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Samuel Corbin Johnson, Iii v. Kathleen Finnerty Johnson

September 24, 2010


Supreme Court No. S-13512 Superior Court No. 3AN-05-14155 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge.

The opinion of the court was delivered by: Eastaugh, Senior Justice pro tem.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail


Before: Fabe, Winfree, Christen, and Stowers, Justices, and Eastaugh, Senior Justice pro tem.*fn1 [Carpeneti, Chief Justice, not participating.]


This appeal concerns post-divorce efforts by both parties to enforce, correct, or modify their property division. Sam Johnson challenges various post-divorce superior court rulings, including: an award of Alaska Civil Rule 82(b)(3) full attorney's fees to Kathleen Johnson after Sam made three unsuccessful motions to enforce their property division; the denial of Sam's show-cause motion to force Kathleen to produce or account for his personal property; and the denial of his motion for Rule 82 fees on the judgment entered after remand from a prior appeal. Because Sam's three enforcement motions were in part potentially meritorious and thus not "vexatious or bad faith conduct," we reverse part of Kathleen's first full fees award. We also vacate the denial of Sam's show- cause motion, because it raised unresolved genuine, material issues of fact. We otherwise affirm.


A. Prior Proceedings

Kathleen and Sam Johnson married in 1972 and divorced in June 2007, after a four-day trial. The superior court explained in its findings and conclusions that it was making an "approximately" 50/50 division of the parties' property. It divided, among other things, the parties' "Azalea" and "Glacier" real properties and the associated personal property. As to the Azalea personalty, the superior court seems to have largely accepted the appraised value of $121,927.50, because it awarded each party $60,000 of the Azalea personalty without awarding either party specific items.

The court also entered a qualified domestic relations order (QDRO) for Sam's military retirement; it ordered Sam to pay Kathleen 50 percent of his military retirement each month until the QDRO payments began. The court entered a similar, but not identical, QDRO for Kathleen's retirement.

Sam timely sought clarification, but did not raise the issues now before us.

This is Sam's third appeal relating to the divorce.*fn2 The issues he now raises require a detailed description of the parties' post-divorce motion practice.

B. Sam's First Motion To Compel

In March 2008, while his first appeal was pending, Sam asked the superior court to compel Kathleen to: (1) return geotechnical road fabric Sam had purchased after separation; (2) reimburse him for heating fuel he purchased for the Glacier property during the divorce proceedings and pay for a later fuel delivery; and (3) "return" some 28 items of Azalea personalty listed in his motion papers and described as "non- marital."*fn3

Kathleen responded that Sam's motion was frivolous, was deficient as not identifying the order to be enforced, raised disputes litigated at trial, and sought untimely reconsideration.

Sam replied that relief was authorized by Civil Rule 70. He also asserted that the superior court's findings and conclusions "require transfer" of the disputed items. By order dated July 30, 2008, the superior court denied Sam's motion as to the road fabric, noting that because Sam thought his brother had taken it, Sam should pursue a claim against his brother, not Kathleen. It also denied the motion as to the fuel, finding it was Kathleen's because it went with the Glacier realty awarded to her. But as to the disputed Azalea personalty, the order provided that "[t]he heirlooms from [Sam's] family are to be returned to him if [Kathleen] has them. If [she] no longer has the items, she is to provide an account for what happened to them, if she knows."

C. Sam's Motion To Correct Clerical Mistake

Also in March 2008 Sam, citing Civil Rules 60(a) and 60(b)(1), moved to correct what he called a "clerical mistake" or error in Kathleen's QDRO (the QDRO dividing Sam's retirement payments). He contended that the court made a clerical mistake in ordering that even if Kathleen remarried, she would receive payments under her QDRO, whereas if he remarried he would receive no benefits under the QDRO dividing her pension.

Kathleen's opposition argued that Sam's motion was frivolous and of "no merit" under either rule. She denied any error and asserted that as a matter of law her remarriage would not affect her benefits. She also argued that Sam had waived the issue, because every draft of the proposed QDRO had contained the same provision, Sam's expert had reviewed the provision, and Sam's trial objections had not addressed it.

The superior court denied Sam's motion. The denial order essentially agreed with Kathleen. Sam appealed. We affirmed, because "the remarriage provisions were neither a clerical error nor a mistake."*fn4

D. Sam's Second Motion To Compel

While his first motion to compel was pending, Sam filed a second motion to compel. It asserted that: he had been awarded $60,000 of the Azalea personal property; he "did not receive his personal property as was awarded" to him; most of the items were "personal" to his family and had been owned by him before the marriage; and the remaining items were "attached to his military career." This motion again listed the 28-some items. His supporting affidavit asserted that he had received Azalea items whose value was much less than his $60,000 award, and that he was seeking return of items including "pre-marital, inherited and other items."

Kathleen argued in opposition that, as to the Azalea items, the second motion to compel was identical to the first and thus redundant, and should be summarily denied. Her unsworn opposition also inferentially denied that she possessed any of Sam's personal property.

On July 30, 2008, the same day it denied Sam's first motion to compel, the court denied his second motion to compel as "redundant."

E. Kathleen's First Award Of Actual Attorney's Fees

After the superior court denied Sam's motion to correct and his two motions to compel, Kathleen sought Civil Rule 82(b)(3) actual attorney's fees as to those three motions. Over Sam's opposition, the superior court awarded Kathleen actual fees of $7,272.87. We elaborate on this fees dispute and the court's rulings in Part III.A, which considers whether it was error to grant Kathleen's first full-fees motion.

F. Kathleen's Motion For Order To Show Cause

Before her first fees motion was finally resolved, Kathleen filed a show- cause motion to enforce Sam's interim post-divorce obligation to pay her half of his retirement pay each month until she began receiving direct payments from the Defense Finance and Accounting Service (DFAS). She claimed that Sam did not pay her in October, November, and December 2007, and asked the court to order Sam "to show cause why he should not be held in contempt for willfully violating the Court's order ."

Sam opposed the motion. After considering documentary evidence admitted without objection at a hearing, the superior court found that Sam had not made the October, November, and December payments. It founded its ruling on Sam's admission that he had not paid in October, "the lack of proof of payment in November," and Sam's December bank statement that showed that he received the full DFAS payment on December 2.

We elaborate on the arguments and ruling below in Part III.C, which addresses Sam's argument that it was error to find that he did not make the December payment.

G. Sam's Cross-Motion For Order To Show Cause

When he opposed Kathleen's show-cause motion, Sam cross-moved for an order requiring her to show cause "why she should not be held in contempt for willful violation of the court orders requiring her to file an accounting of the personal property in her possession [from] the Azalea residence." The cross-motion also argued that if Kathleen did not give him those items, their value should be offset against the retirement payments awarded to Kathleen.

Kathleen opposed the cross-motion and, after Sam replied, the superior court denied the cross-motion without explanation. The court also denied Sam's motion to reconsider the denial. We elaborate on the parties' superior court arguments in Part III.B, which ...

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