Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Young v. Lowery

Supreme Court of Alaska

December 24, 2009

Scott H. YOUNG, Appellant,
v.
Cheryl K. LOWERY, Appellee.

Page 1007

[Copyrighted Material Omitted]

Page 1008

Mary A. Gilson, Allison E. Mendel, Mendel & Associates, Anchorage, for Appellant.

Steven P. Gray, Law Office of Steven P. Gray, Kodiak, for Appellee.

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

OPINION

WINFREE, Justice.

I. INTRODUCTION

A husband and wife sought a divorce and the division of their marital property. The trial court granted the divorce and divided the property unequally, awarding the wife a larger share. As part of the division, the court awarded the wife a share of the husband's military pension, ordered him to pay her a portion of the pension payments he had already received, and authorized a constructive trust on his assets in the event he causes the amount of her payments from his pension to decrease. The husband challenges specific aspects of the pension division and the overall property division. We affirm the property division as within the trial court's discretion, but we vacate, reverse, and remand certain elements of the pension division.

II. FACTS AND PROCEEDINGS

A. Facts

Cheryl Lowery and Scott Young were married in 1994. Each had three children from an earlier marriage. Neither Lowery nor Young adopted the other's children, and they had no children together. The couple moved from Florida to Kodiak in 2000, where Young worked for the United States Coast Guard.

In 2001 Lowery's two sons were killed, and Lowery received a $655,802 wrongful death

Page 1009

settlement in 2002. The funds were placed in joint accounts actively managed by Young.

The marriage became strained in November 2006. Lowery entered a residential alcohol-abuse treatment facility in California in early December 2006. She spent one month in treatment and another in aftercare. Young and Lowery never reunited, and the trial court determined the functional end of their marriage was approximately November 30, 2006. Lowery filed for divorce in January 2007. She then moved to Florida and found work with a former employer. Young moved to Arkansas in March 2007 and retired from Coast Guard service on May 1, 2007.

B. Proceedings

Trial was held in early April 2008. The trial court calculated Young's Coast Guard pension value as $706,125 and determined the marital portion of the pension to be 50.68%. The court found that Young maintained a 55% survivor benefit for Lowery, ensuring that if he predeceased her, she would continue to receive a share of his retired pay for the rest of her life.[1] The court also found that Young received military disability benefits. Under current federal law, a veteran cannot receive the full amount of both retired and disability pay and must waive a portion of retired pay in order to receive disability pay.[2] The court recognized this, but concluded that " [n]either party presented any persuasive evidence on exactly how much [Young's] retirement benefits will be reduced." [3]

The trial court calculated the value of the parties' other marital assets to be $689,725. The court noted that the bulk of these assets originated as Lowery's wrongful death settlement, but concluded that the settlement proceeds had been transmuted into marital property. Adding the marital portion of the Coast Guard pension, the court calculated the total value of the marital estate to be $1,047,589.

The trial court awarded Lowery one-half of the marital portion of Young's pension, which amounted to $178,932. The court also ruled that " [t]he balance of the marital property should be divided on an unequal basis in order to allow [Lowery] to secure additional retirement and health benefits or equivalent financial security." It awarded Lowery $524,298 (roughly 75%) of the non-pension marital property and awarded Young the remaining $165,428. Lowery thus received roughly 67% of the total marital property, including the equally divided Coast Guard pension. The court ordered Young to pay Lowery $7,372, " representing one half of the marital portion of the retirement pay he

Page 1010

received for the period from May 1, 2007 through April 30, 2008" and to continue purchasing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.