Appeal fro the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court Nos. 3AN-12-06299 CI, 3AN-11-05669 CI.
Ted Stepovich, Law Office of Ted Stepovich, Anchorage, for Appellant and Cross-Appellee.
John E. Casperson, Holmes, Weddle & Barcott, P.C., Seattle, for Appellee and Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.
FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.
Anna Young and David Kelly fished together on David's boat during their marriage, which lasted from 1982 to 1985. Eight years after the marriage was dissolved, the federal government established a program assigning individual fishing quotas (IFQs) to certain commercial fishers; David qualified for the program and was awarded quota shares. In 1995 he approached Anna and asked whether they could reach an agreement that would prevent litigation over her right to a marital share of the IFQs. Anna agreed to forgo suit; David began paying her money, sporadically and in varying amounts. After 13 years of this, David's payments stopped. Anna filed suit in 2011, alleging that David had breached their contract. She also filed a motion under Alaska Civil Rule 60(b)(6), seeking to reopen their 1985 property division and allocate the IFQs as a marital asset.
The superior court granted summary judgment to David, deciding that any contract for something other than a marital share was too indefinite to be enforced, that the IFQs were not marital property, and that Anna therefore had no right of recovery. We affirm.
II. FACTS AND PROCEEDINGS
Anna Young and David Kelly were married in 1982. During their marriage they both worked on David's fishing boat, the F/V Arrow.In January 1985 the couple dissolved the marriage, agreeing in the dissolution that they had no marital property and that the F/V Arrow belonged to David.
Eight years later, in 1993, the federal government enacted regulations assigning individual fishing quotas to vessel owners or lessees who had made fixed gear landings of halibut or sablefish (black cod) during certain " qualifying years," 1988, 1989, or 1990. David had fished during the qualifying years and thus qualified for IFQs. The amount of his quota shares for halibut was calculated under the federal regulations using his five highest annual landings from the seven " base years," 1984 to 1990. One of David's highest-yielding base years was 1984, one of the years of his marriage, when he and Anna fished together on the F/V Arrow.
In 1995, David learned that other ex-spouses had reopened their divorce proceedings for the purpose of allocating IFQs as marital property. David approached Anna about reaching an agreement that would dissuade her from litigating the ownership of his IFQs. The substance of their resulting agreement is in dispute.
Anna described the agreement's terms in her complaint, deposition testimony, answers to interrogatories, and affidavits. The contract she alleged in her complaint was an agreement that she " was entitled to her marital share of the IFQs and that payments as to such would be made to [her] over time until paid in full." The complaint alleged that David had agreed to make the payments " when [Anna] needed [money] upon a reasonable request," and that his commitment would end ultimately by " a lump sum payment to be made [when Anna] started a business [and] settled down."
At her deposition, Anna testified that she and David never agreed on a specific amount that he owed her, and she still had no firm figure in mind. She testified that at the time they made their agreement no one knew what an IFQ was worth: " We didn't even know if [the IFQ program] was going to stick." She and David also never agreed that she was entitled to any particular percentage of the IFQs, were they to be someday valued. What they agreed to instead of a dollar figure, according to Anna's deposition testimony, was that " I would not bring lawyers into our business as long as he was fair with me, and we made a deal that he was going to be fair."
Anna further testified that on the day they reached this agreement, David wrote her a check for $6,000. She testified that the next payment was to be made " [w]henever I needed money," and that " for almost another ten years" she and David adhered to an arrangement by which he was " to give me money whenever I needed it, for a real good reason, because he didn't want me to dwindle my money away." She testified that there was no set amount David was to pay; she just made sure they made contact every year " and that he made some kind of a payment to me," the payments being " bigger in the beginning and . . . gradually [getting] smaller, down to two thousand the last time he made a payment." She also testified that David made some payments in " goods," entertaining her and her granddaughters at a restaurant in Seward and buying them " the most expensive wines," " [a]nd he worked on my boat quite a bit, bought a lot of stuff for my boat," such as a radar.
Anna testified at her deposition that she considered all these payments, " during that period of time until we settled," to be interest on what David owed her; she calculated that these interest payments eventually totaled about $30,000.
Anna also testified that she and David probably never would have had to place a value on the IFQs as long as David had " kept his agreement" -- that is, as long as he had " kept paying me until I was ready to start my business." She testified that at the time of her deposition she was ready to start her own business, a film-making studio, and she needed $100,000 to do it; that she might need more money next year; and that David " would have been obliged to [keep] supporting me with my business, as far as I'm concerned," because the IFQs " put him way up there [as] king of the mountain." She testified that there was " no limit" on what she could ask David for under their agreement. She also testified that since David had broken their agreement, what she wanted now was " the IFQs and . . . fifty percent of the money he's made with the IFQs so far."
Anna also described the parties' agreement in answers to interrogatories. She again acknowledged that " [t]here was no set agreed amount as it was impossible to set a [dollar] value on [the IFQs] at that time." She again described a promise by David that he would get her started " in any business [she] want[ed] that doesn't involve fishing," and in the meantime she should " just ask [whenever] [she] need[ed] money for something legitimate." However, " I always had to have a good reason for why I need[ed] the money[; ] he didn't want me to spend any of it on something that wasn't a necessity." She attested that David would usually pay only about 75% of what she asked for. She described one incident in which she demanded that David pay $1,500 for the down payment on a friend's hospitalization in Seattle, " or else our agreement not to get lawyers involved was off."
When David moved for summary judgment on Anna's contract claim, Anna filed two affidavits in opposition: her own and one by Peggy Parker, president of a research firm with extensive experience in fisheries. In Anna's affidavit, she asserted that David " promised me that I would get my share of the IFQs earned by the F/V Arrowwhile I was married to him and working as a crew member" ; she also characterized her agreement with David as that " I would get money as I needed it" and " that he would provide a significant payment toward his debt once I was ready to settle down or started another business as long as it wasn't fishing." In addition, she asserted that " [n]ow I'll be asking for some of the black cod IFQs since I
paid for the gear that got the 'Arrow' started fishing black cod."  Parker, Anna's expert, calculated the value of Anna's marital share of the halibut IFQs on the assumptions that Anna's active fishing during one of the five base years represented 20% of the IFQ shares; that in the divorce she would have received half of those shares; and that she would then have fished those shares herself as an IFQ holder on a halibut vessel and received a 40% share of the recovery.
In Anna's answers to interrogatories, however, she took issue with the position of her expert as to the percentage of IFQs she was entitled to. Asserting that her " attorney worked it out to be 5%," she stated that " I personally feel that it should be closer to 10% in light of the way [David] forced me out of our marriage. . . . [I] still believe I should get 10% of the IFQs and 50% boat share of the money made using those [IFQs] since ...