Opinion
Supreme Court No. S-12130.
April 25, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge., Superior Court No. 3AN-04-7365 CI.
Appearances: Bonn Kracker, pro se, Anchorage. Karen Copeland, pro se, Anchorage.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices. CARPENETI, Justice, not participating.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Bonn Kracker and Karen Copeland dispute how their property should be divided following their divorce. After a property division trial, the superior court ordered Kracker to pay Copeland $1,279. Kracker challenges the superior court's classification of two items of property as marital, its decision to admit two exhibits into evidence, and six of its factual findings. Because the superior court did not abuse its discretion with regard to its property classifications or evidentiary rulings and because Kracker's factual challenges lack merit, we affirm.
II. FACTS AND PROCEEDINGS
Bonn C. Kracker and Karen A. Copeland married in January 2000, separated in July 2001, and divorced in December 2004. Both parties appeared pro se at their 2005 property division trial.
Kracker and Copeland owned a painting business named BK Custom Painting. The trial evidence Kracker and Copeland offered to establish the financial condition of the business at separation was, at best, incomplete. For example, an accounting of the business's accounts payable and accounts receivable as of July 2001 was never offered into evidence and both parties testified that they did not keep the business's books. The superior court consequently characterized the main dispute at trial as how the business's assets and liabilities should be treated.
The parties' equivocal evidence and testimony led the superior court to comment that "the quality of information from both sides" was so poor that it would be unable to make an accurate factual determination of the business's assets and liabilities at the time of separation. The superior court nevertheless issued its findings of fact and conclusions of law, which included a spreadsheet that contained its factual determinations regarding the business's assets and liabilities. Based on a fifty-fifty division of the parties' property, the superior court ordered Kracker to pay Copeland $1,279.
Kracker appeals the superior court's property division rulings.
III. DISCUSSION
A. Standard of Review
The process of equitably dividing marital assets consists of three steps: the superior court must (1) determine what property is available for distribution; (2) assess that property's value; and (3) allocate the property equitably between the parties. We review the superior court's characterization of property as separate or marital for abuse of discretion. Whether the superior court applied the correct legal rule in exercising its discretion is a question of law that we examine de novo, using our independent judgment. The superior court's valuation of property is a question of fact that we review for clear error. A finding of fact is clearly erroneous if, upon review of the entire record, we are left with a firm and definite conviction that a mistake has been made. The superior court has broad discretion in devising a property distribution in a divorce case. Its distribution is reviewed for abuse of discretion, and will be reversed only if it is clearly unjust.
Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006) (citing Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002)).
Id.
Id.
Id.
Id.. (citing Schmitz v. Schmitz, 88 P.3d 1116, 1121 (Alaska 2004)).
Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
Martin, 52 P.3d at 726.
The superior court's decision to admit or exclude evidence is reviewed for abuse of discretion. Errors in the admission of evidence are grounds for disturbing a superior court's final judgment only where failing to do so is "inconsistent with substantial justice." B. The Superior Court Did Not Abuse Its Discretion with Regard to Its Property Classifications or Evidentiary Rulings.
Glover v. Glover, 92 P.3d 387, 391 (Alaska 2004) (citation omitted).
Kracker argues that the superior court abused its discretion with regard to (1) its classification of a March 31, 2002 debt that BK Custom Painting owed Rodda Paint Co. (Rodda) as a marital liability; (2) its classification of AK USA FCU and Wells Fargo accounts as marital property; and (3) its admission into evidence of Copeland's Exhibits E and F.
1. The superior court did not abuse its discretion when it classified the March 31, 2002 debt that BK Custom Painting owed Rodda as a marital liability.
The superior court classified a $16,842 debt BK Custom Painting owed Rodda Paint Co. as of March 31, 2002 as a marital liability. Kracker observes that the invoices listed in Rodda's March 31 statement are dated from December 12, 2001 to March 31, 2002 — "clearly after separation." At trial, however, both Copeland and Kracker repeatedly testified that the liabilities found on the March 31, 2002 Rodda invoice were incurred before separation. For example, Copeland testified that all of the liabilities in Exhibit E, including the March 31 Rodda debt, were "from early, early [2001]." Copeland also testified that none of the debts that she offered into evidence "happened after July [the date of separation]. None of them." Kracker had ample opportunity to challenge the March 31 Rodda statement on numerous occasions before the close of evidence. For example, before the trial formally commenced, the court asked Kracker if BK Custom Painting owed a debt to Rodda of $16,842.62 at the time of separation. Kracker responded: "Correct." The court also asked Kracker to confirm whether the first seven debts on Exhibit B, which included the March 31 Rodda debt, were debts the corporation owed at the time of separation. Kracker's response: "Yes." And before the close of evidence, the court read aloud a list of all liabilities. Included in this list was the March 31 Rodda debt. After reading the list, the court asked Kracker: "Have I got a list of all the listed debts of the parties?" Kracker responded: "Correct."
After the close of evidence and after the parties presented their closing arguments, Kracker for the first time attempted to argue that the March 31 Rodda statement contained post-separation charges. But because the superior court had already closed the evidence, it did not allow Kracker to develop this argument. Kracker claims that the "[superior] court erred [in its] ruling to suppress" his testimony. Thus, Kracker appears to argue that because the March 31 Rodda debt was incurred post-separation and because Kracker was denied the opportunity at trial to challenge its classification after the close of evidence, the superior court abused its discretion in classifying the debt as a marital liability.
Kracker also argues that this infringed his "constitutional right to a fair trial" and shows that the trial court was biased against him. But because the superior court did not deny Kracker's procedural right to testify before the close of evidence, Kracker was not denied due process of law. See Alaska Const. art. I, § 7.
We review the superior court's classification of the debt as marital property for abuse of discretion. "Marital property includes all property acquired during the marriage, `excepting only inherited property and property acquired with separate property which is kept as separate property.'" However, income "earned after a final separation leading to divorce is not marital property." We review the superior court's decision to exclude evidence for abuse of discretion, and "will reverse such a decision only if the error affected the substantial rights of a party." Because evidence had already closed when Kracker first challenged the March 31 Rodda debt, the superior court did not abuse its discretion by declining to allow Kracker to offer new evidence at that point. Furthermore, the superior court's classification of the debt as marital was supported by the testimony that was properly before the superior court when it ruled. Before the close of evidence both parties had maintained that the debt was a marital liability. The superior court therefore did not abuse its discretion by relying on that testimony in finding that the March 31, 2002 Rodda debt was marital.
Fortson, 131 P.3d at 456.
Id. at 460 (quoting Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004)).
Id. (citing Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986)).
Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
2. Kracker waived the issue whether the superior court abused its discretion when it classified the AK USA FCU and Wells Fargo accounts as marital property.
The superior court included both the AK USA FCU and the Wells Fargo accounts as marital property in its property distribution spreadsheet. Kracker essentially contends that it was an abuse of discretion to do so because those accounts "did not exist during the marriage," the parties agreed they were non-marital, and they were marked as such on the spreadsheet that Kracker submitted with his trial brief. Copeland responds by observing that Kracker "agreed to the spreadsheet as set forth by the court." We interpret this response as an argument that Kracker did not preserve this issue for appeal.
Although we generally apply a more lenient standard for pro se litigants, this leeway is limited with regard to the requirement that an issue be preserved by being presented in the superior court because that requirement "arises out of notions of judicial finality and efficiency, as well as fairness to the opposing party."
Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998) (citations omitted).
Before allowing opening statements, the superior court went through each item on the parties' property lists trying to determine whether the parties agreed on the value or ownership of any items. When the court mentioned the AK USA FCU and Wells Fargo accounts, Copeland agreed to Kracker's values and that they should go to Kracker. Kracker failed to mention at that point that those accounts should be classified as his non-marital property. Similarly, near the end of trial, the court listed all of the assets that the parties had previously agreed upon, including the AK USA FCU and Wells Fargo accounts. Kracker again failed to mention that they should be classified as his non-marital property. Because Kracker did not inform the superior court that the AK USA FCU and Wells Fargo accounts were non-marital property, he failed to preserve the issue for appeal.
3. The superior court did not abuse its discretion when it admitted Copeland's Exhibits E and F.
Kracker appears to argue that the superior court abused its discretion in admitting Copeland's Exhibits E and F into evidence. Kracker claims that Copeland never properly introduced Exhibit E and that, consequently, he was never given an opportunity to object to its admission. Kracker also argues that he did object to Exhibit F, but that the court allowed Copeland "to simply walk over and show the item to [Kracker] and continue reading it." He is apparently arguing that the superior court's decision to admit these two exhibits was an abuse of discretion.
Alaska Rule of Evidence 103(a)(1) provides that error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of a party is affected and "a timely objection or motion to strike appears of record." "When a party fails to object to the admission of evidence, that party waives the objection." As Kracker admits, he never objected at trial to admitting Exhibit E into evidence. He argues that this is because Exhibit E was "formally presented before the court" at a point when it was "too late to object to anything." But the parties exchanged exhibits before the trial began. Kracker could have objected to Exhibit E then, but did not. In addition, Copeland referred to Exhibit E toward the end of the proceeding and Kracker still did not object. Kracker therefore waived his objection to the admission of Exhibit E.
Fyffe v. Wright, 93 P.3d 444, 451 (Alaska 2004).
He failed to do so even after he was specifically instructed by the court to raise objections to documents that he thought Copeland should have produced earlier. On September 22, 2005 (four days before trial) the superior court granted Kracker's motion to compel all "tax [r]ecords and bank accounts belonging to the Chinook [C]orp. owned by the defendant[, i]ncluding the last known [a]ddress, phone number, and place of work of Chinook shareholder Keith Howard." Before trial began, Kracker informed the court that Copeland had failed to produce these documents. The court then asked Kracker if he wanted a continuance to make Copeland produce them. Kracker responded by saying that because he had waited so long he was "willing to for[go] that." The court then told Kracker that if he felt there was something he had requested that Copeland had not produced, the court would not let Copeland use it at trial.
Kracker points out that he did object to Exhibit F and seems to argue that the superior court abused its discretion by admitting Exhibit F into evidence after Copeland gave him a copy of it at trial. Alaska Rule of Civil Procedure 61 provides that errors in the admission of evidence are grounds for disturbing a superior court's order only where failing to do so "appears to the court inconsistent with substantial justice." Kracker does not explain how he thinks he was prejudiced by the admission of Exhibit F. In fact, when Copeland read an excerpt of Exhibit F aloud at trial, Kracker responded by stating, "Yeah, I absolutely agree to that." Under the circumstances, any possible error in admitting Exhibit F was harmless.
C. Kracker's Challenges to the Superior Court's Factual Findings Lack Merit.
Kracker also argues that the superior court clearly erred with regard to its factual findings: (1) that the invoices in Copeland's Exhibit E were liabilities; (2) that Copeland received $13,000 in marital income post-separation; (3) that the parties owed a $14,146 debt to Wesgro Paint Drywall Supply, Inc. at separation; (4) that the parties' GMC pickup truck and Kawasaki motorcycle were valued at $500 and $3,000, respectively; (5) that the parties owed a $14,156 debt to Spenard Builders Supply at separation; and (6) that the parties owed a $1,182 workers' compensation insurance debt at separation.
1. The superior court did not err when it found that the invoices in Copeland's Exhibit E were liabilities.
The superior court found that the invoices in Copeland's Exhibit E were liabilities. Kracker seems to argue that the court erred when it treated those invoices as "debts" because he claims that all of those invoices had corresponding accounts receivable to cover them. His theory appears to be that Copeland had the burden of proving not only that these liabilities existed at the date of separation, but also that they were not covered by incoming revenue. And because Copeland did not present evidence that the invoices in Exhibit E were not covered by accounts receivable, Kracker argues that the court erred in treating those amounts as liabilities.
"The burden of proving that an interest exists on the facts is always on the spouse who seeks to have the interest divided." In divorce proceedings, "it is the duty of the parties, not the court, to ensure that all necessary evidence is presented at trial." "[A] party who fails to present sufficient evidence may not later challenge the adequacy of the evidence on appeal."
1 BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY § 5.3 (3d ed. 2005).
Odom v. Odom, 141 P.3d 324, 338 (Alaska 2006) (quoting Brandal v. Shangin, 36 P.3d 1188, 1193 (Alaska 2001)).
Id.
Kracker did not produce evidence at trial of the accounts receivable that he claims offset the liabilities listed in Exhibit E. The superior court therefore did not clearly err in finding that the invoiced amounts were liabilities.
On appeal, Kracker has not provided record cites to evidence of these alleged accounts receivable.
2. The superior court did not clearly err when it found that BK Custom Painting received $13,000 in marital income after separation.
The superior court valued the marital income that Copeland received after separation at $13,000. Kracker argues that this was an "unsupported calculation." We review this valuation for clear error. The superior court explained that it reached the $13,000 figure based on "Ms. Copeland's testimony that for the very large job she was working on before separation, about $13,000 was withheld and paid after separation." This finding is supported by Copeland's testimony that she received a check about three months after the date of separation for work performed during marriage. Copeland testified that the check was in the amount of seven percent of the total contract price of $193,000. Because seven percent of $193,000 is $13,510, evidence supports the superior court's finding that the business received about $13,000 in post-separation marital income. The court did not clearly err.
3. Remaining issues
Kracker has failed to demonstrate how he preserved the remaining issues in the superior court. As noted above, although we generally apply a more lenient standard for pro se litigants, this leeway is limited by notions of judicial finality, efficiency, and fairness to the opposing party when we deal with the question whether a pro se litigant preserved an issue below. Kracker failed to dispute below that the parties owed at separation a $14,146 debt to Wesgro Paint Drywall Supply, Inc., that the parties' GMC pickup truck and Kawasaki motorcycle were valued at $500 and $3,000, respectively, that the parties owed at separation a $14,156 debt to Spenard Builders Supply, or that the parties owed at separation a $1,182 workers' compensation insurance debt; we therefore consider his arguments on these matters waived.
Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998).
See generally Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004).
IV. CONCLUSION
Because the superior court did not abuse its discretion with regard to its property classifications and evidentiary rulings and because Kracker's factual challenges lack merit, we AFFIRM the superior court's judgment.