Stevens v. Stevens ( 2011 )

CHRISTEN, Justice,

dissenting in part.

I write separately to express my disagreement with the court's conclusion that the trial court abused its discretion by using the first trial date to value the parties' assets.

As the court notes, we held in Ogard v. Ogard that "the date of valuation ... should be as close as practicable to the date of trial." ¹ In that case, the issue was whether to value property as of the parties' date of separation or as of the date of trial. Under the cireumstances of this case, however, the principle articulated in Ogard simply begs the question of what we should consider the "date of trial": the first day of the initial trial, which was interrupted when the parties thought they had settled their case, or the date when the trial resumed, over a year later?

In my view, the court's decision to use the later date for valuation injects significant uncertainty into the already-challenging process of valuing property for distribution following divorce. Here, the downturn in the housing market took place over a period of months. But other types of significant marital assets, such as stocks or retirement plans, can gain or lose value much more quickly. The value of an asset can change by 15 percent-the threshold suggested by the court-in a matter of days. It is unclear how the superior court is expected to account for such rapid economic fluctuations under the court's holding. The court's opinion could prompt motions for revaluation of property in any trial spanning a period that, viewed in hindsight, marked the onset of an economic downturn.

Using the later of two trial dates to value property also undermines the possibility of settlement. If one party regrets entering into an as-yet unmemorialized settlement agreement and is able to obtain a new appraisal suggesting the market value of an asset has changed by 15 percent or more, he or she will be free to allege disagreement about the settlement terms, file a motion to have the agreement set aside, and force the other party to reappraise the asset in preparation for a new trial This will require the parties to relitigate at least a part of their original dispute, an expensive and time-consuming exercise.

We held in Ogard that "[a] valuation date should be chosen which will provide the most current and accurate information possible and which avoids inequitable results."² The experienced trial judge in this case was no doubt conscious of the potentially inequitable results of using a later valuation date; I am not persuaded that it was an abuse of discretion to use the first trial date to value the Stevens' marital estate.

For these reasons, I respectfully dissent from the portion of the court's decision that concludes the superior court abused its discretion by using the first trial date to value the parties' assets.

1 . 808 P.2d 815, 819 (Alaska 1991).

2 . Id. (quoting Lawrence J. Gotpen, EoutrasLe Dis-TRrisurion or Property § 7.01, at 207 (1983)).