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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Orville Wesley Jenkins Layton v. Mary Tabitha O’Dea, f/k/a Mary Tabitha O-Dea-Layton (8/12/2022) sp-7615
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
ORVILLE WESLEY JENKINS )
LAYTON, ) Supreme Court No. S-18056
)
Appellant, ) Superior Court No. 3AN-19-107361 CI
)
v. )
O P I N I O N
)
MARY TABITHA O'DEA, f/k/a Mary )
No. 7615 - August 12, 2022
)
Tabitha O'Dea-Layton,
)
Appellee. )
)
Appeal f
rom the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Herman G. Walker, Jr., Judge.
Appearances: Orville W. J. Layton, pro se, Anchorage,
Appellant. David S. Houston, Houston & Houston, PC,
Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
A man appeals the superior court's order dividing property upon divorce.
We reject his arguments that the superior court (1) improperly denied his motion to
continue trial, (2) incorrectly allocated marital debt to him, (3) improperly authorized
sale of the marital home before finalizing the property division, and (4) showed bias
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against him. But we agree with his arguments that it was error to (1) decline to consider
whether his wife's separateproperty was transmuted to marital property through contract
and (2) find that no portion of earnings on the wife's separate investments was marital
when the taxes on those earnings were paid with marital funds. We therefore reverse the
judgment and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
Orville Wesley Jenkins Layton and Mary Tabitha O'Dea married in May
1981. They have one adult child. Layton retired in 2017 after a career as a federal
government attorney. O'Dea has worked as a school secretary since 2003.
The parties separated in September 2019, when Layton moved out of their
Eagle River home. O'Dea filed for divorce in October.
B. Proceedings
1. Pre-trial motions and hearings
O'Dea moved for interim relief in November 2019, requesting interim
possession of the marital home, interim support, and interim attorney's fees. Layton,
representing himself, filed a cross-motion for interim relief, requesting authorization to
use funds from investment accounts containing an inheritance O'Dea had received from
her mother. Following a January 2020 hearing, the superior court granted O'Dea interim
possession ofthehomeand interimsupportand denied Layton's cross-motion, reasoning
that any claims pertaining to O'Dea's inheritance would be addressed in later
proceedings.
At the January hearing, the court set a trial date in July. In May,
approximately 10 weeks before trial, Layton moved for a 60-day continuance. He
explained that the COVID-19 pandemic had made it difficult to secure legal
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representation, and he needed more time to hire an attorney and allow that attorney to
prepare for trial. The court denied Layton's motion without explanation.
Around that time, O'Dea moved for permission to put the marital home on
the market. O'Dea alleged that the home had been privately appraised at $380,000 and
that sale of the home would allow the parties to pay off their substantial debts, including
a $322,803.90 mortgage. The court denied O'Dea's motion to sell the marital home,
finding that there were no exceptional circumstances justifying the sale at that time.
2. Trial
The July divorce trial, held via videoconference, featured testimony from
Layton and O'Dea and focused primarily on the parties' marital debts, the marital home,
and O'Dea's inheritance.
a. Credit card and second mortgage debts
Theparties incurred substantial debt during the marriage, including debt on
several credit cards. O'Dea submitted evidence that the marital debt on their American
Express credit card was $14,330.84 as of December 2019. She proposed in the property
table attached to her trial brief that the full amount be allocated to Layton. There was
undisputed evidence that the marital debt on three other credit cards totaled $8,729.27.
The parties also had a second mortgage with Loan Depot that according to
Layton financed household expenses, repairs, and improvements during the marriage.
The second mortgage had previously been addressed at a motion hearing. At that
hearing O'Dea testified that the second mortgage debt totaled $17,500. Layton's trial
brief asserted that as of July 2020, the debt totaled $16,832.22. In the property table
O'Dea submitted with her trial brief, she proposed that the entire $16,832.22 debt be
classified as marital and allocated to Layton. No evidence on the second mortgage debt
was presented at trial.
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b. Marital home
O'Dea testified at trial that she still wished for the marital home to be sold,
but that she would not object to Layton keeping the home if he were able to refinance it.
She presented evidence on the value of the home: the private appraisal referenced in her
pretrial motion to sell the marital home, and a municipal appraisal assessing the home's
value at $431,800.
Toward the end of the trial, Layton suddenly dropped out of the virtual
1
hearing.
The court and O'Dea attempted to contact Layton to no avail. In his absence,
the court noted that Layton had not yet testified regarding his position on the fate of the
marital home. The court asked O'Dea's attorney how he "want[ed] to treat that."
O'Dea's attorney responded that O'Dea still wanted the home sold and that the court had
authority to order a sale at that time. The court then stated that it wished "to get
[Layton's] input" on the issue.
Layton rejoined the virtual trial soon afterward. The court asked Layton
for his position on selling the marital home. Layton said he would agree to sell it "[i]f
necessary," but "[didn't] think it[] [was] going to be a viable option given the economy"
at that time.
c. O'Dea's inheritance
O'Dea inherited several hundred thousand dollars from her mother during
the marriage. She testified that after receiving the inheritance, she had her financial
advisor deposit the funds into two investment accounts. She testified that she did not
discuss setting up those accounts with Layton or involve him in any of her discussions
1 Layton experienced various technical difficulties during the trial. For
example, he claimed at the start that he was unable to see video of the courtroom. He
attempted to fix that problem but was apparently unable to do so. Layton later claimed
to have lost video of O'Dea during her testimony.
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with her financial advisor. O'Dea also testified that she never added Layton to those
accounts, that he never contributed money to the accounts, and that she never added
marital funds to the accounts. Finally, O'Dea testified that she would take a trip every
year to visit her financial advisor to review plans for the investment accounts.
O'Dea testified that she withdrew funds from the investment accounts to
purchase a door and remodel the kitchen and bathroom. She testified that she and Layton
did not discuss how she would pay for those expenses.
Layton's testimony regarding O'Dea's inheritance focused largely on the
taxes paid on the investment earnings from the accounts. According to Layton, he paid
all the taxes on those earnings until O'Dea eventually began assisting in "later years."
Layton testified that the annual taxes he paid on the earnings ranged from $6,000-8,000.
3. Post-trial motions for sale of the marital home
In the month after trial O'Dea renewed her motion to permit the sale of the
home and requested expedited consideration of that motion. She explained that since she
had recently moved out of the home, neither she nor Layton was living there any longer
and a sale would allow them to pay off their marital debts. O'Dea stated that their realtor
had suggested a proposed listing price of $465,000.
The court granted O'Dea "full authority" to sell the home the day after she
filed the motion without waiting for a response from Layton. Layton then moved for
reconsideration, arguing that the marital home was not "in a condition to ensure it brings
full market price." He proposed waiting until the spring of 2021 to sell the home and
renting out the home until then, arguing that would allow time to fix up the property
which would then "increas[e] the potential to receive full market value."
The court held a hearing on Layton's motion at which it reiterated its
decision to authorize the sale of the marital home, explaining that the home "need[ed]
to be sold now" and there was a "perfect selling opportunity." The court reasoned:
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"Interest rates are down near zero. It makes no sense to wait until the spring to sell the
house when [there is] a perfect selling opportunity now." The court added:
It seems to benefit everybody to get that house sold now, get
as much money as you can - if it's being put on the market
by the real estate agent for more than what it's being assessed
at, you've got a better opportunity to sell that house now than
if you wait until the spring to make the repairs.
The court also stated that it did not want to "keep[] the [parties] financially entangled for
the next six months" because they each "need[ed] closure." The court concluded, "[T]he
sooner we get . . . marital debt paid off . . . it's just better for everybody."
Soon afterward, O'Dea agreed to sell the home to a buyer for $430,000
minus $10,500 in closing costs. Layton moved to suspend that sale, objecting to what
he alleged were O'Dea's "unilateral efforts to sell the property." The court denied
Layton's motion, reasoning that its order authorizing sale of the marital home was still
in effect and that Layton had provided no evidence that the sale agreement was faulty or
contrary to the interests of the marital estate. The court ordered Layton not to interfere
with the pending sale and allowed O'Dea to seek attorney's fees incurred in addressing
Layton's motion.
Layton filed a petition for review of the superior court's order allowing the
sale of the marital home. We denied Layton's petition.
Because Layton was "not cooperat[ing] to facilitate the sale," the superior
court directed the entry of a clerk's deed conveying Layton's interest in the marital home
to O'Dea. The home was sold in December for $430,000 less $10,500 in closing costs.
The sale resulted in proceeds of about $39,000 after paying off the mortgage and other
expenses associated with the sale.
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4. Superior court's findings of fact and conclusions of law
The superior court issued written findings of fact and conclusions of law
in March 2021. The court initially declared that it was going to divide the marital estate
55/45. But the court then contradicted this statement, determining that a 50/50 split was
equitable and proceeding to divide the property 50/50. The court ordered the parties to
pay off the debt from two marital credit cards using the equity from the sale of the home
and allocated the marital debt on the third credit card to O'Dea. It allocated the marital
American Express credit card debt to Layton. The court did not address the second
mortgage debt. The 50/50 split resulted in O'Dea owing Layton a $2,740 equalization
payment. But after the court awarded O'Dea a credit of $6,956 for expenses she incurred
post-separation and awarded her $1,000 in attorney's fees, Layton owed O'Dea $5,216.
The court ordered that amount taken from Layton's share of the home sale proceeds.
The court ruled that O'Dea's investment accounts were her separate
property. The court dismissed as inapplicable Layton's argument that the parties had
entered into a contract to make the investment accounts marital property in exchange for
making O'Dea's salary, which would otherwise be marital property, her separate
property. Instead it considered only whether O'Dea had the intent to donate the
investments to the marriage and found that she did not. It then found that there was no
active appreciation in the investment accounts holding her inheritance, 2 reasoning that
contributions Layton hadmade -includingdiscussing investmentplanswithO'Deaand
preparing and paying taxes on the profits from the accounts - were not causally
connected to increases in the accounts' value.
2 Active appreciation refers to an increase in value of a spouse's separate
property during marriage caused by marital funds or marital efforts. Aubert v. Wilson ,
483 P.3d 179, 188 (Alaska 2021). This appreciation may be treated as a marital asset.
Id.
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C. Appeal
Layton appeals, challenging the following rulings: (1) the refusal to
continue the trial to a later date; (2) the allocation of the American Express credit card
debt to him; (3) the authorization to sell the marital home before the final property
division; (4) the refusal to apply a contract analysis to determine whether O'Dea's
inheritance had transmuted to marital property; and (5) the finding that there had been
no active appreciation in O'Dea's investment accounts. In addition, Layton maintains
that the superior court was biased against him.
III. STANDARDS OF REVIEW
A. Decision Whether To Grant A Continuance
"We 'will not disturb a [superior] court's refusal to grant a continuance
unless an abuse of discretion is demonstrated.' "3 "An abuse of discretion exists when
a party has been deprived of a substantial right or seriously prejudiced by the [superior]
court's ruling."4
"We consider 'the particular facts and circumstances of each individual
case to determine whether the denial was so unreasonable or so prejudicial as to amount
to an abuse of discretion.' "5
B. Division Of Marital Property
"Alaska follows the law of equitable distribution, which is a set of rules for
dividing property upon divorce."6 When dividing marital property in a divorce
3 Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (quoting Azimi
v. Johns, 254 P.3d 1054, 1059 (Alaska 2011)).
4 Id. (quoting Azimi , 254 P.3d at 1059).
5 Id. (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 183 (Alaska
2009)).
6 Aubert , 483 P.3d at 186 (quoting Kessler v. Kessler, 411 P.3d 616, 618
(continued...)
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proceeding, a superior court must: "(1) determin[e] what property is available for
7
distribution, (2) find[] the value of the property, and (3) divid[e] the property equitably."
This appeal concerns the first and third steps of the superior court's property division.
We review the characterization of property as separate or marital for clear
error with respect to any "[u]nderlying factual findings as to the parties' intent, actions,
and contributions to the marital estate," and de novo with respect to "whether the
8 The superior court's factual findings are
[superior] court applied the correct legal rule."
clearly erroneous "only when we are left with a definite and firm conviction based on the
entire record that a mistake has been made."9
"A [superior] court has broad discretion to provide for the equitable
division of property between the parties in a divorce."10 "We review the [superior]
court's equitable distribution under an abuse of discretion standard, and will reverse only
if the division is clearly unjust."11
6 (...continued)
(Alaska 2018)).
7 Downs v. Downs , 440 P.3d 294, 297 (Alaska 2019) (alterations in original)
(quoting Dunmore v. Dunmore, 420 P.3d 1187, 1190 (Alaska 2018)).
8 Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013) (quoting Hanson v.
Hanson, 125 P.3d 299, 304 (Alaska 2005)).
9 Aubert , 483 P.3d at 186 (quoting Pasley v. Pasley, 442 P.3d 738, 744
(Alaska 2019)).
10 Ethelbah v. Walker, 225 P.3d 1082, 1086 (Alaska 2009) (citing
AS 25.24.160(a)(4)).
11 Id.
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C. Order For Pre-Judgment Sale Of Property
We review a superior court's order permitting the sale of property prior to
12
the court's final property division for abuse of discretion.
"Under the abuse of
discretion standard, we ask 'whether the reasons for the exercise of discretion are clearly
13
untenable or unreasonable.' "
D. Appearance Of Judicial Bias
"We review de novo the question of whether a judge appears biased, which
14
is assessed under an objective standard."
IV. DISCUSSION
A. It Was Not An Abuse Of Discretion To Deny Layton's Motion For A
Continuance.
In May 2020 Layton moved for a continuance of the July 2020 trial date,
citing a need for more time to hire an attorney and to allow that attorney to prepare for
trial. The superior court summarily denied Layton's motion. Layton challenges the
15
asserting that the record shows
superior court's denial of his request for a continuance,
16
he demonstrated due diligence.
12 Watega v. Watega, 143 P.3d 658, 663 (Alaska 2006).
13 Hall v. Hall, 446 P.3d 781, 783 (Alaska 2019) (quoting Jensen D. v. State,
Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 424 P.3d 385, 387 (Alaska 2018)).
14 Downs v. Downs, 440 P.3d 294, 297 (Alaska 2019) (quoting Mengisteab
v. Oates, 425 P.3d 80, 85 (Alaska 2018)).
15 Layton asserts that this decision is reviewed de novo. However, our
precedent is clear that a denial of a request for a continuance is reviewed for abuse of
discretion. Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013).
16 Layton also contends that the superior court should have treated him as a
pro se litigant and advised him of the need to include an affidavit with his motion for a
(continued...)
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"[A] party who seeks to continue a case for trial must show that he acted
17
with due diligence upon the grounds for which continuance is sought."
"Acontinuance
18
for the purpose of finding and obtaining counsel requires [this] showing of diligence."
"[P]rejudice resulting from a party's lack of diligence in securing an attorney does not
19
afford a basis to obtain a continuance."
Layton failed to make the requisite showing of diligence to support his
motion for a continuance. He represented himself from the outset, explaining at the
interim hearing in January 2020 that he lacked the money to hire an attorney.20 Layton's
subsequent motion for a continuance did not identify when he became able to afford an
16 (...continued)
continuance. See Alaska R. Civ. P. 40(e)(2) (requiring that motions for continuance "be
supported by the affidavit of the applicant setting forth all reasons for the continuance");
Leahy v. Conant, 436 P.3d 1039, 1043 (Alaska 2019) ("We review for abuse of
discretion 'decisions about guidance to a pro se litigant.' " (quoting Greenway, 294 P.3d
at 1062)). We do not know whether the superior court denied the motion for lacking an
affidavit, but even if that were the case, we reject the notion that Layton - a retired
attorney with thirty years of experience - was entitled to the leniency typically given
to self-represented litigants with respect to procedural requirements. See Greenway, 294
P.3d at 1071 (discussing that procedural leniency is afforded self-represented litigants
when there is a "lack of familiarity with the rules" (quoting Wright v. Shorten, 964 P.2d
441, 444 (Alaska 1998))).
17 Greenway,294 P.3dat1067(alterationin original) (quoting Azimiv. Johns ,
254 P.3d 1054, 1061 (Alaska 2011)).
18 Id.
19 Shooshanian v. Dire, 237 P.3d 618, 624 (Alaska 2010) (quoting Siggelkow
v. Siggelkow, 643 P.2d 985, 988 (Alaska 1982)).
20 Layton claimed in his motion for a continuance that he had informed the
superior court at the interim hearing that he was "seeking to obtain [legal] services."
However, the hearing transcript does not indicate that Layton ever mentioned that effort.
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21
attorney or what he had done since then to procure one. He blamed the COVID-19
pandemic for his difficulty finding an attorney, but he failed to explain whether he had
tried to contact any prospective counsel over the phone, over videoconference, or by
mail. Furthermore, Layton did not have any specific attorney in mind when he moved
for a continuance, stating only that he "believe[d] he [would] be able to . . . interview and
decide on an appropriate advocate for the trial." In short, Layton did not show due
diligence, particularly as this case had been going on for almost seven months before he
requested a continuance. Therefore, it was not an abuse of discretion to deny the
continuance.
Layton also cites our March 2020 order pertaining to the COVID-19
pandemic, arguing that the superior court abused its discretion by failing to "liberally
allow continuances." But our order merely recommended that "[j]udges . . . liberally
allow continuances of hearings and trials as necessary depending on the circumstances"
22 That order did not limit the superior court's discretion to deny
due to the pandemic.
a motion for a continuance lacking a show of diligence.
B. It Was Not An Abuse Of Discretion To Allocate Marital Credit Card
Debt To Layton.
Layton next takes issuewiththesuperior court's allocationoftheAmerican
Express credit card debt to him. He appears to argue that the superior court treated the
American Express credit card debt as his separate debt, and that doing so was error
21 See Greenway , 294 P.3d at 1069 ("In the abstract, given the general value
of having trial counsel, we assume that courts would be reluctant to deny a well-
supported motion for a continuance so an identified lawyer could represent the moving
party at trial. But that consideration would not render irrelevant other pertinent
circumstances, such as party prejudice, undue delay of trial, or lack of diligence."
(emphases added)).
22 Alaska Supreme Court Order No. 1957, at 3 (Mar. 13, 2020).
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because the debt was incurred during the marriage. Yet it is clear that the superior court
classified the American Express debt as marital. At trial the parties agreed that
$14,330.84 of the American Express debt was marital, and the court's comments in its
property division order as well as its property division spreadsheet indicate that the court
allocated that full amount to Layton as marital debt.
With that point in mind, the superior court's allocation of the entire amount
of that marital debt to Layton was well within its "broad discretion in fashioning property
23 After allocating various marital debts and assets to each party to achieve
divisions."
a 50/50 split, the court required O'Dea to make a $2,740 equalization payment to Layton.
Allocating the substantial American Express debt to Layton may have helped him avoid
the hardship of having to pay O'Dea an offset. If the superior court had allocated each
party half of the American Express debt, for example, Layton would have had to make
a $4,425 equalization payment to O'Dea, while still being responsible for over $7,000
of the debt. The record suggests that Layton lacked savings and may well have struggled
to make such a payment. We therefore conclude that the court's allocation of the entire
American Express credit card debt to Layton was not an abuse of discretion.
C. The Superior Court Did Not Abuse Its Discretion By Authorizing Sale
Of The Marital Home Before Dividing The Marital Estate.
Shortly after trial the superior court issued an order granting O'Dea's
renewed motion to authorize the sale of the marital home. The order gave O'Dea "full
authority to market, price, authorize repairs, and sell" the marital home and to "otherwise
take any actions needed to liquidate the property."
23 Beal v. Beal, 88 P.3d 104, 110 (Alaska 2004) (quoting Edelman v.
Edelman, 3 P.3d 348, 351 (Alaska 2000)); see also Ethelbah v. Walker , 225 P.3d 1082,
1086 (Alaska 2009) ("We review the [superior] court's equitable distribution under an
abuse of discretion standard.").
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Layton argues that the superior court abused its discretion by authorizing
sale of the marital home prior to dividing the marital estate. He contends that the court
failedtomakefactual findings demonstrating that exceptionalcircumstances justifiedthe
sale, and that "nothing in the record . . . substantiate[s] the [superior court's] reason[s]
for ordering the sale." He urges us to invalidate the sale and rescind the clerk's deed
conveying his interest in the residence to O'Dea. 24
Wehavepreviously considered the sale of marital property prior to thefinal
division of property in a divorce.25 In Watega v. Watega we held that courts have the
authority to allow pre-division sales of marital property,26 though courts "do not have
unlimited discretion" to do so.27 We cited Randazzo v. Randazzo, in which the Supreme
Court of New Jersey affirmed an order authorizing the pre-division sale of the parties'
28 The parties in Randazzo had "little money to meet the[ir] financial
marital property.
obligations," including the "continued expense of maintaining the [marital] property,"
24 O'Deaasserts, without citationtoauthority,that weshould not consider this
issue on appeal because we rejected Layton's petition for review prior to this appeal and
no new facts or evidence have emerged since then. Our decision to deny a petition for
interlocutory review expresses no decision on the merits and does not preclude
consideration of the issue on appeal fromfinal judgment. Contento v. Alaska State Hous.
Auth. , 398 P.2d 1000, 1001 (Alaska 1965).
25 Watega v. Watega, 143 P.3d 658, 659 (Alaska 2006); Husseini v. Husseini,
230 P.3d 682, 683 (Alaska 2010).
26 143 P.3d at 660-62 (determining that this authority exists under
AS 25.24.140(b)(6)).
27 Id. at 663 (citing Randazzo v. Randazzo, 875 A.2d 916, 924 (N.J. 2005)).
28 875 A.2d at 924-25.
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29
which sold before the trial court issued the divorce judgment. Emphasizing that "trial
courts should have the discretion to order the distribution of proceeds [from a pre-
division sale] when distribution is deemed fit, reasonable, and just," the appellate court
held that the trial court "acted well within its discretionary powers to order the sale of the
[marital] property" to abate the parties' "mounting marital obligations." 30
Pre-division sales can give courts a more accurate picture of the parties'
financial circumstances and facilitate a fair division of the marital estate, so long as the
proceeds of the sale are held in escrow pending the final property division. Accordingly,
although we noted in Watega that "courts should permit [pre-division] sales sparingly
and only for pressing reasons,"31 courts have discretion to allow these sales to preserve
the marital estate.32 Preventing waste of marital assets is a sufficient reason to authorize
a pre-division sale, provided that (1) the superior court's findings adequately justify the
sale, and (2) the sale actually preserves the marital estate.33 In Husseini v. Husseini we
concluded that the superior court's decision to authorize the pre-division sale of the
29 Id. at 924.
30 Id.
31 143 P.3d at 663; see also Husseini v. Husseini, 230 P.3d 682, 688 (Alaska
2010) (acknowledging Watega and noting that courts should only exercise discretion to
authorize pre-division sales in "exceptional circumstances").
32 See Husseini, 230 P.3d at 688 (providing "the preservation of marital
RETT R.
assets" as an example of a pressing reason to order a pre-division sale); 1 B
URNER,EQUITABLE DISTRIBUTION OF PROPERTY § 3:9 (4th ed. Dec. 2021 update) ("The
T
rule against early division of marital property does not prevent the court from entering
orders during the pendency of the action to preserve the marital estate. Where a showing
of necessity is made, the court has broad power to change the form in which marital
property is held . . . ." (footnote omitted)).
33 Watega, 143 P.3d at 663-64.
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marital home - which resulted in the objecting spouse's eviction from the home - was
34
not supported by adequate findings.
And because the pre-division sale in Watega was
only for the amount of the loan and thus "did nothing to increase or preserve the assets
of the marital estate," we concluded there that the superior court abused its discretion by
35
granting the husband's motion to authorize the sale.
In this case, the benefits associated with the sale of the marital home - and
the superior court's finding that it would be beneficial for the parties to quickly pay off
their substantial marital debts - justified the order. The parties were paying the
mortgage on the empty marital home and Layton, at least, was paying rent to live in his
own apartment. Furthermore, Layton represented at apretrial motion hearing that he was
only making minimum payments on some of the parties' credit card debt, was "getting
killed on interest rates," and wanted to "accelerate" his payments on the debt. The home
sale allowed the parties to pay off the mortgage and still receive about $39,000 in
proceeds. These proceeds were sufficient to allow the parties to extinguish some of their
sizeable marital credit card debt and put Layton in a better position to pay down the
remaining debt allocated to him in the final property division.
The superior court articulated a second reason supporting the pre-division
sale of the marital home: the parties had "a better opportunity to sell [the] house" at that
time rather than in the spring, as Layton had suggested, because O'Dea's real estate
agent planned to list the home at a price over its assessed value. Although Layton
34 230 P.3d at 684, 688. A pre-division sale that would cause a spouse to be
evicted should not be ordered lightly. When a pre-division sale would cause eviction,
the reasons for pre-division sale - supported by sufficiently detailed factual findings -
should be all the more pressing than required if no eviction will result. Here, however,
neither Layton nor O'Dea was living in the marital home when the superior court
authorized its sale.
35 Watega, 143 P.3d at 664.
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alleged that waiting to sell the home would "increas[e] the potential to receive full
market value," he provided no evidence that his proposal would result in a sale of greater
net value. He did not represent that he had found a renter or that it would be easy to find
one for a six-month period while repairs to the house could be made. Layton's argument
that thespringtimeoffered abetter selling opportunitywassimilarly speculativeand does
not undercut the court's finding that there was a "perfect selling opportunity" when it
issued the order. Nor does the fact that the home actually sold for $430,000, not
$465,000, undermine the rationale for a prompt sale; though lower than O'Dea's
representation of what the home could sell for, the amount of the sale is very close to the
higher of the two appraised values presented at trial.
In sum, the superior court did not abuse its discretion by authorizing sale
of the marital home.
D. It Was Error To Classify The Investment Accounts As Separate
Property Without Considering Whether There Was A Post-Nuptial
Agreement To Make Them Marital Property.
The superior court rejected Layton's trial argument that the parties had
struck a bargain to make O'Dea's investment accounts marital property. Because the
court believed the argument "ha[d] no merit," it made no factual findings about whether
such an agreement existed and considered only whether O'Dea had intended to donate
her inheritance to the marital estate.
Layton contends on appeal that the superior court erred by declining to
consider the possibility that O'Dea's inheritance had transmuted to marital property by
contract (as opposed to gift). We agree.
"Under Alaska law a spouse's separate property may be transmuted into
marital property if 'that is the intent of the owner and there is an act or acts which
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36
demonstrate that intent.' " The classification of property can be changed not only by
37
a gift,
but also "by an express or implied contract . . . or other transaction between the
38
spouses during the marriage." The nature of the transaction depends on the facts, so
"the possibility of a contractual conveyance should be . . . considered" when analyzing
39
an alleged change in the property's classification.
Failing to engage in this inquiry was error because Layton's transmutation
argument was based on an alleged agreement and there was some evidence to support
40
the existence of that agreement. Layton argued and testified at trial that he and O'Dea
agreed to invest O'Dea's inheritance of approximately $366,000 and set it aside as a
marital asset for major household expenses, joint vacations, and future retirement
income. Layton insisted that in exchange, O'Dea's "entire annual salary," which would
normally be marital property, would become her own separate property. Layton's self-
36 Hall v. Hall , 426 P.3d 1006, 1009 (Alaska 2018) (quoting Thomas v.
Thomas, 171 P.3d 98, 107 (Alaska 2007)).
37 Aubert v. Wilson , 483 P.3d 179, 188 (Alaska 2021) (discussing that
transmutation by implied interspousal gift "occurs when one spouse intends to donate
separate property to the marital estate and engages in conduct demonstrating that intent"
(quoting Pasley v. Pasley, 442 P.3d 738, 750 (Alaska 2019))).
38 1 TURNER, supra note 32, § 5:66; see also Hall, 426 P.3d at 1011
(remanding for superior court to determine whether spouses entered a post-nuptial
property division agreement transmuting marital property into separate property).
39 1 TURNER, supra note 32, § 5:67.
40 See James v. Alaska Frontier Constructors, Inc., 468 P.3d 711, 720 n.34
(Alaska 2020) ("The existence . . . of a contract is a question of fact." (quoting
Earthmovers of Fairbanks, Inc. v. Pac. Ins. Co., 614 P.2d 781, 782 (Alaska 1980))).
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41
serving testimony alone "is not particularly probative" of the parties' intent. However,
O'Dea's testimony that large expenditures from the inheritance were made on various
home improvement projects could indicate that the parties had contracted to transmute
the inheritance into marital property.
Given the nature of Layton's claims, the superior court should have
considered whether the evidence proved that the parties had entered into an agreement
42 We remand for the superior court to
to treat O'Dea's inheritance as marital property.
consider the evidence and make the pertinent findings.
41 See Hussein-Scott v. Scott, 298 P.3d 179, 182 (Alaska 2013)
("[S]elf-serving testimony at the time of litigation about the parties' past intentions is not
particularly probative [when interpreting a contract]."); Pasley, 442 P.3d at 747-48
("Because a spouse's actual intent at the time of [a transaction] may conflict with the
spouse's interests at the time of the divorce trial, 'the trial testimony of the parties must
be viewed with careful skepticism.' " (footnote omitted) (quoting 1 B RETT R. T URNER,
QUITABLE DISTRIBUTION OF PROPERTY § 5:23, at 629 (3d ed. Nov. 2017 update))).
E
42 The superior court's finding that O'Dea did not intend to donate her
inheritance to the marital estate does not preclude finding an agreement for
consideration. Although "donative intent is almost always demonstrated through some
minimum amount of objective conduct," the ultimate question is whether the owning
URNER, supra note 32, § 5:69; see
spouse had "actual subjective donative intent." 1 T
also Thomas v. Thomas, 171 P.3d 98, 107 (Alaska 2007) ("Separate property can
become marital property where that is the intent of the owner and there is an act or acts
which demonstrate that intent." (quoting Chotiner v. Chotiner, 829 P.2d 829, 832
(Alaska 1992))). In a contractual analysis, on the other hand, the ultimate question is
whether the parties objectively manifested an intent to make the separate property
marital, notwithstanding any "subjective contrary intentions." See Kingik v. State, Dep't
of Admin., Div. of Ret. & Benefits, 239 P.3d 1243, 1251 (Alaska 2010) (quoting Dutton
ILLISTON ON CONTRACTS
v. State, 970 P.2d 925, 928 (Alaska App. 1999)); see also 1 W
§ 3:4 (4th ed. May 2022 update).
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E. The Finding That Using Marital Funds To Pay Taxes On The
Investment Earnings Did Not Cause The Investments To Appreciate
Is Clearly Erroneous.
Although the superior court acknowledged that the investment accounts
containing O'Dea's inheritance increased in value, it found that the increase in value was
not a marital asset because "[t]here is no connection between [Layton's] actions,"
including his use of marital funds to pay taxes on the investment earnings, "and
appreciation of [the] inheritance."
Like transmutation, active appreciation is a way in which a spouse's
43
separate property can become marital.
"Active appreciation occurs when marital funds
or marital efforts cause a spouse's separate property to increase in value during the
44
marriage." "For this doctrine to apply, there must be (1) appreciation of separate
property during marriage; (2) marital contributions to the property; and (3) a causal
connection between the marital contributions and at least some part of the
45
appreciation."
"The spouseseeking to classify the appreciation as activehastheburden
of proving the first two elements - an increase in value and marital contribution -
46
while the burden of showing the absence of a causal link lies with the owning spouse."
The parties agree that the value of the accounts increased during the
marriage but dispute whether there were marital contributions and, if so, whether there
was a causal connection between those contributions and the appreciation of the
accounts. We conclude that the superior court did not err by determining that using
43 Harrower v. Harrower, 71 P.3d 854, 857 (Alaska 2003).
44 Aubert v. Wilson, 483 P.3d 179, 188 (Alaska 2021) (quoting Odom v.
Odom, 141 P.3d 324, 333 (Alaska 2006)).
45 Id. at 188-89 (quoting Odom, 141 P.3d at 334).
46 Id. at 189 (quoting Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005)).
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47
marital funds to pay taxes on investment earnings is a marital contribution. But it was
clear error to find "no connection" between Layton's payment of those taxes and
appreciation of the accounts. 48
1. The use of marital funds to pay taxes on investment earnings is
a marital contribution.
Layton maintains that the superior court erred by failing to consider
O'Dea's activities - including her annual trips to the East Coast, paid for with marital
funds, to meet and discuss the accounts with her financial advisor - as marital
49
contributions.
Although time and expense contributed to increasing the value of
50
investments may be classified as marital, de minimis contributions are not credited
51
toward active appreciation. O'Dea's infrequent trips to meet with her financial advisor
47 Whether a given set of facts amounts to a marital contribution for purposes
URNER, supra
of active appreciation is a question of law that we review de novo. See 1 T
note 32, § 5:56; Beals v. Beals, 303 P.3d 439, 459 (Alaska 2013).
48 Layton argues that this finding is reviewed de novo. But causation is a
"subsidiary finding[]" of fact required to find active appreciation in separate property.
Harrower, 71 P.3d at 858 (quoting B RET R. T URNER, E QUITABLE DISTRIBUTION OF
PROPERTY, § 5:22, at 236 (2d ed. 19974)). The correct standard of review is therefore
clear error. See Foster v. Pro. Guardian Servs. Corp. , 258 P.3d 102, 106 (Alaska 2011)
(reviewing factual findings for clear error).
49 Layton also argues that the superior court should have considered O'Dea's
stock transactions, which allegedly "reflect considerable involvement on [her] part," in
its active appreciation analysis. But the record does not show that O'Dea was personally
involved in buying and selling individual investments.
50 Hanson, 125 P.3d at 304; Aubert , 483 P.3d at 188-89.
51 See Miles v. Miles, 816 P.2d 129, 131-32 (Alaska 1991) (affirming finding
that wife's efforts to maintain and manage husband's premarital properties were de
minimis and did not contribute to active appreciation of properties).
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were de minimis contributions; therefore the superior court did not err by declining to
consider them.
But significant contributions of marital funds to pay taxes on investment
52 Layton testified at trial that the annual taxes attributable
earnings are a different story.
to the investment earnings ranged from $6,000-8,000. He testified that he initially paid
all the taxes on the investment gains, presumably with marital funds,53 before O'Dea
eventually began assisting in "later years." The superior court did not err by determining
that the payment of these taxes was a marital contribution.
2. It was clear error to find no causal connection between Layton's
tax payments on the investment earnings and appreciation of
the accounts.
Although the superior court found that Layton made marital contributions
to the accounts and that there had been appreciation, the court saw "no connection"
between these contributions and the appreciation.
Layton disputes the court's finding that the tax payments did not cause any
appreciation. O'Dea counters that Layton failed to present evidence at trial supporting
52 See Hanson, 125 P.3d at 305 ("[I]t is undisputed that [the husband's
business] was his full-time job and that he worked seventy to ninety hours per week
when [the business] had a contract . . . . [W]e conclude that [the husband] spent
significant marital time working on [the business]."); Abood v. Abood , 119 P.3d 980,
989-90 (Alaska 2005) (holding that time husband spent during marriage working for
sweeping company that he owned and operated as sole proprietorship, as well as funds
used to purchase equipment for company, were marital contributions); Harrower, 71
P.3d at 859 ("[T]he record supports the [superior] court's express finding that James
contributed significant marital effort to the Kennicott property.").
53 See Schmitz v. Schmitz, 88 P.3d 1116, 1124 (Alaska 2004) ("Assets
acquired during marriage 'as compensation for marital services' - most commonly
salaries earned by either spouse during marriage - are considered marital assets."
(quoting BRETT R. T URNER, E QUITABLE DISTRIBUTION OF PROPERTY § 5.23, at 263 (2d
ed. 1994)).
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his claim that paying taxes contributed to the increase in value of the accounts. She adds
that to the extent there was evidence of marital contributions, the court did not clearly
err by relying on her testimony to rebut Layton's causation argument.
Because the court found that Layton made marital contributions to the
accounts and that there had been appreciation, Layton was entitled to a presumption that
54 The burden then shifted to O'Dea to prove
his contributions caused the appreciation.
the "absence of a causal link."55 But she did not do so, and the court's justification for
finding no causal connection between Layton's actions and the appreciation of the
accounts was clearly erroneous. The court cited O'Dea's testimony that her financial
advisor handled the accounts for her, that she met with the financial advisor once a year
to discuss the investment, and that Layton was not at any of those meetings. This
testimony does not address whether Layton's payment of taxes on the investment gains
fromthe accounts caused at least part of the appreciation. Common sense suggests it did:
Because O'Dea did not have to withdraw a portion of the earnings to pay taxes, those
earnings remained in the accounts, increasing their value. Some of the accounts'
increase in value is therefore marital property.
We remand for further proceedings regarding (1) the amount of marital
funds used to pay taxes on the investment earnings and (2) the amount of the accounts'
growth caused by the payment of taxes on the earnings using marital funds.56 "In making
54 See Aubert , 483 P.3d at 189 (once spouse seeking to classify appreciation
as active proves there has been marital contribution and appreciation, "[t]he burden of
showing the absence of a causal link [shifts to] the owning spouse").
55 See id.
56 If the superior court finds on remand that the investment funds were
transmuted to marital property through interspousal agreement, then the question of
(continued...)
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----------------------- Page 24-----------------------
these findings, the superior court retains the discretion to take whatever evidence it
deems appropriate." 57
F. The Superior Court Did Not Appear Biased Against Layton.
Finally, Layton argues that the superior court appeared to be biased and
58
treated him unfairly throughout the divorce proceedings. To support this argument,
Layton points to a variety of the court's actions: (1) granting O'Dea's motion for interim
relief while refusing to consider Layton's cross-motion for interim relief; (2) granting
O'Dea's expedited motion to authorize the sale of the parties' home without waiting for
Layton's response; (3) making allegedly biased comments against Layton and excluding
him froma discussion about a potential trial date; (4) discussing Layton's position on the
marital home with O'Dea's counsel while Layton was absent from the virtual trial; and
59
(5) referring to Layton as "Oliver" rather than "Orville" in its written findings.
56 (...continued)
active appreciation is beside the point. The court must address active appreciation only
if it finds that no transmutation occurred.
57 Hanson, 125 P.3d at 306.
58 Layton makes this argument for the first time on appeal. We have
previously assumed without deciding that a claim of judicial bias raised for the first time
on appeal may be considered, see Downs v. Downs, 440 P.3d 294, 299 (Alaska 2019),
and we make the same assumption here.
59 Layton also contends that the superior court displayed bias by proceeding
with the divorce trial in spite of a host of technical difficulties Layton had using the
videoconferencing software, including an inability to see video of the courtroom, loss of
video while O'Dea was testifying, and loss of connection while he was testifying.
Layton waived this argument because he did not object to the court's moving forward
with the trial on these grounds. See, e.g., Cent. Bering Sea Fishermen's Ass'n v.
Anderson , 54 P.3d 271, 280 n.22 (Alaska 2002) (holding that parties' failure to object
at trial to allegedly prejudicial closing argument waived "their right to object on that
(continued...)
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60
"We review de novo the question of whether a judge appears biased." To
prevail on a claim of judicial bias, "a party must demonstrate that the court formed an
61 "[B]ias cannot 'be
unfavorable opinion of the party from extrajudicial information."
62 "But judicial bias may . . . arise during the
inferred merely from adverse rulings.' "
course of judicial proceedings if 'a judicial officer hears, learns, or does something
intrajudicially so prejudicial that further participation would be unfair.' "63
Applying this test, we conclude that although the superior court made some
errors in the course of the proceedings, its actions did not indicate bias against Layton.
1. Bias cannot be inferred from the superior court's adverse
rulings on motions.
Layton argues that the superior court treated him unequally by granting
O'Dea's motion for interim relief while denying his cross-motion for interim relief.
Layton does not challenge the court's award of interim support to O'Dea. Instead he
highlights the court's justification for denying his motion - that considering it would
59 (...continued)
ground" on appeal). For example, Layton stated at the beginning of the trial that he
could not see the court but did not object, even after the court said, that "[As] long as you
can hear me, that's okay because I can . . . see you." In addition, Layton stated midway
through the trial that he lost video of O'Dea while she was testifying, but acknowledged
that he could hear her and that the proceeding could "go ahead." At no point did Layton
ask the court to stop the trial due to these technical difficulties.
60 Downs, 440 P.3d at 297 (quoting Mengisteab v. Oates, 425 P.3d 80, 85
(Alaska 2018)).
61 Id. at 299.
62 Id. at 300 (quoting Kinnan v. Sitka Counseling, 349 P.3d 153, 160 (Alaska
2015)).
63 Id. (quoting Brown v. State, 414 P.3d 660, 661 n.3 (Alaska 2018) (Winfree,
J., concurring in part and dissenting in part)).
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----------------------- Page 26-----------------------
have required a determination as to whether investment accounts were a marital asset -
and contrasts it with the court's award of interim support to O'Dea, which was
"apparently based on a [factual] finding that a . . . portion of [his] retirement income was
marital property."
This argument fails for two reasons. First, the court's order is simply an
64 Second, the court's
adverse ruling and does not demonstrate bias against Layton.
rulings were not truly inconsistent. Layton's cross-motion for interim relief requested
authorization to use funds from the investment accounts derived from O'Dea's
inheritance. The parties hotly contested whether these accounts were marital property.
In contrast, there was no dispute that at least a portion of Layton's retirement income was
marital property that could be drawn on for interim spousal support.65 Particularly in
light of this discrepancy, it was well within the court's discretion to grant O'Dea's
request for interim relief while rejecting Layton's at this stage of the proceedings.66
Layton also argues that the superior court showed bias against him by
granting O'Dea's expedited motion to authorize the sale of the marital home without
waiting for Layton's response. Although granting the motion without waiting for a
response was error,67 the court rectified its error by granting reconsideration and holding
64 See Downs , 440 P.3d at 300 ("[B]ias cannot 'be inferred merely from
adverse rulings.' " (quoting Kinnan, 349 P.3d at 160)).
65 See AS25.24.140(a) (allowingcourts toaward expenses, including spousal
maintenance, to a spouse in the interim of a divorce "in appropriate circumstances").
66 See Johnson v. Johnson, 836 P.2d 930, 933 (Alaska 1992) ("The
determination of an award of interim spousal [support] . . . is committed to the sound
discretion of the [superior] court.").
67 See Alaska R. Civ. P. 77(g)(6)-(7) (requiring court, absent certain
exceptions, to allow opposing party "a reasonable opportunity to respond" to a motion
(continued...)
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----------------------- Page 27-----------------------
a hearing so that the parties could present argument on the issue. The court then took
their testimony into account when making its decision. Given the court's efforts to
correct the error, this series of events does not show bias.
2. The superior court's ex parte communications with O'Dea's
attorney do not show bias.
Layton next claims that the court engaged in an ex parte discussion with
O'Dea's counsel about the fate of the marital home while he was absent from the virtual
hearing due to the lost connection, in violation of the Code of Judicial Conduct.
When Layton dropped out of the hearing in the middle of his testimony, the
court stated that it did not know whether he had intentionally or accidentally left, "but
at this point, he is no longer participating in this . . . hearing." The court noted that
Layton had not yet testified about his position regarding what should be done with the
marital home. The court asked O'Dea's attorney how he "want[ed] to treat that."
O'Dea's attorney responded that O'Dea still wanted the home sold, and that the court
had authority to order a sale at that time. The court then stated:
All right. That was one of the things the court wanted to ask
Mr. Layton before we got off this, what his plan was for the
house. He didn't take - give any testimony about it. I will
make a decision on that. I would like to get his input on it.
I think he objected but I don't think he objected in the long
run that it should be sold.
67 (...continued)
for expedited consideration).
-27- 7615
----------------------- Page 28-----------------------
68
Although we agree with Layton that this was an ex parte discussion, the
69
discussion was not "intrajudicially so prejudicial [as to] be unfair."
Layton was already
aware that O'Dea wished for the house to be sold: O'Dea testified to that effect during
her direct examination and had previously moved for permission to put the home on the
market. Moreover, the court gave Layton the opportunity to explain his position upon
his return: As soon as Layton rejoined the hearing, the court asked him what his position
was regarding what should be done with the marital home - specifically, whether he
would agree to sell it. Layton responded that he would "[if] necessary," but that he
"[didn't] think it[] [was] going to be a viable option given the economy" at that time.
The superior court's brief ex parte discussion with O'Dea's attorney does
not show bias against Layton.
68 See Communication , B LACK 'S LAW DICTIONARY (11th ed. 2019) (defining
"ex parte communication" as "[a] communication between counsel or a party and the
court when opposing counsel or party is not present"); Patterson v. GEICO Gen. Ins.
Co., 347 P.3d 562, 570 n.21 (Alaska 2015) (relying on definition of "ex parte
communication" in Black's Law Dictionary when concluding that judge's statement to
a party's attorney off the record but in the opposing party's presence was not an ex parte
communication). Although Canon 3(B)(7) of the Alaska Code of Judicial Conduct
generally prohibits a judge from "initiat[ing], permit[ting], or consider[ing] ex parte
communications or other communications made to the judge outside the presence of the
parties concerning a pending or impending proceeding,"thecourt's violation of the letter
of the canon does not suggest that it was biased against Layton. We also note that if a
party voluntarily or intentionally leaves an ongoing proceeding or does not appear for
a noticed proceeding, the court's moving forward with the proceeding is not improper
ex parte communication.
69 See Downs, 440 P.3d at 300 (quoting Brown v. State, 414 P.3d 660, 661 n.3
(Alaska 2018) (Winfree, J., concurring in part and dissenting in part)).
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3. The record does not demonstrate that the superior court made
comments critical of Layton or excluded him from discussions.
Layton argues that the superior court showed bias against him during the
interim hearing by "criticiz[ing] [him] for voluntarily leaving the marital home" and
70
"criticiz[ing]" his choice to move into an apartment with an $1,800 monthly rent. But
our review of the transcript persuades us that the court's statements were simply "the
71
result of opinions and attitudes formed in court by the evidence that the judge heard."
The transcript does not indicate that the court "criticized" Layton's choices; rather, it
shows that the court was swayed by O'Dea's argument that Layton could have rented a
cheaper apartment after moving out of the marital home in light of the parties' significant
ongoing marital expenses.
Layton also appears to argue that the court excluded him from the
discussion during the interim hearing about a potential date for trial, but the transcript
does not show this. Although only the court and O'Dea's counsel engaged in that
discussion, there is no evidence that Layton lacked an opportunity to participate or that
the court prevented him from providing input.
4. Using the wrong name in a written decision did not show bias.
Layton argues that the superior court showed bias against him by failing to
be "attentive to the facts of the case," in particular by calling him "Oliver" instead of
70 Layton further argues that the court appeared biased in favor of O'Dea
when it told Layton to try to work out a settlement with O'Dea's "very reasonable"
attorney. But to show judicial bias "a party must demonstrate that the court formed an
unfavorable opinion of the party from extrajudicial information." Id. at 299. A judge's
statement that a party's attorney is "reasonable" does not show bias in favor of that party
or against the other.
71 See id. at 300 (quoting Hanson v. Hanson, 36 P.3d 1181, 1186 (Alaska
2001)).
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----------------------- Page 30-----------------------
72
"Orville" in its findings of fact and conclusions of law. Referring to Layton by the
wrong name was certainly an unfortunate mistake, and it is understandable that this
mistake could cause Layton to question whether the court had considered his arguments
with sufficient care. But it is ultimately a scrivener's error that did not prejudice Layton
and, without more, does not reveal bias against him. 73
G. On Remand The Superior Court Must Clarify Its Property Division.
The court did not clearly explain its division of the marital estate. At one
point the court declared that it would divide the marital estate 55/45; later, however, the
court stated that a 50/50 split "[wa]s equitable" and proceeded to divide the property
50/50. These conflicting statements leave us uncertain as to how the court actually
intended to divide the marital estate.
In addition, Layton points out that the court did not address the second
mortgage debt in its property division even though the parties had agreed before trial that
approximately $16,832 of that debt was marital. It is the parties' responsibility to present
74
evidence in support of their position, and they did not do so for this debt. Without this
evidence, we cannot say the superior court clearly erred by failing to allocate this debt.
But because the nature of this debt appears undisputed, and because we remand for other
72 Layton also argues that the court "disregard[ed] . . . simple facts" by putting
his nickname, Wes, in the case caption. But O'Dea, not the court, was responsible for
including Layton's nickname in the case caption when she filed the case. If Layton
wished for his name to appear differently, he could have moved to amend the caption at
any point in the proceedings.
73 See Downs, 440 P.3d at 300 ("[J]udicial bias may . . . arise during the
course of judicial proceedings if 'a judicial officer hears, learns, or does something
intrajudicially so prejudicial that further participation would be unfair.' " (quoting
Brown, 414 P.3d at 661 n.3 (Winfree, J., concurring in part and dissenting in part))).
74 Hartland v. Hartland, 777 P.2d 636, 640-41 (Alaska 1989).
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----------------------- Page 31-----------------------
reasons, we leave it to the superior court's discretion to allow the parties to present
evidence on this debt.
Omitting the second mortgage debt from the property division effectively
renders it Layton's separate debt, as he appears to be the sole party making payments on
it. O'Dea asserts that the debt's absence in the court's final allocation column is
"reflective of the court's 55/45 split" of the marital estate. But as mentioned above, we
are not certain whether the court intended a 55/45 or a 50/50 split. And even if the court
did intend a 55/45 split, allocating the second mortgage debt to Layton does not produce
75
that result- it instead produces an outcome far harsher for Layton.
We therefore remand to the superior court to address the ambiguity in its
overall property division and to allocate the second mortgage debt in a manner consistent
with that division.
V. CONCLUSION
We VACATE the superior court's judgment and REMAND for further
proceedings consistent with this opinion.
75 Thecourt valued themarital estateat $31,378, allocating$12,949 to Layton
and $18,429 to O'Dea. The court then required O'Dea to make a $2,740 equalization
payment to Layton, leaving each party with $15,689 in net assets. Leaving Layton
responsible for the entire $16,832 second mortgage debt wipes out all of the assets
allocated to him, leaving him with $1,143 in liabilities while O'Dea holds onto her
$15,689.
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