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Terry A. Cartee v. Catherine M. Cartee

September 24, 2010

TERRY A. CARTEE, APPELLANT,
v.
CATHERINE M. CARTEE, APPELLEE.



Supreme Court No. S-13319 Superior Court No. 3AN-07-12016 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge.

The opinion of the court was delivered by: Carpeneti, Chief Justice.

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 corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Eastaugh, Justice, not participating.]

I. INTRODUCTION

A husband appeals the trial court's award to his former wife of 60% of the marital property. He argues that the trial court abused its discretion by improperly awarding rehabilitative alimony, and by improperly considering his non-marital assets, the parties' age difference, his daughter's future college expenses, and his spending habits during the marriage. He also challenges the court's valuation of a marital gun collection as clear error, and challenges the court's exclusion of his expert airplane appraiser as an abuse of discretion. Because the trial court did not abuse its discretion or clearly err in its division and valuation of property, we affirm the superior court on all issues.

II. FACTS AND PROCEEDINGS

A. Facts

After nearly 16 years of marriage, Terry and Cathy Cartee separated on June 25, 2006. At the time of trial, Terry was in his early 60s and Cathy was about 50 years old. The parties have one child, a daughter, K.C., born in 1993.

1. The parties' conduct, contributions, and financial arrangements during the marriage

During the marriage, Terry worked a week-on/week-off schedule as an electrician on the North Slope. He spent a few days of each off-week flying for the National Guard and he guided hunting trips a few times a year. Also during the marriage, Terry earned a hunting guide license and an EMT license, worked on a pilot instructor's license, trained for the fire brigade, and otherwise pursued opportunities for career advancement. The year after the parties separated, Terry earned approximately $166,000.

Before the marriage, Cathy had earned a nursing degree and during the marriage she worked part-time as a nurse. Cathy also bore sole responsibility throughout the entire marriage, and particularly during Terry's long absences, for taking care of the home and taking care of K.C. Because of her childcare and housekeeping responsibilities, Cathy was unable to work full time. Also as a result of her domestic responsibilities, Cathy forwent the opportunity to accept promotions, complete additional education, or otherwise advance her career during the marriage. At trial Cathy testified that she would have liked to pursue an advanced nursing degree during the marriage, but that her work schedule and her responsibilities of caring for K.C. made this impossible. Cathy testified that she is still interested in earning the degree, which would significantly increase her earning capacity. After the separation, Cathy went to work full time. She currently earns approximately $38 an hour.

During the marriage, all of Cathy's nursing income went to pay for her own and K.C.'s expenses, including food, clothes, and medical bills. Terry paid the mortgage and utility bills for the family home from his earnings, but much of his income was spent on his personal interests and hobbies, including buying guns, buying hunting and camping gear, and refurbishing his personal airplane.

Terry has significant non-marital assets including the premarital portion of his retirement accounts and a valuable piece of land. Cathy came into the marriage with little other than an encumbered vehicle and a small savings account.

2. The marital guns

Terry and Cathy's marital property includes a substantial gun collection. Terry submitted at least four different firearm inventories at various points in the litigation: in his initial disclosures, on a handwritten list generated by him at an unknown time and for an unknown purpose, on his July 2008 property spreadsheet, and on the August 2008 spreadsheet provided with his trial brief. The values he gave for the same guns across different lists varied widely*fn1 and some lists included guns that did not appear elsewhere. Terry testified that, other than a few missing items that he identified, the August 2008 spreadsheet was accurate as to the number of guns and their values. He did not offer an appraisal. Cathy did not cross-examine Terry's testimony as to the gun values, but she did testify that during the marriage Terry secretly purchased several firearms.

3. The marital airplane

The marital property also includes a small airplane. Cathy's expert witness Keenen Zerkel, a certified appraiser, testified that the plane was worth $162,979 and Terry did not cross-examine him. Thereafter, Terry sought to introduce Dan Hollingsworth, owner of an airplane repair business, as a "rebuttal witness." The trial court ruled that Hollingsworth could not give an expert opinion as to the airplane's value because Terry had failed to provide an appraiser's report in compliance with the trial calendar order. The court did permit Hollingsworth, who was personally familiar with the plane, to testify as a fact witness about the plane's components.

B. Proceedings

Trial was held on August 12-13, 2008, regarding child custody and property division. The court issued detailed oral findings at the conclusion of trial and subsequently issued written findings of fact and conclusions of law. The court denied motions for reconsideration by both Cathy and Terry.

1. Equitable division of marital property

The trial court awarded Cathy 60% of the marital property.*fn2 The trial court made no finding as to the net value of the marital estate, but using Terry's estimate of $1,131,681, the difference to Terry between a 50% allocation and the 40% he received is approximately $113,000.

Among its several bases for the property division, the trial court found that under the circumstances, Cathy was "entitled to an equivalent of rehabilitation alimony that comes in the form of an uneven division of property." That way, the court said "she could reasonably contemplate taking some time off and going full time to school if that were something that interested her." In its order denying reconsideration, the court explained that [t]he evidence established that Cathy bore the burden of daily child rearing, with pitifully few exceptions. This necessarily retarded her career development as a nurse. . . . At one point she had to decline a promotion to a supervisory position because of [K.C.]. This role division permitted Terry to develop ancillary aviation and guiding skills. As a practical matter Cathy was too tied up . . . to get the masters degree in nursing to which she still aspires, and which would materially increase her earning capacity. The extra resource allocated to her by the court will give her the opportunity to take two years out of the work force to obtain that degree.

The court cited two additional justifications for the unequal division. First, Terry, unlike Cathy, "has very substantial non-marital assets" and is therefore better equipped to deal with the effects of an unequal property division. Second, because of Terry's higher earning capacity, he could readily compensate for the unequal division by increased savings over his remaining work life, or by working an additional year beyond his planned retirement. In addition, the court observed that K.C. "must look to her mother as the only 100% reliable underwriter of a future college expense," a circumstance that the court noted was "merely illustrative of Cathy's situation, [and not] an independent basis for an unequal property division." Finally, the court clarified that although it was aware Terry had spent "wildly over his marital portion of their resources and assets of the marriage for his personal consumption and use," its unequal property division was not, and could not properly have been, founded on this fact or crafted to penalize Terry on this basis.

2. Valuation of marital gun collection

The trial court valued the marital gun collection at $24,125, saying it arrived at this figure by selecting the largest value for each gun that it found among the multiple inventories submitted by Terry. In its order denying reconsideration, the court explained that Terry did not explain with specificity why he valued his guns at particular amounts. He conceded that he purchased some of the guns secretively. He did not offer an appraisal. The court felt the fairest approach was to accept the highest value he had given any particular weapon on the various listings produced . . .

3. Valuation of marital airplane

The trial court valued the marital airplane at $162, 979, explaining that it accepted the value testified to by Cathy's expert appraiser, Mr. Zerkel. The court said it found Zerkel to be a "credible witness and [an] accomplished . . . highly credentialed appraiser" who took Terry's criticisms of the appraisal into account. In its order denying reconsideration, the court further explained that Terry's own appraiser was excluded from trial because he was not on the expert witness list and had not produced a report. Terry testified that . . . he would not sell [the plane] at any price, effectively depriving the court of the option of simply ordering [the plane] sold and dividing the proceeds. Terry did not cogently explain how he settled at his own valuation of $120,000. The court accepted the certified appraisal rather than Terry's unsupported lay opinion.

Additional facts and proceedings relating to the trial court's exclusion of Terry's expert airplane appraiser appear below.

Terry appeals the trial court's equitable division of property on several grounds. Terry also appeals the trial court's valuation of the marital gun collection and the court's decision ...


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