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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tong Vang v. Pa Kou Xiong (6/30/2023) sp-7662
Notice: This opinion is subject to correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
TONG VANG, )
) Supreme Court No. S-18337
Appellant, )
) Superior Court No. 3AN-21-04608 CI
v. )
) O P I N I O N
PA KOU XIONG, )
) No. 7662 - June 30, 2023
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Dani Crosby, Judge.
Appearances: Joe P. Josephson, Josephson Law Offices,
LLC, Anchorage, for Appellant. Richard A. Helm, Law
Office of Richard A. Helm, Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
CARNEY, Justice.
INTRODUCTION
Tong Vang and Pa Kou Xiong were in a three-year relationship and have
two children together. They were married according to the customs of the Hmong
culture but never legally married. Upon dissolution of the relationship, the superior
court determined that Vang owed Xiong $38,000 in damages for three unpaid loans
made to Vang and his family during the relationship. Vang now argues the superior
court should have resolved the dispute "in light of domestic relations law principles."
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Specifically he argues the court should have applied a presumption treating the transfer
of funds between "close relatives" as gifts. Because both parties conceded they were
not legally married and neither party sought to establish a domestic partnership at trial,
we decline to apply the presumption. And because the record supports the superior
court's finding that Xiong intended the transfers of money to be loans, as well as the
court's other factual findings, we affirm the superior court's judgment .
FACTS AND PROCEEDINGS
A. Facts
Vang and Xiong entered into a relationship in 2018 and were married
according to the customs of the Hmong culture in 2019; they have two children. They
never legally married and separated in early 2021.
Xiong subsequently filed for custody of the children and for damages,
seeking repayment of $38,000: $3,000 she loaned Vang to make payments on his
mother's life insurance policy; $30,000 she loaned him to help pay for his mother's
funeral; and $5,000 she alleges was sent to Vang's sister without permission. Vang
disputed her claims and counterclaimed for damages, alleging Xiong retained proceeds
from his mother's insurance policy and took jewelry belonging to him.
B. Proceedings
The superior court held a three-day trial, during which the parties
produced conflicting evidence and testimony regarding their finances and the payments.
1. Xiong's testimony
Xiong testified first. She testified that she loaned Vang $3,000 to pay for
his mother's life insurance and that Vang told her he would pay her back either from
his own funds or from the eventual life insurance payment. She similarly testified that,
after Vang's mother died, she loaned his family $30,000 for the funeral. Again she
testified that she expected to be paid from the life insurance payment and added that his
family members assured her she would be repaid. And finally she testified that Vang,
without her permission, wrote a $5,000 check from her bank account to his sister in
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order to help his sister purchase a house. She testified that the memo line for the check
- "for mom insurance" - referred to how she would be repaid.
Xiong explained that she and Vang had separate finances and that she had
accumulated significant savings from her employment, parents, and wedding gifts. Of
the $30,000 she loaned Vang for his mother's funeral, she stated that $20,000 was from
her savings and another $10,000 was from money that was hers but that her parents had
been holding for her. She also testified and provided evidence showing that the couple
opened a joint account for an expected payment of $50,000 from the life insurance
policy, but that Vang emptied the account. Finally she testified that the jewelry that
was the subject of his counterclaim had been given to her.
2. Xiong's family's testimony
Xiong's mother also testified. She corroborated Xiong's account, saying
Xiong informed her two of the payments were loans she expected to recoup. She also
testified that she warned Xiong not to make the payments because she did not think
Vang could or would pay her back. She confirmed the wedding gifts held by her and
Xiong's father were given only to Xiong and not to the couple together. Finally she
agreed with Xiong's accounting of the jewelry.
Xiong's brother 's testimony was similar. He testified that he helped
retrieve the $10,000 being held by his parents on Xiong's behalf and agreed that those
funds were always considered Xiong's money. He also testified that he was told in
Vang's presence that the funeral payment was a loan. He supported his mother's and
sister's testimony regarding the jewelry.
3. Vang's testimony
Vang testified next, disagreeing with Xiong's account. He did not address
the $3,000 payment but disagreed with her account of the $30,000 payment. He
testified that his mother's funeral was paid for by another, larger life insurance policy.
He stated that he had intended to hold leftover proceeds from that payment on behalf of
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several of his siblings, but that at Xiong's request, he let her control those funds, and
she wrongfully retained them. He also testified that Xiong agreed with the $5,000
payment to his sister, which he indicated was initially paid for from the insurance
proceeds but was then reimbursed from his mother's estate. He testified that the note
on the memo line incompletely showed the source of the funds. He also testified about
the jewelry he claimed was his, and suggested that he and Xiong could split the wedding
gifts.
4. Vang's family's testimony
Vang's uncle also testified. He testified that in Hmong culture, wedding
gifts on the bride's side are given to the couple together and that if a wife initiates the
divorce, "then she must split that money evenly among them." He also testified that he
collected $29,000 in gifts from the bride's side. And he testified generally about the
expenses associated with a traditional Hmong funeral but he did not know the exact
1
breakdown of costs for Vang's mother's funeral or where the funds came from.
Vang's sister testified next. She stated that she had taken out, initially
paid for, and managed a $100,000 life insurance policy in anticipation of the funeral.
She testified that Vang was the beneficiary of a second $50,000 policy that had been
taken out to provide for their younger siblings. She testified that after she received the
payment from the larger policy, she sent two payments totalling $34,000 for the funeral.
She testified that about $10,000 was split between the siblings, that she personally gave
Xiong $3,600 of that to be held for some of the younger siblings, and that Xiong kept
this money after the couple separated. She testified that she kept about $40,000 from
the policy. When questioned by counsel and the court, she could not provide exact
1 The superior court, while on record, attempted to contact the organization
that arranged the funeral and determine exact expenses. Vang's uncle submitted an
invoice from the organization for $28,895, and witnesses testified that significant
additional costs were incurred without documentation.
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amounts of funeral expenses but testified that other relatives contributed money and
estimated the total cost was around $50,000.
Another of Vang's sisters testified about the $5,000 check she received.
She indicated the money was her share of the life insurance payment and was "never
for a down payment for a house." She declined to tell the court how she used the money,
instead telling Xiong's attorney that "it's my own personal matter and I can use it
however I want to."
5. Xiong's rebuttal
Xiong testified in rebuttal and provided a more detailed breakdown of
funeral expenses, estimating that the total cost was around $55,000. She reiterated that
the wedding gifts were "only given to me," though she acknowledged that wedding
traditions could vary from family to family. She testified some more about the jewelry
Vang claimed was his, and denied that she had money belonging to Vang or his siblings,
saying their shares of the insurance payment were spent immediately on various
purchases. Xiong again testified that she did not approve of the $5,000 check, that she
and Vang opened a joint account to hold the insurance proceeds, that some of the
proceeds were supposed to be a repayment for her loans, and that Vang took this money.
6. The superior court's order
After both parties provided written closing arguments, the superior court
issued an order and subsequently a judgment awarding Xiong full damages plus interest
and fees. In a footnote the court "note[d] that neither party attempted to prove a
domestic relationship" and instead "acknowledged that they were not legally married"
but were instead "culturally married."
The court found that Xiong was credible with respect to the $3,000 that
she asserted was a loan. The court also observed that Vang had not contradicted her
testimony.
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Turning to the $30,000 loan, the court noted its initial skepticism that
Xiong would have been able to make such a large loan but stated it had been persuaded
by her credible testimony about her savings. The court also acknowledged initial doubts
about Xiong's account of the funeral but ultimately found that "the testimony . . . fit
Ms. Xiong's version of events rather perfectly." It emphasized that Vang's sister, who
held the larger insurance policy, testified to sending only $25,000 for funeral costs
despite also testifying that the funeral likely cost around $50,000. Because Vang and
his family had testified about leftover proceeds, the court concluded there must have
been a loan to close the gap. The court also credited Xiong's testimony that the wedding
gifts belonged to her - noting that they were held by her family - and that she
"expected to be repaid."
Regarding the $5,000 loan, the court credited Xiong 's testimony because
it found that Vang's testimony was inconsistent with his sister's. The court did not
believe that Xiong had kept insurance proceeds meant for Vang's siblings and
concluded that Vang owed Xiong $38,000.
Finally, the court concluded that of the three pieces of jewelry in Vang's
counterclaim, one belonged to Xiong, one belonged equally to both parties, and the
existence of the third had not been established.
7. Appeal
Vang appeals, alleging the superior court committed legal error by treating
the couple as unrelated and arguing that it should have treated them as spouses, "close
relatives," or domestic partners. He asks us to vacate the judgment and remand for
consideration in light of our presumption that "transfers of funds between close
relatives" are gifts. He also challenges the court's factual findings regarding the
payments as clearly erroneous.
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STANDARD OF REVIEW
We review factual findings, including "the . . . characterization of . . .
2
transfers of funds as 'loans' or 'gifts,' " for clear error. A superior court's
determination of a party's intent when making a payment is also reviewed for clear
3
error. "We afford particular deference to factual findings based primarily on oral
testimony, because the trial court is better suited to judge the credibility of witnesses
4
and weigh conflicting evidence."
But "classification decisions based on statute, contract, or intent are
5
applications of law to fact reviewed de novo." And the legal classification and
definition of relationships like marriages and domestic partnerships are legal questions
6
to which we apply our independent judgment.
DISCUSSION
A. Vang Did Not Establish That The Gift Presumption Applies.
Vang argues that he and Xiong were either married, in a domestic
partnership, or "close relatives," and as a result any transfers of money between them
must be presumed to be gifts. Xiong responds that they were not legally married and
that Vang failed to raise the domestic partnership issue at trial. She does not address
whether they are "close relatives" but argues that the presumption does not apply and,
in the alternative, that it was rebutted.
We have discussed the gift presumption on three occasions. In Fortson v.
Fortson we simply observed that "courts commonly view loans between family
2 Osterkamp v. Stiles, 235 P.3d 178, 183, 191 (Alaska 2010).
3 See Wright v. Dropik, 512 P.3d 655, 663 (Alaska 2022).
4 Kristina B. v. Edward B. , 329 P.3d 202, 207 (Alaska 2014).
5 Tomal v. Anderson, 426 P.3d 915, 923 (Alaska 2018).
6 See id. at 922 n.7; Batey v. Batey, 933 P.2d 551, 552-53 (Alaska 1997).
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members with suspicion, and thus apply [a] rebuttable presumption that loans between
7
close relatives are not actual debts." In Ware v. Ware, a case that did not involve
putative spouses or domestic partners, we "adopt[ed] the majority view that transfers of
8
property . . . from parent to child are presumptively gifts." And in Osterkamp v. Stiles
we applied the "rebuttable presumption that transfers of funds between close relatives
9
are not actual debts." In that case parties in a domestic partnership received money
from one of the partners' parents.10 We affirmed the superior court's conclusion that
evidence of the parties' conduct (repaying the loan despite a document that stated no
repayment was needed) demonstrated that the transfer of money had been made as a
loan, with the expectation of repayment - rebutting the presumption that it was a gift.11
Vang argues somewhat interchangeably that he and Xiong were married,
in a domestic partnership, or close relatives. In fact these designations are distinct, and
only the last one - "close relatives" - is relevant to the gift presumption. But even if
spouses or domestic partners could be considered "close relatives" for the purposes of
the presumption,12 Vang did not establish at trial that either of those designations
applies.
7 131 P.3d 451, 462 n.34 (Alaska 2006) (citing Charles C. Marvel,
Annotation, Unexplained Gratuitous Transfer of Property from One Relative to
Another as Raising Presumption of Gift, 94 A.L.R.3d 608 (1979); 59 AM. JUR. 2D
Parent and Child § 92 (2002)).
8 161 P.3d 1188, 1192-93 (Alaska 2007).
9 235 P.3d 178, 191 (Alaska 2010).
10 See id. In Osterkamp there was no transfer of funds between the partners
themselves. See id.
11 See id.
12 An updated version of the treatise cited in Fortson expressly states that
the definition of "relative" excludes spouses or two people living together. Charles C.
Marvel, Annotation, Unexplained Gratuitous Transfer of Property from One Relative
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It is undisputed that Xiong and Vang were not legally married. To the
extent Vang requests we independently recognize his cultural marriage to Xiong, such
a request runs afoul of "expressly stated legislative intent."13 And to the extent Vang
makes a belated argument that he and Xiong were in a domestic partnership, that
argument is inadequately briefed. Vang did not attempt to establish a domestic
partnership at trial,14 and as a rule, we do not consider issues first raised on appeal unless
to Another as Raising Presumption of Gift, 94 A.L.R.3d 608 n.7 (2021). And while we
cited cases in Ware recognizing a gift presumption for spouses, Ware, 161 P.3d at 1192
n.10, that presumption is generally a separate one for trusts arising from purchases of
real property for or on behalf of a spouse, see, e.g., Rakhman v. Zusstone , 957 S.W.2d
241, 244 (Ky. 1997); Durward v. Nelson , 481 N.W.2d 586, 588 (N.D. 1992); Detra v.
Bartoletti, 433 P.2d 485, 487-88 (Mont. 1967); Jocoy v. Jocoy , 562 S.E.2d 674, 675
(S.C. App. 2002).
13 Cf. Batey v. Batey, 933 P.2d 551, 554 (Alaska 1997) (declining to
"expand[] or alter[]" statutory definition to include putative marriages because
AS 25.05.051 expressly intended "to provide a comprehensive marriage code for the
state of Alaska" (alteration in original)). For a similar reason Alaska also does not
recognize common law marriages more generally. See Edwards v. Franke, 364 P.2d
60, 63 (Alaska 1961).
Vang suggests that he failed to argue the applicability of marriage law
principles because he assumed the superior court would apply them. While we
recognize that both parties and the court used language reflecting the marriage-like
nature of Vang and Xiong's relationship, we also note that Vang expressly conceded
before trial that he and Xiong were not married.
We also conclude that Vang and Xiong were not in a putative marriage,
as such a marriage requires at least one of the parties to have had a good faith belief that
the marriage was legally valid at the time of the attempted marriage. See Batey, 933
P.2d at 553 (calling this "[t]he essential basis of a putative marriage"). The record
contains nothing that would have allowed the superior court to make this finding.
14 As the superior court noted in its order, "neither party attempted to prove
a domestic partnership. Rather, the parties acknowledged that they were not legally
married, and that their relationship was one of being culturally married according to
Hmong practices."
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certain standards are met.15 Vang provides no explanation why we should consider his
untimely argument; his argument is waived because it is inadequately briefed.16
Because Vang did not establish that he and Xiong were married or in a
domestic partnership, we decline to remand for consideration of the gift presumption.
B. The Superior Court's Factual Findings Were Not Clearly Erroneous.
Vang makes a global challenge to "the sufficiency of the evidence" and
argues that Xiong's exhibits "fail to demonstrate the validity of her claims." But the
evidence - both the written exhibits and testimony at trial - provided the superior
court sufficient basis to find Xiong's claims were valid. For example, Vang argues that
Exhibit 7, showing the existence of a joint account, "contradicts and undermines
[Xiong's] repeated oral testimony" about the couple's separate finances. This is
incorrect. Xiong emphasizes that they kept their finances separate for the majority of
the relationship and states that they "never" had a joint account. But the full meaning
is clear in context: "We never shared a joint account. The only time we shared a bank
account . . . was when his mom died and we went to open a joint account to put . . . his
mom's life insurance money . . . , but other than that, we've never had a joint account
at all."
The record also provides adequate support for the court's factual findings
about the payments. Vang did not provide any testimony on the $3,000 loan at all.
Regarding the $30,000 loan, Vang and his sister both testified that $34,000 from the
insurance payment was spent on the funeral.17 Though no one could establish exactly
15 See Ace Delivery & Moving, Inc. v. State, 350 P.3d 776, 781-82 (Alaska
2015) (describing standards for discretionary review of otherwise waived issues).
16 State v. Pub. Safety Emps. Ass'n, 257 P.3d 151, 165 (Alaska 2011).
17 The superior court may have made a mistake in finding that Vang's sister
sent only $25,000, even though Vang and his sister both testified that she sent $34,000.
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how much the funeral cost, Vang's sister and Xiong both estimated that it was around
$50,000. Vang and his sister also both testified that there were leftover proceeds after
the funeral. The court, weighing this testimony, reasonably concluded that an additional
payment bridged the gap . Even though Vang continues to dispute who spent the money
and whose money it was,18 he does not provide alternative numbers or reasoning.
Regarding the $5,000 payment, Vang argues that the inconsistency between the
testimony of him and his sister can be resolved. But the court reasonably concluded
that their differing accounts at trial made Vang less credible.
The record also supports the superior court's conclusion that Xiong's
payments were loans. "Whether the parties were in a domestic partnership or not, the
nature of these payments - loan or gift - depends on the parties' intent."19 The intent
of parties is a factual finding.20 In this case Xiong and her witnesses all testified that
she intended to loan money to Vang, not give it to him. Xiong described her expectation
that she would be repaid, bolstered by Vang and his family's reassurances. Xiong's
In fact Xiong seems to agree that Vang's sister sent $34,000. She simply clarified that
$9,000 was immediately used to reimburse another sibling for other expenses. This left
$25,000 available to spend. But erroneous findings are reversible only "when they are
'controlling,' [and] not if they are immaterial." Pingree v. Cossette, 424 P.3d 371, 377
(Alaska 2018). Because this miscalculation does not affect the superior court's
underlying reasoning, we conclude it is immaterial.
18 Vang now asserts that his sister transferred her insurance payment to him
before the funeral and that he spent $34,000 on the funeral. But at trial he testified
repeatedly that he only received and managed the $34,000 she sent. His sister similarly
testified that she received the payment, sent two discrete payments for the funeral,
distributed some of the excess, and kept the remainder herself. In any event the superior
court's reasoning did not rely on who spent the money - rather the court found that
$34,000 was insufficient to cover the estimated cost of the funeral, suggesting that
Xiong provided a loan.
19 Wright v. Dropik, 512 P.3d 655, 663 (Alaska 2022).
20 See id. at 661.
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mother similarly testified that Xiong told her two of the payments were loans. And
Xiong's brother testified that he was told in Vang's presence that one of the payments
was a loan. In contrast Vang and his witnesses did not testify about the intent behind
two of the payments at all. Vang testified that Xiong approved of the $5,000 gift to his
sister. But we defer to the superior court's determination that Xiong's testimony to the
contrary was more credible.
The record supports both Xiong's claims and the court's findings,
including its conclusion that Xiong intended her transfers of money to Vang to be loans.
CONCLUSION
The superior court's judgment is AFFIRMED.
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