Glover v. Ranney ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JASON R. GLOVER, )
) Supreme Court No. S-14610
Appellant, )
) Superior Court No. 3AN-10-08789 CI
v. )
) OPINION
BEVERLY E. RANNEY, )
) No. 6854 - December 13, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Jason R. Glover, pro se, Los Angeles
California, Appellant. Maryann E. Foley, Law Office of
Maryann E. Foley, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
A husband and wife divorced in 2011. They entered into a property
settlement agreement, providing that the wife would receive 55% of the marital estate
and 50% of the marital share of the husband’s military pension. The parties then
disputed how to properly effectuate the settlement agreement — disagreeing over what
portion of the husband’s pension was divisible, whether the division could require
indemnification for reductions in disposable retirement pay, and whether the division
could include a survivor benefit plan annuity not mentioned in the settlement agreement.
They submitted competing orders to effectuate the military pension division, and the
superior court accepted the wife’s order. The husband appeals the military pension
division, arguing that: (1) he was denied the opportunity to present evidence; (2) the
superior court violated federal law by dividing gross pay, disability pay, and more than
50% of disposable retirement pay; (3) the superior court’s final order awarding survivor
benefits did not comply with the parties’ settlement agreement and ignored the parties’
stipulated length of marriage; (4) the superior court erred by awarding the wife additional
compensation without explanation; and (5) the superior court incorrectly barred the
parties’ children from survivor benefit coverage.
Because the superior court ignored the stipulated length of marriage and
awarded the wife a survivor benefit exceeding her share of the husband’s military
pension, we reverse and remand on those two issues. We otherwise affirm the superior
court’s decision.
II. FACTS AND PROCEEDINGS
Jason Glover and Beverly Ranney married on December 30, 1999 in
Fairbanks. Beverly filed for divorce on July 6, 2010. Jason was employed by the United
States Air Force during the entire marriage.
Jason and Beverly entered mediation and reached a property settlement
agreement in May 2011, dividing the marital property 55% to 45% in Beverly’s favor
and dividing the marital portion of Jason’s military pension 50% each. The agreement
awarded Beverly “a percentage of Jason Glover’s disposable military retired pay, to be
computed by multiplying 50% times a fraction, the numerator of which is 122 months
of marriage during . . . Jason Glover’s creditable military service, divided by the
member’s total number of months of creditable military service.”
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The superior court held hearings and issued oral orders and findings in July
2011. Beverly and Jason then disputed proposed written findings and disagreed about
how the superior court should effectuate the military pension division. Jason filed a
proposed order and Beverly objected, arguing that it did “not contain all the language
necessary to protect [her] rights.” Beverly then filed a competing proposed order and
Jason objected, arguing that:
Ms. Glover’s order ignores federal law by attempting to
compute Ms. Glover’s interest from a gross sum, rather than
the disposable amount, and then subsequently attempting to
force Mr. Glover to indemnify Ms. Glover for any mandatory
offsets used to calculate disposable income, thereby
attempting again to adopt a gross income approach to
calculating her distribution.
Jason further argued that Beverly’s proposed order incorrectly computed the amount of
time the parties were married. Finally, Jason argued that Beverly’s order incorrectly
included a Survivor Benefit Plan because survivor benefits were not part of the parties’
settlement agreement, there cannot be implied consent to survivor benefits, and “[i]f Ms.
Glover wanted to have [survivor benefits] she should have submitted in writing the
percentage amount commensurate with what she would have receive [sic] if Mr. Glover
were alive, not asking for an increased benefit due to his death.”
The superior court scheduled a hearing for October 14, explaining that
Jason’s and Beverly’s counsel were to confer before the hearing and if they “are able to
agree on the pleadings and resolve their differences, they shall notify the court and file
the pleadings to which they both agree prior to the date of the hearing. If that occurs the
hearing will be vacated.” Before the hearing Jason emailed Beverly, her attorney, and
his own attorney, requesting that all correspondence in the case be sent directly to him
and not his attorney. Jason’s email suggested a change to his proposed military
retirement order to provide Beverly with survivor benefits coverage. He explained that
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“[i]f this meets the as of yet unknown goals of Ms. Glover then it can be submitted to the
court in order to prevent the need of an additional court date.”
The next day Jason’s attorney notified the superior court that: (1) the
parties had agreed to amended findings of fact; (2) the only issues remaining before the
court related to the military qualifying domestic relations order (QDRO); and (3) the
parties agreed that the court could sign either QDRO that it received from the parties.
Jason’s attorney also explained that Jason still would “like the opportunity to address the
Court on October 14, and to have his QDRO expert . . . available by phone to answer any
of the Court’s questions or concerns regarding the dueling QDRO’s.” Three days later
Beverly notified the superior court that “[c]ounsel for the parties have communicated and
in light of the recent filing of the Amended Findings of Fact and Conclusions of Law, the
parties are uncertain if the court finds it necessary to conduct the . . . hearing.”
The superior court vacated the hearing “due to the fact that the parties have
filed an Amended Findings of Fact and Conclusion of Law, which has been approved as
to form and contents therein.” The court explained that it would sign one of the QDROs
submitted by the parties. That same day the superior court entered amended findings of
fact and conclusions of law, a decree of divorce, and Beverly’s proposed order dividing
Jason’s military pension.
Jason then moved to vacate the pension division, arguing that it incorrectly
divided gross income instead of disposable retirement pay. He further argued that in his
email he had advised his counsel and Beverly’s counsel that he “did not want the order
signed until corrections were made” and that counsel should not “proceed with invalid
orders.” Beverly opposed the motion, arguing that the order divided only disposable
retired pay and that Jason’s email did not direct counsel not to proceed — it simply
suggested an amendment to a proposed order.
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The superior court denied Jason’s motion to vacate. Jason appealed and
appears before us pro se. He raises the following points on appeal regarding the division
of his military pension: (1) the superior court erred by not allowing Jason to present
evidence; (2) the superior court violated the Uniformed Services Former Spouses’
Protection Act (the Act) by dividing gross pay, by dividing disability pay, and by
dividing over 50% of retired pay; (3) the superior court erred by disregarding the
stipulated property settlement agreement and accepting a military retirement order that
violated federal law; (4) the superior court erred by awarding Beverly additional
compensation, outside the scope of the settlement agreement, without explanation; and
(5) the superior court erred by barring the parties’ children from coverage under Jason’s
retirement plan.
III. STANDARD OF REVIEW
“We construe property settlement agreements in divorce actions in
accordance with basic principles of contract law. Questions of contract interpretation are
reviewed de novo.”1 “We review the equitable division of marital property for abuse of
discretion . . . .”2 We review factual findings supporting a property division for clear
error.3 We review de novo whether the superior court applied the correct legal rule.4
1
Hartley v. Hartley, 205 P.3d 342, 346 (Alaska 2009) (citing Zito v. Zito,
969 P.2d 1144, 1147 (Alaska 1998)).
2
Young v. Lowery, 221 P.3d 1006, 1010 (Alaska 2009) (citing Silvan v.
Alcina, 105 P.3d 117, 120 (Alaska 2005)).
3
Id. (citing Hooper v. Hooper, 188 P.3d 681, 687 (Alaska 2008)).
4
Id. (quoting Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)).
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Whether the superior court’s “division of a military pension is consistent with federal law
is a question of law we review de novo.”5
“A superior court’s decision to deny a motion requesting an evidentiary
hearing is subject to our independent review. A hearing is not necessary if ‘there is no
genuine issue of material fact before the court.’ ”6
IV. DISCUSSION
A. Military Pension Divisions And Survivor Benefits
The Act authorizes state courts to “treat disposable retired pay payable to
a [service] member . . . either as property solely of the member or as property of the
member and his spouse in accordance with the law of the jurisdiction of such court.”7
“The total amount of the disposable retired pay of a [service] member payable under all
court orders . . . may not exceed 50 percent of such disposable retired pay.”8
We have accepted the time rule method for dividing military pensions.9
Under this method, “[t]he marital share of a pension is typically determined by the
coverture fraction, whose numerator is the number of months of employment during
coverture, and whose denominator is the total number of months of employment at the
5
Id. (citing Clauson v. Clauson, 831 P.2d 1257, 1261-62 (Alaska 1992)).
6
Hartley, 205 P.3d at 346-47 (quoting Routh v. Andreassen, 19 P.3d 593,
596 (Alaska 2001)) (footnotes omitted).
7
10 U.S.C. § 1408(c)(1) (2012).
8
Id. § 1408(e)(1).
9
Tillmon v. Tillmon, 189 P.3d 1022, 1031 n.32 (Alaska 2008) (citing
Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002)).
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time of vesting.”10 The fraction is then multiplied by the percentage of the retirement
awarded.11
Disposable retired pay does not include retired pay already waived for
receipt of disability benefits,12 or retired pay spent on the purchase of survivor benefits.13
We have recognized that despite the bar on dividing retirement pay already waived to
pay for disability benefits a “trial court may expressly order [a service member] not to
reduce his disposable retired pay and require [the service member] to indemnify [a
former spouse] for any amounts by which her payments are reduced below the amount
set on the date [an] amended qualified order is entered.”14 We also have recognized that
courts may determine that divorce agreements equitably dividing retirement benefits
implicitly include survivor benefits.15 Finally, we have explained that because survivor
benefits are not disposable retired pay, “the cost of purchasing survivor benefits is
10
Faulkner, 46 P.3d at 1003 (citing Wainwright v. Wainwright, 888 P.2d 762,
763 (Alaska 1995)).
11
See Tillmon, 189 P.3d at 1031 (dividing a military pension 50%-50% and
providing that the spouse “shall be entitled to a percentage of [the servicemember’s]
disposable military retired pay defined as [the number of months of marriage] divided
by the number of months of [the servicemember’s] military service times 50%”).
12
Mansell v. Mansell, 490 U.S. 581, 594-95 (1989); Clauson v. Clauson, 831
P.2d 1257, 1261-62 (Alaska 1992).
13
10 U.S.C. § 1408(a)(4)(D).
14
Young v. Lowery, 221 P.3d 1006, 1012-13 (Alaska 2009) (citing In re
Marriage of Strassner, 895 S.W.2d 614, 618 (Mo. App. 1995)).
15
Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (addressing non-military
pension and concluding that “[i]t was within the superior court’s inherent power . . . to
award . . . a survivor annuity” (quoting Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska
1997) (alterations in original))).
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automatically allocated between the parties in the same proportion as their share of
disposable retired pay.”16
B. The Superior Court Did Not Erroneously Deny Jason An Opportunity
To Present Evidence.
Jason argues that the superior court did not allow him to present evidence,
leading the superior court to: (1) incorrectly award Beverly non-marital property; and
(2) divide the couple’s marital property inequitably. But Jason and Beverly agreed to a
property settlement, and Jason never explicitly moved for an evidentiary hearing to
interpret that property settlement agreement. His request to address the court so that his
expert could answer the court’s questions regarding the competing proposed orders was
not a request for an evidentiary hearing.
In Hartley v. Hartley we explained that “[a]n evidentiary hearing is not
necessary if there is no genuine issue of material fact. . . . [Here] there was no genuine
factual dispute, only a legal dispute over the proper interpretation of the property
settlement agreement.”17 Similarly, in this case the dispute was over the equal
distribution of Jason’s military pension under the property settlement agreement. Jason
and Beverly already had agreed to the court’s findings of fact. When issuing its final
order the superior court had Jason’s objection to Beverly’s proposed order and the
proposed order Jason’s expert prepared.
Because the parties agreed to the facts and the superior court was presented
with a purely legal question, the superior court did not erroneously deny Jason’s
purported request for an evidentiary hearing.
16
Young, 221 P.3d at 1013.
17
205 P.3d 342, 350 (Alaska 2009) (citing Routh v. Andreassen, 19 P.3d 593,
596 (Alaska 2001)).
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C. The Superior Court Did Not Erroneously Fail To Make Findings To
Justify Its Division Of Marital Property.
Jason argues that the superior court failed to analyze mandatory statutory
factors applicable to marital property division and failed to articulate findings when
dividing the couple’s marital property.18 He explains:
In this case the court awarded 55% of the non-retirement
portion of the marital estate to Beverly and 45% to Jason. The
court did not address the unequal division from the property
settlement agreement. The court also did not address how by
drastically adding value to only Beverly’s portion of the
agreement it would unbalance the percentages of the division
of assets.
In its amended finding of facts and conclusions of law the superior court
accepted the “division of property and debts provided in the stipulated property
agreement [as] fair and equitable under the circumstances.” The parties agreed to the
amended findings of fact and conclusions of law.
Jason does not argue that the settlement was invalid. He instead focuses on
factors that normally would justify an equal property division. But before their
settlement Jason and Beverly both participated in mediation with counsel present, and
they freely accepted the agreement.
In its amended findings of fact and conclusions of law the superior court
accepted the “division of property and debts provided in the stipulated property
agreement [as] fair and equitable under the circumstances.” The parties agreed to the
amended findings of fact and conclusions of law. “[A] court may accept as just a divorce
18
See AS 25.24.160(a)(4)(A)-(I) (listing relevant factors for courts to analyze
when dividing marital property).
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property settlement entered into by parties represented by counsel.”19 Because the
superior court found that the settlement agreement entered into freely and with counsel
was fair and equitable, the decision to accept the settlement agreement without explicit
findings on statutory factors was not an abuse of discretion.
D. The Superior Court Did Not Err By Crediting Beverly For Jason’s
Future Pay Increases.
The superior court’s order explained that Jason’s and Beverly’s shares of
the military pension would be determined by designating:
[T]he number of months of service during the marriage as a
numerator (137.462), and the total months of service
accomplished by Mr. Jason Glover as the denominator
(unknown at this time). This fraction and equivalent
percentage establishes the community share of the total
benefit. The resulting community share is then divided
equally between the parties, and multiplied by the benefit
payable.
Jason argues that the superior court’s order “allowed Beverly to receive the benefits of
Jason’s future years of service, even though it is separate and non marital property.”
Jason asserts that “Beverly’s marital portion should have been capped to the time in
service and pay grade from the agreed upon date of separation.” Although Jason
correctly states that the superior court’s order allowed Beverly’s share of the retirement
to increase in value as a result of his promotions and pay raises,20 the formula the
19
Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996) (quoting Kerslake v.
Kerslake, 609 P.2d 559, 560 (Alaska 1980)) (quotation marks omitted).
20
See Tillmon v. Tillmon, 189 P.3d 1022, 1032 n.35 (Alaska 2008)
(explaining that “proposed method of division allows her share of his retirement to
increase in value as a result of later promotions and pay raises” when superior court used
time rule method).
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superior court used was explicitly agreed upon in the parties’ property settlement
agreement.21
The parties agreed to the time rule formula and we have approved the
formula. The superior court therefore did not err by allowing Beverly to receive
compensation for Jason’s future promotions and pay-grade increases.
E. The Superior Court Did Not Erroneously Divide Gross Pay Or
Allocate Over 50% Of Disposable Retired Pay To Beverly.
The Act authorizes state courts to distribute disposable retired pay,22 but
state courts may not award a single former spouse more than 50% of a service member’s
disposable retired pay.23 Jason argues that the superior court erred and violated federal
law because it: (1) required him to pay Beverly a sum certain equal to 28.6% from a
gross amount of his retirement; and (2) required him to pay Beverly the sum certain
amount even if it exceeds the federally mandated cap of 50% of disposable retired pay.
Jason’s arguments are unpersuasive. The superior court did not award
Beverly a sum certain. Beverly was awarded neither an exact dollar amount nor an exact
percentage of Jason’s pension. Instead the order made explicit that the exact amount of
Beverly’s benefit was hypothetical, explaining that “as Mr. Jason Glover’s service
continues, Ms. Beverly Glover’s percentage of the benefits decreases, while the total
benefit in which she has an interest increases.” The superior court applied the couple’s
settlement and determined that Beverly was entitled to 50% of the marital portion of
Jason’s pension.
21
The superior court did change the number of months in the fraction’s
numerator. This was clearly erroneous and is addressed in Section J.
22
10 U.S.C. § 1408(c)(1).
23
Id. § 1408(e)(1).
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Jason also incorrectly asserts that Beverly’s hypothetical percentage of his
retirement pay violates federal law because it equals 57.2% of his disposable retired pay
as of October 2012. He argues that if only 50% of his retirement pay is disposable then
Beverly will receive 57.2% of his disposable retirement pay.
The superior court’s order did not award Beverly a specific percentage of
Jason’s gross or disposable retirement pay. The order awards Beverly a time rule
percentage of Jason’s military retirement benefits. Beverly was awarded 50% of the
marital portion of Jason’s retirement benefits. Thus, even if Jason’s entire military
pension were marital Beverly could not possibly collect more than 50% of his retirement
pay.24 The order directs that these payments come from Jason’s disposable pay “to the
extent that is so restricted by law” and directs Jason to indemnify Beverly to ensure that
none of his post-divorce actions cause a reduction in her share. The superior court also
retained jurisdiction to issue a clarifying order if the original order did not correctly
establish Beverly’s percentage.
24
The superior court chose the “[n]umber of months of the marriage during
creditable military service (137.462)” as the numerator and chose the “[t]otal number of
months of creditable military service for retirement” as the denominator. Because the
superior court determined that Jason completed 137.462 months of creditable military
service during the marriage, the denominator — Jason’s total creditable military service
— could not be less than 137.462. If Jason were able to retire after 137.462 months of
creditable service, Jason’s entire retirement would be considered marital and this number
would then be divided in half to determine the spousal benefit. It is not possible that
Beverly’s spousal benefit could exceed 28.6% of Jason’s total retirement pay because
Jason is ineligible to receive retirement benefits unless he is employed by the air force
for 20 years. 10 U.S.C. § 8911(a). Applying the time rule formula, if Jason worked for
20 years the denominator would be 240 (12 months per year * 20 years) and Beverly
would receive 28.6% of Jason’s retirement ((137.462/240)/2 = .286).
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Because the superior court’s order explicitly bars Beverly from receiving
more of Jason’s disposable pay than allowed by law, the superior court did not
incorrectly allocate more than 50% of Jason’s disposable retired pay to Beverly.
F. The Superior Court Did Not Erroneously Award Jason’s Disability
Benefits To Beverly.
Jason argues that the superior court improperly awarded Beverly a portion
of his disability benefits. In Mansell v. Mansell, the United States Supreme Court held
that the Act “does not grant state courts the power to treat as property divisible upon
divorce military retirement pay that has been waived to receive veterans’ disability
benefits.”25 In Clauson v. Clauson we explained that “[t]he Mansell holding clearly
prohibits state courts from treating veterans’ disability pay as divisible property upon
divorce.”26 But we held that “federal law does not preclude our courts from considering,
when equitably allocating property upon divorce, the economic consequences of a
decision to waive military retirement pay in order to receive disability pay.”27
The superior court did not erroneously award Jason’s disability benefits to
Beverly. There is no evidence that Jason received disability benefits at the time of the
divorce, and Jason does not argue that he ever applied for disability benefits. The
indemnification clause in the superior court’s order requires damages if Jason reduces
25
490 U.S. 581, 594-95 (1989). See 10 U.S.C. § 1408(a)(4)(B) (providing
that retired pay waived to receive disability benefits is not considered disposable retired
pay).
26
831 P.2d 1257, 1259 (Alaska 1992).
27
Id. at 1264.
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Beverly’s share of retirement benefits. This clause does exactly what we envisioned in
Young v. Lowery.28
In Young we reiterated that “a court may not equitably divide total retired
pay; it may equitably divide only the amount of retired pay remaining after the court
deducts waived retired pay.”29 However, we also explained that “the trial court may
expressly order [a service member] not to reduce his disposable retired pay and require
[the service member] to indemnify [the spouse] for any amounts by which her payments
are reduced below the amount set on the date the amended qualified order is entered.”30
Rather than improperly dividing waived benefits, the order awards Beverly
her time rule percentage of disposable retirement pay while requiring Jason to indemnify
Beverly for any subsequent unilateral actions to decrease the total monthly pension
payout amounts. The superior court did not err — the order complies with the Act and
our precedent.
G. The Superior Court Did Not Erroneously Disregard The Stipulated
Property Settlement Agreement When It Accepted Beverly’s Proposed
Military Pension Division That Included Survivor Benefits.
Jason argues that the superior court erred and ignored the parties’ stipulated
property settlement agreement when it included survivor benefits in its order incident to
divorce because: (1) the parties’ mediation mandated the use of federal law; (2) survivor
benefits are not required under federal law; (3) Jason’s attorney was not authorized to
28
221 P.3d 1006 (Alaska 2009).
29
Id. at 1011.
30
Id. at 1012-13.
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change the proposed military retirement order; and (4) the superior court “grossly
overcompensated Beverly unconscionably changing the balance of the settlement.”31
1. The mediation did not mandate the use of federal law.
Jason argues that the mediation and settlement agreement directed the use
of federal law as opposed to state law when consdering retirement. Jason provides no
support for this assertion. The stipulated property settlement agreement mentions federal
law and states that “[a] QDRO for Beverly’s portion of Jason’s military pension,
consistent with federal law, will be executed.” This brief statement does not support the
conclusion that the parties agreed to divide the military pension under federal law as
opposed to state law. As discussed above, the Act authorizes state courts to apply state
law when dividing military pensions in divorce actions.32 The Act imposes some
limitations on state courts’ authority when dividing military pensions, but there is no
uniform “federal law” for state courts to apply.
2. Federal law does not bar state courts from compelling election
of survivor benefits.
Jason correctly asserts that federal law does not require election of survivor
benefits, but federal law authorizes state courts to compel survivor benefits election.33
We have explained that “[b]arring an express understanding to the contrary, an
agreement for equitable division of retirement benefits earned during a marriage
31
Jason also argues that the superior court erred by changing the property
agreement and adding numerous financial benefits for Beverly, but he fails to list the
purported additional benefits.
32
See 10 U.S.C. § 1408(a)(2), (c).
33
10 U.S.C. § 1448(f)(3); 10 U.S.C. § 1450(f)(3).
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presumptively encompasses survivor benefits.”34 The superior court did not err — the
order incident to divorce followed this presumption when it included survivor benefits
in the military pension division, and there was no express agreement barring survivor
benefits.
3. Jason’s attorney did not change the proposed military QDRO.
Jason argues that the superior court erred when executing the QDRO
because Jason’s attorney was not authorized to change his proposed order. First, the
record does not support Jason’s assertion that his attorney was not authorized to make
changes to the proposed QDRO. Jason refers to an email that he sent to his attorney,
Beverly, and her attorney, but that email did not bar his attorney from changing the
QDRO. Second, there is no evidence in the record that Jason’s attorney changed the
QDRO.
Five days before the superior court issued its final orders, Jason’s attorney
explained that “[c]ounsel for both Plaintiff and Defendant agree that the court can sign
either QDRO that are currently lodged with the Court, however, Mr. Glover would like
the opportunity to address the Court . . . and to have his QDRO expert . . . available by
phone to answer any of the Court’s questions or concerns regarding the dueling
QDRO’s.” Jason’s attorney did not change the proposed QDRO; rather, he continued
presenting the QDRO to the superior court until it issued final judgment.
4. Including survivor benefits did not overcompensate Beverly.
Jason argues that including survivor benefits overcompensated Beverly and
changed the balance of the settlement. The settlement awarded Beverly “a percentage
of Jason Glover’s disposable military retired pay, to be computed by multiplying 50%
times a fraction, the numerator of which is 122 months of marriage during . . . Jason
34
Zito v. Zito, 969 P.2d 1144, 1148 (Alaska 1998).
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Glover’s creditable military service, divided by the member’s total number of months of
creditable military service.” We have explained that “[t]he superior court has inherent
power, and also the duty, to enforce its decrees.”35 Superior courts may award survivor
annuities “to ensure that [a survivor] would receive the full benefit of her property
interest should [her former spouse] predecease her.”36 Jason fails to explain how the
superior court’s decision to protect Beverly’s interest in retirement benefits ignored the
parties’ settlement agreement.
H. The Superior Court Did Not Err By Failing To Account For The
Unequal Division Of Survivor Benefits Cost.
Jason argues that the superior court abused its discretion because it did not
explain its allocation of survivor benefits cost. The superior court’s order explicitly
divided survivor benefits cost pro rata. In Young v. Lowery we explained that
“[a]lthough it may have been permissible to re-allocate that cost some other way, perhaps
by requiring Lowery to reimburse Young, the trial court did not abuse its discretion by
declining to do so.”37 Jason provides no argument to distinguish our holding in Young.
Additionally, when a property settlement agreement’s “terms are
ambiguous, the superior court ‘must attempt to resolve [the ambiguity] by determining
the reasonable expectation of the contracting parties.’ If the division of marital property
is not determined by an agreement between the parties, the superior court has ‘wide
latitude in fashioning an appropriate property division.’ ”38 Once the superior court
35
Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997).
36
Id.
37
221 P.3d 1006, 1013 (Alaska 2009) (footnotes omitted).
38
Hartley v. Hartley, 205 P.3d 342, 346 (Alaska 2009) (quoting Zito, 969
P.2d at 1147 n.4; Tillmon v. Tillmon, 189 P.3d 1022, 1031-32 (Alaska 2008)).
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decided to order survivor benefits, the court implicitly determined that a pro rata
distribution satisfied Jason’s and Beverly’s reasonable expectations.
Relying on the federal default and dividing survivor benefits costs pro rata
was not an abuse of discretion.
I. The Superior Court Did Not Err By Not Allowing Jason And Beverly’s
Children To Be Covered Under The Survivor Benefits.
Jason argues that the survivor benefits award ignored the best interest of the
couple’s children and that “[t]he court abused its power by dictating the terms of an
insurance policy without taking any evidence, abiding by any of the stipulated property
settlement, and ignoring the parties[’] stated desire, to ensure the economic future of their
children.” Beverly responds that Jason waived this argument because it was
inadequately briefed. Jason’s brief cites no legal authority in support of his two-sentence
argument that the court should have awarded survivor benefits to the parties’ children.
This argument is waived because “where a point is given only a cursory statement in the
argument portion of a brief, the point will not be considered on appeal.”39
J. It Was Error To Change The Calculation Of The Months That The
Parties Were Married During Creditable Military Service.
The parties’ settlement agreement stated that the coverture fraction
numerator for the time rule formula was 122 months of marriage during Jason’s military
service — the parties stipulated that Beverly was entitled to 50% of Jason’s retirement
for 122 months of service. The superior court’s order incident to divorce used 137.462
as the numerator in its coverture fraction for the time rule formula. Jason argues that he
is entitled to at least 74.6% of his retirement “while the court only awarded him 71.4%
of his USAF retirement pay.”
39
Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).
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The superior court provided no explanation for changing the numerator in
the coverture fraction. Beverly agrees with Jason that 137.462 “is the wrong numerator.
The parties agreed to 122 months as the numerator.” Beverly requests that we “remand
the matter to the trial court for the correction to the numerator [to] be made.”
We reverse and remand the superior court’s decision to use 137.462 months
as the numerator in the coverture fraction because the superior court clearly erred when
changing the agreed-upon length of marriage without explanation.
K. It Was Error To Require Jason To Pay For Excess Survivor Benefits
Coverage.
Jason argues that the superior court erred by requiring “Jason to pay for
100% [survivor benefits] coverage while he is alive even though Beverly, if entitled to
any [survivor benefits], should only get the amount of retirement upon his death she was
getting while he was alive.” The superior court ordered that Jason purchase a 55%
survivor benefit.40 As explained above, the maximum percent of Jason’s disposable
retired pay Beverly could receive under the superior court’s order is 28.6%.41 Thus,
Jason is correct that under the superior court’s order Beverly could receive 55% of his
retired pay as a survivor benefit upon his death, while she would receive no more than
28.6% of his retired pay while he is living.
We have never decided whether it is an abuse of discretion for a trial court
to award survivor benefits exceeding what a former spouse was entitled to under a
property settlement agreement. In Young v. Lowery, Lowery was awarded 25.34% of
40
Survivor benefits coverage cannot exceed 55% of total monthly retired pay.
10 U.S.C. § 1451(a)(1)(A).
41
If Jason retired after reaching the minimum 240 months necessary for his
retirement eligibility, Beverly would receive 28.6%. Supra note 24.
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Young’s disposable retired pay.42 The superior court also ordered Young to purchase a
55% survivor benefit.43 Thus, Lowery received a potential survivor benefit that was
almost double her retired pay award. We affirmed the survivor benefits, but the specific
issue in that case was the allocation of the cost and not the excess benefits.44
Compelling a survivor annuity award is fair because “[s]uch an award [is]
appropriate to ensure that [the survivor] would receive the full benefit of her property
interest should [her spouse] predecease her.”45 It is equitable to “award the nonowning
spouse survivor benefits equal to the amount of retirement benefits which the nonowning
spouse was receiving before the employee spouse’s death.”46
Here the superior court did not explain how awarding a 55% survivor
benefit would impact the parties’ settlement agreement. We therefore remand to the
superior court for further consideration of an award guaranteeing Beverly benefits after
Jason’s death equal to the retirement benefits she receives while he lives.
V. CONCLUSION
We REMAND to the superior court for further proceedings on the survivor
benefits percentage and to correct the length of marriage determination for the QDRO.
We AFFIRM in all other respects.
42
221 P.3d at 1010.
43
Id. at 1009.
44
Id. at 1013.
45
Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997).
46
2 BRETT R. TURNER , EQUITABLE D ISTRIBUTION OF PROPERTY § 6:45, 281
(3d ed. 2005).
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