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Kollander v. Kollander

Supreme Court of Alaska

April 18, 2014

JEAN R. KOLLANDER, Appellant,
v.
DARYL E. KOLLANDER, Appellee

Page 898

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court No. 3AN-90-06548 CI.

Stephen Merrill, Anchorage, for Appellant.

David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 899

FABE, Chief Justice.

I. INTRODUCTION

Jean Kollander seeks to modify the pension division in a qualified domestic relations order originally entered by the superior court in 1992. The federal pension administrator paid Jean's share of her former spouse's pension in accelerated lump sum payments from 2007 to 2008. In 2012 Jean brought a claim that she was instead entitled to lifetime monthly payments. After an evidentiary hearing, the superior court found that her claim was barred by laches and awarded full attorney's fees and costs to her former spouse. Jean appeals the application of laches and the award of attorney's fees. We conclude that the superior court's findings of unreasonable delay and prejudice are not clearly erroneous and that the superior court did not abuse its discretion in applying laches. But because the superior court failed to apply Alaska Rule of Civil Procedure 82 in the award of attorney's fees, we reverse that award and remand for a determination of attorney's fees in accordance with this decision.

II. FACTS AND PROCEEDINGS

Daryl and Jean Kollander married in 1969 and separated in 1990. Both Daryl and Jean were represented by counsel in their divorce proceedings, and they reached a settlement regarding property division, child support, and custody. The superior court issued a divorce decree in September 1991 that accorded with the terms of the parties' settlement.

During the course of their marriage, Daryl and Jean contributed to their employers' respective retirement programs. At the time of divorce, Jean was vested in the Alaska Teamsters-Employers Pension Plan, and Daryl was vested in the federal Civil Service Retirement System through his employment with the Alaska Railroad. The divorce settlement provided that " each party will be awarded one-half interest in the other part[y's] pension benefit earned to date" and " [a]ppropriately worded qualified domestic relations orders will be drafted and submitted to the court for signature." Pursuant to the settlement, Jean's former counsel, Terry C. Aglietti,[1] prepared two qualified domestic relations orders, which were subscribed as approved by Daryl's counsel and entered by the court on May 7, 1992.

The order entered on behalf of Jean reads, in relevant part:

6. Alternate payee, Jean R. Kollander, is entitled to one-half the sum of participant, Daryl E. Kollander's benefits as of April 1,

Page 900

1990, payable from the contributions to the plan made by or on behalf of participant.
7. Distribution and calculation of these benefits pursuant to this order shall be pursuant to guidelines accepted by the Internal Revenue Service.

(Emphasis in original.)

The other order contains similar language naming Daryl as an alternate payee under Jean's plan:

4. The Plaintiff [Daryl Kollander] shall be entitled to receive one-half the sum of Defendant's [Jean Kollander's] benefits as of April 1990, payable from the contributions to the Plan made by or on behalf of the Defendant [Jean Kollander].

(Emphasis in original.)

Neither party had retired or begun receiving benefits at the time of divorce or at the entry of the qualified domestic relations orders. In 1996 Daryl received a letter from the Teamster Pension Trust informing him that the qualified domestic relations order that he had submitted needed to be amended in order to receive his share of Jean's benefits once she retired or reached age 50. Jean retired in 1999 although Daryl was unaware of her retirement. She then turned 50 years old in January 2001, and an amended qualified domestic relations order was prepared by Daryl and entered by the court in February 2001.

Jean denies receiving notice of Daryl's amendment although the record includes the notice and affidavits of mailing to her last known addresses as well as to Aglietti's law office. In any event, Jean's position is that she would not have objected to the amendment. The Teamster Pension Trust informed Daryl of his option to receive approximately $283.53 per month for his lifetime or to receive a lump sum payment of $23,766.81. Daryl chose the lifetime benefit and since 2001 has received a periodic monthly annuity payment from Jean's Teamster pension.

Daryl was employed by the Alaska Railroad from 1969 until June 2007. According to his affidavit, Daryl was classified as a career employee beginning in 1976 and had contributed $46,663.35 to the Civil Service Retirement System at the time of his separation from Jean. Daryl's benefits are administered by the federal Office of Personnel Management, and distribution began when he retired in 2007.

In 2007 Jean received a letter from the Office of Personnel Management informing her that the Office had " received and approved your application for a portion of your former spouse's civil service retirement benefit." The letter referenced federal regulations [2] and went on to state that

[b]y court order we are to pay you a lump sum of $22,459.81 from your former spouse's retirement benefit. By regulation we must pay this lump sum to you in installments equal to one half of your former spouse's gross monthly annuity until the lump sum ...

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