DAVID B. FLETCHER, Appellant,
LINDA FLETCHER, n/k/a Linda Occhipinti, Appellee.
from the Superior Court No. 3AN-14-05223 CI of the State of
Alaska, Third Judicial District, Anchorage, Gregory Miller,
L. Bird, Ross, Miner & Bird, PC, Anchorage, for
S. Houston, Houston & Houston, PC, Anchorage, for
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
primary issues in this divorce case are whether the superior
court abused its discretion by determining the parties'
separation date and erred by dividing the marital estate
50/50. For the reasons that follow, we answer "no"
to the former and "yes" to the latter.
FACTS AND PROCEEDINGS
and David Fletcher were married in 1990. They have three
children, one of whom was a minor at the time of their 2015
divorce trial. The parties dispute their separation date:
Linda argues it was in 2010, when David physically moved out
of the house and began living in his truck; David argues it
was in 2014, when Linda filed for divorce.
Domestic violence; David moves out of the
twice petitioned for domestic violence protective orders
against David during the marriage, first in 2001 and again in
2010. Both petitions were granted. David moved out of the
marital home and into his truck around the time Linda filed
the second petition in February 2010. Although David came to
the house to pick up his mail, see the children, and do
repair and improvement projects (some of which Linda
testified she did not request), he did not live or sleep in
the house again.
Linda's and David's employment and finances
the marriage Linda worked in the legal administrative field,
and David worked through the International Brotherhood of
Electrical Workers (IBEW) local union hall as an electrical
contractor and an electrician. Linda handled the parties'
finances. They ceased maintaining a joint bank account a
couple of years into the marriage, and in 2001 separately
filed bankruptcy declarations "due to debts arising from
David's business." Linda paid the family's
monthly expenses and invoiced David each month for his share
of the costs to feed, clothe, and house the family. She also
paid and invoiced David for his expenses, including car
insurance. Linda testified that in 2010, after David moved
out of the marital home, they agreed he would pay $1, 200 per
month for his share of the family expenses. David made these
payments sporadically and in installments until 2012, when he
instead "made multiple direct and indirect payments to
Linda and/or to/for the children."
parties obtained the marital home in 2002 through a
foreclosure sale; it was purchased in Linda's name only,
and the loan was in her name only. David made major
improvements to the home. Linda refinanced the property in
2012; David testified that he had to sign documents
"even though [he] wasn't living in the house."
The parties agreed the home was marital property.
David's health; insurance
was diagnosed with type II diabetes in 1992. He has since
suffered two heart attacks and a stroke; he had surgery
related to the first heart attack. David takes between 17 and
20 medications daily.
2007 the family had health insurance through Linda's
employer. Linda then switched the children's healthcare
to AlaskaNative Tribal Health Consortium (ANTHC) and dropped
David from her employer's insurance plan. David had
access to health insurance through IBEW, but he could not
rely on coverage because he was not always able to maintain
the required minimum number of hours worked each week.
According to one of David's attorneys, David would
qualify for Medicare in January 2017, two years after trial.
filed for divorce in February 2014, alleging a February 2010
separation date. David admitted to the February 2010
separation date when he filed his answer, but he later argued
in his pretrial brief and at trial that the February 2014
divorce filing should be the separation date.
was held over five days in the summer of 2015, and it was
continued for a month due to David's medical issues. When
requesting the continuance, David's counsel also began
arguing that the February 2010 separation date admission in
David's answer had been amended to conform to the
evidence presented at trial. The superior court did not hear
complete argument on this issue and did not expressly rule on
this issue at that time or later in its findings; the issue
was not addressed again by either party during trial.
December 2015 the superior court issued a divorce decree and
supplemental findings of fact and conclusions of law. The
court determined that, "[a]lthough a close call,"
the separation date was February 2010, finding "[a]s of
that date, the parties moved away from being an 'economic
unit' or in any other sense a married couple, and . . .
they have never reversed that course."
superior court also considered the AS 25.24.160(a)(4)
property division factors (the Merrill
factors) and made relevant findings. At the time of
trial Linda was 52 and David was 62; Linda was in
"better health," and "David's health [was]
quite poor." Linda was employed as a billing manager in
a local law firm, and her future income was secure; she had
about $6, 000 in savings; she had two retirement accounts,
one a marital IRA valued at about $87, 000 and the other a
non-marital 401 (K) valued around $178, 000; and she had
health insurance through her employer and ANTHC. David was
medically retired and receiving Social Security disability;
he had two pension accounts, both marital; he had about $1,
200 in savings; and he would have to pay for healthcare until
2017, when he would become eligible for Medicare. The court
also found that Linda cared for the couple's minor
daughter in the family home and received child support from
David's Social Security disability benefits; and that
David lived in his truck, but would soon have an opportunity
to live in a friend's house for 18 months at $600 per
month. Determining there was "no reason to depart from
the 50[/]50 presumption" property division, the court
awarded Linda the marital home and ordered her to make an
equalization payment of about $72, 000 to David.
both parties timely moved for reconsideration, the superior
court issued amended supplemental findings of fact and
conclusions of law in May 2016. The court once again
considered the Merrill factors and determined that,
although a "close call," it would not depart from
the presumptively 50/50 property division.
parties appeared before the superior court in June to argue
whether David should retain Linda's half of his monthly
pension payments until the equalization payment she owed him
was extinguished or whether David's pension should be
split 50/50 via Qualified Domestic Relations Order (QDRO).
The court issued an order immediately entitling David to half
of Linda's marital IRA and directed the parties to
determine whether Linda's equalization payment to David
would be made in a lump sum, with his pension payments then
split equally, or whether he would retain his pension
payments in full until Linda's equalization payment was
offset. The court "again considered the Merrill
factors" and found that, but for the changes regarding
Linda's marital IRA, "th[e] court's
Merrill findings remain[ed] unchanged."
then moved for reconsideration or clarification, and David
filed a cross-motion for relief from judgment. David argued
that his medical condition had worsened due to kidney
disease, constituting newly discovered evidence sufficient to
merit reconsideration of the 50/50 property division. The
superior court ordered half of Linda's marital IRA
transferred to David within ten days, executed QDROs dividing
his pension payments, and ordered her to pay the balance of
the equalization payment in full by refinancing the marital
home. The court denied David's cross-motion, reasoning
that it had known of his extensive health issues and had
properly balanced the parties' health when weighing the
Merrill factors and allocating the marital estate
appeals, arguing that the superior court erred by determining
a February 2010 separation date and by dividing the marital
STANDARD OF REVIEW
'the separation date is a fact-specific inquiry'
" reviewed for abuse of
discretion. "There are three basic steps in the
equitable division of marital assets: (1) deciding what
specific property is available for distribution, (2) finding
the value of the property, and (3) dividing the property
equitably." "A property division is an abuse of
discretion if it is clearly unjust; it will also be set aside
if it is based on a clearly erroneous factual finding or
mistake of law."
The Superior Court Did Not Abuse Its Discretion By
Determining February 2010 Was The Separation Date.
contends the superior court erred by determining the
parties' separation date was February 2010, when Linda
filed for a domestic violence protective order and he moved
out of the marital home, rather than February 2014, when she
filed for divorce. David admitted in his answer the
complaint's allegation that the separation date was
February 2010, but at trial he testified that the parties
separated when Linda filed for divorce in 2014. Generally
"admissions made in the pleadings are conclusively
established." But Linda has not argued on appeal that
the answer conclusively established the separation date.
Moreover, this issue was actively litigated, and the court
ruled on its merits. We therefore review whether the court
abused its discretion by determining February 2010 was the
law has defined [the separation date] as the point at which
'the marriage has terminated as a joint enterprise'
or when a couple is no longer 'functioning economically
as a single unit.' " "Determining 'the
separation date is a fact-specific inquiry,'
" involving analysis of the parties'
objective and subjective intent to terminate the marital
relationship. The superior court "has
considerable discretion in this area";separation
date determinations have been affirmed based upon various
factors such as sexual relations, economic support,
commingled assets, joint tax returns, joint liability, a
manifested desire to continue the ...