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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Errol P. Downs v Deborah Downs (5/3/2019) sp-7360
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
ERROL P. DOWNS, )
) Supreme Court No. S-16532
Appellant, )
) Superior Court No. 1PE-13-00059 CI
v. )
) O P I N I O N
DEBORAH DOWNS, )
) No.7360 - May 3, 2019
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Petersburg, William B. Carey, Judge.
Appearances: Walter R. Arden, Anchorage, for Appellant.
RhondaF.Butterfield,Wyatt&Butterfield, LLC,Anchorage,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
A husband appeals the superior court's unequal property division in a
divorce proceeding that gave the wife the majority of the marital estate. He argues that
the superior court abused its discretion when dividing the property and that the property
division was therefore inequitable. Because the property division was neither clearly
unjust nor based on clearly erroneous factual findings, we affirm the superior court's
decision.
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II. FACTS AND PROCEEDINGS
Errol Downs and Deborah Downs were married in 1985. Errol suffered a
heart attack in approximately 1988, had heart surgery in 1989, and did not return to
work. Errol began collecting Social Security Disability Insurance in 1994. That same
year, the parties moved to Alaska following Deborah's retirement from her job with the
State of Oregon, eventually buying a house in Petersburg. She then took a job with the
State of Alaska. Deborah worked for the State until her retirement in 2009.
The parties separated after Deborah sought a domestic violence protective
order against Errol in January 2013. Deborah alleged that she feared for her safety
because Errol was behaving strangely and threatening to hurt her. Around the same time
that Deborah filed the domestic violence protective order, Errol moved out of the marital
home and into a motel room. He lived at the motel until August when he was moved to
the Petersburg Medical Center. Doctors diagnosed him with dementia, as well as
depression, malnutrition, alcoholism, and other conditions.
Errol filed for divorce in October 2013. Approximately six months later
Errol's attorney petitioned the probate court to appoint a guardian for Errol. The petition
1 The following April Errol's leg was
was granted, and a public guardian was appointed.
1 Alaska Statutes 13.26.700-.750 authorize the appointment of a public
guardian who "has the same powers and duties with respect to the public guardian's
wards and protected persons as a private guardian or conservator." AS 13.26.720(a); see
AS 13.26.316 (general powers and duties of guardian). Before appointing a public
guardian, the court must determine that "the person is unable to manage [his or her own]
property and affairs effectively for reasons such as mental illness, mental deficiency, [or]
physical illness or disability" and that "the person has property that will be wasted or
dissipated unless proper management is provided, or that funds are needed for the
support, care, and welfare of the person." AS 13.26.401(2)(A)-(B). A public guardian
is appointed when no suitable private guardian or conservator is available.
AS 13.26.710(b).
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amputated above the knee, leaving him unable to walk. As a result of his significant
healthcare needs, he moved to an assisted living facility in Anchorage.
In February 2016 Deborah filed a motion to dismiss the divorce complaint
on the basis that Errol was not competent to get a divorce. At trial the superior court
determined that Errol was competent, denied Deborah's motion to dismiss, and then
proceeded to divide the marital estate.
Errol requested approximately 50% of the marital assets. His guardian
testified regarding his financial needs and the impact that the property division could
2 The guardian testified that he
have on his eligibility for services, including Medicaid.
had an irrevocable trust that ensured his continuing eligibility for Medicaid,3 a separate
burial account,4 a Permanent Fund Dividend account, and a checking account that had
5 At the time
a balance of less than $2,000 (as required to maintain Medicaid eligibility).
of trial Errol resided in a long-term healthcare facility. The cost of the facility was
covered in large part by long-term care insurance he received as a beneficiary of
2 Medicaidis ahealth insuranceprogramfor low-income,disabled,andother
eligible individuals. See AS 47.07.010; AS 47.07.020; 7 Alaska Administrative Code
(AAC) 100.002(b) (2018). Medicaid eligibility is, in part, based on income and assets.
See 7 AAC 100.002(b); 7 AAC 40.270; 7 AAC 40.310.
3 This is a "pooled trust" authorized by 7 AAC 100.614. With the trust Errol
can retain assets, and though he cannot access the trust himself, any amount can be spent
on his behalf without disqualifying him from Medicaid. See 7 AAC 100.606. There is
no cap on the amount in the irrevocable trust account.
4 Certain exempt resources are not counted when determining Medicaid
eligibility. 7 AAC 40.280. Money designated for funeral costs is exempt. 7 AAC
40.280(a)(7).
5 See 7 AAC 40.270(a)(1).
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6
Deborah's insurance plan. The remainder of the monthly cost was covered by
Medicaid.
Errol's guardian testified that if Errol received his proposed portion of the
marital assets, they could be placed in his trust and then used to buy a home for him. She
highlighted the importance of maintaining Errol's Medicaid eligibility but did not claim
that he could not receive the benefit of his proposed share of the marital assets.
Deborah argued that all of the marital assets except 95% of her monthly
Oregon state retirement benefit should be awarded to her. She argued that her Oregon
7
state retirement benefit could pay for Errol's monthly health insurance premiums.
Deborah contended that this was equitable because all of Errol's needs were met by
Medicaid and his long-term health insurance and because Errol had not identified any
additional needs. Further, Deborah noted that at Errol's death assets in his trust would
revert to the State of Alaska.8
The superior court granted the divorce. In its division of the marital assets,
Errol received $31,680, which was 40% of the proceeds from the sale of the parties' boat
and hand-troll fishing permit. He was also awarded 95% of Deborah's monthly Oregon
6 Deborah's insurance paid approximately $8,000 per month toward the cost
of Errol's care at the facility.
7 Deborah's retirement benefit from Oregon would cover the monthly cost
for Errol to purchase general health insurance under Deborah's plan for the immediate
future.
8 The balance of Errol's irrevocable asset trust will revert to the State of
Alaska upon his death to reimburse the State for any Medicaid payments it made on
Errol's behalf: "A recognized Medicaid trust document must provide that upon
termination of the trust by death of the recipient, any money remaining in the trust must
be paid to the state, up to the amount the state paid in Medicaid benefits for the recipient
while the trust existed." 7 AAC 100.608(b).
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----------------------- Page 5-----------------------
state retirement benefit, as well as some household items. The court awarded Deborah
the rest of the marital estate, including a car, the marital home (which was free of any
mortgage and valued at $245,000), and her other retirement accounts.
To justify its division the court discussed the relevant statutory factors from
9 It found that Deborah was retired, 67 years old, and needed the
AS 25.24.160(a)(4).
marital assets to live comfortably for the rest of her life. It also found that, because Errol
needed to maintain Medicaid eligibility, his assets were in an irrevocable trust and that
any assets in that trust would revert to the State of Alaska upon his death. It specifically
found that Errol was unlikely to ever live independently, that all of his needs were met
by Medicaid and long-term health insurance, and that he had been unrealistic about his
potential future living situation.
Errol now appeals the superior court's unequal property division.
III. STANDARD OF REVIEW
Whendividingmaritalpropertyin adivorceproceeding, thetrial court must
complete three steps: "(1) determin[e] what property is available for distribution,
(2) find[] the value of the property, and (3) divid[e] the property equitably."10
9 These factors include: (1) "the length of the marriage"; (2) the parties' ages
and health; (3) the parties' earning capacities; (4) the parties' financial condition,
including cost and access to health insurance; (5) the parties' conduct and "whether there
has been unreasonable depletion of marital assets"; (6) "the desirability of awarding the
family home . . . to the party who has primary physical custody of children"; (7) "the
circumstances and necessities of each party"; (8) the time and manner in which the
parties acquired the property; and (9) the value and income-producing capacity of the
property.
10 Dunmore v. Dunmore, 420 P.3d 1187, 1190 (Alaska 2018) (quoting
Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)); see also Jones v. Jones, 942
P.2d 1133, 1136 (Alaska 1997).
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Errol only appeals the third step: the superior court's division of property,
which we review for abuse of discretion 11
and will reverse only if it is "clearly unjust"
12 We review factual
or "based on a clearly erroneous factual finding or mistake of law."
findings for clear error, reversing "if, upon review of the entire record, we are left with
a firm and definite conviction that a mistake has been made."13
"Anequal division ofpropertyispresumptivelyequitable, but thetrial court
has broad discretion in this area."14 "Sometimes . . . an unequal division may be required
to achieve equity."15
"We review de novo the question of whether a judge appears biased, which
is assessed under an objective standard."16
IV. DISCUSSION
"In dividing property, either equally or unequally, trial courts should be
guided by the [AS 25.24.160(a)(4)] factors."17
These statutory factors are "not
exhaustive, and the trial court need not make findings pertaining to each factor, but its
11 Dunmore, 420 P.3d at 1190 (quoting Wagner, 386 P.3d at 1251).
12 Fletcher v. Fletcher, 433 P.3d 1148, 1152 (Alaska 2018) (quoting
Dunmore, 420 P.3d at 1190).
13 Dunmore, 420 P.3d at 1190 (quoting Fortson v. Fortson, 131 P.3d 451, 456
(Alaska 2006)).
14 Brennan v. Brennan, 425 P.3d 99, 106 (Alaska 2018) (footnote omitted).
15 Jones, 942 P.2d at 1137.
16 Mengisteab v. Oates, 425 P.3d 80,85 (Alaska 2018) (quoting Wells v.
Barile, 358 P.3d 583, 588 (Alaska 2015)).
17 Jones, 942 P.2d at 1137.
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18
findings must be sufficient to indicate the factual basis for the conclusion reached."
"Where the trial court makes these threshold findings, we generally will not reevaluate
19 "The trial court's factual findings enjoy particular
the merits of the property division."
deference when they are based 'primarily on oral testimony, because the trial court, not
this court, judges the credibility of witnesses and weighs conflicting evidence.' "20
On appeal, Errol argues that the superior court abused its discretion for
three primary reasons: (1) the court improperly considered Deborah's and her parents'
contributions to the marriage; (2) the court improperly based its division of property
upon the fact that Errol would never live independently; and (3) the court was biased
against Errol.
A. TheSuperiorCourt Properly ConsideredDeborah's AndHerParents'
Contributions To The Marital Estate.
Errol claims that the superior court erred by improperly considering
Deborah's and her parents' contributions to the marital estate when dividing the
property. He argues that these contributions were marital property and therefore the
superior court should have divided them equally. However, Errol mischaracterizes the
superior court's decision. The superior court did not distinguish these contributions as
separate property that should be returned to Deborah after the divorce;21
rather, it merely
18 Nicholson v. Wolfe , 974 P.2d 417, 422 (Alaska 1999) (footnote omitted).
19 Cartee v. Cartee , 239 P.3d 707, 713 (Alaska 2010); see also Jerry B. v.
Sally B., 377 P.3d 916, 938 (Alaska 2016) ("[T]he superior court has significant
discretion 'to ascribe different weights to [the AS 25.24.160(a)(4)] factors upon hearing
the evidence at trial.' " (quoting Cartee, 239 P.3d at 715) (second alteration in original)).
20 Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v.
Sheffield, 265 P.3d 332, 335 (Alaska 2011)).
21 See Lewis v. Lewis, 785 P.2d 550, 558 (Alaska 1990) ("[A]ll property
(continued...)
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considered the fact that Deborah and her parents made these contributions to the marital
estate as a relevant factor when dividing the property. We have previously held that a
superior court may consider such contributions as relevant when dividing marital
22 and the superior court was within its discretion to consider them here.
property,
B. The Superior Court Did Not Clearly Err In Finding That Errol Could
Not Live Independently Or Abuse Its Discretion In Considering That
Finding When Dividing The Marital Estate.
Errol contends that the superior court wrongly relied on its finding that he
could not live independently when it divided the marital estate. The court based its
property division primarily on the fact that Deborah's needs far outweighed Errol's
because she was living independently and he would need to remain in assisted living for
the rest of his life. It further found that Errol lived comfortably and all of his needs were
being met in assisted living. The superior court concluded that in order to maintain his
comfortable living situation and continue to have his needs met, Errol needed to remain
eligible for Medicaid. Errol's Medicaid eligibility, in turn, required him to maintain his
current economic condition.
Errol argues that the superior court abused its discretion in dividing the
marital estate because he "is now in the process of leaving protective custody and will
live independently." His argument presents two issues: first, that the superior court
21 (...continued)
acquired during the marriage is available for distribution, excepting only inherited
property and property acquired with separate property[,] which is kept as separate
property.").
22 See Fortson v. Fortson, 131 P.3d 451, 459 (Alaska 2006) ("We have held
that contributions of separate property may be relevant to equitable division."); Green
v. Green, 29 P.3d 854, 860 (Alaska 2001) ("We have recognized that premarital
contributions to the marital estate may be relevant to the equitable division, even though
this is not a factor specifically listed in AS 25.24.160(a)(4)." (footnote omitted)).
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clearly erred in finding that he would never live independently; and second, that the
superior court's property division was an abuse of discretion because it relied on this
erroneous fact.
Errol contends that the superior court "did not pay enough attention" to
evidence suggesting that Errol could eventually live independently. But this argument
ignores the contrary evidence before the superior court: testimony fromErrol's guardian
and Deborah, as well as neuropsychological reports and doctor recommendations, all of
which the superior court found to be more credible than Errol's testimony.
We review factual findings for clear error, reversing only if "we are left
23 Because it is the
with a firm and definite conviction that a mistake has been made."
trial court, not this court, that judges the credibility of witnesses and weighs conflicting
24 The superior
evidence, "[t]he trial court's factual findings enjoy particular deference."
court's factual finding that Errol was unable to live independently was supported by the
evidence, so "we are [therefore not] left with a firmand definite conviction that a mistake
has been made."25
Errol next seems to argue that because the superior court erred by
concluding that he could not live independently, it also erred by relying on that finding
when dividing the marital estate. He argues that because the superior court incorrectly
found that he could not live independently, it also incorrectly found that Deborah's needs
were greater. He then argues that because these findings were clearly erroneous, the
superior court abused its discretion by relying upon them to divide the property
23 Dunmore v. Dunmore, 420 P.3d 1187, 1190 (Alaska 2018) (quoting
Fortson, 131 P.3d at 456).
24 Limeres, 320 P.3d at 296 (quoting Sheffield, 265 P.3d at 335).
25 Dunmore, 420 P.3d at 1190.
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unequally. But, as we have discussed, the superior court did not err in finding that Errol
could not live independently. The superior court therefore did not err by relying on that
finding when it found that Deborah's needs were necessarily greater.
Further, AS25.24.160(a)(4)(G) specificallyinstructstrialcourtstoconsider
"the circumstances and necessities of each party" when dividing a marital estate. Here,
the superior court considered both Errol's and Deborah's needs. It concluded that Errol
could not live independently and that his needs were being met in assisted living, that he
needed to maintain a certain economic condition to remain eligible for Medicaid and
therefore remain in assisted living, and that Deborah would continue to live
independently and therefore have greater needs. Based on a consideration of its factual
findings regarding the parties' individual needs, the court awarded Deborah a greater
portion of the marital estate. Because AS 25.24.160(a)(4)(G) specifically directs the
superior court to consider these findings and these findings were not clearly erroneous,
the superior court did not abuse its discretion.
C. There Was No Bias Against Errol.
Errol argues that the court's division of assets demonstrates that the judge
was biased against him and in favor of Deborah. He argues that: (1) the judge unfairly
believed Errol could have returned to work if he drank less; (2) the judge inappropriately
considered the domestic violence protective order Deborah obtained against Errol; (3)
the judge inappropriately called Errol "delusional"; and (4) the judge inappropriately
considered "how wonderful Deborah ha[d] been in the marriage." Errol makes this
26
argument for the first time in his brief; he did not raise the issue of bias at trial.
26 SeeGreenwayv.Heathcott , 294 P.3d 1056, 1063 (Alaska 2013) (assuming
without deciding that bias raised for the first time on appeal was properly before the
court).
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We have repeatedly held that a party must demonstrate that the court
27
formed an unfavorable opinion of the party fromextrajudicial information
and that bias
28 But judicial bias may also arise
cannot "be inferred merely from adverse rulings."
during the course of judicial proceedings if "a judicial officer hears, learns, or does
something intrajudicially so prejudicial that further participation would be unfair."29
Errol does not argue that the judge considered any extrajudicial information, nor does
he offer evidence of anything that occurred during the proceedings aside from the
judge's adverse rulings. The comments and findings that Errol argues show bias were
"the result of opinions and attitudes formed in court by the evidence that the judge
heard."30 We therefore find that the superior court judge was not biased against Errol.
V. CONCLUSION
We AFFIRM the superior court's property division.
27 See Berry v. Berry , 277 P.3d 771, 774 (Alaska 2012) (" 'In order to prove
a claim of judicial bias,' a party must show that the judge 'formed an opinion of him
fromextrajudicial sources.' " (quoting Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004))).
28 Kinnan v. Sitka Counseling, 349 P.3d 153, 160 (Alaska 2015) (quoting
Khalsa v. Chose, 261 P.3d 367, 376 (Alaska 2011)).
29 Brown v. State, 414 P.3d 660, 661 n.3 (Alaska 2018) (Winfree, J.,
concurring in part and dissenting in part) (citing Jerry B. v. Sally B., 377 P.3d 916, 925
(Alaska 2016); Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 329 P.3d 980, 988-89 (Alaska 2014); R.J.M. v. State, Dep't of Health & Soc.
Servs., 946 P.2d 855, 869-70 (Alaska 1997) superseded by statute on other grounds, ch.
99 §§ 1, 18, SLA 1998); see also Greenway, 294 P.3d at 1064 (suggesting that
something "in the court's 'demeanor, tone, or words' " could "indicate[] actual bias or
give[] an appearance of bias").
30 Hanson v. Hanson, 36 P.3d 1181, 1186 (Alaska 2001).
-11- 7360
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