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Fletcher v. Fletcher

Supreme Court of Alaska

November 30, 2018

LINDA FLETCHER, n/k/a Linda Occhipinti, Appellee.

          Appeal from the Superior Court No. 3AN-14-05223 CI of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

          Mario L. Bird, Ross, Miner & Bird, PC, Anchorage, for Appellant.

          David S. Houston, Houston & Houston, PC, Anchorage, for Appellee.

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




         The 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.


         A. Facts

         Linda 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.

         1. Domestic violence; David moves out of the house

         Linda 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.

         2. Linda's and David's employment and finances

         During 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."

         The 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.

         3. David's health; insurance

         David 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.

         Until 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.

         B. Proceedings

         Linda 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.

         Trial 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.

         In 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."

         The superior court also considered the AS 25.24.160(a)(4) property division factors (the Merrill factors)[1] 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.

         After 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.

         The 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."

         Linda 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 50/50.

         David appeals, arguing that the superior court erred by determining a February 2010 separation date and by dividing the marital estate 50/50.


         "Determining 'the separation date is a fact-specific inquiry' "[2] reviewed for abuse of discretion.[3] "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."[4] "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."[5]


         A. The Superior Court Did Not Abuse Its Discretion By Determining February 2010 Was The Separation Date.

         David 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."[6] 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.[7] We therefore review whether the court abused its discretion by determining February 2010 was the separation date.

         "Alaska 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.' "[8] "Determining 'the separation date is a fact-specific inquiry,' "[9] involving analysis of the parties' objective and subjective intent to terminate the marital relationship.[10] The superior court "has considerable discretion in this area";[11]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 ...

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