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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Troy A. Rohde v. Annette L. Rohde (4/15/2022) sp-7590
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
TROY A. ROHDE, )
) Supreme Court No. S-17876
Appellant, )
) Superior Court No. 3AN-19-07529 CI
v. )
) O P I N I O N
ANNETTE L. ROHDE, )
) No. 7590 - April 15, 2022
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Herman G. Walker, Jr., Judge.
Appearances: Troy A. Rohde, pro se, Anchorage, Appellant.
Robin A. Taylor, Law Office of Robin Taylor, Anchorage,
for Appellee.
Before: Winfree, Chief Justice, Maassen and Borghesan,
Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
In a property division following divorce, the superior court determined that
the marital estate should be divided 60/40 in the husband's favor because of his lower
earning potential. But the court then considered the husband's sale of the marital home;
it found there were remodeling expenses and financial dealings that were inadequately
explained and contributed to a loss of marital equity, and it decided to offset that loss by
dividing the wife's retirement savings plan 70/30 in her favor. And because the
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retirement savings plan was the most significant marital asset, this allocation of it
resulted in a property division that highly favored the wife. The husband appeals,
alleging errors in the property division, in the child support order, and at trial.
We conclude that the property division failed to follow the proper
procedure for addressing the post-separation dissipation of marital assets: first valuing
the dissipated asset at the time of separation and then crediting that amount to the
responsible spouse in the property division. We also conclude that a figure for the
amount of lost marital equity used in the property division was clearly erroneous. We
therefore vacate the property division and remand for further consideration. In all other
respects we affirm the superior court's judgment.
II. FACTS AND PROCEEDINGS
Troy and Annette Rohde married in 1994 and have three daughters, one of
whom was still a minor at the time of trial. Annette worked as a physical therapist and
Troy worked part-time in the construction industry. They separated in June 2018.
A. Division of Property
In December 2018 Troy asked Annette to quitclaim her interest in the
marital home to him so that he could sell the house to an investor for $146,000. Annette
complied, but the deal fell through when the investor learned that the septic system
needed to be replaced at an estimated cost of $35,000.
In January 2019 Troy talked to his friend and sometime employer Yaroslav
"Slavik" Lund about remodeling the home to prepare it for sale. According to Troy,
Lund's business was "flip[ping] houses"; that is, he would buy a dilapidated property
and then "basically strip[] the house down to its skeleton and rebuild[] it." Troy gave
Lund a power of attorney to manage the remodel and arrange for the home's sale. But
the two men had no written contract or explicit agreement about specific renovations
other than, as Troy described it, to "put as much money as we need to into it to get as
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much money as we can out of it." At trial Troy confirmed that he left decisions on the
house up to Lund's discretion. The remodel was financed by a man named Thomas
Tyler; Troy gave no details of that arrangement.
Troy and Lund first agreed to a sale that would have netted only about
$10,000 to the marital estate. The settlement statement for that proposed deal shows a
sale price of $364,500, a first mortgage balance of $88,040, a contractor's lien in Lund's
name of $45,000, and a second mortgage in Tyler's name of $186,339. When Annette
learned of this arrangement she demanded documentation justifying such a small
recovery of equity.
Lund provided a list of expenses totaling $137,984, a spreadsheet showing
that $175,000 was borrowed to finance the project, and a proposal that Lund would be
paid $45,000 to manage the project. Another spreadsheet listing expenses on the project
showed that Lund was paid $2,000 a month for five months as an "[a]dministration
[s]alary" and was entitled to "25% for [p]rofit and [o]verhead" - a total of $40,873 in
addition to the $10,000 in salary payments. Lund sent Annette a number of receipts
showing payments to subcontractors and suppliers, but she protested that they did not
add up to the amounts of the liens against the property and that some appeared to be for
non-project-related expenses.
The house eventually sold for $364,500, but Lund's payout was reduced
to $36,500 and Tyler's to $175,000. The marital estate ultimately received $35,000.
When the superior court divided the marital estate, it considered the
1 and concluded that, because
so-called " Merrill factors" codified in AS 25.24.160(a)(4)
Annette's future earning potential was higher than Troy's, the marital estate should be
1 The statute lists factors a superior court should consider to ensure that "the
division of property . . . fairly allocate[s] the economic effect of divorce." The factors
were drawn from Merrill v. Merrill , 368 P.2d 546, 547 n.4 (Alaska 1962).
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divided 60/40 in Troy's favor. But the superior court was not satisfied with Troy's
explanation of why the marital estate received only $35,000 from the sale of the home.
Therefore, "to account for [Troy]'s handling of the house sale," the court distributed
Annette's 401(k) - the marriage's only other sizable asset - 70/30 in favor of Annette.
Troy moved for reconsideration. The superior court denied his request,
finding explicitly that Troy had "dissipated the marital home and deprived the marital
estate of that asset" and that it was equitable to offset the dissipation by a 70/30
allocation of the 401(k).
B. Income Imputation
The superior court granted sole legal and physical custody of the couple's
minor child to Annette. For purposes of calculating child support, the superior court
imputed income to Troy, whose annual earnings as a self-employed construction worker
had recently hovered between $30,000 and $50,000. The court found that he had been
underemployed during themarriageand remained voluntarily underemployed following
the parties' separation. The court imputed income to Troy at a "yearly gross salary of
$66,248" based on an hourly wage of $31.85 - the average wage for a carpenter as
shown by data from the Alaska Department of Labor.
Troy appeals the superior court's decisions on property distribution and
child support. He also contends that several of the court's procedural and evidentiary
rulings at trial deprived him of due process.
III. STANDARD OF REVIEW
We review the superior court's distribution of marital assets for abuse of
discretion.2
The court abuses its discretion if it "considers improper factors, fails to
2 Ethelbah v. Walker , 225 P.3d 1082, 1086 (Alaska 2000) ("We review the
trial court's equitable distribution under an abuse of discretion standard, and will reverse
(continued...)
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3
consider statutorily mandated factors, or gives too much weight to some factors." We
4
review the superior court's findings of fact for clear error.
"A finding is clearly
erroneous if we are 'left with a definite and firm conviction that the trial court has made
5 We review the superior court's decision to impute income for abuse of
a mistake.' "
discretion6 and the amount of income imputed for clear error.7
As for the "separate question . . . whether the trial court applied the correct
legal standard in the exercise of its broad discretion . . . [w]ith respect to legal analysis
employed at the trial court level, review is based upon our independent judgment."8
We review alleged due process violations using our independent judgment
and adopt "the rule of law that is most persuasive in light of precedent, reason, and
policy."9
2 (...continued)
only if the division is clearly unjust.").
3 Thompson v. Thompson, 454 P.3d 981, 995 (Alaska 2019) (quoting Long
v. Long, 816 P.2d 145, 150 (Alaska 1991)).
4 Aubert v. Wilson, 483 P.3d 179, 186 (Alaska 2021).
5 Fredrickson v. Button, 426 P.3d 1047, 1052 (Alaska 2018) (quoting
Heustess v. Kelley-Heustess, 259 P.3d 462, 468 (Alaska 2011)).
6 Id.
7 Id.
8 Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
9 Martinez v. Gov't Emps. Ins. Co., 473 P.3d 316, 321 (Alaska 2020).
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IV. DISCUSSION
A. The Property Distribution Must Be Reconsidered On Remand.
1. There was error in the superior court's dissipation analysis.
Troy challenges the superior court's distribution of marital property on the
grounds that the superior court erred in using "different distribution rates" for different
parts of the marital estate and in its valuation of the equity in the marital home. Applying
10
the Merrill factors, the superior court divided all marital assets except the 401(k) in
Troy's favor, 60/40. The 401(k) - the marriage's largest asset at $301,244 - the court
divided 70/30 in favor of Annette. The court justified this different division by reference
to Troy's "handling of the house sale," which it described as "suspect." But because the
value of the 401(k) dwarfs the value of the estate's other assets, the result of the division
was an asset split that is essentially 70/30 in favor of Annette, a result much different
11
from the one the court reached by analyzing the Merrill factors.
The superior court initially declined to make a "specific finding of
dissipation" because "[n]either party argued" the issue. Troy asked the court to "clarify"
this aspect of the property division, pointing out thedifference between the Merrill factor
analysis and the case's actual result. He also contended that the court "ha[d] not made
any findings or reached any conclusions that support such a distribution of the marital
assets."
10 See AS 25.24.160(a)(4).
11 The 60/40 distribution of all marital assets other than the 401(k) resulted
in a net credit to Annette of $1,492 and a net credit to Troy of $2,237. The court's 70/30
division of the 401(k) - $210,871 to Annette and $90,373 to Troy - resulted in net
credits of $212,363 to Annette and $92,610 to Troy, a split of 69.6% (Annette) to 30.3%
(Troy).
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The court's follow-up order clarified its reasoning. This time the court
made an explicit "finding that [Troy] dissipated a marital asset, the marital home." The
court subtracted the $88,000 mortgage from the home's $364,000 sale price to conclude
that there was "approximately $276,000 in equity that should have been part of the
marital estate." And because the marital estate received only $35,000 from the sale, the
court concluded that the equity must have been dissipated due to Troy's mismanagement
and poorly explained dealings with Lund and Tyler. We conclude that it was error to
follow this analytical process instead of our precedent on the recapture of dissipated
value; we also conclude that it was clear error to use the house's final sale price -
following an extensive remodel - as its value at separation.
a. The proper remedy for dissipation is recapture.
"[T]he question of wasted marital assets arises when a marital asset is lost
12
or diminished after separation but before the time of trial."
"The party [who] controls
a marital asset during separation may have to compensate the other party if he or she
13
dissipates or wastes the asset and converts it to non-marital form." "The spouse who
asserts dissipation must first prove two things: (1) that the asset existed and (2) that the
14 "[T]he burden [then] shifts to
asset 'was lost during or after the marital breakdown.' "
the [other] spouse to show that he or she did not dissipate the asset."15
12 Aubert v. Wilson, 483 P.3d 179, 189 (Alaska 2021) (alteration in original)
(quoting Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997)) .
13 Id.
14 Id. (quoting Ethelbah v. Walker, 225 P.3d 1082, 1090 (Alaska 2009)).
15 Id. (third alteration in original) (quoting Ethelbah, 225 P.3d at 1090).
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16
If dissipation is found, the remedy is "recapture." To recapture an asset
the court values it at the time of separation - not the time of trial - and credits that
value to the spouse who dissipated the asset. 17
We have treated this issue inconsistently in the past. Notably, the statute
codifying the Merrill factors,AS25.24.160(a)(4), mandates distribution ofmarital assets
"without regard to which of the parties is in fault." In Oberhansly v. Oberhansly we
observed that the "fault" referenced in the statute is fault for the failure of the marriage,
not fault for the dissipation of marital assets; we held that the latter type of fault could
18 We therefore upheld the unequal property division in Oberhansly
fairly be considered.
in part because "the superior court properly considered [one party's] fault in allowing
most of the household debts to fall in default and in paying personal debts out of marital
19
assets."
But in Jones v. Jones we clarified how courts should treat one party's
20 Jones concerned the
alleged financial misconduct consistent with AS 25.24.160(a)(4).
21 We held that "a court may
depletion of assets by illegal gambling during the marriage.
take into account economic misconduct . . . , but it may not consider a party's moral or
16 Id.
17 Day v. Williams , 285 P.3d 256, 264 n.27 (Alaska 2012).
18 798 P.2d 883, 885 (Alaska 1990).
19 Id.
20 942 P.2d 1133, 1137-41 (Alaska 1997).
21 Id. at 1138.
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22
legal marital failings which do not amount to economic misconduct." And we
concluded that the remedy for economic misconduct was not an ad hoc increase in the
other party's share of the marital estate, but rather a recapture of "the proven losses by
adding their value to the marital estate before making the equitable division and then
crediting that part of the value to the account of the party responsible for the
23 We also cautioned the superior court not to "double count"
unreasonable depletion."
by both recapturing dissipated assets and separately favoring the non-dissipating spouse
in the property division.24
In sum, courts may properly consider dissipation in the Merrill factor
analysis when weighing "the conduct of the parties, including whether there has been
unreasonable depletion of marital assets."25 But if the superior court does find
"unreasonable depletion" - i.e., dissipation -the proper remedy is to recapture the lost
asset by valuing it at separation and crediting that value to the responsible party. The
property division in this case was inconsistent with that procedure.
b. The amount of lost equity the superior court attributed to
dissipation is clearly erroneous.
We also conclude that it was clear error to value the dissipated equity at
$276,000. The superior court described in its clarifying order how it reached this
amount: "At the time of separation there was $88,000 owed on the mortgage. The home
sold for $364,000. That means there was approximately $276,000 in equity that should
have been part of the marital estate." As explained above, however, it is the time of
22 Id. at 1139.
23
Id. at 1141.
24 Id.
25
AS 25.24.160(a)(4)(E).
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separation, not the time of sale, that is relevant to the dissipation analysis. Because the
parties did not expressly argue dissipation at trial, there was no evidence admitted
expressly for the purpose of determining the home's value at separation. What the
record does show, however, is that the value of the house at separation was well below
its final sale price.
Annette testified that the house was a "fixer-upper that did not get fixed up"
and was "probably not" in rentable condition when the parties separated. She
acknowledged that the septic system needed replacing, there was a hole in the roof, and
the home's overall condition was worse at separation than when they bought it. And
although Troy failed to fully account for the amount of money spent on the post-
separation remodel, the fact that there was an extensive remodel is undisputed. Annette
does not contend that nothing was spent on fixing up the house, but rather that too much
was spent without being properly accounted for.
Troy suggests that the home's value at separation could be determined by
reference to the 2018 tax-assessed value of $211,500, assuming the house was "in good
condition," then subtracting the $35,000 cost of the septic system replacement and the
June 2018 mortgage balance of $90,849. These calculations yield an equity value of
$85,651, less than a third of the $276,000 found by the court. Also relevant may be the
$146,000 offer Troy testified he received on the house before the remodel began.
We leave it to the superior court to determine whether the existing record
is sufficient to determine the home's value at separation or whether it should invite the
parties to submit evidence focused on that issue. But because the record does not support
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an equity value at separation of $276,000, we vacate the court's property division and
remand for reconsideration of the dissipation issue consistent with this opinion. 26
2. The superior court did not clearly err or abuse its discretion in
its distribution of the life insurance policies.
Troy also argues that the superior court erred in its distribution of three life
insurance policies, one for each of the Rohdes' daughters. Both Troy and Annette
testified it had always been their intent for the policies to benefit the children. The court
found that the life insurance policies belonged to the daughters and ordered that the two
"adult children shall have control of their own policies" to do with as they wished and
Annette should control the minor daughter's policy and "make the payments."
Troy contends that the court's ruling was improperly based on ex parte
allegations that Troy wanted to cash in one of the policies and buy a car. But the court's
decision to award the policies as it did is supported by the testimony of both parties, who
testified that the policies were intended as gifts to the daughters. Property belonging to
27 And giving control of the minor child's
a couple's children is not marital property.
insurance policy to Annette, the parent with sole legal and physical custody, was clearly
appropriate. The court did not clearly err in finding that the policies were not marital
property or abuse its discretion in awarding control of the minor child's policy to
Annette.
26 Troy also argues that the superior court erred by failing to consider the
quitclaim deed by which Annette signed over to him her interest in the marital home.
But legal title is not a determinative factor in an equitable distribution. See Wanberg v.
Wanberg, 664 P.2d 568, 572 (Alaska 1983) (holding that "[a]lthough [appellant's] name
never appeared on the title . . . it was an abuse of discretion . . . to shield the property
from equitable distribution"); cf. Stanhope v. Stanhope , 306 P.3d 1282, 1287 (Alaska
2013) ("[H]olding joint title is not determinative of intent to treat property as
marital . . . ." (quoting Johns v. Johns , 945 P.2d 1222, 1225 (Alaska 1997))).
27 Beal v. Beal, 88 P.3d 104, 119 (Alaska 2004).
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3. The remaining claims of error in the property distribution may
be decided on remand.
Troy alleges several other errors in the superior court's property
distribution. He asserts that he made a $5,000 payment at closing to facilitate the sale
of the marital home and this amount should be credited to him in the property
distribution table. Relatedly, he argues that the insurance and escrow refunds following
the sale should be considered his separate property because they accrued from his post-
separation mortgage payments.
Troy is correct that the court must "consider payments made to maintain
28
marital property frompost-separation income when dividing marital property."
But the
court retains the discretion to decide whether such payments should be credited to a party
29
in the property division (as a so-called "Ramsey credit"). Thus, although the court
should consider Troy's post-separation payments on remand, it is not bound to adjust the
30
property distribution because of them.
B. The Superior Court Did Not Err By Imputing Income To Troy.
Troy argues that the superior court erred when it imputed income to himfor
purposes of determining his child support obligation. The court fixed his annual income
at $66,248, an amount Troy characterizes as far above his historical average of $35,258.
28 Hall v. Hall , 446 P.3d 781, 783 (Alaska 2019) (quoting Ramsey v. Ramsey ,
834 P.2d 807, 809 (Alaska 1992)).
29 Id.
30 Troy also argues that a television in Annette's possession was erroneously
credited to him instead. We agree with Annette that this complaint is de minimis given
the asset's $100 value; however, our remand focused on the value of the home at
separation does not preclude the court from reconsidering this and other, more minor
aspects of the property division.
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Under Alaska Civil Rule 90.3(a)(4), the superior court may base child
support payment amounts on the "potential income of a parent who voluntarily and
unreasonably is unemployed or underemployed." The court should impute income if "a
parent's current situation and earnings reflect a voluntary and unreasonable decision to
31 Imputing income is appropriate when
earn less than the parent is capable of earning."
the parent's earnings are depressed due to "purely personal choices" rather than
uncontrollable "economic factors."32
We recently described two scenarios for the imputation of income.33 The
first "scenario is when [one spouse] points to [the other spouse's] previous employment
and related income as a prima facie case for underemployment," and the court relies on
that earnings history to impute income.34 The second scenario requires the court to
35 In
evaluate a spouse's earning potential in the absence of a relevant earnings history.
this second scenario we require "specific findings on the particular skills or
qualifications" and "the availability of jobs matching those qualifications."36
Troy disputes that he was voluntarily underemployed, contending that he
worked fewer hours during the marriage and the two years following separation because
31 Fredrickson v. Button, 426 P.3d 1047, 1059 (Alaska 2018).
32 Id.
33 Vogus v. Vogus, 460 P.3d 1220, 1222 (Alaska 2020).
34 Id.
35 Id.
36 Thompson v. Thompson, 454 P.3d 981, 993 (Alaska 2019) (vacating an
order imputing income above historical earnings where "the court made no specific
findings on the particular skills or qualifications [a party's] degree and experience gave
her, or on the availability of jobs matching those qualifications").
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of family responsibilities, including the needs of his ailing parents. But the court did not
credit his arguments with respect to his childcare duties, and while recognizing that he
had commitments to his parents, it did not find them so onerous as to preclude him from
full-time work. These findings are not clearly erroneous.
As for Troy's skills and qualifications, he argues that much of the carpentry
work in Alaska requires either a license or union membership, and he has neither. But
he had a carpentry contractor's license in the past; he does not suggest that he could not
get one again. The court found that Troy's "whole career ha[d] been in the construction
business." The court found that he knew "all facets of the business," had "the skills and
opportunity to work for several different operators in the construction industry," and was
qualified to be "a project manager that should be earning more than $25 per hour."
These findings were supported by the testimony of Annette, Troy himself, and a real
estate agent who regularly used Troy's services to fix up properties for sale. Troy
described his past work as a carpenter and confirmed that he was qualified to work as a
construction project manager (and in fact was managing a project at the time of trial).
The court was presented with the average wage for a project manager ($55.57 an hour)
and the average wage for a carpenter ($31.85 an hour) and chose the lower of the two,
finding that Troy's skills "could earn him at least carpenter's wages."
We have vacated income imputation orders that lacked well-supported
37 In Thompson v. Thompson, for
findings of work experience and job availability.
example, we addressed the income imputed to a former stay-at-home parent with a
college degree.38 The superior court imputed income to her but did not make findings
about her work experience, job qualifications, or the availability of jobs where she
37 See id.
38 Id. at 993-94.
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39
lived. In this case, on the other hand, the court made extensive findings about Troy's
experience and qualifications. And although the court did not specifically identify
available jobs, there is support in the testimony for its finding that he had the
"opportunity to work for several different operators in the construction industry," and
Troy does not directly attack this finding.
Weconcludethat the superior court did not abuse its discretion by imputing
income to Troy. And given the extensive evidence that Troy should be able to earn "at
least" as much as an average carpenter, the superior court did not clearly err by imputing
income at that level.
C. The Superior Court Did Not Err In Its Ruling On Child Support
Arrears.
The court ordered that Troy's child support obligation begin on July 1,
2018, the month after the parties separated. Troy challenges this aspect of the court's
order on several grounds. First, he argues that he should not be required to pay child
support for the first two months of separation because Annette was still living in the
marital home and he was making the mortgage payments. But "[w]e have repeatedly
40 the
recognized that child support should be calculated from the date of separation";
superior court properly applied this rule. Troy argues that this means he "essentially paid
twice, through the mortgage payment on the marital house and again with the child
support ordered." But whether Troy is entitled to a "Ramsey credit" for post-separation
mortgage payments is something for the court to consider in its property division, as
discussed above; it has nothing to do with Troy's independent obligation to support his
39 Id.
40 Christopher D. v. Krislyn D., 426 P.3d 1118, 1123 (Alaska 2018).
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children in an amount determined under Civil Rule 90.3. Child support is based on the
obligor parent's income, not on where the custodial parent is living with the children.
Troy makes a related argument about payments he made to Annette shortly
before trial, which he argues were intended as child support. The court chose to treat the
majority of those payments as reimbursement for Annette's post-separation payment of
some of Troy's expenses, including the costs of medical and car insurance, leaving the
remainder to go toward child support. Troy contends this was error because he intended
the payments to be for child support in their entirety and the court's redirection of them
meant he had more child support arrears and thus owed more interest.
41
"Trial courts have broad discretion in fashioning property divisions."
When the property division involves the allocation of post-separation payments, we
review the allocation for an abuse of discretion, reversing only if "the reasons for the
exercise of discretion are clearly untenable or unreasonable."42 Here, given the other
outstanding obligations between the parties, the superior court was not obliged to accept
Troy's characterization of his post-separation payments. Because the court's exercise
of discretion was not "clearly untenable or unreasonable," we affirm it.
Finally, Troy argues that the superior court erred by applying its
determination of his imputed income "to the arrearages" rather than just his future
support obligations.43 But the court found that Troy "had the opportunity to work full-
41 Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000).
42 Hall v. Hall, 446 P.3d 781, 783 (Alaska 2019) (quoting Jensen D. v. State,
Dep't of Health & Soc. Servs., 424 P.3d 385, 387 (Alaska 2018)).
43 We note that there is no issue here of retroactive modification of arrearages,
prohibited by Civil Rule 90.3(h)(2). "The rule against retroactive modification . . . only
prohibits modifying 'arrearage' already due under a 'final child support award' in
(continued...)
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time during the marriage and after the date of separation." "The obligation of parents to
44
support their children 'begins . . . on the date the parents stop living together.' " Based
on its factual finding that Troy was underemployed from the onset of his child support
obligation, the court did not abuse its discretion when it applied the imputed income to
all past amounts.
D. Troy's Due Process Arguments Are Without Merit.
Troy also argues that he was denied due process. He claims that the
superior court gave more time to Annette's witnesses, applied hearsay and other
evidentiary rules inconsistently, considered Annette's health restrictions but not his,
denied him the opportunity to call his father as a witness, and substantively relied on an
exhibit that had been admitted for demonstrative purposes only. But even if we were to
find due process violations, they would be harmless error absent "a plausible claim of
prejudice."45
Troy does not explain how any time imbalance at trial caused him harm.
He testified, called his own witnesses, and cross-examined Annette's witnesses, and he
never suggested he needed more time to present his case. The court denied his request
to call his father because it had already found his sister credible on the issue he wanted
43 (...continued)
existence when a motion to modify is filed." Duffus v. Duffus, 72 P.3d 313, 320 (Alaska
2003). "When there is no child support order covering the relevant time period, applying
the methodology of Rule 90.3 'does not modify an existing arrearage.' " Christopher D.,
426 P.3d at 1123 (quoting Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997)). The
order here on review was the case's first final child support award.
44 Christopher D., 426 P.3d at 1123 (alteration in original) (quoting Alaska
R. Civ. P. 90.3 cmt. I.B).
45 Amy S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 440
P.3d 273, 282 (Alaska 2019).
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his father to testify about - that Troy had helped care for his parents. The court
accepted that fact as true, though deciding that it did not excuse Troy's
underemployment. Troy does not explain how his father's testimony would have
advanced his argument.
The improper admission of evidence is reversible error "only if . . . we are
left with a definite and firm conviction that the trial court erred in its ruling and the error
46 Troy does not explain how his substantial
affected the substantial rights of a party."
rights were affected by the court's alleged errors in the application of the hearsay rule.
We also see no disadvantage to Troy in the court's consideration of the parties' relative
health constraints. The court considered the parties' age and health as one of the Merrill
factors, as it was required to do by statute,47 implicitly weighed the factor in Annette's
48 but ultimately found that Annette had a higher future earning capacity that
favor,
justified an initial 60/40 property division in Troy's favor.
Finally, as for the court's reliance on an exhibit that was admitted only for
demonstrative purposes, there is no error. In the court's discussion of the Ramsey credit
it cited Annette's exhibit listing expenses she claimed to have paid on Troy's behalf.
Although the exhibit had been "admitted for demonstrative purposes only," Annette
testified extensively about the listed expenses at trial, and the court's reference to the
46 Dobos v. Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000).
47 AS 25.24.160(a)(4) (requiring court to "fairly allocate the economic effect
of divorce" by considering "the age and health of the parties" among other factors).
48 The superior court found that Annette's "health will limit her ability to
work in the future" but that "there is no evidence that [Troy's] ability to work is limited
by his [health issues]."
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demonstrative exhibit as a convenient summary was consistent with the purpose of its
admission.49
V. CONCLUSION
The superior court's property division order is VACATED and
REMANDED for further proceedings consistent with this opinion. The superior court's
child support order is AFFIRMED.
49 "Physical evidence that one can see and inspect (i.e. an explanatory aid,
such as a chart, map, and some computer simulations) and that, while of probative value
and usu[ally] offered to clarify testimony, does not play a direct part in the incident in
question." Evidence - demonstrative evidence , BLACK 'S LAW DICTIONARY (11th ed.
2019).
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