Opinion
Supreme Court No. S-13817.
July 13, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Margaret L. Murphy, Judge pro tem., Superior Court No. 3HO-03-00174 CI.
John L. Cox, pro se, Homer, Appellant. Gwen M. Neal, Gwen M. Neal Attorney at Law LLC, Homer, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
John Cox and Kelli Haines divorced in October 2005. After trial, the superior court divided the only marital property available for distribution: the marital residence. Haines was ordered to transfer ownership of the residence to Cox and Cox was ordered to pay Haines for her share of the value of the home. Haines appealed the superior court's original division, and we affirmed in part and remanded for the superior court to consider whether to credit Haines with half of the house's rental value or half of her insurance expense. On remand, the superior court recalculated Haines's share of the residence's value, crediting her with half of the home's rental value during the parties' separation and half of the property insurance payments she made after the parties separated.
Haines v. Cox, 182 P.3d 1140 (Alaska 2008).
Haines transferred the residence to Cox in April 2009, but Cox did not pay Haines for her share of the home, and at Haines's request the superior court reduced the amount Cox owed to judgment in January 2010. Cox appeals, arguing that on remand the superior court improperly calculated the rental value of the home. He also argues for the first time that Haines's annuity was improperly classified as separate property and that marital assets were not distributed equitably because certain bank accounts were not taken into consideration and divided.
Because we conclude that the superior court did not err in calculating the rental value of the marital residence and that Cox's arguments related to the classification of Haines's annuity and the equitable distribution of marital assets are barred by law of the case doctrine, we affirm the superior court's order.
II. FACTS AND PROCEEDINGS
John Cox and Kelli Haines married in June 1999 and separated in May 2003. Cox continued to live in the marital residence after the separation. Haines filed for divorce in August 2003. The superior court held a divorce trial on October 7, 2005, and the only contested issue was the valuation and division of the marital residence.
See id. at 1142 ("The only contested issue was how to value and divide the marital property. The home was the only marital property remaining to be divided.").
On April 20, 2006, the superior court issued a memorandum decision and order. The superior court identified the marital residence as the only property available for distribution because "[t]here was no evidence of any other marital property to be divided." The superior court noted that although Haines had received a settlement from a worker's compensation case for a pre-marital injury, "the parties agreed [that the settlement] was her separate property." The superior court added that because the parties had already divided their personal property, it "presume[d] that the division of personal property [was] fair and equitable." Turning to the value of the house, the superior court addressed the parties' conflicting valuation evidence and concluded that the best estimate of the property value was a 2005 tax assessment valuing the home at $119,200. The superior court determined, based on statutory factors, that equal division of the marital residence was appropriate and awarded Haines $61,566.98 "as her share of the marital residence." The superior court ordered Haines to transfer the house to Cox within 30 days; Cox was then to pay Haines within 90 days of receiving a quitclaim deed.
See AS 25.24.160(a)(4).
Included in this amount was reimbursement for one-half of the property taxes Haines paid on the marital residence for 2003, 2004, and 2005 (after the parties separated and Cox remained in the marital home).
Haines appealed, challenging the superior court's use of the 2005 tax assessment to determine the fair market value of the marital property and arguing that she should have been credited with half of the post-separation property insurance payments she made and half of the fair rental value of the residence because Cox had lived there "rent free" since the separation. Cox did not file an opposing brief. We affirmed the superior court's valuation of the marital home but remanded for the superior court to consider whether to credit Haines for half of the house's rental value or half of her post-separation property insurance payments.
Haines, 182 P.3d at 1142-43.
Id. at 1143 n. 6.
Id. at 1143-45.
On September 30, 2008, the superior court issued a supplemental decision on remand crediting Haines for half of the rental value of the marital residence from "the date of separation to the date of trial." Citing Haines's testimony that the rental value was $850 per month and explaining that "[t]here was no evidence to contradict that evidence[,]" the superior court ordered that Haines was entitled to $12,750 representing "her share of the reasonable rental value of the marital residence." As for Haines's property insurance payments, the superior court explained that "[s]ince the purchase of the insurance benefited both parties, they should share equally in the costs of the insurance" and credited Haines for two post-separation insurance payments. The superior court thus recalculated Haines's total share of the marital residence as $75,340.48.
Haines executed a quitclaim deed on April 28, 2009, but she received no payment from Cox. Haines then requested that the superior court reduce the $75,340.48 to judgment, and on January 8, 2010, the superior court issued a judgment against Cox in the amount of $78,340.48 representing Haines's share of the marital property plus 3.5% interest from September 30, 2008.
III. STANDARD OF REVIEW
"We review a trial court's decision to classify property as marital only for abuse of discretion; and we review the court's underlying factual findings only for clear error." "The valuation of available property is a factual determination that should be reversed only if clearly erroneous."
Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007) (internal citations omitted).
Haines, 182 P.3d at 1143 (quoting Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994)).
IV. DISCUSSION
Cox makes three arguments on appeal: (1) that the superior court improperly calculated the rental value of the marital residence; (2) that the superior court erred in classifying Haines's annuity as separate property; and (3) that the marital assets divided by the parties' agreement were not distributed equitably because certain checking and savings accounts were not taken into consideration. We conclude that Cox's arguments regarding the classification of Haines's annuity and the equitable distribution of marital assets were resolved by the superior court's April 2006 decision and are now barred by law of the case. We also conclude that the superior court did not err in calculating the rental value of the marital home. We thus affirm the superior court's order.
What Cox refers to as Haines's "annuity" is a settlement from a worker's compensation case.
A. Cox's Arguments That Haines's Annuity Should Not Have Been Classified As Separate Property And That The Marital Assets Were Not Equitably Distributed Were Not Preserved In The Trial Court And Are Barred By The Law Of The Case Doctrine.
Haines argues generally that the "law of the case doctrine prohibits review of any of Mr. Cox's [legal] issues." Specifically, she contends that Cox's arguments that her annuity was not separate property and that the marital assets were not equitably distributed were resolved in April 2006, prior to the earlier appeal, and thus may not be reconsidered in this appeal.
"The law of the case doctrine prohibits review of `issues that have been fully litigated in the superior court and as to which no timely appeal has been made' absent `exceptional circumstances presenting a clear error constituting manifest injustice.'" Law of the case is "a doctrine of economy" justified by policy reasons including: "(1) avoidance of indefinite litigation[]; (2) consistency of results in [the] same litigation; (3) essential fairness between the parties; and (4) judicial efficiency." We have explained that it is appropriate to accept as law of the case earlier appellate decisions in the same case "as well as the many rulings made by [the superior court] prior to [the first appeal] that could have been appealed in [the first appeal] but were not." And we have clarified that "the doctrine is equally applicable to issues that have been fully litigated in the superior court and as to which no timely appeal has been made." 1. Haines's annuity
Johnson v. Johnson, 239 P.3d 393, 402 n. 28 (Alaska 2010) (concluding that because neither party in a divorce proceeding appealed the trial court's order requiring former wife to return any heirlooms she had that belonged to former husband, we would "accept as law of the case the superior court's conclusion that [former husband] had a right to those items") (quoting Dunlap v. Dunlap, 131 P.3d 471, 475-76 (Alaska 2006) (considering child support order settled and unreviewable because appellant failed to seek timely review)).
Beal v. Beal, 209 P.3d 1012, 1017 (Alaska 2009) (quoting Dieringer v. Martin, 187 P.3d 468, 473-74 (Alaska 2008)).
Id. at 1017 (quoting Petrolane, Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska 2007)); see also id. at 1017 (adding that "[j]udicial economy and the parties' interests in the finality of judgments are in no way furthered if parties are allowed to engage in piecemeal appeals" (quoting State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 874 (Alaska 2003))).
Id. at 1017 (elaborating that "when a party appeals some aspects of a trial court decision but not others, the trial court's rulings on the non-appealed issues may become the law of the case following the appellate decision"); see also Carlson, 65 P.3d at 874 (declining to address a defense "[b]ecause it could have been raised in earlier appeals but was not").
Dunlap, 131 P.3d at 476.
Cox argues that the superior court erred in finding that the parties agreed that Haines's annuity was her separate property. Haines urges us not to consider Cox's argument because he did not contest the superior court's finding that the annuity was separate property in a timely manner.
The superior court's April 2006 decision stated that "[t]he parties agreed that the marital residence is the only marital property to be distributed." The superior court explicitly noted that "Haines received a settlement from a worker's compensation case that the parties agreed was her separate property," (emphasis added) adding that "[a]lthough Haines testified that she used some of the settlement funds to pay for the land and building materials for their house, there was no evidence that the amount she did not spend was ever intended to be transmuted into marital property." "Whether a spouse's separate property has become marital property through transmutation is an issue of intent." A trial court determines as a factual matter "whether this intent exists by examining the parties' words and actions." Haines identified the annuity as her separate property in her complaint for divorce and stated in her pre-trial brief that she was injured prior to the parties' marriage. And Cox, in a financial disclosure form filed with the superior court in November 2003, did not include Haines's annuity on his list of "property subject to disposition." Nor did Cox argue during the divorce trial that the annuity was marital property. He thus failed to preserve this issue for appeal in the 2006 proceeding and it has been waived.
Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007).
Id.
See Partridge v. Partridge, 239 P.3d 680, 685 (Alaska 2010) (affirming a trial court's classification of an asset as marital property because former husband "expressly waived this argument by affirmatively characterizing [the asset] as a marital asset both in open court and in several filings").
See Millette v. Millette, 177 P.3d 258, 267 (Alaska 2008) ("It is well established that issues are waived for purposes of appeal if not adequately raised [in the trial court].").
Moreover, Cox did not appeal the superior court's April 2006 finding that the parties agreed that Haines's annuity was separate property, raising the issue for the first time over four years later in his November 2010 appellate brief. Contesting the classification of the annuity now is not a timely appeal, and the law of the case doctrine bars Cox's appeal of the issue.
2. Equitable distribution of marital property
Cox argues that the superior court did not equitably distribute the marital assets because it did not consider certain checking and savings accounts in Haines's name, which Cox alleges were "marital," "were used by both parties[,] and should be divided equally." Haines again contends that we should not address this claim because it is barred by law of the case.
In its April 2006 order, the superior court stated:
There was no evidence of any other marital property to be divided. The parties have already divided their personal property. Since no evidence was submitted as to the value of the personal property, the court presumes that the division of personal property is fair and equitable.
The superior court acknowledged the existence of a checking account in Haines's name that was used by both parties, but it did not divide the checking and savings accounts because Cox and Haines had already divided their personal property and did not present "evidence of any other marital property to be divided" aside from the marital residence. The record confirms that Haines identified a Wells Fargo checking account and a Wells Fargo savings account as her separate property in her complaint for divorce. And Cox did not include any checking or savings accounts on his list of "property subject to disposition" in his answer. In the context of a divorce proceeding there is no "affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just." Absent Cox bringing his dispute regarding the checking and savings accounts to the superior court's attention, there was no reason for the superior court to interfere with the parties' agreed division of their property. Thus, Cox failed to preserve this issue for appeal in the 2006 proceeding, and the issue is waived.
See 1 BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY § 5:3, at 254 (3d ed. 2005) ("The burden of proving that an interest [to be classified and divided] exists on the facts is always on the spouse who seeks to have the interest divided.").
Notkin v. Notkin, 921 P.2d 1109, 1111 n. 1 (Alaska 1996) (quoting Kerslake v. Kerslake, 609 P.2d 559, 560 n. 1 (Alaska 1980)).
See supra note 19.
And again, Cox did not appeal the superior court's April 2006 finding that there was no other marital property to be divided besides the marital residence, nor did he respond in this court to Haines's appeal of the superior court's order. Thus, Cox is barred by the law of the case doctrine from appealing this issue over four years after it was settled by the superior court in 2006 and not contested with a timely appeal or cross-appeal. B. The Superior Court Did Not Clearly Err In Determining The Monthly Rental Value Of The Marital Residence.
See Alaska R. App. P. 204(a)(2), 212(c)(6).
In the previous appeal, we directed the superior court to "exercise its discretion in considering whether to adjust the equitable division of assets by half the rental value." The superior court did exactly that, finding on remand that Haines was entitled to "receive one half of the rental value" because Cox "continued to live in the marital residence after the parties separated." Cox disputes the superior court's valuation of the rental value of the marital residence as $850 per month. He argues that the superior court had only Haines's testimony to support its finding, and that Haines is not an expert.
Haines v. Cox, 182 P.3d 1140, 1145 (Alaska 2008).
Cox also maintains that "[t]he superior court erred in [its] finding that rent should be charged up to the date that final judgment was entered" and that "the rental period should have ended no later than August 20, 2006." We agree with Haines that this point is simply factually inaccurate. The trial court's supplemental order clearly stated that "Haines should receive one half of the rental value of the marital property from the date of separation to the date of the trial" (emphasis added) and later calculated the value by multiplying the $850 per month by 30 months, from May 2003 to October 2005.
The superior court obtained the $850 per month rental value from Haines's testimony, noting that "[t]here was no evidence to contradict that evidence." We concluded in Dunn v. Dunn that because an ex-husband did not directly contradict his ex-wife's claimed expenses for carpeting a house, the trial court's finding that the ex-wife paid the expense was not clearly erroneous "even though the [ex-wife's] other evidence was equivocal." Similarly, in this case Cox presented no contradictory evidence to challenge Haines's valuation. Nor does he do so on appeal. Instead, he maintains that "there is no evidence as to what the property rental value was." The trial court had before it Haines's testimony of the value, and we cannot conclude that the superior court clearly erred in finding the rental value of the marital residence to be $850 per month.
952 P.2d 268, 273 (Alaska 1998).
V. CONCLUSION
We AFFIRM the superior court's order.