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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John L. Philips v Barbara S. Bremner Philips, Barbara S. Bremner-Philips v John L. Philips (12/18/2020) sp-7495
Notice: This opinion is subject to correction before publication in the PACIFIC 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
JOHN L. PHILLIPS, )
) Supreme Court Nos. S-17202/17221
Appellant and Cross-Appellee, )
) Superior Court No. 3AN-15-07027 CI
v. )
) O P I N I O N
BARBARA S. BREMNER-PHILLIPS, )
n/k/a BARBARA S. STANLEY, ) No. 7495 - December 18, 2020
)
Appellee and Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Steven J. Priddle, Law Office of Steven J.
Priddle, Anchorage, for Appellant and Cross-Appellee.
Robin A. Taylor, Law Office of Robin Taylor, Anchorage,
for Appellee and Cross-Appellant.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Stowers, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A divorcing couple had a community property trust holding title to two
rental properties - a fourplex and a mobile home park - that the husband had owned
before marriage. Following trial the superior court divided the marital estate equally,
awarding the rental properties to the husband and a large equalization payment to the
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wife. Both parties appeal. The husband argues that the superior court erred when it
found that a bank account in the names of the husband and the mobile home park was
marital. The wife argues that the court erred in its interpretation of the Alaska
Community Property Act when it held that income and appreciation from the rental
properties in thecommunity propertytrust remained thehusband's separateproperty;she
also argues that the court clearly erred in some findings of fact and abused its discretion
when it failed to invade the husband's separate property in order to reach an equitable
division.
We conclude that the superior court did not err in its interpretation of the
relevant statutes, did not clearly err in its findings of fact, and did not abuse its discretion
when dividing the marital estate. We therefore affirm the superior court's judgment.
II. FACTS AND PROCEEDINGS
A. Facts
John Phillips and Barbara Stanley met in 1981. For the first few months
of their relationship they lived together in John's unit of a fourplex he had built in 1976.
After about a year, John provided Barbara with a mobile home in the Chateau Mobile
Home Park, which he also owned; she lived in the mobile home for several years before
moving into a separate unit in John's fourplex. For the duration of their relationship,
Barbara and John maintained their own living quarters but, as the superior court found,
"freely went back and forth between the two units" in the fourplex, living "as husband
and wife." They were legally married in 1991.
In August2007John andBarbaracreated acommunity propertytrust -the
Phillips Revocable Trust - pursuant to the Alaska Community Property Act, AS 34.77.
John testified at trial that their purpose was to facilitate the transfer of his properties to
Barbara after he died. The trust document named John and Barbara as co-settlors and
co-trustees. There were initially three properties transferred to the trust: the fourplex
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and the mobile home park, both owned by John, and a lot in Wasilla, which John bought
in his own name in 1993, two years after he and Barbara were married. A fourth
property was added in 2014, when John purchased a home on Campbell Airstrip Road.
None of the properties were designated as separate property, and thus, by the trust
document's express terms, all of them became community property once placed in the
1
trust.
B. Proceedings
The parties separated in May 2015, and John filed for divorce. John was
in his late 80s and Barbara in her late 70s. John had significant health problems: he had
dealt with lung cancer twice, resulting in the loss of half of each lung, and had recently
undergone heart surgery following a heart attack. His only form of health insurance was
Medicare, and he received around $28,000 in annual income, excluding rental income
from his properties. Barbara had medical issues of her own, though the court ultimately
found her to be "in reasonably good health"; she received roughly $47,000 a year in
teacher retirement income.
The court held a multi-day divorce trial that spanned several years.2
Althoughtheparties"possess[ed]voluminous personal property,"their disputes centered
on the real property and its income. During the course of the litigation the parties agreed
1 Paragraph 1.3 ofthetrust documentprovidesthat"[a]ll property transferred
to the Trustee and the proceeds thereof shall be known as the community property of the
Settlors after its transfer in accordance with A.S. 34.75 et. seq., [sic] except to the extent
the property transferred to the trust is designated by the Settlor as his/her separate
property."
2 Trial was initially completed in late 2016. The court then ruled on John's
post-trial motion regarding the proper treatment of appreciation and income from the
trust property; the ruling required that the court "reopen the trial in order to receive
additional evidence concerning the value of the property placed in the trust when it was
initially declared community property." Trial concluded in April 2018.
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to sell the Wasilla lot and John sold the Campbell Airstrip home; the proceeds of both
sales were placed in the court registry pending the court's division of the marital estate.
Following trial the court found, as relevant here, that the fourplex, the
mobile home park, and the proceeds from the sales of the Wasilla lot and Campbell
3 the court
Airstrip home were community property. But relying on AS 34.77.030(h),
found that therental income fromthose marital assets remained John's separateproperty.
The court also discussed the parties' bank accounts, only one of which -
with First National Bank Alaska (FNBA) - is at issue on appeal. The owners of the
account are identified as John and the mobile home park, with Barbara and the parties'
bookkeeper listed as authorized signers. The superior court found that although the
rental income would otherwise have remained John's separate property, "[b]y placing
the account under joint ownership with [the mobile home park], which is community
property, John, in effect, designated the account community property."
Finally, the court decided that a 50/50 division of the marital estate would
be "just, fair and equitable." Rather than splitting the two rental properties, the court
awarded both the fourplex and the mobile home park to John in consideration of his
advanced age, the length of time he had lived there, and the awkwardness of requiring
the couple to remain neighbors. The court ordered John to make an equalization
payment to Barbara of approximately $387,000, reasoning that this - along with her
share of the parties' various liquid assets -would give Barbara enough cash to purchase
her own income-producing property should she choose to do so.
Both John and Barbara appealed.
3 The statute provides: "Appreciation and income of property transferred to
a community property trust is community property if declared in the trust to be
community property."
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III. STANDARD OF REVIEW
"Equitable division of marital property involves three steps: determining
what property is available for distribution, valuing the property, and allocating the
4
property equitably." "The first step, characterizing property as marital or non-marital,
involves mixed questions of law and fact; 'we review the superior court's legal
5
conclusions de novo and its factual findings for clear error.' " When reviewing
questions of law de novo, "[w]e interpret statutes 'according to reason, practicality, and
common sense, taking into account the plain meaning and purpose of the law as well as
6
the intent of the drafters.' " When reviewing questions of fact, we find clear error only
"when we are 'left with a definite and firm conviction that the superior court has made
7
a mistake.' "
The second step in property division, "factual determination of property
value, is also reviewed for clear error."8
"The third step, equitable property distribution,
is reviewed for abuse of discretion[,] and 'we will not disturb the result unless it is
9
clearly unjust.' "
4 Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004) (citations omitted).
5 Wiegers v. Richards-Wiegers, 420 P.3d 1180, 1182 (Alaska 2018).
6 Dapo v. State, 454 P.3d 171, 175 (Alaska 2019) (quoting Marathon Oil Co.
v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska 2011)).
7 Ethelbah v. Walker, 225 P.3d 1082, 1086 (Alaska 2009) (quoting Josephine
B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 174 P.3d 217, 220
(Alaska 2007)).
8 Wiegers, 420 P.3d at 1182.
9 Id. (quoting Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010)).
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IV. DISCUSSION
In the sections that follow, we first address Barbara's argument that the
superior court erred when it determined that the income from the rental properties in the
Phillips Revocable Trust remained John's separate property. We next address John's
contention that the court erred in deciding that his separate rental income became marital
when he placed it in a jointly held account. Finally, we address Barbara's argument that
the court's 50/50 division of the marital estate was inequitable and relies on several
errors of fact. In each instance we affirm the superior court's decision.
A. The Superior Court Correctly Applied AS 34.77.030(h) In Concluding
That Income From The Community Trust Properties Was Not
Community Property.
Barbara argues that the superior court misinterpreted the Community
Property Act10
when it found that appreciation and income from the community trust
properties were not also community property. We reject her argument as contrary to the
plain statutory language.
A community property trust is defined in AS 34.77.100(a) as "an
arrangement [in which] one or both spouses transfer property to a trust, the trust
expressly declares . . . the property transferred is community property under this chapter,
11 Either spouse's property, when
and at least one trustee is a qualified person."
transferred to a community trust, becomes community property to the extent provided
by the parties' trust agreement, "[e]xcept for property that is classified otherwise in this
chapter."12 The treatment of the proceeds of trust property is addressed specifically in
10 AS 34.77.010-.900.
11 AS 34.77.100(a).
12 AS 34.77.030(a).
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AS 34.77.030(h): "Appreciation and income of property transferred to a community
property trust is community property if declared in the trust to be community property ."13
Neither John nor Barbara disputes the validity of their community trust
agreement, nor does Barbara contend that the agreement declares "[a]ppreciation and
income of property transferred to" the trust to "be community property." Rather, she
argues that the superior court misinterpreted AS 34.77.030(h) when it held that the
income and appreciation of real property in the trust will not be treated as community
property unless the parties specifically say so in their agreement.
"Statutory interpretation in Alaska begins with the plain meaning of the
statute's text."14 And under our "sliding scale approach to statutory interpretation, . . .
'the plainer the statutory language is, the more convincing the evidence of contrary
15 Thus, "[w]here a statute's meaning appears
legislative purpose or intent must be.' "
clear and unambiguous, . . . the party asserting a different meaning bears a
correspondingly heavy burden of demonstrating contrary legislative intent."16
Barbara's primary contention is that the phrase "if declared in the trust" in
subsection .030(h) should be interpreted as modifying "community property"rather than
"appreciation and income"; by her reading of the statute, if the "property transferred to
a community trust" is "declared to be community property," then the appreciation and
income of that property are community property as well. She contends that this reading
13 AS 34.77.030(h) (emphasis added).
14 Angelica C. v. Jonathan C., 459 P.3d 1148, 1156 (Alaska 2020) (quoting
Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012)).
15 State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (quoting Adamson v.
Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)).
16 Id.
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is required by the Community Property Act's purpose to allow a surviving spouse to take
advantage of the "step-up" in the tax basis of community property, an advantage that will
be lost if the appreciation does not remain part of the community property. But we reject
this argument as contrary to the statute's plain language. When the sentence is read
naturally, the phrase "of property transferred to a community property trust" is simply
a descriptive prepositional phrase modifying the sentence's subject, "appreciation and
income." If the prepositional phrase is omitted for clarity's sake, the sentence remains
straightforward and coherent: "Appreciation and income . . . is community property if
17 To adopt Barbara's reading, on the
declared in the trust to be community property."
other hand, would require that we not just parse the language but actually rewrite it:
"Appreciation and income of property transferred to a community property trust is
community property if the property transferred to the trust is declared in the trust to be
community property." It is not our place to rewrite the statute even if we were convinced
that Barbara's reading is the one the legislature intended.18
Because the meaning of subsection .030(h) "appears clear and
unambiguous," Barbara "bears a correspondingly heavy burden of demonstrating
17 We recognize the subject-verb disagreement; the compound subject
"[a]ppreciation and income" is followed by the singular verb "is." Ordinarily, of course,
a singular verb follows a singular subject. See BRYAN A. G ARNER, T HE REDBOOK: A
ANUAL OF LEGAL STYLE § 11.23 at 215 (4th ed. 2018). It is not clear whether the
M
subject-verb disagreement in subsection .030(h) is a drafting error or an intentional
treatment of "[a]ppreciation and income" as a singular unit. See id. at 216 ("When a
compound subject is singular in meaning it will take a singular verb," e.g., "Black tie and
tails is the designated attire."). Either way, we cannot strain the natural reading of
subsection .030(h) to connect the verb "is" to anything other than the sentence's obvious
subject, "[a]ppreciation and income."
18 State, Div. of Workers' Comp. v. Titan Enters., LLC, 338 P.3d 316, 321
(Alaska 2014) ("We do not rewrite statutes even when the legislative history suggests
that the legislature may have made a mistake in drafting.").
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19
contrary legislative intent." We conclude that she has not carried that burden. It is true
that the legislative history of the Alaska Community Property Act is focused on the tax
advantages to a surviving spouse with property in a community property trust. One of
the bill's sponsors, Representative Joe Ryan, explained: "There is an income tax
advantage if a person has assets with unrealized gains in community property. This bill
was designed . . . to allow married Alaskans to obtain the income tax advantages
available to residents of community property states and to produce business in Alaska"
20 However, he observed that the
by allowing spouses to choose such an arrangement.
bill would apply only to "property for which both spouses decide to take advantage" of
it.21 A sectional summary of the bill, prepared by legislative counsel, described what is
now AS 34.77.030 as limiting "the classification of property as community property to
what the spouses say in a community property agreement or trust, except where this
chapter classifies property otherwise."22 Describing what is now subsection .030(h), the
summary stated that "appreciation and income of property transferred to a community
23
property trust are community property if the trust says they are."
19 Fyfe, 370 P.3d at 1095.
20 Minutes, House Judiciary Comm. hearing on H.B. 199, 20th Leg., 1st Sess.
at Tape 97-61, Side A, No. 2415 (April 23, 1997) (statement of Rep. Joe Ryan).
21 Id. at Tape 97-61, Side B, Nos. 0006-0173. Representative Ryan also said
that in the event of a divorce any assets in a community property trust "are split 50/50
because each partner owns half of whatever is designated as community property." Id.
at No. 0435.
22 THERESA BANNISTER, LEGISLATIVE AFFAIRS AGENCY, DIVISION OF LEGAL
RESEARCH SERVICES, MEMORANDUM ON SECTIONAL SUMMARY OF H.B. 199, THE
AND
"COMMUNITY PROPERTY" BILL at 2 (MARCH 25, 1997) (in Senate Rules Committee file).
23
Id. at 3.
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Another representativewas concernedthatthebillcouldcomplicatedivorce
24
proceedings by "creating a collision between estate planning and family law."
But as
the superior court pointed out in this case, "the legislature reasoned that individuals
creating community property trusts were sophisticated and would seek advice to be
forewarned of any complications. Thus, the legislature decided that the benefits of the
25
Act outweighed the risks."
We agree. Legislative history supports an intent that the law defer to
individual Alaskans as to the content of their community property agreements while at
the same time ensuring that they are aware of the ramifications.26 A plain-language
24 Minutes, House Jud. Comm. Hearing on H.B. 199, 20th Leg., 1st Sess. at
Tape 97-63, Side B, No. 0817 (April 25, 1997) (statement of Rep. Ethan Berkowitz).
25 One attorney testifying before the committee characterized community
property trusts as "sophisticated agreements, with sophisticated planning," and observed
that clients could choose whether to use them. Minutes, House Judiciary Comm.
Hearing on H.B.199, 20th Leg., 1st Sess. at Tape 97-63, Side B, No. 0900 (April 25,
1997) (testimony of Richard Hompesch II); see also Minutes, House Judiciary Comm.
Hearing on H.B. 199, 20th Leg., 1st Sess. at Tape 97-63, Side B, No. 1573 (May 7,
1997) (discussing amendment from Rep. Eric Croft to add legal disclaimer to all
community property trusts now codified at AS 34.77.100(b)).
26 AS 34.77.100(b) requires "the following language in capital letters at the
beginning of the trust":
THECONSEQUENCESOF THISTRUSTMAYBE VERY
EXTENSIVE, INCLUDING, BUT NOT LIMITED TO,
YOUR RIGHTS WITH RESPECT TO CREDITORS AND
OTHER THIRD PARTIES, AND YOUR RIGHTS WITH
YOUR SPOUSE BOTH DURING THE COURSE OF
YOURMARRIAGEANDATTHETIMEOFADIVORCE.
ACCORDINGLY, THIS AGREEMENT SHOULD ONLY
BE SIGNED AFTER CAREFUL CONSIDERATION. IF
YOU HAVE ANY QUESTIONS ABOUT THIS
(continued...)
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reading of subsection .030(h) - a "presumption that appreciation and income are not
covered unless declared so in the trust," as the superior court summarized it - is not
inconsistent with these purposes. Therefore, because appreciation and income were not
"declared in the[Phillips RevocableTrust]to becommunityproperty,"thesuperior court
did not err when it interpreted AS 34.77.030(h) to mean that the appreciation and income
from the community trust properties remained John's separate property.
B. The Superior Court Did Not Clearly Err In Determining That The
FNBA Account Was Marital Property Subject To Division.
Johncontends that becausethesuperior courtfound, pursuantto subsection
.030(h), that appreciation and income from the rental properties in the trust did not also
become community property, the court must have clearly erred when it found that the
FNBA bank account was community property, as it held only rental income from the
mobile home park and the fourplex. John emphasizes that the parties never explicitly
added the FNBA account to the community trust property, although another account was
in the trust.
The superior court found that the FNBA account had two listed owners:
John and the mobile home park. Barbara was identified only as an authorized signer.
But because the mobile home park itself was community property, the court determined
that the bank account co-owned by the mobile home park was also intended to be
community property; thus, the bank account was not just "income of property transferred
to a community property trust" as addressed by subsection .030(h) - it was itself a
26 (...continued)
AGREEMENT, YOU SHOULD SEEK COMPETENT
ADVICE.
The same prominent waiver is required in community property agreements. See
AS 34.77.090(b).
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marital asset. As evidence of this intent, the superior court contrasted the FNBA account
with other accounts John opened after the couple separated, on which he identified
himself as the individual owner "dba" the mobile home park and thus avoided naming
the mobile home park itself as an owner. The court acknowledged that the funds in the
FNBA account "may have come exclusively from rental income" from the fourplex and
the mobile home park but found that this alone did not defeat the presumption that
money in jointly held accounts is marital property.
In essence, John's argument to the contrary is that the funds in the FNBA
account are secondary assets that can be classified only by reference to the funds' source.
"Assets such as bank accounts whose characterization depends on the classification of
other assets are known as secondary assets. To classify a secondary asset, a trial court
must first identify and then classify the source asset from which it was derived. This
27 "The party seeking to establish that a secondary asset
process is referred to as tracing."
is separate property 'always bears [the] burden of proof; thus untraceable assets are
28 But even if that secondary asset is shown to be separate property,
marital property.' "
we recognize "a strong presumption that placing [it] into a joint account demonstrates
an intent to treat the property as marital."29
John thus bears the burden of proving both that the money in the FNBA
account began as separate property and that he did not intend to make it marital by
placing it in the jointly owned account. John satisfied the first part of his burden; the
funds were indisputably income from community trust property that had been John's
separate property, and the parties did not declare in their trust document that the income
27 Bilbao v. Bilbao, 205 P.3d 311, 314 (Alaska 2009) (citations omitted).
28 Id. (alteration in original) (quoting Schmitz, 88 P.3d at 1128).
29 Miller v. Miller, 105 P.3d 1136, 1142 (Alaska 2005).
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would be community trust property as well. 30 But John failed to carry the second part
of his burden; he did not overcome the "strong presumption" that by placing the rental
income in the joint account he intended to make it marital. 31
On appeal John makes no evidence-based argument about his intent.
Rather, he contends only that this issue is controlled by the superior court's holding that
appreciation and income from trust properties are not community property unless the
trust document declares that they are. But this argument does not address the "strong
presumption" that arose once John directed his separate income into the joint account.
Because John failed to overcome this evidentiary presumption, we are not left with a
"definite and firm conviction" that the superior court made a mistake when it found that
32
the FNBA account was marital property subject to division.
C. The Superior Court Did Not Err Or Abuse Its Discretion When
Dividing The Marital Estate.
Barbara argues that the superior court abused its discretion when dividing
the marital estate because it failed to consider the parties' unequal income levels and did
not invade John's separate property, resulting in a property distribution that Barbara
claims was not equitable. Alaska Statute 25.24.160(e) controls the division of property
in a community property trust upon divorce. It provides that in distributing "community
property under a community property agreement or trust under AS 34.77, unless the
parties have provided in the agreement or trust for another disposition of the community
property, the court shall make such disposition . . . as shall appear just and equitable after
30 See Section IV. A, supra.
31 Miller, 105 P.3d at 1142.
32 Chung v. Rora Park, 339 P.3d 351, 353 (Alaska 2014) ("Clear error 'occurs
when a review of the entire record leaves us with a definite and firm conviction that a
mistake has been made.").
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considering all relevant factors," listing four factors. 33 Alaska Statute 25.24.160(a)(4)
provides more generally that the court in a divorce action may provide "for the division
between the parties of their property," including an invasion of separate property
acquired prior to marriage, but "the division of property must fairly allocate the
34
economic effect of divorce by being based on consideration of" a list of nine factors.
33 AS 25.24.160(e). Those factors are: "(1) the nature and extent of the
community property; (2) the nature and extent of the separate property; (3) the duration
of the marriage; and (4) the economic circumstances of each spouse at the time the
division of property is to become effective." Id. John and Barbara's community trust
agreement did "not provide for a specific allocation of the[ir] community property in the
event of a divorce."
34 The AS 25.24.160(a)(4) factors are:
(A) the length of the marriage and station in life of the parties
during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties, including their
educational backgrounds, training, employment skills, work
experiences, length of absence from the job market, and
custodial responsibilities for children during the marriage;
(D) the financial condition of the parties, including the
availability and cost of health insurance;
(E) the conduct of the parties, including whether there has
been unreasonable depletion of marital assets;
(F) the desirability of awarding the family home, or the right
to live in it for a reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities of each party;
(H) the time and manner of acquisition of the property in
question; and
(continued...)
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"While the trial court need not make findings pertaining to each . . . factor, its findings
must be sufficient to indicate a factual basis for the conclusion reached." 35
Barbara acknowledges that the superior court considered the four factors
listed in AS 25.24.160(e), relevant to the division of community trust property.
Regarding the nature and extent of the community property (subsection (e)(1)) the court
explained that John and Barbara's real estate holdings were community property, with
the mobile home park producing over $70,000 in annual rental income and the fourplex
producing just over $7,000. The court observed that the mobile home park and the
fourplex were "immediately adjacent" to each other, that living in the fourplex allowed
John to "maintain a close watch over the operation of the mobile home park," and that
because the parties could no longer get along, it "would make it awkward" for Barbara
to own the fourplex if John retained ownership of the mobile home park. The court also
noted that John had lived in the fourplex longer than Barbara and that his advanced age
would make it harder for him to adjust to new surroundings, while Barbara had been
spending a lot of time with other family members in Louisiana over the past two years
and was better equipped to adapt to a new environment.
Regardingthenatureand extentoftheseparateproperty(subsection (e)(2)),
the court concluded that the appreciation and rental income belonged to John (with the
exception of the FNBA account), as explained above. Addressing the third factor, the
duration of the marriage (subsection (e)(3)), the court explained the decades-long course
of John and Barbara's relationship and their varied living arrangements. Finally,
considering the parties' relative economic circumstances (subsection (e)(4)), the court
34 (...continued)
(I) the income-producing capacity of the property and the
value of the property at the time of division.
35 Cartee v. Cartee, 239 P.3d 707, 713 (Alaska 2010).
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again noted that John was in "poorer health" but found that the ex-spouses were similarly
situated in most other respects, most notably in that both were "aged out of the labor
market and dependent on rental and pension income." The court pointed out that
awarding John both the fourplex and the mobile home park would provide him with
substantial income for the rest of his life, roughly $100,000 per year when his other
incomesources weretakeninto account, whileBarbara would receive just under $47,000
in teacher retirement income. The court ordered "a 50-50 division of the marital estate
and community property," by which John received the rental properties and Barbara
received an equalization payment which the court determined would allow her to
purchase an income-producing property of her own.
The court clearly considered the factors relevant to the division of property
in a community property trust. And although Barbara notes that the court failed to
explicitly address the nine-factor test of AS 25.24.160(a)(4) for property divisions
generally "except to the extent [the factors in the two provisions] overlap," she does not
identify any important information that the court left out of its calculus.
Barbara instead challenges several of the court's specific factual findings,
as well as its ultimate conclusion that a 50/50 split was equitable. She argues first that
it was error to find that John was in "poorer health," noting her own significant health
issues. The court found that John, at 87, was a two-time cancer survivor and had
recently undergone heart surgery after suffering a heart attack. Barbara, though a decade
younger, had diabetes and high blood pressure, needed injections for pain, was blind in
one eye, and had recently suffered a serious head injury. Determining these parties'
relative health was a nuanced task that could have been affected by the judge's own
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36
observations of their physical condition at trial, a perspective we lack. We are not left
with a "definite and firm conviction" that the court made a mistake in its finding that
37
John's health was "poorer" than Barbara's.
Barbara also argues that the court was clearly mistaken when, in awarding
the fourplex to John, it reasoned in part that he had lived there "significantly longer" than
she had; John had lived there for 39 years and Barbara for 34, a difference she contends
is insignificant. The context of the court's remark was that John had lived in the fourplex
continuously since he purchased it in 1976 and that at the parties' respective ages it
would be more disruptive for him to move than Barbara; we see no clear error in this
finding, nor in the court's use of the words "significantly longer" to describe John's
tenure. Relatedly, Barbara argues that the court abused its discretion when it relied on
the fact that she had been spending less time at the fourplex in recent years, ignoring her
testimony that this was due to John's "harassment and verbal abuse." But Barbara does
not convince us that the court was required to consider her motives when it made this
objective finding about how long each party had lived in the fourplex.
Finally, Barbara contends that the court was required to invade John's
separate property to achieve an equitable division of property. The superior court has
"broad discretion in this area" and "[a]n equal division of property is presumptively
38 Under AS 25.24.160(a)(4) the court may invade the separate property of
equitable."
a spouse "when the balancing of the equities between the parties requires it." A decision
36 Cf. Sagers v. Sackinger , 318 P.3d 860, 864 (Alaska 2014) (noting that "we
give particular deference to the trial court's rulings based on the demeanor of witnesses"
and affirming judge's denial of continuance after concluding that movant "was feigning
the symptoms of his illness").
37 See Chung, 339 P.3d at 353.
38 Brennan v. Brennan, 425 P.3d 99, 106 (Alaska 2018) (citation omitted).
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to do so, however, "may be undertaken only after the trial court has attempted to use the
marital estate to balance the equities between the parties in light of the parties'
39
reasonable needs."
Barbara asserts that she "labored for 36 years to maintain and improve" the
community trust properties and is therefore entitled to her share of their appreciation and
rental income through invasion of John's separate property, if necessary. The superior
court did not ignore Barbara's contributions to the business, specifically noting her years
of managing the properties. But the court determined that her share of the marital estate,
including the equalization payment, provided her enough money to live comfortably and
to "easily purchase another income-producing rental property, if she still wishes to do
so." Barbara does not convince us that the court failed to seriously consider her needs
and other circumstances or that invading John's separate property was necessary to
40 50/50 division of
balance the equities. Because the court's "presumptively equitable"
41 we conclude that the superior court did not abuse
the estate was not "clearly unjust,"
its discretion.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
39 Odom v. Odom, 141 P.3d 324, 340 (Alaska 2006).
40 Brennan, 425 P.3d at 106.
41 Wiegers v. Richards-Wiegers, 420 P.3d 1180, 1182 (Alaska 2018).
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