Opinion
Supreme Court No. S-12076.
November 7, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, Harold M. Brown, Judge, Superior Court No. 3KN-98-777 CI.
Phil N. Nash, Law Offices of Phil N. Nash, Kenai, for Appellant. Kristine A. Schmidt, Kenai, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
In dividing property in a divorce proceeding, the court allocated property between the parties but permitted the wife to retain and sell some of her husband's property in satisfaction of several judgments she had against him. George Carnahan disagrees with his ex-wife Barbara Romine's disposition of this property and appeals the denial of his requests for money judgments against her. Carnahan also appeals the court's ruling awarding Romine full attorney's fees due to the parties' relative economic situations and Carnahan's vexatious conduct. We conclude that the court did not err in denying Carnahan's motions for judgments against Romine because Carnahan failed to make out a prima facie case that Romine had acted unreasonably with respect to the sale or possession of his property. But we remand for further factual findings justifying the award of full attorney's fees to Romine.
II. FACTS AND PROCEEDINGS
Barbara Jeanne Romine and George Edward Carnahan, Jr. were married in 1988, and Romine filed a complaint for divorce in October 1998. The divorce trial was held over two days in March 2000. Carnahan was not present at trial, nor was he represented by counsel.
At trial, a master appointed by the superior court heard testimony from Romine and her witnesses — a real property appraiser, a personal property appraiser, and a construction contractor — as to the value of the parties' property. Romine's proposed findings of fact and conclusions of law were recommended for approval by the master and adopted by the superior court on November 16, 2000. The court issued a Final Judgment and Decree ("divorce judgment") on the same day, awarding Romine fifty-four percent of the marital estate, including the marital home. The divorce judgment also included the following provisions:
11. Plaintiff shall have judgment against defendant for arrears in spousal support in the amount of $12,000.00, and in the amount of $5,083.50, for sums ordered to be paid by defendant according to the terms of the Findings of Fact and Conclusions of Law, for a total judgment of $17,083.50, plus post-judgment interest at the rate of 8% per annum, pursuant to AS 9.30.010.
12. Plaintiff is awarded 100% of her reasonable attorney fees and her costs to maintain this suit, in an amount to be established by separate order of the court, upon motion by plaintiff.
13. Any judgment obtained by plaintiff against defendant, including the judgment recorded on April 6, 1999, . . . or any order requiring defendant to pay money to plaintiff, may be satisfied from Mr. Carnahan's award of personal property; specifically, from silver dollars, or coins identified as 1 oz. silver coins or silver bullion. Upon such satisfaction, plaintiff shall prepare and file a satisfaction of judgment or notice of compliance with the order, which contains a description of property used to satisfy the judgment.
14. Plaintiff shall notify defendant of a date when and a location where defendant may pick up personal property awarded to him, not already in his possession, . . . excepting any silver dollars or 1 oz. silver coins or silver bullion retained by plaintiff in satisfaction of judgments against defendant or orders for defendant to pay money to plaintiff. Defendant shall pick up such personal property on the date and at the location identified by plaintiff. A writ of assistance shall issue to effectuate this paragraph.
In September 2000 Romine notified Carnahan of a date and time to pick up his personal property, which consisted primarily of items stored in trailers in the yard of the marital home. But a restraining order was in place against Carnahan at the time, and he did not pick up the property. In September 2001, at Romine's request, Carnahan was ordered by the court to remove the property no later than October 27, 2001:
If Defendant does not remove all of the above-described Personal Property from the premises of Plaintiff's residence by October 27, 2001 at 3:00 p.m., then Plaintiff is authorized to remove all or any part of the above-described items of Personal Property from her residence at her convenience.
Carnahan did not remove the property as ordered.
Meanwhile, beginning in August 2001, with the help of her son, Mike, Romine sold many of the coins belonging to Carnahan. In total, Romine received $20,635.77 for Carnahan's share of coins and bullion.
In May 2003 Carnahan gave his son, Glenn Carnahan, power of attorney to finalize the financial and property issues remaining from the divorce. In June 2003 Glenn, by his attorney, filed a Motion for Accounting and Writ of Assistance, seeking a full accounting from Romine of all of Carnahan's personal property still in her possession. The superior court ordered Romine to file the accounting but limited it to the items referred to in paragraph 13 of the final judgment — the silver dollars or coins Romine retained to satisfy her judgments against Carnahan.
In August 2003 Glenn filed a Motion for Judgment re: Personal Property seeking a judgment against Romine for $35,568.50 — "the difference between the value of the personal property awarded to [Carnahan] which remained in the possession and control of [Romine], and the value of the silver dollars, or coins identified as 1 oz. silver coins or silver bullion which the court identified for liquidation." On the same day, Glenn also filed a Motion for Judgment re: Accounting ("accounting motion"), seeking a judgment against Romine for $28,302.93 — "the difference between the value of the assets that the court permitted her to liquidate to satisfy a judgment entered against [Carnahan] and the value of the judgment plus interest." Romine opposed the motions and the court scheduled a hearing on "property/accounting" for December 18, 2003. But before the hearing was held, the court granted the accounting motion, mistakenly believing that it was unopposed. Romine moved for reconsideration and the court vacated the judgment and scheduled a status hearing for February 5, 2004.
Superior Court Judge Harold M. Brown's order vacating the accounting motion stated:
If the information concerning the "coins" from Ms. Romine is not forthcoming by the time of the status hearing then an evidentiary hearing will have to be held. With regard to the coins there are at least 2 issues. How many coins (type, value) were where, when. That burden of demonstration is on Mr. Carnahan. What happened to the coins, if any, left on the property of Ms. Romine is one of the other issues.
Glenn filed a Motion for Reconsideration, asking the court to reconsider the order to the extent it placed the burden of demonstration upon Carnahan. The court never ruled on this motion, so it is deemed to have been denied thirty days after it was filed.
At the February 5, 2004 status hearing, the court ordered Romine to provide a list of judgments and orders for Carnahan to pay money to Romine, and a statement of the reasonable attorney's fees Romine incurred under paragraph 12 of the final judgment. Romine submitted the requested documentation by March 1, 2004.
Evidentiary hearings were held about the silver coins on March 19, April 12, and July 29, 2004, and February 11, 2005. The hearings addressed Romine's sale of Carnahan's collection of coins, silver, gold nuggets, currency, tie tacks, and other collectibles. At the July 29, 2004 hearing the parties agreed to conduct an inventory of Carnahan's personal property that remained at Romine's residence; an inventory of Carnahan's property was filed with the court in October 2004. At the February 11, 2005 hearing Romine informed the court that Carnahan had retrieved whatever personal property remained at Romine's residence.
In the meantime, Glenn Carnahan continued filing motions on Carnahan's behalf. On February 4, 2004, Carnahan filed a Motion for Declaratory Relief re: Fiduciary Capacity, asking the court for a declaratory judgment determining that "a former spouse who retains temporary possession of personal property awarded by a divorce to the other party is held to the standard of a fiduciary in regard to the care and treatment of that property." Romine opposed the motion, arguing that it amounted to a new claim and had to be filed as a separate lawsuit. The court denied the Motion for Declaratory Relief.
On January 31, 2005, Glenn Carnahan filed a Motion for Order Denying Fees, contending that Romine's March 1, 2004 documentation of her fees was untimely and that the court should not have awarded all of the fees she requested without first considering the parties' (1) relative economic situations and earning powers; (2) economic disadvantage; (3) actual costs and fees necessary to prosecute; and (4) the two-step process for awarding enhanced fees. Romine opposed, arguing that there were no legal grounds to set aside the court's final judgment in the divorce. The court denied the motion on July 10, 2005. Carnahan then petitioned this court to review that decision.
On February 2, 2005, Carnahan filed a Motion for Final Judgment re: Enforcement ("enforcement motion"), seeking a judgment against Romine in the amount of $60,926.65 — the "market values of the property awarded to [Carnahan] during the divorce action, which were subsequently converted or otherwise disposed of or damaged by [Romine]." Romine opposed the motion, and the court denied it on July 10, 2005, finding "no factual basis or legal authority to issue the judgment requested." Carnahan again petitioned, asking this court to review the order denying his request to enter a final judgment.
On July 11, 2005, the superior court issued a Final Order Concerning Post-Judgment Motions, ruling that (1) no further attempts to garnish Carnahan's assets in furtherance of the final judgment could be made by Romine unless approved by the court in advance; (2) Carnahan should file his proposed Qualified Domestic Relations Orders within thirty days of the order, reflecting the award to which he is entitled under the final judgment; and (3) no further attorney's fees would be awarded to either party.
Carnahan filed a Second Motion for Enforcement re: Identification of Location of Remaining Personal Property, for a Writ of Assistance, and Judgment ("second motion") on August 5, 2005. He again asked for an order requiring Romine to account for his items of personal property identified in the final judgment, including firearms he claimed were still in her possession. He also asked for a writ of assistance to help obtain the property; a judgment "in the exhibit 5 value" of any items of property that were "sold, transferred to another person, damaged or destroyed by improper storage, or otherwise not available for delivery to George Carnahan"; and an award of costs and attorney's fees. Romine opposed the motion, and the superior court denied it on September 1, 2005.
Carnahan appealed the denial of this second motion. He also sought to consolidate the appeal with his two earlier petitions for review. We denied consolidation and dismissed the petitions because "[t]he points addressed in the petitions are currently included in the points on appeal [here] and may be adjudicated in [this] proceeding."
III. DISCUSSION
The claims in Carnahan's appeal fall into two categories: those relating to the property divided in the divorce decree and those regarding the court's award of attorney's fees to Romine.
A. Property Claims
1. Phantom assets
Carnahan contends that, while attempting to enforce the provisions of the November 2000 final judgment, he discovered that Romine had sold some of his personal property — including coins and precious metals — that Romine had failed to list in her inventory of marital assets. Because this property was unlisted, Carnahan claims, the superior court failed to include it in the marital assets distributed by the final divorce judgment. Carnahan points out that in his February 2, 2005 enforcement motion, he sought an award of $11,441.58 to recover his share of the sale price Romine received for these "unreported assets." The superior court denied Carnahan's motion, and Carnahan now argues that the court erred in its ruling.
To prove his claim on this point below, Carnahan submitted Excel spreadsheets prepared by his son, which purported to compare the coin-dealer sales invoices that Romine had included in her post-judgment accounting with corresponding entries in her original prejudgment inventory of the parties' personal property. Carnahan claimed that the Excel spreadsheets showed discrepancies between the coins and other property listed in the original inventory and the items listed in the receipts of items Romine sold to coin dealers. Instead of seeking to recover his share of the amount Romine received in selling these "phantom assets," Carnahan sought a judgment based on the value he estimated they would have had if Romine had listed them in her original inventory.
Carnahan renews this approach here; he argues that we should enforce the "intent" of the final divorce judgment by allocating between the parties the newly discovered, liquidated property "on the same basis as the initial property division."
But we agree with the superior court's conclusion that there was "no factual basis or legal authority" to issue the judgment Carnahan requested with respect to the phantom assets. For one, Carnahan failed to make a prima facie showing that any items of property were, in fact, excluded from the original divorce decree. As Romine points out, the appraiser noted the face value and weight of the coins, but seldom identified the years of the coins. Therefore, the fact that there is not an exact match between the wording of Romine's property inventory and the coin-dealer invoices does not necessarily indicate that there were items sold to the coin dealer that were not inventoried.
For instance, Carnahan alleges that eight hundred thirty-five 1991-92 silver dollars were sold that did not appear on Romine's appraisal; but these particular silver dollars could have been listed anywhere in the appraisal under "silver dollars," "1 oz. silver dollars," or "1 oz. silver coins."
The figures on Carnahan's Excel spreadsheets thus have no basis in reality — the numbers and analysis were contrived solely from two sources that could not be juxtaposed: the appraisal and the coin-dealer receipts. Without being able to offer more evidence to support this claim other than Romine's appraisal and his son's spreadsheets, Carnahan failed to make any plausible showing that Romine sold coins that had not been allocated in the original divorce decree. The superior court accordingly did not err in rejecting this claim.
2. Sale of coins
Carnahan argues that Romine improperly sold the coins she retained under the divorce judgment in order to satisfy her judgments against him. First, he contends, the divorce judgment permitted Romine onlyto retain the property as part of her judgment based on the appraised value the property was given in the final judgment. Carnahan insists that Romine was not entitled to "liquidate" his property until a final award of costs and fees had been entered. Pending entry of such an award, Carnahan maintains Romine should have obtained a writ of execution before proceeding to sell the coins. Next, Carnahan implies that Romine sold the coins for unreasonably low prices and claims that she was not entitled to satisfy her judgments using the actual value she received from the sale of the coins; rather, he argues that "the same valuation method used to allocate the assets of the marital estate to the parties in a divorce must be utilized for the purposes of determining off-sets or credits awarded to a specific party if the awarded assets are the source of the satisfaction." Finally, Carnahan argues generally that Romine should be held to the standard of care of a fiduciary with respect to her care and treatment of the property in her possession.
Carnahan's claims regarding Romine's sale of the coins fail for several reasons. Carnahan does not establish that the November 2000 divorce judgment required Romine to obtain a writ of execution or follow any other statutory procedure before selling the coins. Paragraph 13 of the final judgment and decree provides:
Any judgment obtained by plaintiff against defendant, including the judgment recorded on April 6, 1999, . . . or any order requiring defendant to pay money to plaintiff, may be satisfied from Mr. Carnahan's award of personal property; specifically, from silver dollars, or coins identified as 1 oz. silver coins or silver bullion. Upon such satisfaction, plaintiff shall prepare and file a satisfaction of judgment or notice of compliance with the order, which contains a description of property used to satisfy the judgment.
Ordinarily, under Alaska Civil Rule 69(a), "[p]rocess to enforce a judgment shall be by a writ of execution, unless the court directs otherwise." But Carnahan fails to acknowledge that here the superior court did direct otherwise — the court expressly provided that Romine could satisfy her judgments directly "from Mr. Carnahan's award of personal property; specifically, from silver dollars, or coins identified as 1 oz. silver coins or silver bullion." Moreover, the meaning of a divorce decree is best interpreted by the superior court itself; for this reason we review orders enforcing property divisions in divorce decrees for abuse of discretion. Here, after learning at the evidentiary hearings and through Romine's accounting that she had sold the coins, the superior court nonetheless denied Carnahan's enforcement motion against Romine for improperly selling the coins; the court later implicitly recognized that it had authorized Romine's sale of the coins, ruling that Romine could make no further attempts to enforce the final divorce judgment. In our view, these orders demonstrate that the court interpreted the divorce judgment as allowing Romine to sell the coins in satisfaction of her judgment without first obtaining a writ of execution.
Horchover v. Field, 964 P.2d 1278, 1281 (Alaska 1998).
Carnahan also fails to cite any legal authority for his claim that Romine could satisfy her judgment from Carnahan's property only at its appraised value in 2000; not at the sale price she actually received. Carnahan maintains that Romine improperly "established two different valuation methods" — one for the division of property and one for satisfying her judgments against him by disposing of that property. But we see nothing unusual in this. The property was awarded to Carnahan and, as noted above, the divorce judgment contemplated that Romine would satisfy her judgments selling Carnahan's property. This is indicated by the decree's provision that "[u]pon such satisfaction, [Romine] shall prepare and file a satisfaction of judgment or notice of compliance with the order, which contains a description of property used to satisfy the judgment." The decree does not state that Romine may only satisfy her judgments using the allocation's values; rather, it presumes that Romine will sell the coins at a reasonable value in order to compensate herself.
In any event, Carnahan has failed to meet his burden to show that Romine acted unreasonably. At the various hearings concerning the coins, Romine testified that she enlisted the help of her son, who had some experience in coin collecting, in selling the coins out of state so that she could get a better value for them than she could in Alaska. Romine and her son went through the coins and he identified coins he thought she could sell for more than face value; they took those coins, in batches, to a coin dealer in Minnesota. The rest of the coins she cashed in for their face value at the bank. When she filed her accounting with the court, Romine submitted every receipt for coins and bullion she had sold. Nothing Carnahan presented to the court raised a material issue of disputed fact to cast suspicion on Romine for acting improperly. Absent any prima facie showing that Romine wasted the assets or sold them at an unreasonable price, the superior court did not err in summarily denying Carnahan's motion for a judgment against Romine based on the appraised value of the coins.
Last, we reject Carnahan's argument that Romine should be held to the standard of a fiduciary with respect to the care and treatment of Carnahan's property; again he cites no authority for this claim. Instead, Carnahan reasons by analogy that if he had died after the divorce and his former wife had been appointed as personal representative of his intestate estate, she would have become a fiduciary of that property. He also suggests that a fiduciary relationship may be created because there is a "heightened level of trust" between a former spouse who retains property before it is transferred to the other former spouse. But as Romine points out, no Alaska law creates a fiduciary relationship between ex-spouses, nor has the ex-spouse relationship been traditionally recognized as establishing a fiduciary relationship. The provisions of the November 2000 final judgment dividing the marital property simply treated Romine and Carnahan as a creditor and debtor. 3. Unreturned or damaged property
Carnahan argues below in his second motion for judgment that Romine refused to return some items to him that he had been awarded in the final property division and that some other items that he retrieved were damaged. Based on these claims, Carnahan moved for a judgment of $24,429 — the appraised value for items which allegedly could not be recovered or were damaged. The superior court denied his motion.
We affirm the superior court's denial of Carnahan's motion because Carnahan produced no factual basis to support his claims. Throughout the evidentiary hearings, the court restricted the subject matter of the hearings to the disposition of the coins and bullion. The few times that the missing property was mentioned, its location and value were disputed. The parties agreed that in the summer of 2004, after an inventory was conducted by a third party, Carnahan removed from Romine's property the cargo trailers containing his belongings. After comparing the trailer inventory to the final divorce judgment, Carnahan contended that there were items of property awarded to him in the divorce judgment that he had not received. But Carnahan failed to establish that Romine had retained possession of the missing items or was responsible for their loss. Romine testified that she had permitted Carnahan and other individuals to take some of Carnahan's belongings after the 1998 and 2000 divorce appraisals. There was also testimony that the cargo trailers had been broken into before Carnahan's 2004 inventory was performed, suggesting that some items awarded to Carnahan may have been removed from the trailers or stolen. Romine further testified that she was not aware of any of Carnahan's possessions that had not been returned to him. Carnahan specifically seeks the return of certain firearms, but apart from one mention by Glenn Carnahan's attorney during oral argument, Carnahan presented no evidence about the existence and location of the firearms.
At the hearing on July 29, 2004, the court granted Glenn Carnahan's attorney permission to make a brief record of items that he alleged were missing and never inventoried, but the court's later statements show that the scope of the hearings was limited to the issue of the coins.
In addition, because he did not request a hearing on the issue until his reply to Romine's opposition to his second motion, Carnahan also failed to establish the value of the allegedly missing or damaged property. The second motion simply used the appraised values taken from the final divorce judgment to value the unreturned items. But Romine's counsel briefly pointed out in opposition that many of the items Carnahan sought damages for were no longer valued the same in 2005 as they were in 1998 and at the 2000 divorce trial. Carnahan also did not offer any admissible evidence about the value of the damaged items, for which he sought $630; his entire offer of proof as to his loss consisted of a list of "damaged items hauled to the dump" with assigned estimated values taken from a craigslist.com search.
Though Carnahan now argues that the court erred in summarily denying his claim, we find no merit to this argument: Carnahan failed to offer any admissible evidence raising a disputed question of fact for a hearing. At the end of the July 29, 2004 coin hearing, the parties had arranged for the storage trailers to be removed from Romine's property following an inventory, and at the February 11, 2005 coin hearing, Romine informed the court that Carnahan had picked up all of his belongings from her residence. At that point, then, from the court's perspective, without a concrete offer of proof from Carnahan that problems with the allocation still existed, no further steps needed to be taken regarding the return of Carnahan's property. B. Attorney's Fees
Under the final divorce judgment, the court awarded Romine "100% of her reasonable attorney fees and her costs to maintain this suit, in an amount to be established by separate order of the court, upon motion by plaintiff." Romine did not file anything establishing her reasonable attorney's fees until February 2004. She claimed that her attorney's fees from the initiation of the suit to the final judgment were $23,934.51 and that she had paid her attorney with some of the proceeds from the sale of the coins. Carnahan twice argued that Romine should not be awarded attorney's fees because she had waived her right to fees by not filing a timely motion establishing her fees and because the initial award of 100% of her fees was improper. The superior court denied both of Carnahan's requests for an order denying Romine's attorney's fees. It also issued an order providing that Romine could not take any further collection action against Carnahan "in furtherance of the Final Judgment" without the court's advance approval.
On appeal Carnahan raises the same arguments against the order of fees that he did below. Carnahan claims that before that award can be affirmed "the court must determine the relative economic situations and earning powers; whether there is an economically disadvantaged party issue; the actual fees incurred; and a consideration of the enhanced fees issue as it applies in all divorce attorney's fees awards."
Romine notes that after trial the superior court made the following finding of fact regarding Romine's request for an award of attorney's fees and costs:
Ms. Romine requested that the court award her 100% of her reasonable attorney fees and the costs of this suit, excepting the following costs, which she paid and requested that the parties share 50-50, as set forth above: real property appraisal ($510.00) and update ($255.00), personal property appraisal ($913.00). The basis for her request was: (a) the disparity in the parties' incomes; (b) Mr. Carnahan's many frivolous motions, as shown in Exhibit 21, and continual refusal to comply with court orders in this case, including the pretrial order, which caused Ms. Romine to incur attorney fees and costs that she would not have had to incur otherwise; and (c) that Ms. Romine had to bear the entire cost of procuring documentation regarding the parties' property and debts in the case, and procuring the decrees, judgments and orders to finalize the divorce, costs which are usually shared between the parties.
The superior court also made the following conclusion of law regarding the request for attorney's fees:
Ms. Romine should be awarded 100% of her reasonable attorney fees and costs of this suit, excepting the real property appraisal and update, and personal property appraisal. This award is made pursuant to and in compliance with AS 25.24.140(a)(1) and case law interpreting the statute.
Romine responds that Carnahan's claim for a hearing on the appropriateness of the fee award is "nothing more than an effort to relitigate the Final Judgment, . . . [and] the superior court lacked subject matter jurisdiction to consider Mr. Carnahan's claims." She contends that because Carnahan did not make a motion to set aside the judgment within the Civil Rule 60(b) time limits, the superior court did not need to consider his challenge to the award of 100% of Romine's fees.
But Romine's position that Carnahan's challenge is untimely is incorrect. Under Civil Rule 82, the "prevailing party in a civil case shall be awarded attorney's fees calculated under this rule." And under AS 25.24.140, the statute governing the award of attorney's fees in divorce cases, a spouse may, during the pendency of a divorce action, be awarded "attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action." By requiring the attorney's fees award to be based on a "calculation" and a "reasonable approximation" of actual fees, both the civil rule and AS 25.24.140 indicate that a final award of fees must be a money judgment. Therefore, although the final divorce judgment issued by the superior court in November 2000 contemplated awarding Romine full fees, because it did not award an actual figure, the judgment was final only as to the various substantive issues it covered. As to attorney's fees, the judgment determined Romine's right to full fees but did not establish the amount of those fees or make a final award.
AS 25.24.140(a)(1).
In effect, then, the court did not issue its final order regarding fees until its 2005 Final Order Concerning Post-Judgment Motions, where it declared that "[n]o further attempts to garnish upon the assets of Mr. George Carnahan shall be made by Ms. Romine in furtherance of the Final Judgment entered by the court on November 16, 2000 unless approved by the Court in advance." Although this order did not set out an explicit money award to Romine, it implicitly incorporated the amounts that Romine had provided to the court, which established that she had incurred approximately $23,000 in fees, which she had paid her attorney in part from the sale of Carnahan's coins. By denying Romine any further fees or costs, the order effectively awarded her the amount she had already claimed. Accordingly, Carnahan's appeal of this final money judgment was timely.
Carnahan also correctly argues that the court failed to make the requisite findings in order to award full fees to Romine. The trial court has broad discretion to award attorney's fees in a divorce case. Among those factors to be considered in applying AS 25.24.140(a)(1), "the court must base its decision whether to award fees primarily on the parties' relative economic situations and earning powers." The award of fees will generally be required only to the economically disadvantaged litigant so that the divorcing parties can litigate on an equal plane. Furthermore, if the court wishes to increase the award because of a party's bad faith or vexatious conduct, it must follow a two-step process: "It must determine the appropriate fee award under the general rule and then it may increase that award to account for a party's misconduct." The court must make "explicit findings" supporting the award of increased fees.
See Edelman v. Edelman, 61 P.3d 1, 5 (Alaska 2002) ( Edelman II) (citing Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999)).
Id. (citing Edelman v. Edelman, 3 P.3d 348, 359 (Alaska 2000) ( Edelman I)).
Harrower v. Harrower, 71 P.3d 854, 864 (Alaska 2003) (citing Broadribb v. Broadribb, 956 P.2d 1222, 1229 (Alaska 1998); Nicholson, 974 P.2d at 427)).
Edelman II, 61 P.3d at 6 (citing Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991)).
Id.
Here the superior court failed to make findings that Romine was more economically disadvantaged than Carnahan and that Carnahan had engaged in vexatious conduct. The court's findings of fact state that Romine was awarded more than fifty percent of the marital property "on the basis of the parties' relative financial circumstances, including Ms. Romine's greater living expenses and lack of pension benefits." But the court did not find that Romine's economic disadvantage was sufficiently great to prevent her from litigating on an equal plane with Carnahan. On the contrary, the court found that at the time of trial Carnahan received monthly retirement benefits of approximately $2,400 and rental income of approximately $800 per month. Romine, for her part, worked in the travel industry, earning a gross income of $3,000 per month and received rental income of approximately $500 per month. These findings do not explain how the court could award full fees to Romine based on "the parties' relative economic situations and earnings powers." And Romine points to no other evidence that would support such a finding.
Id. at 5.
In addition, it appears that the court also neglected to make findings concerning the extent of Carnahan's vexatiousness and bad faith conduct. In support of her request for full fees, Romine alleged that Carnahan had filed "numerous frivolous and baseless claims, motions, affidavits, complaints, notices and so forth in this case, and Ms. Romine has had to defend herself against these, at the expense of counsel." She submitted an exhibit listing the many motions Carnahan had filed in the case, including what appeared to be his various attempts to acquire liens or create debts against Romine for large sums of money. The court found that there was "no factual basis for these debts or encumbrances." But the court did not go on to make "explicit findings of bad faith or vexatious conduct and clearly explain its reasons for deviating from the general rule." The superior court's decision to award full fees without making these necessary findings requires us to vacate the award of full fees. Accordingly, we remand to the superior court for factual findings in accordance with the established two-step process: first determining the appropriate fee award under the general rule and then increasing that award to account for Carnahan's alleged misconduct.
Kowalski, 806 P.2d at 1373.
IV. CONCLUSION
We AFFIRM the superior court's orders denying Carnahan's motions for judgments against Romine based on her sale of the coins and the disposition of other property allocated in the divorce decree. We VACATE the award of full attorney's fees to Romine and REMAND for further findings addressing that award.