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Johnson v. Johnson

Supreme Court of Alaska

August 28, 2009

Samuel Corbin JOHNSON, III, Appellant,
Kathleen Finnerty JOHNSON, Appellee.

Robert C. Erwin, Law Offices of Robert C. Erwin, LLC, Anchorage, for Appellant.

Mary A. Gilson, Allison E. Mendel, Law Offices of Mendel & Associates, Anchorage, for Appellee.

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Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.


CHRISTEN, Justice.


Kathleen and Samuel Johnson divorced in 2007. During the divorce proceedings, Kathleen drafted a proposed order regarding the division of Sam's military retirement benefits. Sam filed objections to some of the document's provisions with the superior court; Kathleen responded to the objections and filed a revised proposed order. A month later, the court signed the revised order along with the couple's divorce decree. Nine months after the entry of the order, Sam filed a motion to correct it. Sam argued that a provision stating that Kathleen will continue to receive half of Sam's retirement benefit payments, even if she remarries, was inappropriately included in the order. The superior court denied the motion. Sam appeals, making a different argument about the burden he will face should he ever cease to receive the retirement benefits. Because the superior court did not abuse its discretion in denying Sam's motion and because Sam raises a new argument for the first time on appeal, we affirm the superior court's order.


Samuel Corbin Johnson, III and Kathleen Finnerty Johnson were married in 1972; Kathleen filed for divorce in 2005. A trial regarding custody of one minor child, child support, and the division of assets took place in the superior court in Anchorage in May of 2007.[1] The focus of this appeal is Sam's military retirement pension, which he and Kathleen agreed to split 50/50 in keeping with the parties' mutual understanding that they would evenly divide their marital estate.

On the second day of the trial, Kathleen's attorney told the court that Kathleen had " a proposed order dividing the military pension" and Sam's attorney acknowledged that he had received a copy of it. Sam's attorney asked for time to send the order to an expert for review. The court granted permission, instructing Kathleen's attorney to send the order that day and to request a prompt response. The court directed the parties to " submit [the order] to the court by next Thursday," giving Sam eight days to respond. On the final day of the trial, Kathleen's attorney again raised the issue of the retirement benefits order, telling the court that he had given it to Sam's attorney but had not received any response despite the court's deadline having passed. Sam's attorney stated that his expert had the order, called the expert from the courthouse, and then reported to the court that there was information missing from the document. The court gave Sam another deadline for submitting objections to the draft order and Kathleen a date by which to respond to Sam's objections.

Sam filed objections to the proposed order. The objections related to personal information that was not included, as well as some concerns about extraneous language.[2] There was no objection to provisions regarding continued payment of benefits to Kathleen in the

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event she remarries or if Sam stops receiving payments from the military. Kathleen filed a response addressing each of Sam's objections and asked that the court approve " the First Revised Order Dividing Military Retired Pay and Benefits," which she filed contemporaneously.[3] On June 26, 2007, the superior court issued a divorce decree as well as findings of fact and conclusions of law. On the same day, the court signed the First Revised Order.

Sam filed a " Motion to Correct Clerical Mistakes in Judgment" on March 26, 2008. He asked the superior court to " correct a clerical mistake" in the First Revised Order " which awards 50% of husband's federal pension even on remarriage of the wife." [4] He cited Civil Rule 60(a) and (b)(1) in support of his motion. The memorandum in support included little additional argument or explanation, although it did indicate that " Section[s] 8 & 9" of the First Revised Order contained the language to which Sam objected.[5] It also asserted that the order " finds that the ...

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