from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge. Superior
Court No. 3AN-13-05718 CI.
C. Perkins, Hartig Rhodes LLC, Anchorage, for Appellant.
F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for
divorcing couple reached a settlement agreement that was
incorporated into a divorce decree issued by the superior
court. The settlement provided that the qualified marital
portion of the husband's pension would be distributed to
the wife and the nonqualified portion would be distributed to
the husband, subject to a provision for equitable
reallocation if the values of those portions changed
significantly. The settlement also described four firearms
and ammunition that the husband would deliver to the wife.
After the decree issued, the wife's portion of the
pension declined in value and the husband's portion
increased, so the wife filed motions attempting to obtain
information about the reasons for this change in value and
attempting to enforce the settlement agreement's
equitable reallocation provision to compensate for the
changes. She also argued that the husband had not delivered
the specific guns bargained for at settlement. After motion
practice and an evidentiary hearing, the superior court ruled
for the husband in all respects, and it awarded enhanced
attorney's fees against the wife. The wife appeals.
conclude that the significant change in the relative values
of the parties' pension accounts triggers the
verification and reallocation provision of their settlement
agreement. Accordingly, we reverse the superior court's
denial of the wife's motion for an equitable reallocation
and remand for an equitable reallocation according to the
parties' agreement. Because the husband is no longer the
prevailing party, we also vacate the superior court's
award of attorney's fees to the husband. We affirm the
superior court's decision as to the parties'
FACTS AND PROCEEDINGS
Patton and Gary Herring were married in Texas in 1981. Patton
filed for divorce on March 11, 2013, and the parties legally
separated on March 31, 2013. Patton and Herring were both
residents of Alaska at the time.
parties participated in a mediation to negotiate the terms of
their divorce. Leading up to this mediation, Patton had
attempted to obtain financial information from Herring, and
Herring appeared reluctant to provide full information. The
superior court judge had informed Herring that he was
required under Alaska Civil Rule 26.1 to provide signed
releases allowing Patton to access his financial account
information. When Herring failed to provide the required
releases, Patton filed a motion to compel, and the superior
court granted the motion on November 1, 2013, the day after
the lack of complete financial information, the parties
proceeded with the mediation on October 31, 2013. Both
parties were represented by counsel at the mediation. The
parties reached a settlement and signed a document listing
the agreed-upon distribution of their assets. Three of those
assets are disputed in this appeal: Herring's Retirement
Accumulation Plan from BP (BP pension), a Fidelity Roth IRA
account, and several firearms. The parties' agreement was
later typed and presented in a spreadsheet. The agreement
specified that 100% of the " qualified portion" of
the BP pension would go to Patton, while the "
nonqualified portion" would remain with Herring. But the
agreement contained the caveat that the parties needed to
verify that the BP pension could be divided by a Qualified
Domestic Relations Order (QDRO) and that they " must see
numbers the percentages are based on[:] current values."
The agreement next provided that 45% of the Fidelity Roth IRA
account would be distributed to Patton and 55% would be
distributed to Herring, but it explained that this transfer
was subject to an equalization mechanism that the parties had
created to deal with the uncertainty of the BP pension's
value. Finally, the agreement provided that Patton would
receive " four guns previously discussed plus
some discussions regarding the appropriate terms for dividing
the BP pension account, the parties used the Fidelity website
to generate a QDRO reflecting their agreement that 100% of
the qualified marital portion of the BP pension would go to
Patton, while 100% of the nonqualified and nonmarital
portions would remain with Herring. Based on the parties'
elections in filling out the QDRO form online, the QDRO also
specified that Patton was " not entitled to any early
retirement subsidy." At this point the parties did not
know the exact amount that each would be awarded from the BP
pension account because the QDRO had not yet been executed.
parties then submitted to the court their draft findings of
fact and conclusions of law, representing their settlement
agreement, along with the typed version of the original
agreement. The superior court held a settlement hearing on
December 10, 2013. Patton was represented by counsel at this
hearing, but Herring represented himself. At the hearing, the
superior court discussed certain elements of the settlement
with the parties to make sure they agreed on the terms.
court described the settlement agreement, it provided that
the parties would distribute the BP pension according to the
terms set out in the property division, but that the exact
amount of the qualified and nonqualified portions would not
be known until a QDRO had been executed for the account. The
parties therefore agreed to hold part of their Roth IRA
account in " escrow" and use that amount to make
any necessary adjustments after the exact values of the
qualified and nonqualifed portions of the BP plan were
established. The court explained that, " based on the
extent to which their expectations were met or were unmet
from the time of the mediation," the parties would
" use the Roth IRA retained portion . . . to essentially
compensate one or both parties to some extent for what they
didn't get by way of the QDRO that they expected to
get." Near the conclusion of the hearing, the superior
court verified that both parties " underst[ood] that . .
. except for the specific areas that [they were] leaving open
as subject to further negotiation, which relate to the BP
QDRO and the subsequent allocation of the Roth IRA, . . .
everything [was] finalized and . . . concluded." Both
parties testified that they understood and that they agreed
with the terms as the court described them.
day of the hearing, the superior court signed the QDRO
presented by the parties and issued a divorce decree. Patton
then moved for entry of her proposed findings and
conclusions, which reflected the parties' agreement by
providing that Patton would receive " 100% of the
qualified marital portion of the . . . BP pension . . .,
which has an approximate present value of $1,388,856, subject
to verification that the qualified marital portion of the
pension can be transferred in whole to Plaintiff [Patton],
including dividends, interest, gains and losses
thereon." They provided that Herring, in turn, would
retain " 100% of the marital and non-marital portions of
the nonqualified amount of the . . . BP pension, which has
an approximate present value of $125,835, including
dividends, interest, gains and losses thereon." The
proposed findings and conclusions then spelled out the
mechanism for escrow and equitable reallocation in the event
that these BP pension amounts differed significantly from the
amounts estimated at the time of settlement. It provided that
Patton would receive:
45% of the Fidelity GDH Roth IRA account . . ., which has a
total approximate value of $350,234 . . ., except that:
i. $140,000 will be held in escrow and not distributed from
said Roth IRA account pending verification of the amounts
distributed according to paragraphs 8j [regarding
Patton's portion of the BP pension] and 91 [regarding
Herring's portion of the BP pension] below;
ii. In the event that the amounts of said distributions
materially differ from the approximate values set forth in
paragraphs 8j and 91 below, the parties may either agree on a
reallocation of the Fidelity GDH Roth IRA to adjust for any
such material difference, or if they cannot agree, they may
submit this issue to the Court for it to determine an
equitable reallocation . . . .
proposed findings and conclusions contained an essentially
identical provision allocating the remaining 55% of the Roth
IRA account to Herring and explaining this same "
the proposed findings and conclusions provided that, "
[u]nless otherwise agreed by both parties," Patton would
receive " four guns now in the possession of [Herring],
including . . . a shotgun [and] an Uzi with folding stock in
a black factory case," as well as " 500 rounds of 9
mm ammo, one case of shells for the shotgun, [and] four
magazines for the Uzi." The proposed findings and
conclusions gave the parties 30 days to " work
cooperatively and promptly to execute all documents and make
all other arrangements necessary to transfer property awarded
herein to the other party."
objected to certain terms in Patton's proposed findings
and conclusions. At this point the parties still did not have
final information about the value of the BP pension's
qualified and nonqualified portions, and both parties
appeared to believe that the value of Herring's portion
had fallen. But the court concluded that any such shortfall
could be addressed through the equitable adjustment mechanism
that had been designed by the parties as reflected in the
findings and conclusions. The court explained that "
[t]he language in the proposed [findings and conclusions]
accurately tracks the agreement . . . made during the
December 10 settlement conference, which address[es]
uncertainty concerning the amounts the parties will receive
when [the] defendant's [pension] is QDRO'd." The
superior court further explained that the "
[p]laintiff's description of how the parties agreed to
address the issue, including the mechanism of holding back
$140,000 in 'escrow,' is accurate." Accordingly,
the court entered these findings and conclusions in January
2014. Neither party challenges the validity or accuracy of
the findings and conclusions, though they debate the
interpretation of some of their terms.
proceedings following the divorce settlement focused on the
verification of, and eventually the dispute over, the values
of the two portions of the BP pension account. Despite the
provision of the findings and conclusions allowing for "
verification of the amounts distributed" from the BP
pension account, it appears that Herring prevented Patton
from immediately receiving the information she needed in
order to verify the amounts that would be distributed under
the QDRO for that account. In March 2014 Patton requested
another signed release from Herring so that she could obtain
the necessary information from Fidelity, which managed the
pension account. When Herring did not provide the requested
release, Patton filed a notice of records deposition in early
April, indicating that she intended to subpoena Fidelity and
take a records deposition directly from Fidelity. Now
represented by counsel, Herring filed a motion to quash the
subpoena, which the superior court granted.
unable to access information on the amount of the BP pension
distributions, in May 2014 Patton filed a motion to reopen
discovery " for the limited purpose of identifying and
quantifying and equitably awarding any additional or
undistributed marital assets." By the time she filed her
reply brief, the QDRO had been processed and the parties'
respective pension amounts had been divided between them;
thus Patton learned for the first time that her award had
decreased substantially. Patton explained to the court that
the value of her portion of the BP pension had "
decreased by $374,000, i.e. a 27% loss in value." She
therefore asked the court to make an equitable reallocation
under the relevant allocation mechanism in the divorce
settlement, emphasizing that " the 'escrowed'
Roth IRA funds still remain[ed] undistributed" because
final verification of the BP pension amounts had not yet
occurred. (Emphasis omitted.) In response, Herring continued
to oppose Patton's verification efforts, including by
filing a motion for an " order that [Patton] stop
accessing . . . Herring's accounts."
2014 the superior court granted Herring's motion and
ordered Patton not to access his accounts " unless
specifically authorized by [the] court," but it also
granted in part Patton's motion to reopen limited
discovery on the amount of the disputed BP pension. Because
of the " escrow" and reallocation mechanism
designed to account for any difference in the amount of the
BP pension distributions, the superior court concluded that
the findings and conclusions " clearly impl[y] that . .
. Patton is entitled to learn the amount of the non-qualified
BP [pension account] that . . . Herring received or would
receive." The superior court added that " the total
amount available in the BP [account] must be known so that
the parties and court ...