Opinion
Supreme Court No. S-11625.
November 8, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-01-12420.
James J. Hanlon, Snowflake, Arizona, and Mark Miller, Anchorage, pro se, for Appellant.
Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Mark and Judith Miller married in April 1974. In the fall of 1999 Judith moved from Anchorage to Oakland, California to begin a three-year graduate degree program. Mark filed for divorce in December 2001. At trial over the division of marital property, the court determined that the date of separation was October 1, 2001 — when Mark and Judith actually decided to divorce. Mark now appeals the trial court's ruling, arguing that the court should have set the date of separation at September 1, 1999 — when Judith left Anchorage to attend school in California. Because the trial court did not clearly err in its factual findings on separation and because those findings support the court's decision, we find no abuse of discretion in its determination of the separation date.
II. FACTS AND PROCEEDINGS
Mark and Judith Miller married on April 20, 1974, and lived primarily in Anchorage. They had two children, both adults by the time this case began. During the summers Mark and Judith operated the Talaheim Lodge, a fishing and hunting lodge on the Talachulitna River.
In late August 1999 Judith went to California to pursue a graduate degree in art and consciousness. Mark stayed behind in Anchorage. After Judith's move, Mark and Judith maintained separate checking accounts and kept their expenses largely separate. But in other respects they continued to have frequent contacts over the next two years.
Mark stayed with Judith in Oakland, California, in November 1999 for Thanksgiving. Judith went to Anchorage for Christmas. Mark returned to Oakland again in January 2000 to do a sports show, and Judith spent spring vacation back in Alaska. In March 2000 Mark purchased real property in Talkeetna.
Judith returned to Alaska for the entire summer of 2000. Toward the end of the summer Judith worked at the lodge as a cook after firing the existing cook. Judith returned to California for the fall 2000 semester. She and Mark then took a vacation together in the Virgin Islands over Thanksgiving. Over Christmas she and Mark stayed at her parents' house in Oregon. She and Mark spent New Year's Eve together, staying with friends in Sausalito, California. Judith claims that in the winter and spring of 2001 Mark became involved with another woman. In May 2001 she and Mark began marriage counseling together, which Mark paid for.
Judith prepared the lodge for the summer of 2001 by buying supplies and groceries. According to Judith, she originally intended to stay at the lodge all summer, but after Mark confessed to seeing the other woman, Judith ended up staying for only about three weeks. Mark and Judith decided that it would be best for her to go back to Oakland for a summer class and come back to the lodge in September.
In September 2001 Judith and Mark still had access to the lodge's business account. Although Mark took Judith's name off the account, Judith was still able to withdraw $10,000. She returned $5,000 to the account shortly thereafter.
In October 2001 Mark called Judith to say "let's bag it." Mark filed for divorce in Anchorage in December 2001.
The superior court held a trial on property division in December 2002 and June 2003. The parties primarily contested the date of their final separation. The trial court initially took the position that the "financial team effort" ended when Judith moved to California in the fall of 1999. Judith then asked to provide additional evidence on the issue; Mark voiced no objection. After hearing further evidence from Judith, the trial court determined that the date of separation was October 1, 2001. Relying on this separation date, the trial court issued written findings of fact and conclusions of law dividing the parties' marital property.
After unsuccessfully moving for reconsideration, Mark filed this appeal, challenging the trial court's determination of the separation date.
Mark initially raised a number of other issues in his opening brief but addressed only the separation-date issue in his reply brief. At oral argument, Mark clarified that he wished to pursue only the separation-date issue and did not wish to contest the other points raised in his opening brief.
III. STANDARD OF REVIEW
The date of a married couple's separation occurs when their marriage ceases to function as a joint enterprise. To the extent that determining this date requires factual findings, we review those findings for clear error. A finding is clearly erroneous if it leaves us with a definite and firm conviction that a mistake has been made. In reviewing a trial court's factual findings, we do not decide issues of credibility or weigh conflicting evidence, but simply determine if substantial evidence exists to support the trial court's position. The ultimate selection of a separation date is a matter within the trial court's discretion. We review this determination only for an abuse of discretion and we look to see if there is sufficient evidence in the record to support the trial court's ruling.
Inman v. Inman, 67 P.3d 655, 659-60 (Alaska 2003).
State, Dep't of Revenue v. Merriouns, 894 P.2d 623, 625 (Alaska 1995).
City of Hydaburg v. Hydaburg Coop Ass'n, 858 P.2d 1131, 1135 (Alaska 1993).
See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).
Inman, 67 P.3d at 660 (citing Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994)).
Hanlon, 871 P.2d at 231; see also Bays v. Bays, 807 P.2d 482, 486 (Alaska 1991); Dixon v. Dixon, 747 P.2d 1169, 1174-75 (Alaska 1987); Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986).
IV. DISCUSSION
Mark appeals only the trial court's determination of the parties' separation date as October 1, 2001. We have recognized that the final separation date for a divorcing couple "is ordinarily the date of the functional termination of the marriage, that is, the date when the marriage has terminated as a joint enterprise or when a married couple [stops] functioning economically as a single unit."
Hanlon, 871 P.2d at 231 (internal quotation marks omitted) (quoting Schanck, 717 P.2d at 3 n. 7).
Mark claims that the evidence at trial supports the conclusion that he and Judith separated on September 1, 1999 — just after Judith moved to California for graduate school — rather than on October 1, 2001 — when Mark called Judith to say, "let's bag it." Mark points to evidence in the record that supports his argument. He notes that the parties divided insurance proceeds from policies that Mark cashed in during the summer of 1999 and spent those proceeds on their own interests. He points out that he and Judith had, in her words, a "confrontation" over the use of their financial resources, especially over whether to purchase property in Talkeetna in March 2000. Mark also notes that he was opposed to Judith taking on debt to finance her education and that, "financially, she did her thing and I did my thing." Although Mark acknowledged at trial that he and Judith maintained separate bank accounts throughout the marriage, he testified that after Judith left for California, they stopped sharing common expenses such as mortgage payments and most of their living expenses.
Mark argues that their conflict in August 1999 over what to do with the marital home in Anchorage amounts to further evidence of separation: Judith tried to sell the house while Mark stopped the sale and rented it out instead. In addition, Mark points to a series of letters in September 1999 in which he expressed strong concerns over Judith's move to California as well as concerns over the status of their marriage. Mark also testified at trial that they "definitely had talks of separation" before Judith departed for California. Pointing to testimony suggesting that they both considered the times they spent together after August 1999 to be "visits," Mark claims that they have never lived together since that date. Relying on this evidence, Mark claims that the trial court erred in determining that the date of separation was October 1, 2001.
But Mark only discusses evidence favorable to his position. The trial court was well aware of this evidence but chose to give greater weight to other evidence that favored the later separation date it ultimately adopted.
The trial court acknowledged that Judith left Alaska to pursue her three-year graduate program in California and that she and Mark "went through numerous ups and downs" over the next two years. Yet contrary evidence existed as well showing that Judith and Mark maintained the marital relationship during that time. Judith testified that when she decided to attend school in California, she and Mark were in "transition" because their children had just graduated high school. According to Judith, despite her commitment to attend school for three years in California, she and Mark planned to divide their time between Alaska and California and expected that she would ultimately return to Alaska with her degree. Although Mark maintained that Judith took all her belongings to California, Judith insisted that she only took clothing and items that fit into her car. And Mark acknowledged that even though they talked about separation before Judith left, "Judy always planned on coming back, always said she was going to come back."
Mark also wrote a 1999 newsletter for the Talaheim Lodge, in which he described Judith's move to California as a change that would require some adjustments but would not end their marriage. He wrote that he would "have to learn to replace the peaceful Alaskan wilderness with the buzz of San Francisco traffic" and that "[m]y winter life will consist of traveling back and forth to California to be around Judi, attending a couple sport shows, and hopefully traveling to New Zealand in late November." He also wrote that he and his son were "building a small cabin get-a-way for Judi and I." At trial and in his briefing on appeal, Mark downplays this newsletter as an "advertising tool," arguing that he could hardly have stated, "my marriage is going south and I am currently in the dump." But even accepting this characterization, the newsletter establishes that at the time of Judith's move, Mark held himself out to the public as continuing to be involved in a stable marital relationship with Judith.
Furthermore, it is uncontested that many of the 1999 newsletter statements proved to be accurate: after Judith began her graduate program she and Mark met in various locations on the West Coast and on Caribbean islands for holidays and school breaks. Judith testified that during those times, she and Mark acted as husband and wife. She also stated that the marriage continued "through telephone calls, emails, and visits." Judith testified that when Mark finally said "let's bag it" in October 2001, she was "crushed and devastated."
At trial Judith also provided multiple examples of financial integration. After she moved to California the parties kept their finances largely separate. But as Mark concedes, he subsequently gave Judith $3,000 when she damaged her car, and about $500 more for counseling. It is also uncontested that Judith worked at the Talaheim Lodge in 2000 and 2001 and she was never on the payroll. She spent the entire summer of 2000 working at the lodge and again spent some of 2001 preparing the lodge for guests. She maintained access to the lodge's joint bank account until September 2001.
In short, Judith presented substantial evidence at trial supporting her position asserting a separation date in the fall of 2001 as opposed to the fall of 1999. By relying on his own testimony to the exclusion of Judith's, Mark in effect asks us to re-weigh the evidence. But this is not our task. Our role on appeal is confined to reviewing the record for sufficient evidence to support the trial court's factual determinations. Because substantial evidence supports the trial court's factual determinations, they are not clearly erroneous.
Hanlon, 871 P.2d at 231.
Despite this evidence, Mark seems to argue that the trial court overemphasized evidence relating to the parties' emotional separation and failed to give sufficient weight to the more objective evidence addressing their separation as a joint economic unit. Mark appears to contend that the determination of the separation date should be primarily or completely based on evidence of economic separation and that this economic separation clearly took place in the fall of 1999. But our case law recognizes that both emotional and economic components of separation are relevant — marriage is not solely an economic question. Moreover, here, as our discussion above shows, substantial evidence describing both the economic and personal relations of the parties supports the trial court's decision to select the later separation date. We thus find no merit to Mark's contention that the trial court disregarded evidence of economic separation, and we conclude that the court did not abuse its discretion in determining that the parties separated on October 1, 2001.
See, e.g., Inman, 67 P.3d at 659-60; Ramsey v. Ramsey, 834 P.2d 807, 808-09 (Alaska 1992).
Mark also seems to argue that the trial court erred in reopening the evidence and that the court's equivocation or uncertainty in determining the settlement date amounted to an error or an abuse of discretion. But Mark failed to object to the trial court's decision to allow additional testimony by Judith. Since Mark raises this objection for the first time on appeal, this issue is not properly preserved. And the fact that the trial court changed its mind in the course of the trial does not establish the existence of error; it simply shows that the trial court faced a difficult choice.
V. CONCLUSION
We AFFIRM the superior court's judgment.