely from the former spouse filing a motion to amend the decree to include the
amount of disability benefits and the trial court granting that motion.30 However, we do
not need to address whether this distinguishes this case from Clauson; even if this case
falls under our holding in Clauson and the trial court's ruling was erroneous, that does
not in itself entitle Gross to relief under Rule 60(b)(4).
As we explained in Blaufuss v. Ball, "Rule 60(b)(4) permits relief from a
void judgment if the issuing court lacked subject matter jurisdiction or violated due
31 But we also noted that the rule
process. Void judgments may be attacked at any time."
"is not a substitute for a party failing to file a timely appeal; nor does it allow relitigation
32 Simply put, "[a] judgment is not
of issues that have been resolved by the judgment."
33 Thus, even if the divorce decree was erroneous
void merely because it is erroneous."
29 Clauson, 831 P.2d at 1264; see also Dunmore v. Dunmore , ___ P.3d ___,
Op. No. 7246 at 572, 2018 WL 2173710, at *3-5 (Alaska May 11, 2018) (discussing a
similar issue regarding Social Security benefits).
30 Clauson, 831 P.2d at 1259-60.
31 305 P.3d 281, 285 (Alaska 2013) (quoting Ray v. Ray, 115 P.3d 573, 577
(Alaska 2005)).
32 Id. (quoting Cook v. Cook, 249 P.3d 1070, 1083 (Alaska 2011)).
33 Id. at 286 (alteration in original) (quoting 11 CHARLES ALAN WRIGHT ET
., FEDERAL PRACTICE AND PROCEDURE § 2862 (3d ed. 2012)); see also Leisnoi, Inc.
AL
v. Merdes & Merdes, P.C. , 307 P.3d 879, 892 (Alaska 2013) ("[T]he superior court's
entry of judgment, while erroneous, did not render the judgment void or divest the court
(continued...)
-12- 7262
----------------------- Page 13-----------------------
as a matter of federal law by including payment to Wilson for the amount of Gross's
disability benefits, the judgment might have been voidable if properly challenged, but
it would not be void absent a lack of subject matter jurisdiction or a violation of due
process. Gross has claimed neither, and we find no indication in the record of
34 Accordingly, Gross was not entitled to relief under Civil Rule 60(b)(4).
either.
33 (...continued)
of jurisdiction.").
34 In Cline v. Cline, we stated that "the USFSPA bars state courts from
exercising subject matter jurisdiction over more than fifty percent of a recipient's
military retirement benefits." 90 P.3d 147, 152 (Alaska 2004). But in Leisnoi, Inc. v.
Merdes & Merdes, P.C., we "seriously question[ed] whether Cline was correctly
decided." 307 P.3d 892. Because the parties' settlement agreement only gave Wilson
fifty percent of Gross's retirement and disability benefits, and no more, Cline does not
directly apply here. Even so, we take this opportunity to address it.
Cline's holding was based on "the same logic" as Clauson, which Cline
understood as "based on our reading of the federal law as stripping state courts of subject
matter jurisdiction over those benefits . . . specified in the USFSPA." Cline, 90 P.3d at
152. But Clauson did not address subject matter jurisdiction; rather, it discussed only
whether state courts have the "authority" to divide military benefits consistent with
substantive federal law. Clauson, 831 P.2d at 1261-62. Cline is also inconsistent with
our general understanding of subject matter jurisdiction, which we have defined as "the
legal authority of a court to hear and decide a particular type of case." Hawkins v.
Attatayuk , 322 P.3d 891, 894 (Alaska 2014) In short, a court either has subject matter
jurisdiction and can hear the case, or it does not and cannot. Cline's suggestion that a
state court can hear a divorce case but has subject matter jurisdiction over only some of
the relevant assets is an anomaly in our jurisdiction jurisprudence.
A majority of state courts that have addressed the issue treat the USFSPA
and Mansell as a rule of substantive federal law, and not a jurisdictional matter. See
BRETT TURNER, 2 E QUITABLE DISTRIBUTION OF PROPERTY § 6:6 & n.21 (3d ed. Nov.
2017 update) (citing cases from California, North Carolina, Pennsylvania, South
Carolina, and Virginia). For the reasons discussed here, we adopt this majority rule, and
(continued...)
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----------------------- Page 14-----------------------
2. Gross is not entitled to relief under Rule 60(b)(6).
Rule 60(b)(6) allows relief from a final judgment for "any other reason
justifying relief." As we have explained previously, clause (6) of Rule 60(b) "is reserved
35
for extraordinary circumstances not covered by the preceding clauses." In the divorce
context we have found four such circumstances which may justify relief: "(1) the
fundamental, underlying assumption of the dissolution agreement has been destroyed;
(2) the parties' property division was poorly thought out; (3) the property division was
reached without the benefit of counsel; and (4) the property in dispute was the parties'
36
principal asset."
Here, both parties had the assistance of counsel, and the property division
was developed over the course of a lengthy mediation process with a former judge and
three hearings at which attorneys were present. The disability benefits were also not the
parties' principal assets; they had a home, various other civilian and military retirement
benefits, and other assets.
However, Gross claims that he "failed to note or apprehend the meaning of
the settlement agreement" which required him to pay half of his disability benefits to
Wilson and to indemnify her if he took any action to reduce those payments. He asserts
that he believed he agreed to pay Wilson one half of his military pension but none of his
disability benefits and that paragraph 11 was mistakenly left in the agreement. In
34 (...continued)
disavow Cline's holding that the USFSPA and Mansell affect the subject matter
jurisdiction of state courts.
35 Johnson v. Johnson, 394 P.3d 598, 602 (Alaska 2017) (quoting O'Link v.
O'Link, 632 P.2d 225, 229 (Alaska 1981)).
36 Guerrero v. Guerrero, 362 P.3d 432, 444 (Alaska 2015) (quoting Cook,
249 P.3d at 1084).
-14- 7262
----------------------- Page 15-----------------------
addition, Gross argues that he believed he was agreeing to indemnify Wilson only if he
unilaterally allocated a portion of his disposable retirement pay to disability benefits and
37 If true, this
that this understanding was entirely consistent with case law in Alaska.
raises the questions whether Gross entered the settlement agreement based on the
assumption that his disability benefits would not be divided and whether the inclusion
of paragraph 11 destroyed this fundamental assumption.
But the superior court found that there was no confusion or
misunderstanding that Gross would pay 50% of his disability benefits - or at least an
amount equal to 50% of his disability payments - to Wilson. Our review of the record
leads us to conclude that the superior court did not clearly err in these findings.
At the first hearing regarding the settlement agreement in November 2013,
Gross's attorney discussed an "aggregate retirement payment, which includes . . .
disability." At the same hearing Wilson's attorney explained in detail that it was not just
disposable retirement pay that was to be divided, but rather total retirement pay, which
would be achieved by having Gross pay directly to Wilson whatever the USCG was
unwilling to pay pursuant to its rules. Judge Collins, who had facilitated the parties'
mediation, explained that the parties had "agreed to divide theretirement,which includes
disability, which is received in lieu of what would have otherwise been retirement, on
a 50-50 basis." In addition, Judge Collins specifically stated that if Gross took "any
action that might reducewhat would otherwiseberetirement benefits,"(emphasis added)
he would be responsible for reimbursement to Wilson.
37 See id. (holding that trial courts "may expressly order [a service member]
not to reduce his disposable retired pay and require [him] to indemnify [his former
spouse] for any amounts by which her payments are reduced below the amount set on
the date [an] amended qualified order is entered" (quoting Young v. Lowery, 221 P.3d
1006, 1012-13 (Alaska 2009))).
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----------------------- Page 16-----------------------
At the December 2013 hearing, Gross's attorney stated that Gross was
"prepared to accept the proposed decree" and that the attorney was "prepared to go
forward as long as we [the parties] understand that the property settlement, as reached
during the mediation - that we're [the parties] not reopening that." Gross was given a
chance to respond, at which point he signaled his approval: "I'm good." Finally, at the
March 2014 hearing, Gross affirmed that he had read the settlement agreement carefully,
was satisfied with it, had signed it, and had agreed to it of his own free will.
In these circumstances the superior court did not clearly err in finding that
Gross's claims of surprise were "both hard to accept and inconsistent with the settlement
agreement," with affirmations by the parties, and with clear statements by both counsel
and Judge Collins; and the court's finding that Gross was well aware of the contents of
paragraph 11 is well supported by the record. We conclude the superior court did not
clearly err in finding that Gross agreed to and understood the settlement agreement's
requirements that he pay a portion of his disability benefits to Wilson and that he
indemnify her if he caused her share of his payments from the military to be reduced for
any reason. The record also clearly shows that, at the time of the divorce proceedings,
Gross was already aware that military disability benefits are normally not divisible.
Thus, there is no indication that any fundamental assumption underlying the settlement
agreement was destroyed: Gross was aware that he was agreeing to give Wilson an
amount equal to a portion of his disability benefits and that he was giving up non-
divisible property by doing so. The broad catch-all provision of Rule 60(b)(6) "is not
for the purpose of relieving a party from free, calculated, and deliberate choices he has
38
made."
38 Id. at 444 (quoting Sandberg v. Sandberg, 322 P.3d 879, 889 (Alaska
2014)).
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----------------------- Page 17-----------------------
In short, Gross has asserted no valid basis under Rule 60(b) for bringing a
collateral attack on the property division more than a year after he voluntarily agreed to
it. In light of the evidence in the record and the superior court's factual findings, we find
no abuse of discretion in the court's decision to deny Gross's request for relief from the
property division in the divorce decree.
B. TheSuperiorCourt DidNot ImpermissiblyOrderGrossToIndemnify
Wilson.
Gross argues that the superior court erred by requiring him to "indemnify
Wilson by making him pay a portion of his VA disability payments to Wilson." He
argues that such an indemnification can be ordered only when a service member reduces
the amount of divisible retirement pay by voluntarily waiving divisible retirement pay
in exchange for nondivisible disability pay. He asserts that because he has not done so
requiring indemnification payments to Wilson based on his disability pay constitutes an
illegal division of disability benefits.
We have previously held that the superior court is permitted to order
indemnification when a veteran causes a reduction in a former spouse's share of divisible
39 Although our decisions focused on a reduction caused by
retirement pay after divorce.
a waiver of retirement pay, they authorized indemnification for a reduction caused by
any action taken by a veteran spouse. In Young v. Lowery we held that the superior court
"may . . . require [a service member] to indemnify [a former spouse] for any amounts by
which . . . payments are reduced below the amount set on the date [an] amended qualified
39 See Young v. Lowery , 221 P.3d 1006, 1012-13 (Alaska 2009); Glover v.
Ranney, 314 P.3d 535 (Alaska 2013), abrogated by Howell v. Howell , 137 S. Ct. 1400
(2017).
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40
order is entered." In explaining that indemnification would be appropriate in that
context, we stated that "[b]ecause [the former spouse] receives a proportional share of
[the service member's] disposable retired pay, any reduction in the amount of total
disposable retired pay - occasioned, for example , by an increase in [the service
member's] disability pay requiring additional waiver of retired pay - would cause a
decrease in [the former spouse's] monthly payment." 41
However, during the pendency of this appeal, the Supreme Court in Howell
v. Howell foreclosed the ability of state courts to order a veteran to indemnify a former
spouse for a reduction in retirement pay caused by a post-divorce waiver of retirement
42
pay in exchange for disability benefits, the specific example we endorsed in Young. In
Howell a veteran and his wife divorced while he was serving in the U.S. Air Force.43
Anticipating his eventual retirement, and consistent with the parties' settlement
agreement, the divorce decree awarded the wife half of the veteran's future military
44 The veteran retired a year later, and half of his retirement pay went to
retirement pay.
40 221 P.3d at 1012-13.
41
Id. at 1012 (emphasis added). We applied this principle in Glover v.
Ranney, where "[t]he indemnification clause in the superior court's order require[d]
damages if [the service member] reduce[d] [the former spouse's] share of retirement
benefits." Glover, 314 P.3d at 543. We stated that the "clause does exactly what we
envisioned in Young v. Lowery. . . . Rather than improperly dividing waived benefits,
the order . . . require[s] [the service member] to indemnify [the former spouse] for any
subsequent unilateral actions to decrease the total monthly pension payout amounts."
Id. (emphasis added).
42 Howell, 137 S. Ct. at 1404-06.
43 Id. at 1404.
44 In re Marriage of Howell, 361 P.3d 936, 937 (Ariz. 2015).
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45
his ex-wife. Thirteen years later he qualified for and elected to receive disability
benefits, which required him to waive a portion of the retirement pay he shared with his
46 The former
former spouse, thereby reducing the amount she received each month.
spouse asked the Arizona family court to enforce the original decree and restore the
value of her share of retirement pay.47 The family court did so, and the Supreme Court
of Arizona affirmed, reasoning that Mansell did not control because the veteran made his
waiver after, rather than before, the divorce and because the family court simply ordered
the veteran to "reimburse" his former spouse for the reduction of her share of military
retirement pay.48
The Supreme Court reversed, reasoning that the reimbursement award at
issue was still a "portion of military retirement pay that [the service member] waived in
49 and that a state court could not "avoid Mansell by
order to obtain disability benefits"
describing the family court order as an order requiring [the veteran] to 'reimburse' or to
50 It noted that
'indemnify' [a former spouse], rather than an order that divides property."
the temporal difference relied on by the Arizona Supreme Court "highlight[ed] only that
[the veteran's] military retirement pay at the time it came to [his former spouse] was
subject to later reduction" and that "[t]he state court did not extinguish (and most likely
45 Howell, 137 S. Ct. at 1404.
46 Id.
47 Id.
48 Id.
49 Id. at 1405-06.
50 Id. at 1406.
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51
would not have had the legal power to extinguish) that future contingency." The
Supreme Court concluded: "Regardless of their form, such reimbursement and
indemnification orders displace the federal rule and stand as an obstacle to the
accomplishment and execution of the purposes and objectives of Congress. All such
52 This holding abrogates our decisions to the extent they
orders are thus pre-empted."
authorize indemnification for reductions in a former spouse's share of retirement
payments caused by a veteran's post-divorce waiver.53
Both Young and Howell involved court orders requiring a service member
to reimburse a former spouse for actions that reduced the amount of retirement pay the
former spouse was entitled to; under Howell, such an order violates federal law. But that
is not what happened in this case. Gross did not make a post-divorce waiver that reduced
retirement pay to receivedisability pay; hesimply stopped payingWilson the amount she
was entitled to pursuant to the property division. As explained above, Gross has not
asserted any valid basis for relief from the judgment effectuating the parties' property
division. Thus, although Gross unilaterally reduced the amount of his payments to
Wilson, the amount she was entitled to never changed. And although the superior court
considered the effect of the indemnity provision in the settlement agreement, it did not
order Gross to "indemnify" Wilson. Rather, the court ordered Gross to "resume monthly
payments" to Wilson "as ordered by the court on March 11, 2014, and as agreed by the
51 Id. at 1405.
52 Id. at 1406.
53 However, we note that under Howell, "a family court, when it first
determines the value of a family's assets, remains free to take account of the contingency
that some military retirement pay might be waived, or . . . take account of reductions in
value when it calculates or recalculates the need for spousal support." Id.
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parties pursuant to [the] settlement agreement," and it ordered the parties to submit
pleadings to establish the amount of "arrearages" owed to Wilson.
Under Howell a state court may not circumvent Mansell by ordering a
servicemember to "indemnify" a former spouse for retirement benefitswaived to receive
disability pay. But Howell does not hold that a state court cannot enforce a property
division by ordering a service member who unilaterally stops making payments the
service member was legally obligated to make to resume those payments and pay
arrearages.
V. CONCLUSION
We AFFIRM the superior court's order enforcing the settlement
agreement's division of Gross's disability benefits.
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