Ruppe v. Ruppe

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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TERRI L. RUPPE, )
) Supreme Court No. S-15311
Appellant, )
) Superior Court No. 3AN-12-11535 CI
v. )
) OPINION
TERRY C. RUPPE, )
) No. 7052 –September 25, 2015
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Terri L. Ruppe, pro se, Waialua, Hawaii,
Appellant. Terry C. Ruppe, pro se, Fayetteville, North
Carolina, Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Terri Lin Ruppe appeals from a superior court order granting her divorce,
determining custody, distributing marital property, and setting child support obligations
for her former husband, Terry. She raises issues related to legal custody, the calculation
of interim child support, the duration of permanent child support, the distribution of
property, and the non-award of spousal support and attorney’s fees. We affirm most of
the superior court’s findings of fact and conclusions of law, but we reverse its
determination that payments Terry made during the pendency of the divorce could be
credited against his post-divorce child support obligations.
II. FACTS AND PROCEEDINGS
Terry and Terri Lin Ruppe married in 1997. They have a daughter, born
in 2004, and permanent guardianship of a niece, born in 1996, and a nephew, born in
1998, the children of Terri Lin’s sister. Terry is a warrant officer in the U.S. Army and
Terri Lin has been a housewife since 2003. The family moved to Anchorage in
April 2010, due to Terry’s stationing at Fort Richardson. The Ruppes lived on base in
a home that was paid for by the $2,202 Terry received as a monthly Basic Allowance for
Housing and owned a residential property in Virginia, which they rented to tenants.
The marriage permanently disintegrated after Terry’s return from
Afghanistan in October 2012, and Terry moved out in November. Terry made an official
request that Terri Lin and the children be permitted to remain in on-base housing until
the resolution of the divorce. Although both Terry and Terri Lin believed that she would
have to leave that housing by the end of March 2013, she and the children were in fact
able to stay in on-base housing until mid-June. Terry filed for divorce in
December 2012; Terri Lin counterclaimed in January 2013.
Between the start of the parties’ separation and the trial, Terri Lin made two
relevant withdrawals from joint accounts. First, she withdrew $4,500 from a joint
account after that amount was deposited in the account as per diem pay/travel voucher
for a training Terry attended after the separation. Second, she withdrew $4,000 from a
joint account associated with the Virginia property and used this amount to pay her initial
attorney’s fees.
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In February 2013 Superior Court Judge Frank A. Pfiffner held an initial
status hearing. At this hearing the parties indicated that they believed that Terri Lin and
the children would stay in the on-base housing until March 31. At the hearing Terry
offered to fulfill his child support obligations by paying Terri Lin $2,200 directly every
month until she moved out of the on-base housing that was funded by his Basic
Allowance for Housing, and by paying Terri Lin $3,000 directly every month thereafter.
After the February hearing the superior court set interim child and spousal
support in a March order. The superior court explicitly included the $2,202 Terry
received in Basic Allowance for Housing from the military each month in its calculation
of his income, as required by Alaska Rule of Civil Procedure 90.3.1 The superior court
calculated Terry’s base monthly child support amount as $2,407.
The March order adopted several of the assumptions and proposals from
the February hearing. The order noted that Terry had “testified that he would like to pay
$3,000 in child support and spousal support until the divorce trial in May,” and thus
ordered $2,407 in monthly interim child support and an additional $593 in monthly
interim spousal support. The interim child and spousal support order stated that it was
effective retroactively to December 2012, the first month after the parties separated. It
also stated that Terry was to be credited with the amounts actually paid to Terri Lin since
the separation, which the court calculated to be “$4,500 per month . . . (including his
[Basic Allowance for Housing] of $2,202 per month through March 31, 2013)” in the
worksheet that accompanied the narrative order. The order thus appears to have been
written under the assumption that Terri Lin and the children would leave the on-base
housing after March 31, an assumption that also explains the superior court’s direction
that Terry’s first payment be due April 1.
1
See Alaska R. Civ. P. 90.3 cmt. III.A.28.
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Terri Lin and the children continued to live on base until the May trial, and
Terry continued to pay Terri Lin approximately $2,200 a month. Terri Lin interpreted
the March order to require Terry to pay her $3,000 directly each month regardless of
housing, and she requested that the Child Support Services Division garnish Terry’s
wages for the additional $800 per month she believed he owed, which the agency did.
In mid-April the parties stipulated to an order that granted Terri Lin primary
physical custody of the children and permitted her to relocate to Hawaii. Legal custody
and visitation were left for later resolution at trial, which occurred over three days in
May.
In July 2013 the superior court granted the divorce, ordered child support,
and made findings of fact and conclusions of law. The court reaffirmed that Terri Lin
would have primary physical custody, awarded joint legal custody, and provided for
unsupervised visitation for Terry during summer vacations and every other Christmas,
as well as daily phone calls.
The court also ordered the Ruppes to sell the Virginia property, with Terri
Lin to receive 60% of the proceeds. She also received 60% of a thrift savings plan held
in Terry’s name. The remaining assets were distributed nearly equally, which resulted
in Terri Lin receiving a total of 58% of the marital estate.
The superior court’s discussion of child support looked both backward and
forward. First, the court settled the dispute about the proper interpretation of its interim
support order. Terri Lin understood it to require Terry to pay her $3,000 in cash each
month, while Terry claimed that Terri Lin’s continued residence in housing paid for by
a housing allowance tied to his military employment meant that he should receive credit
toward his support obligations for that housing allowance. The court agreed with Terry’s
interpretation and found that he had no unpaid child support because his monthly checks
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of $2,200, combined with the housing allowance valued at $2,202, exceeded his monthly
$3,000 interim support obligation.
Looking forward, the superior court noted that Terry had permanently
changed stations to a base in North Carolina and thus had seen his income reduce
sharply. It calculated that his ongoing monthly child support obligation would be
$1,667.
The superior court declined to order payment of any further spousal support
to Terri Lin. The court based its decision on the fact that it had ordered that she receive
60% of the proceeds from the sale of the Virginia residence and because “Terri Lin ha[d]
received additional marital cash assets by misappropriating Terry’s post-separation per
diem pay in the amount of approximately $4,500.00 and utilized approximately
$4,000.00 from the rental property ‘rainy day’ fund to pay her initial attorney’s fees.”
The “misappropriation” of those two amounts also factored into the superior court’s
decision not to award attorney’s fees to either party.
The superior court issued an order explaining in detail its child support
calculation. The order explained that the March 2013 interim support order had set
Terry’s support at $2,407 per month, dating back to December 2012, but that the court
had credited him with $4,500 per month in support during the period of December to
March. Thus, the court found that Terry should be credited $2,093 (the difference
between his actual payment of $4,500 and the owed child support of $2,407) for each of
the four months before the order, totaling $8,372. Further, during the period of April to
June, the order explained that Terry had owed $2,407 per month and paid $4,402 per
month, composed of $2,200 in cash and $2,202 in housing allowance for the residence
Terri Lin and the children occupied. Thus, the superior court found that Terry should be
credited $1,995 (the difference between the actual payment of $4,402 and the owed
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support of $2,407) for each of those three months, totaling $5,985. Terry’s total credit
against future support obligations was therefore $14,357.2
Terri Lin appeals.
III. STANDARD OF REVIEW
“We will uphold a superior court’s custody and visitation determinations
‘unless the record shows that its controlling findings of fact are clearly erroneous or the
court abused its discretion.’ ”3
“This court reviews legal determinations relevant to property division and
child support based on an independent judgment standard.”4
“Child support awards are reviewed for abuse of discretion.”5 “Abuse of
discretion occurs when a trial court fails to consider statutorily mandated factors, weighs
factors improperly, or includes improper factors in its decision.”6
Whether property is properly characterized as separate or marital “may
involve both legal and factual questions. . . .”7 The trial court “exercises broad discretion
2
This calculation appears to have over-credited Terry by omitting the $593
in monthly interim spousal support that the superior court ordered in its March 21, 2013
order establishing interim child and spousal support. See Part IV.B.1, infra.
3
Houston v. Wolpert, 332 P.3d 1279, 1282 (Alaska 2014) (quoting
Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997)).
4
Heustess v. Kelley-Heustess, 158 P.3d 827, 831 (Alaska 2007).
5
Heustess v. Kelley-Heustess, 259 P.3d 462, 467 (Alaska 2011).
6
Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008).
7
Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013) (internal quotation marks
omitted).
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in the division of marital assets.”8 We review the superior court’s equitable allocation
of property “for an abuse of discretion,”9 and will reverse only if the allocation is “clearly
unjust.”10
“This court reviews the decision not to award spousal maintenance for
abuse of discretion.”11
“The award of attorney’s fees in a divorce action rests within the broad
discretion of the superior court, and will not be disturbed on appeal unless it is ‘arbitrary,
capricious, manifestly unreasonable, or stems from an improper motive.’ ”12
IV. DISCUSSION
A. Child Custody
Terri Lin argues that the superior court erred by granting both parents joint
legal custody and by not granting her final decision-making authority.13 We hold that
8
Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005).
9
Id.
10
Day v. Williams, 285 P.3d 256, 260 (Alaska 2012).
11
Silvan v. Alcina, 105 P.3d 117, 125 (Alaska 2005).
12
Stevens v. Stevens, 265 P.3d 279, 284 (Alaska 2011) (quoting Koller v. Reft,
71 P.3d 800, 808 (Alaska 2003)).
13
Terri Lin also appeals several of the superior court’s findings of fact
regarding her parenting and Terry’s medical history. These findings are relevant to
custody, and in light of the superior court’s decision to grant Terri Lin primary physical
custody, we understand her to be appealing Terry’s visitation rights. We do not detect
any error related to the superior court’s grant of visitation, especially in light of our
determination “that the best interests of the child standard normally requires unrestricted
visitation with the noncustodial parent.” J.F.E. v. J.A.S., 930 P.2d 409, 413 (Alaska
1996).
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the superior court did not abuse its discretion by awarding the parents joint legal custody
of the children.
Terri Lin’s contention is that Terry’s employment in the military requires
frequent travel, training, and deployment, which will make joint legal custody “virtually
impossible.” The superior court did not agree and determined that if Terri Lin had final
decision-making authority Terry might “no longer have a role in the children’s lives.”
This finding was not clearly erroneous, especially given the superior court’s award of
primary physical custody to Terri Lin and the plan for the children to live with her in
Hawaii and for Terry to live in North Carolina.
We have recognized that “[t]he legislature has expressed a preference for
joint legal custody.”14 Moreover, the legislature has specifically directed courts that “if
a parent is deployed or in a position where the parent may be deployed, the court shall
take particular care to ensure that the child has the maximum opportunity, consistent with
the best interests of the child, to have contact with the parent.”15 In most cases, “a
parent’s temporary duty, mobilization, or deployment to military service and the resultant
temporary disruption to the child of the parent may not be a factor in a court’s decision
to grant or deny a petition for custody or visitation.”16 The statutory policy of
accommodating military service in custody determinations provides further support for
the superior court’s grant of joint legal custody.
14
Jaymot v. Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009).
15
AS 25.20.095(a).
16
Id.
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B. Child Support
1. Housing allowance
Terri Lin argues that the superior court erred by crediting Terry with $2,202
toward his monthly child support obligations based on her residence with the three
children during the pendency of the divorce in housing paid for by Terry’s military
housing allowance. Because the Ruppes’ living situation provided “good cause” to vary
the interim child support award, we affirm the superior court’s decision to allow Terry
to partially satisfy his interim child support obligations by paying for housing for Terri
Lin and the children. But we reverse the superior court’s decision to credit Terry’s
“overpayments” during the interim period against his post-divorce obligations.
There are a number of principles that are relevant to this appeal. “The right
to support is that of the child,”17 and therefore the amount of child support calculated
under Civil Rule 90.3 cannot be waived or modified other than for good cause.18 “[A]n
agreement between the parties as to child support is not an exceptional circumstance
justifying deviations from the guidelines, where the agreement requires support less than
that called for by the guidelines.”19 And although “spousal support is separate and
distinguishable from marital property,”20 those two matters are linked by the similar
17
State, Dep’t of Rev., Child Support Enforcement Div. ex rel. Valdez v.
Valdez, 941 P.2d 144, 154 n.14 (Alaska 1997).
18
See Cox v. Cox, 776 P.2d 1045, 1049 (Alaska 1989).
19
Id.; see also Alaska R. Civ. P. 90.3 cmt. VI.B.1 (“The fact that the
parties . . . agree on an amount of support is not reason in itself to vary the guidelines.”).
20
Stevens v. Stevens, 265 P.3d 279, 288 (Alaska 2011).
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factors that determine each one21 and the preference in Alaska courts that spousal
maintenance only be awarded if financial concerns cannot be resolved by property
division.22 With these principles in mind, we turn to the facts of this case.
Civil Rule 90.3 contains a formula that determines child support obligations
on the basis of parents’ adjusted annual income, the physical custody arrangement, and
the number of children the award will support. We have explained that the formula
“reflect[s] a paternalistic view toward child support agreements,”23 and the commentary
to the Rule states that two of the major purposes of the formula are to “ensure that child
support orders are adequate to meet the needs of children, subject to the ability of parents
to pay” and to make child support awards “[p]redictable and consistent.”24 “The right
21
Compare AS 25.24.160(a)(2) (factors for maintenance awards),
with .160(a)(4) (factors for property division); see also AS 25.24.160(a)(2)(F) (spousal
maintenance award should be based, in part, on the division of property). For example,
in Hanlon v. Hanlon, 871 P.2d 229, 233 (Alaska 1994), we found that “[a]lthough the
factors trial courts consider in determining whether to award spousal support are
essentially identical to those considered in deciding the allocation of marital property,
spousal support and property-division serve distinct purposes and are not
interchangeable. ‘We have announced a policy of encouraging trial courts to provide for
parties’ financial needs by property disposition, rather than by alimony.’ ” (citations
omitted) (quoting Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987)).
22
See, e.g., Fernau v. Rowdon, 42 P.3d 1047, 1058 (Alaska 2002) (“The
preference in Alaska is to resolve the financial concerns arising from a divorce by means
of the property division, but spousal maintenance may be awarded if it is just and
necessary.” (citation omitted)).
23
Laughlin v. Laughlin, 229 P.3d 1002, 1004 (Alaska 2010) (quoting Cox,
776 P.2d at 1048).
24
Alaska R. Civ. P. 90.3 cmt. I.B.
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to support is that of the child,”25 and the support that results from application of the
formula is presumed to contribute to the child’s multiple needs, which include food,
housing, and clothing.
Crediting payments that provide a home for a spouse and children against
child support obligations risks leaving children with insufficient support. Such a practice
may dedicate a greater percentage of the total support children are owed to housing costs
than the custodial parent would choose to dedicate and may deprive the custodial parent
of the ability to provide for the child’s other needs.26 The formula in Civil Rule 90.3
does not anticipate a support order that dedicates an unwieldy percentage of the non­
custodial parent’s monthly requirement to only one of the multiple needs of the children.
It is possible, however, that the Ruppes’ situation is one in which the child
support obligation calculated under the usual formula should be varied.27 Civil
Rule 90.3(c)(1) permits the court to “vary the child support award as calculated under
25
State, Dep’t of Rev., Child Support Enforcement Div. ex rel. Valdez v.
Valdez, 941 P.2d 144, 154 n.14 (Alaska 1997).
26
Cf. Young v. Williams, 583 P.2d 201, 203 (Alaska 1978) (affirming trial
court’s refusal to credit voluntary payments against child support obligations because
“such voluntary payments to the children quite often are intended for particular purposes
whereas the manner in which child support payments are used to meet the children’s
basic needs is left to the discretion of the parent or guardian with custody”).
27
The military housing allowance represented roughly 40% of Terry’s gross
annual income but was significantly less flexible than the equivalent value in wages. It
is not clear from the record whether the allowance could have paid for two smaller
residences during the pendency of the divorce or whether it was in effect committed to
the home that continued to house Terri Lin and the children. Aurora Military Housing,
the company that provides on-base housing at Fort Richardson, sets the rent for each
service member tenant as “equal to the BAH with dependent rate for [that service
member’s] rank.” Frequently Asked Questions, A URORA M ILITARY H OUSING ,
http://www.auroramilitaryhousing.com/faqs#rent-bah (last visited Sept. 14, 2015).
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the other provisions of this rule for good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support award were not varied.” “The
‘good cause’ inquiry ‘must focus first and foremost on the needs of the children.’ ”28
This exception can encompass a variation that reflects the obligor’s separate provision
of a service that would normally be funded out of the child support award.29 Such a
variation may be particularly appropriate when the superior court is examining parents’
conduct before any child support order was entered.30 Although we have held “that
absent extraordinary circumstances, courts should apply the calculation methodology of
Rule 90.3 to determine amounts to be reimbursed to custodial parents for support of
children during periods not covered by support orders,”31 the commentary to Rule 90.3
notes that “in some circumstances unfairness may result from rigid [retroactive]
application of the rule.”32
28
Koller v. Reft, 71 P.3d 800, 807 (Alaska 2003) (emphasis in original)
(quoting Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991)).
29
See Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989) (“ ‘[G]ood cause’ may
be present when application of the formula produces a result which requires the
non-custodial parent, unreasonably, to contribute substantially more or less than his or
her fair share of the amount needed to satisfy the child’s reasonable needs.”). The
Alaska Administrative Code’s regulations governing the Child Support Services Division
anticipate crediting “in-kind contributions against an obligor’s child support obligation
if . . . a tribunal of competent jurisdiction has ordered the in-kind contribution in lieu of
the payment of child support,” 15 Alaska Administrative Code (AAC) 125.470(a)(1)
(2014), an indication that in-kind contributions may be appropriate components of
superior court child support orders in some circumstances.
30
See Ogard v. Ogard, 808 P.2d 815, 816-17 (Alaska 1991).
31
Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996).
32
Alaska R. Civ. P. 90.3 cmt. VI.E.1; see also 15 AAC 125.105(c) (stating
(continued...)
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Here, although the superior court erred by not analyzing the Ruppes’
circumstances according to the requirements of Civil Rule 90.3(c)(1),33 we detect no
error in its conclusion that Terry satisfied his interim child support obligations. Terry
paid Terri Lin $2,200 directly every month during the pendency of the divorce, and in
addition his employment paid for her and the children’s home. Taken together, these
contributions satisfied Terry’s $2,407 monthly interim child support obligation, as well
as the $593 monthly interim spousal support obligation that the Ruppes and the superior
court appear to have assumed would not apply until Terri Lin and the children moved out
of on-base housing. A variation of either $207 or $800 per month to reflect Terry’s
provision of housing was not legal error. As Terri Lin testified at trial, the additional
$800 she believed she was owed each month during the pendency of the divorce could
not have paid for housing comparable to the on-base housing she and the children
enjoyed during that time.
Although we affirm the conclusion that Terry satisfied his interim support
obligations, the superior court’s treatment of Terry’s child support obligations following
the divorce constituted legal error. The July 15, 2013 order concluded that Terry had
overpaid during the period between the Ruppes’ separation and final divorce, and so
awarded him a $14,35734 credit against his future obligations. This conclusion ignores
32
(...continued)
that the Child Support Services Division “will give credit for [pre-order] in-kind
contributions” under certain circumstances).
33
See Alaska R. Civ. P. 90.3(c)(1) (“The court must specify in writing the
reason for the variation, the amount of support which would have been required but for
the variation, and the estimated value of any property conveyed instead of support
calculated under the other provisions of this rule.” (emphasis added)).
34
We note that this figure appears to have been the result of a math error. It
(continued...)
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the fact that Terry paid Terri Lin the amount he proposed at the February hearing:
$2,200 per month plus the housing, while she remained in the house. The supposed
overpayment only emerges by comparing the full dollar value of what Terry contributed
to Terri Lin with the result of the Rule 90.3 formula. But contributing more than the
formula dictates is not an overpayment when it is done pursuant to the parties’ proposed
compromise.
Even if Terry had paid Terri Lin too much during the interim period, it was
error to credit any voluntary overpayment against his future obligations. We have held
that “it is contrary to the purpose of Civil Rule 90.3 to offset such contributions against
future child support payments except in exceptional circumstances.”35 In that case,
Epperson v. Epperson, we suggested that such an offset should be recognized only if the
parties agreed at the time the contributions were made that they would constitute
prepayment of future child support.36
34
(...continued)
was reached by comparing the amounts Terry paid to Terri Lin with the interim child
support obligation established in the March 2013 order. However, the March 2013 order
also required Terry to pay Terri Lin $593 in monthly interim spousal support. Thus,
even by its own terms the superior court’s July 15, 2013 order overstated Terry’s
overpayment by $4,151.
35
Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992); cf. 15 AAC
125.105(d) (“When giving credit for direct payments . . . or in-kind contributions [made
before an order is entered], the agency will give credit only up to the amount of the
support that is charged for the [pre-order] period . . . .”).
36
See 835 P.2d at 453 (“On the record presented, it is clear that the court did
not abuse its discretion in ruling that the ‘gifts’ [the husband] made to [the wife] could
not be credited against his child support obligation. [The husband] does not claim that
he and [the wife] agreed that his contributions were to constitute prepayment of future
child support.”).
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Such “exceptional circumstances” were not present here. As explained
above, Terry’s payments were made pursuant to a payment plan that he proposed.
During the pendency of the divorce Terry did not directly pay Terri Lin the amount
prescribed by Civil Rule 90.3, and while his provision of housing easily satisfied the
difference between what he did pay and that prescribed amount, any excess value of that
housing should not have been credited against his future child support obligations.
2. Duration of child support
Terri Lin argues that the superior court erred by failing to explicitly note
that its order for child support was to continue beyond the time a child turns 18 if that
child is still in high school. Alaska Statute 25.24.170 anticipates continued support “for
the care, nurture, and education of unmarried 18-year-old children of the marriage while
they are actively pursuing a high school diploma,”37 and we have held that only in “the
exceptional case” should a court decline to extend support to such an 18-year-old.38 In
light of these policies, we will not read into the superior court’s order a strict end date
at a child’s 18th birthday. Instead we presume that the superior court intended the
support order to continue for any 18-year-olds actively pursuing a high school diploma.
3. Evidence of Terry’s income
Terri Lin argues that the superior court erred by using an estimate of
Terry’s future income to set his future child support obligations, rather than requiring
Terry to provide an earning statement. Terry did not move to North Carolina and start
receiving his new salary until June, so at the time of the May trial no such statement
existed. Moreover, Terri Lin did not produce any evidence at trial suggesting that
Terry’s estimate of his future pay rate was inaccurate. In light of the timing of the trial
37
AS 25.24.170.
38
Scully v. Scully, 987 P.2d 743, 747 (Alaska 1999).
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and the parties’ respective moves out of Alaska, crediting Terry’s estimate was an
evidentiary decision within the superior court’s discretion. If Terry’s salary materially
differs from the estimated amount, Terri Lin can seek to modify the child support order.39
C. Property Division
1. GI Bill benefits
Terri Lin appeals the superior court’s refusal to require Terry to assign
education benefits he is entitled to via the GI Bill. At trial she claimed that Terry
promised these benefits to her niece, while Terry testified that he had not made that
promise and that he was not yet eligible for the benefit in question. In light of the
conflicting testimony on this question and the absence of other relevant evidence, we
cannot say that the superior court’s determination that the benefit should stay with Terry
was clearly erroneous.
2. Withdrawals from joint accounts
Terri Lin also argues that the superior court erred by considering her
withdrawals of $4,500 and $4,000 from joint accounts in the context of the division of
marital property. We do not detect any error related to the superior court’s treatment of
these withdrawals in the division of marital property.
“As a general rule, ‘property acquired after separation is properly excluded
from the category of marital property.’ ”40 The $4,500 withdrawal followed the deposit
of per diem travel allowances related to Terry’s post-separation training travel. Rather
than force Terri Lin to repay Terry the full amount of the post-separation property she
had withdrawn, the superior court counted the withdrawal as if it had been from marital
39
See Alaska R. Civ. P. 90.3(h).
40
Richter v. Richter, 330 P.3d 934, 939-40 (Alaska 2014) (quoting Ramsey
v. Ramsey, 834 P.2d 807, 809 (Alaska 1992)).
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property. This treatment favored Terri Lin, as it only reduced her award from the rest
of the marital property by half of the withdrawn amount.
The $4,000 withdrawal was from the account funded by rental income from
the Ruppes’ Virginia property. Terri Lin used these funds to pay her initial attorney’s
fees. The record does not clearly reveal whether the superior court credited her with
already having received that amount of the marital estate. The court referenced the
$4,000 withdrawal several times in its findings of fact, but Exhibit A, which documents
the distribution of marital assets, does not contain an entry for this $4,000 withdrawal of
rental income as it does for the $4,500 withdrawal of post-separation per diem pay. If
the superior court did credit the $4,000 withdrawal against Terri Lin’s share of the
marital estate, doing so was not error.41
Terri Lin requested 60% of the marital assets and received 58%. Under
these facts, the superior court’s equitable division of property was not erroneous.
D. Spousal Support
Terri Lin argues that the superior court erred by not ordering that she
receive spousal support following the divorce.
“The preference in Alaska is to resolve the financial concerns arising from
a divorce by means of the property division, but spousal maintenance may be awarded
if it is just and necessary.”42 “[T]he primary factors which should be considered in
awarding interim[43] spousal maintenance are the relative economic circumstances and
41
Cf. Schmitz v. Schmitz, 88 P.3d 1116, 1131 (Alaska 2004) (holding that an
uncounted benefit from the sale of a marital asset should be treated as an award of
attorney’s fees).
42
Fernau v. Rowdon, 42 P.3d 1047, 1058 (Alaska 2002) (footnote omitted).
43
Despite the inclusion of the word “interim” here, this quotation comes from
(continued...)
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needs of the parties and the ability to pay the maintenance.”44 The superior court noted
that “[i]n order to have marketable skills in her college major, [Terri Lin] will need to get
a master’s degree.” It found, however, that “[t]he net equity from the Virginia rental
property split in favor of [Terri Lin] will give her the opportunity for funds to complete
her education, obtain medical insurance, and support herself.” To award spousal support,
the superior court must “make adequate findings showing that the property division is
insufficient to meet the parties’ needs.”45 Thus, finding that the split of marital property
was sufficient to equip Terri Lin to continue her education was not an abuse of
discretion.
E. Attorney’s Fees
Terri Lin argues that the superior court erred by failing to award her
attorney’s fees. Under these facts we cannot conclude that the superior court’s decision
was an abuse of its “broad discretion in awarding attorney’s fees in divorce actions.”46
Both parties were represented by counsel before the superior court and represent
themselves on appeal; additionally, the superior court found that Terry had “no ready
cash to pay for an award of attorney’s fees.” Moreover, the superior court awarded Terri
Lin 60% of the thrift savings plan and the proceeds from the sale of the Virginia
43
(...continued)
a case evaluating a request for post-divorce maintenance.
44
Carr v. Carr, 152 P.3d 450, 456 (Alaska 2007) (quoting Johnson v.
Johnson, 836 P.2d 930, 934 (Alaska 1992)).
45
Urban v. Urban, 314 P.3d 513, 516 (Alaska 2013).
46
Schmitz, 88 P.3d at 1122.
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property; in total, she received 58% of the marital assets. The superior court was within
its discretion to find that the parties were litigating on an equal plane.47
V. CONCLUSION
The superior court’s findings of fact and conclusions of law regarding child
custody, interim child support, permanent child support, property division, permanent
spousal support, and attorney’s fees are AFFIRMED and its conclusions of law regarding
credits against permanent child support for interim overpayments are REVERSED.
47
See Heustess v. Kelley-Heustess, 259 P.3d 462, 479 (Alaska 2011) (“The
purpose of AS 25.24.140 in a divorce proceeding is to ‘assure that both spouses have the
proper means to litigate the divorce action on a fairly equal plane.’ ” (quoting Sanders
v. Sanders, 902 P.2d 310, 319 (Alaska 1995))).
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