The superior court has broad latitude in making property divisions in divorce proceedings. Brooks v. Brooks, 677 P.2d 1230, 1232 (Alaska 1984); Bussell v. Bussell, 623 P.2d 1221, 1222 (Alaska 1981). We will not disturb such a division absent a showing of abuse of discretion, Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963); that is, a showing by the aggrieved party that the division was clearly unjust.
In making this determination, the trial court should consider, though not necessarily exclusively or exhaustively, the factors set out in Merrill v. Merrill, 368 P.2d 546, 547 n. 4 (Alaska 1962). See also Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984). With the exception of Kenneth's retirement plan, the parties in this case stipulated to the characterization of the divided assets as marital property.
(11) the income-producing capacity of the property.Laing v. Laing, 741 P.2d 649, 652 (Alaska 1987) (citing Merrill v. Merrill, 368 P.2d 546, 547 n. 4 (Alaska 1962); Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)). This list is not exhaustive; the superior court may consider any other factors it deems relevant to dividing the property.
We have remanded cases where the superior court failed to do this. See, e.g. Lang v. Lang, 741 P.2d 1193, 1195-96 (Alaska 1987) (superior court must supply the appellate court with a clear understanding of the basis of its decision); Brooks v. Brooks, 677 P.2d 1230, 1233-34 (Alaska 1984) (remand appropriate where there was nothing in the record to indicate what weight the superior court gave to husband's physical problems). In the present case, the superior court failed to address any of the relevant statutory factors.
E.g., Anderson v. Anderson, 583 S.W.2d 504 (Ky.App. 1979). In Brooks v. Brooks, 677 P.2d 1230, 1231, 1234 (Alaska 1984), we upheld the trial court's inclusion as a marital asset of two parcels of property that the husband had conveyed to his children without the knowledge or consent of his wife. However, in that case, the husband did not object to the trial court's treatment of the property as a marital asset and we laid down no guidelines or standards.
The court need not make findings as to each Merrill factor, but its findings must provide an adequate basis for the conclusion reached. Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984); Merrill 368 P.2d at 548 n. 10. The primary factors the court should consider are:
On remand, we direct the trial court to rectify this inadequacy in the findings. Compare Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984) (similar inadequacies). This list of factors is not exhaustive.
Laing v. Laing, 741 P.2d 649, 652 (Alaska 1987). Davila v. Davila, 908 P.2d 1027, 1032 (Alaska 1995) (citing Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)). Id. (quoting Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987)); see also Lundquist v. Lundquist, 923 P.2d 42, 53-54 (Alaska 1996) (holding there was no error where trial court divided property 50-50 but did not make explicit findings on Merrill factors because "the court's findings, when read in their entirety, demonstrate that the court considered many factors," including specifics about the couple's real property). These findings permit meaningful review.
In Brooks v. Brooks we concluded that a remand was necessary in part because the superior court had awarded rental property to one spouse without explicitly considering that it would likely generate significant income for her..677 P.2d 1230, 1233–34 (Alaska 1984).However, we find merit in Andy's argument that the superior court gave the businesses' income-producing capacity disproportionate weight when it used that factor as one of two that justified an unequal division in Becky's favor.
(I) the income-producing capacity of the property and the value of the property at the time of division.Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999) (citing Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984)).Id. (citing Merrill, 368 P.2d at 548 n. 10).