Opinion
Supreme Court No. S-13126.
September 1, 2010.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge. Superior Court No. 1JU-07-639 CI.
Appearances: Ashley Royal, pro se, Cordova, Appellant. John Hoag, Snyder and Hoag, LLC, Petersburg, for Appellee.
Before: Carpeneti, Chief Justice, Eastaugh, Fabe, Winfree, and Christen, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
I. INTRODUCTION
The superior court denied a husband's request for an annulment of his marriage, instead granting a divorce. The annulment request was based on the husband's allegation that his Ukrainian wife fraudulently induced him into marriage to obtain immigration benefits. The husband appeals the superior court's denial of the annulment, distribution of property, and award of attorney's fees and costs. He also appeals the admission of evidence relating to accusations of domestic violence. Because the husband does not meet the stringent criteria for proving fraud, because the court acted well within its broad range of discretion, and because the husband has not pointed to any errors of consequence, we affirm the rulings of the superior court on all issues.
II. FACTS AND PROCEEDINGS
A. Facts
Ashley Royal and Nataliya Kukharenko married on November 23, 2005, and permanently separated around March 5, 2007. At the time of trial, Nataliya was 46 years old, and Ashley was 58. Nataliya had a son, Olekander (Alex), age 20 at the time of trial. Nataliya is Ukrainian and spoke little English.
The parties first met online in 2002, corresponding through an internet dating service. In the summer of 2004, Nataliya came to the United States from Ukraine to marry another man, Brent Wankier, whom she had also met through an online dating service. She came to Utah where Wankier lived, but the marriage plans quickly fell through and Nataliya left Wankier.
Nataliya thereafter contacted Ashley, indicating an interest in marriage, and then spent a month with him in Hoonah in 2005. Nataliya and Ashley married two months later. After Nataliya moved to Hoonah, her son Alex enrolled there in high school, and later attended the University of Alaska. Ashley helped Nataliya obtain a cleaning job with the City of Hoonah. A little over a year later the marriage had crumbled amid frequent arguments and accusations of domestic violence (by Nataliya against Ashley) and fraud (by Ashley against Nataliya).
The parties agreed on little about what caused the breakdown of the marriage, except for the fact that there were many arguments. One common topic of dispute was money. Nataliya claimed that Ashley took her to a bank and asked her to sign some papers, and she refused unless they were translated. During an argument the next day about the incident at the bank, Ashley called the local police chief. When the police chief arrived, Nataliya told him that she was afraid of Ashley, and Ashley was arrested for fourth-degree assault. The arresting officer said he made the arrest because Nataliya stated she was in fear of Ashley, but the officer later testified that she did not appear to be afraid.
The district court in Hoonah initially issued an ex parte protective order based on probable cause of assault in the fourth degree (that is, recklessly putting one in fear of imminent physical injury). That court later denied the petition for a long-term protective order due to insufficient evidence. Before dismissing the case, Magistrate Maureen DesRosiers said she believed Nataliya was not in "continuing fear of physical injury." However, the magistrate said, "I am completely convinced that Mr. Royal is controlling and is a bully, and probably does need anger management." She found his behavior "abusive" but not rising to the level of domestic violence.
During the time Nataliya lived with Ashley, it appears she remained quite dependent on him. She did not know how to drive. She did not speak English well, and relied on others, including her son, to translate for her. Even basic communication with her husband was difficult, and they would sometimes have to write notes to each other in English and Russian and then have them translated. Although she had a university-level education in economics and accounting from Ukraine, in Hoonah the language barrier and her immigration status prevented her from finding anything other than low-paying employment, such as cleaning. She testified that she hoped to improve her English and study American bookkeeping skills to enhance her employment prospects.
After the dismissal of the domestic violence case, Nataliya testified that "things didn't get any better" and she "felt compelled to leave Mr. Royal for my own safety," claiming he threatened to kill her, demanded her social security number so he could keep her tax refund, and chased her around the house calling her names and breaking things. Ashley denied these allegations. Nataliya went to Bonnie Skaflestad, a school district employee she knew and told her she was afraid of Ashley. Skaflestad took Nataliya to a women's shelter in Juneau. Skaflestad testified that Nataliya "definitely was afraid."
B. Proceedings
1. Denial of annulment
Ashley filed a complaint for divorce on May 18, 2007. On July 24, 2007, Ashley moved to have the marriage declared void or voidable for cause under AS 25.24.030(3) (consent to marry obtained by fraud) and AS 25.24.030(5) (failure to consummate the marriage). He claimed that Nataliya married him only "to gain immigration benefits through fraud." He claimed that she intended from the beginning to use domestic violence accusations to help her get free of him after using the marriage to obtain a green card. In support of this claim he cited her "false" claims regarding domestic violence, which he said were made shortly after a final interview for gaining non-immigrant status. He also cited a lack of marital intimacy, her alleged refusal to commingle assets, and a refusal to "develop trust and harmony" in the marriage. Nataliya opposed annulment on the grounds that the "marriage broke down by a terrible relationship and an abusive relationship[]. . . ."
This case was tried on March 24-25, 2008, before Superior Court Judge Patricia A. Collins. Ashley, who represented himself, objected to being questioned about domestic violence accusations. However, because he sought to void the marriage based on fraud, Judge Collins ruled that evidence relating to why the marriage broke down, including Nataliya's domestic violence allegations, would be relevant. The court then heard testimony from a wide variety of witnesses regarding the circumstances of the marriage and the nature of the relationship between the parties.
Judge Collins concluded that the "core issue [was] whether this was a sophisticated scheme to use marriage to obtain citizenship. While that is conceivable, based on the testimony that was presented, I answer that question in the negative."
Judge Collins observed that both parties shared some blame for the breakdown of the marriage, noting that Nataliya could be seen as manipulative while Ashley was unable to acknowledge his own controlling and sometimes cruel or petty conduct. Given the unrealistic expectations, and language and cultural barriers, Judge Collins found that the marriage was "doomed from almost the start." She found that "both parties entered the marriage with the hope it would work," and that "Nataliya made no false promises to induce the marriage." She therefore concluded that a divorce should be granted.
2. Divorce and property distribution
The court characterized this as "a marriage of very short duration with essentially no commingling of funds," noting that Nataliya "properly conceded that there is very little marital property to distribute." The court noted that Ashley "clearly has far superior income-earning ability than Ms. Kukharenko, and significant assets."
At the time of divorce, Ashley was a certified public accountant but did not have a license. During the marriage, he was an accountant for the City of Hoonah, earning around $60,000 per year. He later found employment with the City of Kotzebue at an annual salary of $85,000. In Ukraine, Nataliya had a university education in accounting and economics and held supervisory and accounting jobs. However, she was not a fluent English speaker, and before the trial she had held hourly wage jobs in the range of $10-14 per hour. Nataliya also testified that Alex's father did not contribute to his support.
The only significant marital asset divided by the court was the portion of PERS retirement benefits earned by Ashley during the marriage, valued by the court at $17,767. The court divided this evenly, awarding $8,884.50 to Nataliya. The court also awarded Nataliya a wooden table her son made in a high school shop class. Ashley claimed that he paid for the materials and the shop fee.
The court also found that Ashley, Nataliya, and Alex incurred medical bills of $7,048 during the marriage. The court found it appropriate that Ashley pay these bills because of his superior earning power. The court ruled that the parties would keep their separate pre-marital property.
The court ordered Ashley to pay rehabilitative alimony of up to $67.50 per week for one year for English tutoring so that Nataliya could "become capable of earning more than a minimal wage." The court also ordered reorientation alimony of $500 per month for one year to offset increased costs of medical and dental treatment until Nataliya could obtain insurance. Judge Collins indicated that Ashley "essentially conceded" the need for rehabilitative alimony.
3. Proceedings on fees and costs
In December 2007 Ashley refused to be deposed on domestic violence allegations and other issues relating to the breakdown of the marriage. Judge Collins found that Nataliya's domestic violence allegations were relevant because Ashley's claim of fraud raised questions about her state of mind in relation to the formation and breakdown of the marriage. Judge Collins ordered Ashley to pay the cost of the next deposition, which came to $933.50 in costs and fees.
After the trial, Nataliya's attorney also moved for $26,676 in attorney's fees. The attorney had been representing Nataliya pro bono under an arrangement with the Alaska Network on Domestic Violence and Sexual Assault. On July 29, 2008, Judge Collins awarded Nataliya additional costs of $922.81, and attorney's fees of $5,335. In doing so, she cited Ashley's "far superior economic situation and earning over that of Ms. Kukharenko." She also took into account the fact that she had already ordered Ashley to pay for English lessons and reorientation alimony.
Ashley appeals the court's denial of his request for annulment, its property division, and its attorney's fees award.
III. STANDARD OF REVIEW
Questions of fact, including the question of whether a party seeking annulment was deceived into marriage, are reviewed under the clearly erroneous standard. We apply the abuse of discretion standard when reviewing the superior court's characterization of property as marital or separate as well as the superior court's ultimate distribution of assets. We will not find an abuse of discretion in the division of property unless the court's division was clearly unjust. An equal division of property is presumptively valid.
Elliott v. James, 977 P.2d 727, 730 (Alaska 1999).
Fortson v. Fortson, 131 P.3d 451, 456 (Alaska 2006).
Elliott, 977 P.2d at 730.
Id.
We review questions of law de novo. We review for abuse of discretion questions regarding the admissibility of evidence.
Fortson, 131 P.3d at 456.
Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006).
IV. DISCUSSION
Ashley's appeal challenges (A) the superior court's denial of the annulment; (B) the superior court's finding that a marital estate existed; and (C) the valuation and distribution of marital property including medical debts, tax liability, pension benefits, and a wooden table. He claims error and due process violations in (D) allowing inquiry into domestic violence claims and (E) allowing hearsay testimony. He also claims error in (F) a number of minor statements made by the court. In addition, he (G) raises a claim that the Hoonah district court in his earlier domestic violence case erred in finding probable cause and issuing a protective order. Finally, Ashley (H) appeals the attorney's fee award. We discuss each in turn.
Ashley's statement of points on appeal runs 15 typewritten pages and contains 14 numbered paragraphs. This opinion deals only with those claims Ashley discusses in his brief. To the extent his points on appeal may contain other claims not briefed, they are waived. See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (concluding that claims by a pro se appellant may be waived due to cursory briefing).
A. The Superior Court's Denial Of Annulment, Based On Its Finding That Nataliya Did Not Commit Fraud, Was Not Erroneous.
Ashley claims that Nataliya fraudulently entered the marriage for immigration benefits, and then made false accusations of domestic violence to carry out her "purpose of destroying the marriage." His theory appears to have been that an allegation of domestic violence would allow Nataliya to obtain a green card without the need to remain married to him. He argues that the superior court "ignored or minimized" the evidence that proved her lack of good faith and fraudulent intentions. He describes Judge Collins's findings as to the reasons for the breakdown of the marriage as "merely ramblings, and speculation, opinion barely grasping the edge of the reality."
In response, Nataliya says that she came to the United States seeking "someone with whom to have a positive relationship." She denies the fraud allegations, arguing that she testified "as to numerous reasons why the marriage failed in spite of her efforts to make it work." She says that she "left the marriage in fear of her life." She says that "[n]umerous witnesses testified to Mr. Royal's abusive treatment . . . during the marriage."
A marriage may be declared void if the consent of either party "was obtained by fraud." A party seeking to annul based on fraud must show by clear and convincing evidence that his or her consent to marriage was obtained by the fraud alleged. We have previously noted that "courts are generally reluctant to grant annulments based on fraud," and grant annulment "only if the fraud concerns an issue essential to the marriage." A contract is voidable for fraud if "a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying."
AS 25.24.030(3).
Elliott v. James, 977 P.2d 727, 731 (Alaska 1999); see also Vaisvila v. Vaisvila, 11 Alaska 46, 48 (D. Alaska Terr. 1946).
Elliott, 977 P.2d at 731; see also Vaisvila, 11 Alaska at 48.
RESTATEMENT (SECOND) OF CONTRACTS § 164 (1981).
To prevail on his fraud claim, Ashley needed to show by clear and convincing evidence that Nataliya deceived him with respect to her good faith desire to be married, and that she intended from the time she induced him to marry her to eventually destroy the marriage. Judge Collins found that Nataliya likely entered the marriage in order to obtain financial security and an education for her son, but had not carried out a scheme to deceive Ashley into marriage or destroy the marriage to gain immigration benefits. She found that other reasons besides fraud explained the breakdown of the marriage. We conclude that Judge Collins fairly evaluated the weight of the evidence in reaching these conclusions. Her findings are not clearly erroneous.
Ashley presented no evidence directly pointing to a scheme or intention of immigration fraud. His case was a mixture of diverse circumstantial evidence, speculation, and unsupported allegations. Even if the court had credited all his testimony, most of the facts he related were at best ambiguous on the question of whether a fraud occurred, while other facts undermined or contradicted his fraud theory. Given the high burden of proof he faced (clear and convincing evidence), it was not enough to bring forward facts that might be interpreted as suggesting a possible fraud. As Judge Collins observed, the fundamental causes of the marital breakdown were more likely other factors, such as the parties' difficulty communicating, the fact that they did not know each other well before the marriage and had unrealistic expectations, and Ashley's emotional and verbal abuse. Ashley fell well short of proving by clear and convincing evidence that Nataliya engaged in the fraud scheme that he described.
Much of the testimony related to Nataliya's relationship to her previous fiancé, Brent Wankier, whom she left shortly before marrying Ashley. In addition, Ashley brought into evidence e-mails Nataliya sent to Wankier after her marriage to Ashley in which she continued to profess love for Wankier. Ashley claimed these "love letters" showed she did not marry him in good faith. Nataliya said she wrote to Wankier to provide emotional support when she learned he was undergoing major surgery.
As Judge Collins observed, the notes to Wankier after marrying Ashley may have indicated some "manipulative" tendencies, as it appeared Nataliya was "making some effort to keep other options open" after her marriage by continuing to flirt with Wankier. However, while Nataliya did tell Wankier in these notes that she loved him and regretted their breakup, she never expressed or suggested she had any intention to leave Ashley, then or at the time she married him. Other evidence indicated that Nataliya tried to make the marriage work. A Russian immigrant in Hoonah who knew the family testified that "she tried to be a good wife and make the family happy. She kept the house clean, cooked, did the laundry and tried to entertain Mr. Royal and his guests. She got the family to go for walks on the beach on weekends, make bonfires and have picnics."
Nataliya's marriage to Ashley so soon after leaving Wankier suggests motives other than romantic ones, but her behavior was consistent with a desire to marry for financial security and an opportunity for a better life. Such goals fall short of a fraudulent scheme to induce marriage solely for immigration benefits, let alone a premeditated plan to destroy the marriage with false domestic violence accusations. As Judge Collins observed, "I infer from the testimony that Ms. Kukharenko wanted to attain the goal of financial security through marriage and a U.S. education for her son, and that she was, again, willing to risk a marriage to obtain those things. Was that bad faith? . . . [I]f we only limited the definition of a good-faith marriage to pure affairs of the heart, with no consideration of such other factors as good looks or financial security, we would have lots of annulments in this country and very few divorces." In addition, Judge Collins noted that if immigration fraud had been her only intent, Nataliya could have executed the same scheme with Mr. Wankier.
After a careful review of the evidence, we do not find clear error in the superior court's assessment that the end of this marriage did not result from a premeditated plan of immigration fraud, but rather it was simply an unhappy marriage. Laura Gay Brewer, a physician assistant at Hoonah Medical Center who treated Nataliya, testified that Nataliya told her she was very unhappy. Nataliya's son testified that the couple was "always arguing" and that Ashley would sometimes curse at her, particularly when he had been drinking. A school librarian who knew Nataliya when she volunteered at the library said Nataliya often came in crying and upset. A friend testified that Nataliya and her son lacked proper clothes, that Ashley did not take an interest in helping Nataliya learn English, and that on one visit she found Nataliya "sick and quite depressed because Mr. Royal had been yelling at her."
At the conclusion of the trial, Judge Collins offered a balanced and plausible assessment of the events that had transpired:
I am convinced that there are no pure angels and no pure devils in this sad case. It is a story that highlights the very real and tragic consequences that can flow from the high-risk business of what is, in effect, a mail-order-bride arrangement.
. . . .
[P]art of the tragedy of this case is that a great deal of this relationship was based on wishful thinking both by Mr. Royal and Ms. Kukharenko. . . .
It is my view that Mr. Royal finds it difficult to explain the breakdown of the marriage in any way other than it being a scam by Ms. Kukharenko, and notably . . . missing from his testimony was any concession . . . that there were significant problems contributing to the breakdown of this marriage early on, and that he was most clearly not without fault.
Was he evil? No. But . . . were his actions such that one might reasonably expect the breakdown of a marriage? Again, I can answer that question yes. . . .
[I]t strikes me that there were significant deficits in good-faith efforts on both sides.
. . . .
And so I am satisfied that this is not an appropriate case to declare the marriage void. It is an appropriate case to declare that there is . . . an incompatibility of temperaments such that the parties can no longer live together, and that a divorce should be granted.
We conclude that the superior court did not clearly err in finding that the predicates of fraud were not proven by clear and convincing evidence. Therefore, we affirm Judge Collins's denial of Ashley's claim for annulment.
B. The Superior Court Did Not Err In Finding That A Marital Estate Existed.
Ashley claims that the court's distribution of marital property was an abuse of discretion because there was no marital estate. In support, he argues that he and Nataliya "did not come together as an economic unit," so there was "thus no equity to divide and equitably allocate." He argues that the couple did not commingle funds and that Nataliya never filed joint tax returns with him, and he reiterates his allegations that she married him under false pretenses. He argues that there is no basis for distributing a portion of his pension earnings to Nataliya because "there was no accredited contribution by [her] to Royal's retirement asset, because she refused to participate in the marriage as an economic unit." Nataliya replies that the couple may not have come together as an economic unit, but points out they lived together while married.
Equitable division of marital assets by the superior court involves a three-step procedure. First, the trial court must determine what specific property is available for distribution. Second, the court must find the value of this property. Third, it must decide how an allocation can be made most equitably. Marital property is all property acquired during marriage, excepting only inherited property and property acquired with separate property. Alaska's divorce statute "places all property acquired during the marriage, whether joint or separate, before the court for purposes of division" and also authorizes invasion of premarital holdings when the balancing of the equities requires it. A 50/50 division of marital property is presumptively valid. Alaska's divorce statute provides that the division of property must "fairly allocate the economic effect of divorce" by considering the following factors:
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004).
Julsen v. Julsen, 741 P.2d 642, 646 (Alaska 1987) (citing AS 25.24.160(a)(4)).
Elliott v. James, 977 P.2d 727, 730 (Alaska 1999).
AS 25.24.160(a)(4).
(A) the length of the marriage and station in life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties, . . .
(D) the financial condition of the parties, . . .
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
(F) the desirability of awarding the family home, . . .
(G) the circumstances and necessities of each party;
(H) the time and manner of acquisition of the property in question; and
(I) the income-producing capacity of the property and the value of the property at the time of division.
Id.
The superior court correctly treated as marital property the portion of Ashley's pension that was earned during the marriage. Alaska's divorce statute specifically recognizes retirement benefits as being among the types of property that become marital property when acquired during the marriage. Although, as Ashley points out, the marriage was of short duration, the statute makes duration of marriage just one of several factors to be considered in the equitable division. Ashley's argument against splitting marital assets is also based in part on his claim that the marriage should have been voided due to fraud — a claim we reject, as discussed above. Ashley also points out that assets were not commingled. The question of whether the parties commingled assets is relevant but not the only consideration in classifying which assets are separate or marital. Nataliya is not claiming that any assets are marital based on commingling. We conclude that Ashley's claim, that no marital estate exists, is without merit.
Id.
See AS 25.24.160(a)(4).
C. The Superior Court Did Not Abuse Its Discretion Regarding Division Of Property.
Ashley makes four specific claims of error or abuse of discretion in the property division. We discuss them in turn.
1. The superior court did not abuse its discretion by failing to make adequate findings regarding its division of medical debts.
The court found that the family incurred $7,048 in medical bills during the marriage, most of them incurred by Nataliya and Alex. Their payment status was uncertain at the time of trial. The court conditionally assigned them to Ashley. Ashley argues that the court failed to explain why it deviated from a 50/50 division of these marital debts.
Debts are apportionable as part of the property division in divorce cases in the same manner as assets. Since medical bills would be considered marital expenses, such debts would be presumptively subject to 50/50 allocation.
Coffland v. Coffland, 4 P3d 317 , 321-22 (Alaska 2000) (holding that courts should consider debt when dividing marital estate); McDaniel v. McDaniel, 829 P.2d 303, 308 (Alaska 1992) ("As a general rule Alaska courts consider marital debt in valuing the marital estate.").
Jones v. Jones, 942 P.2d 1133, 1137 (Alaska 1997).
See Elliott v. James, 977 P.2d 727, 730 (Alaska 1999).
Ultimately, the court hedged its uncertainty about whether the debts still existed by assigning them conditionally to Ashley (the condition being that they did, in fact, still exist): "Certain medical expenses were incurred by Ashley, Nataliya and Nataliya's son during the marriage, which may still be owed as of the date of trial. . . . These bills shall be the responsibility of Royal." The court justified an unequal allocation of such expenses on the grounds of Ashley's "superior earning power." Thus, while it is unclear if any existing debts were allocated to Ashley at all, the court did provide a rationale for departing from a 50/50 allocation. This is an allowable basis for departing from equal division. There was no abuse of discretion.
See AS 25.24.160(a)(4)(C).
2. The superior court did not abuse its discretion by failing to equitably divide income tax liabilities.
Ashley objects that the trial court failed to include income tax liabilities as marital liabilities subject to equitable division, presumptively 50/50. It appears that Ashley still owed money to the IRS from tax years 2006 and 2007 at the time of trial. At trial, he submitted into evidence a spreadsheet listing unpaid tax liability for 2006 ($4,380) and 2007 ($4,000), and submitted tax returns as evidence.
Normally, income earned during marriage would be marital property, and income tax liability on that income would be marital debt. However, in this case, the court noted that Ashley has a "far superior income-earning ability than [Nataliya]," that "this was a marriage of very short duration with essentially no commingling of funds," and that Nataliya "properly conceded that there is very little marital property to distribute." Indeed, the only asset which Nataliya brought to the court's attention for division was the PERS account. For his part, Ashley concedes the parties did not commingle funds. The trial court did not require Ashley to trace any of his bank accounts or otherwise account for how he spent his income during the marriage. Further, regarding taxes, the trial court ordered that "[t]he parties are not required to file joint tax returns and each shall be responsible for filing their own tax return and paying any tax liability."
Because the parties did not commingle their funds, and because Ashley has a far greater earning capacity with which to pay taxes on the income he earned during the marriage, it was appropriate to allocate the income tax obligation to Ashley. It was also not an abuse of discretion for the court to rule that Nataliya bore none of the tax liability associated with that same income.
3. The superior court did not abuse its discretion by distributing Ashley's pension benefits based on present value, and awarding half to Nataliya.
Nataliya presented evidence from an expert witness who calculated that benefits earned during marriage in Ashley's PERS defined benefits pension plan had a present value of $17,767. The court adopted this valuation in its findings, and awarded half to Nataliya. Ashley argues that this valuation was wrong.
The expert calculated the marital portion of the pension using a "time method," in which the marital portion is calculated by dividing the time the owning spouse was married and accruing benefits by the total amount of time the owning spouse accrued benefits in the plan. In this case, the duration of the marriage was 22.2% of the amount of time that Ashley accrued benefits in the pension plan, so the expert calculated that the present value of the marital portion was 22.2% of the total present value of the pension benefits.
Ashley disputes the total present value of the pension. He argues that the total value was not the $80,028 used by the expert, but rather the balance presently in his PERS account, which was approximately $22,000. He also argues that putting a future benefit into present value dollars represents a "mighty leap" beyond what the law on equitable distribution calls for. In addition, Ashley argues that since it took him five years to become vested in the plan, it is not fair and equitable to award half of that benefit for a marriage that lasted "a little over one year."
The expert arrived at the $80,028 figure by putting into present value the expected future benefits Ashley would receive from his retirement account after he retired. The expert estimated these expected benefits by taking into account Ashley's present account balance and the annual three percent post-retirement cost of living adjustments included in the plan, and assuming Ashley "will experience normal probabilities of survival."
Ashley questioned the expert as to why the present value would not simply be the amount he would get if he cashed out his plan now. The expert replied that "the worst thing you can do is cash out," because this would forfeit employer contributions. He noted the present value of the retirement benefits with the employer contributions could be four to five times that amount.
We have previously reached a similar conclusion, noting that "[a] . . . possible method of division is to award the non-employee spouse a percentage of the employee spouse's contribution to the plan plus interest. We reject this method because it ignores employer contributions which, to the extent they were made during marriage, ought to be considered a marital asset." We recognized two methods of distributing vested pension benefits: either reducing future benefits to a lump sum present value payment, as was done in this case, or issuing a Qualified Domestic Relations Order that distributes the future benefits at the time they are actually paid out. The choice lies within the discretion of the trial court. Ashley has offered no reason to think it was an abuse of discretion in this case to use a present value lump sum distribution.
Laing v. Laing, 741 P.2d 649, 656 n. 19 (Alaska 1987) (internal citations omitted).
Id. at 656.
Nicholson v. Wolfe, 974 P.2d 417, 425-26 (Alaska 1999).
Regarding the fairness of the award, Ashley argues that because it took him five years to vest in his pension, and because he and Nataliya remained "separate financial entities," it should have also taken five years of marriage for Nataliya to have "vested" in his pension. However, a 50/50 division of marital assets is presumptively valid. The years spent vesting in the pension while he was not married to Nataliya are reflected in the 22.2% coverture fraction (the time-based calculation of the marital portion of the benefits). Ashley has not overcome the presumption that the marital portion should be divided evenly. We conclude that there was no abuse of discretion in the superior court's valuation and distribution of these pension benefits.
Elliott, 977 P.2d at 730.
4. The superior court did not abuse its discretion in awarding a wooden table to Nataliya.
The court awarded Nataliya a wooden table that her son made in a high school shop class. Her son apparently made two such tables, and she and Ashley each possessed one of them before the trial. Ashley claimed that he paid for the materials and the shop fee for these tables. He called them "very nice tables." The court found the disputed table to be of "unknown value." It awarded the table in Ashley's possession to Nataliya without explanation, thereby granting her both of the tables.
Ashley objects that allowing Nataliya to have both tables violates the presumption of a 50/50 allocation of marital assets. However, the 50/50 allocation refers to the entire estate, and does not necessarily require that where there are two similar items of marital property, each party be given one of them. Given the nominal value of the table and the obvious sentimental value such an item has to a parent, we find no error in the superior court's assignment of the table to Nataliya.
See Brooks v. Brooks, 733 P.2d 1044, 1058 (Alaska 1987).
D. The Superior Court Did Not Err In Hearing Evidence Relating To Domestic Violence And The Reasons For The Breakdown Of The Marriage.
Ashley asserts that the court "erred in shifting the presumption of the [trial] from plaintiff having to uphold his burden of proof in an action to declare the marriage void [for] fraud, to an action to show reasons for the breakdown of the marriage including fault, incompatible temperament, abuse and domestic violence; and in allowing significant hearsay testimony as evidence supporting the breakdown or alternately as a defense for fraud. . . ." Ashley recites these themes in the headings of his brief, but does not actually argue them or provide legal authority. He also suggests that because the domestic violence charges were already litigated and dismissed, considering them again in this forum violated due process and collateral estoppel.
Evidence is considered relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence may be excluded if its probative value is outweighed by danger of unfair prejudice, confusion of issues, delay, or waste of time.
Ashley claimed that Nataliya fraudulently induced him to marry her for immigration benefits, planning all along to eventually concoct false domestic violence charges to destroy the marriage. Any evidence that Ashley committed domestic violence, behaved in a controlling or abusive fashion, or had problems controlling anger, would therefore be relevant because such facts offer an alternative explanation — other than fraud — of why the marriage broke down. It is difficult to imagine how Judge Collins could have evaluated Ashley's fraud claims without considering evidence relating to Nataliya's explanation of her motives in entering and ending the marriage. Therefore, Judge Collins did not abuse her discretion in considering all of this evidence. Nor did hearing such evidence interfere with Ashley's ability to present any evidence that he thought would be probative of fraud. There was no error in hearing this relevant evidence.
E. The Superior Court Did Not Abuse Its Discretion In The Admission Of Hearsay Evidence.
Ashley asserts that the court abused its discretion by relying on hearsay evidence regarding allegations of domestic violence, abuse, and other factors that Nataliya alleged contributed to the breakdown of the marriage.
A claim of error based on the admission of hearsay is waived if an objection to that evidence is not raised at trial. Similarly, while the pleadings of a pro se litigant are judged according to a more lenient standard, even a pro se litigant may waive claims by briefing them cursorily or not at all. Ashley mentions his hearsay argument only in passing. His briefs never point to specific instances of hearsay testimony, let alone testimony to which he objected at trial. At various points in the proceedings, he claimed that testimony about the breakdown of the marriage and the domestic violence accusations was hearsay, but these were for the most part not framed as objections to the admission of specific items of testimony but more as generalized complaints about the fairness of the proceedings.
See Bird v. Starkey, 914 P.2d 1246, 1248 n. 1 (Alaska 1996).
Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004); Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991).
Even if we decided to review hearsay arguments now that were waived at trial, it is difficult to do so without knowing which specific items of testimony Ashley now challenges. The log of the trial shows only one hearsay objection by Ashley during the trial. On March 25, 2008, Ashley objected to the testimony of Georgina Glover, the former city clerk of Hoonah, who testified to overhearing a conversation in which Ashley made comments about finding a wife on the internet. Judge Collins allowed the testimony. Such testimony was admissible because it was a statement by a party-opponent offered against the party.
Because Ashley has not specified which testimony was hearsay, it is not possible to evaluate this claim, let alone decide whether any alleged hearsay would have been prejudicial. The superior court did not abuse its discretion through the admission of hearsay evidence.
F. Any Errors By The Superior Court In Its Factual Findings And Mis-characterization Of Ashley's Fraud Claim Were Harmless.
Ashley calls attention to a number of written findings made by the court that he says were erroneous. These include: misstating the date of the trial, referring to the case as a "divorce action" although it was also a trial for annulment, and misstating the date that the couple first met in person and the amount of time that elapsed after that before they married. Ashley argues these findings "must have been important" to the court's decision, "or the judge would not have mentioned them."
The findings did misstate the date of the trial as having occurred in 2007 rather than 2008. It also seems likely that the findings misstated the date when the couple first met. However, there is no reason to think these findings were important to the court's disposition of the fraud claim or the division of property. They were not crucial facts, but were likely mentioned by the court to provide context. There can be no doubt the court was aware it was trying both an annulment and a divorce.
Ashley also points out that the court's oral findings referred to his fraud claim as being about a scheme to obtain "citizenship," when in fact he claimed that Nataliya was fraudulently seeking "immigration benefits." He argues that the court's conflation of citizenship and immigration status shows the court's "lack of understanding and appreciation for the impact . . . that immigration law had on the character of the marriage . . . and the underlying basis for the breakdown of the marriage." It is true that the court's oral findings referred to Ashley's fraud claim as involving "a trick or scam . . . to marry, allege domestic violence, obtain U.S. citizenship, and then terminate the marriage." Ashley is correct that a more precise description of his claim would have been that Nataliya married him only "to gain immigration benefits," such as a work visa, rather than citizenship.
The fact that the court's language was slightly imprecise could be important if the distinction between citizenship and "immigration benefits" figured into or could have affected the court's rejection of the fraud claim, but it did not. The court concluded that Nataliya married Ashley in good faith to have a better life in the United States, but that the marriage broke down due to basic incompatibilities and unrealistic expectations between the couple. It made no difference to the court's decision whether the ultimate goal of the alleged fraud scheme was to obtain citizenship or just a green card, because the court never questioned the underlying premise that Nataliya's goal was to stay and be able to work in the United States. The court rejected Ashley's allegations that Nataliya entered the marriage under false pretenses with the intent to later destroy it, with false domestic violence accusations or otherwise.
G. Ashley's Claims Regarding His Earlier Domestic Violence Arrest And Actions Of The District Court In Hoonah Are Not Justiciable In This Appeal.
Ashley attempts here to appeal actions taken by the arresting police officer and the Hoonah district court in relation to his 2006 domestic violence arrest and the issuance of a protective order. Since these matters were handled by a different court in a different case, they are not properly part of this appeal.
Nor could such matters now be treated as a separate appeal. The district court's probable cause finding and protective order would not be appealable as a matter of right since they were not a final judgment, in other words, one that disposes of the entire case on the merits. Nor would such an appeal now be timely. Furthermore, because the domestic violence case has been dismissed and Ashley is no longer subject to a protective order, an appellate court could not provide any relief, so the issues Ashley attempts to raise here are moot. H. The Superior Court Did Not Err Or Abuse Its Discretion In Awarding Attorney's Fees And Costs.
Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030 (Alaska 1972), overruled on other grounds by City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 628-29 (Alaska 1979).
See Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1167 (Alaska 2002).
Judge Collins ordered Ashley to pay $933.50 in costs and fees for a deposition because he had refused to answer relevant questions at an earlier deposition, additional costs of $922.81, and attorney's fees of $5,335. Ashley presents three reasons for opposing these awards. We address each in turn.
1. Fee awards are appropriate in the case of quasi-pro bono attorneys.
Ashley argues that an award of fees was not appropriate because Nataliya had a pro bono attorney, and therefore his work was not billed and "the listing of the hours and a per-hour billing rate is all hypothetical." Even had Nataliya's attorney agreed to work entirely for free, with no provision for the possible recovery of attorney's fees, she still would have been entitled to request fees based on the attorney's usual hourly rate. However, Nataliya's attorney did not simply agree to work for free. The fee agreement that Nataliya entered into with her attorney specifically assigned any attorney's fees collected in the litigation to the attorney. Ashley cites no legal authority barring an award of fees to an attorney representing a client under such an arrangement, and in fact we have previously held that such awards are allowed. 2. The superior court appropriately awarded fees after the "pendency of the action."
Vasquez v. Campbell, 146 P.3d 1, 3 (Alaska 2006) ("[W]e have consistently held that clients receiving free legal services may recover attorney's fees.").
We note that it is unusual for the court to award attorney's fees directly to the attorney, and not to the party. However, in light of the written assignment of fees, we do not find reversible error in the action.
See Hodge v. Sorba, 31 P.3d 1273, 1274-75 (Alaska 2001) (holding that such arrangements do not violate rules against contingent fee agreements in domestic proceedings, since award is based on parties' financial resources rather than successful prosecution of action).
Ashley challenges the superior court's award of attorney's fees to Nataliya. During the pendency of a divorce action, a spouse "may, upon application and in appropriate circumstances, be awarded expenses," including "attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action." On January 7, 2008, after Nataliya moved for sanctions for his refusal to answer deposition questions, Judge Collins ordered Ashley to pay the cost of a second deposition. This was prior to the trial, so there can be no question it was during the pendency of the action. Judge Collins's post-trial order merely put a specific dollar amount on that earlier order. However, other fees and costs were awarded on July 29, 2008, which was after the date of the final divorce decree and judgment entered on April 28, 2008. The order granting these fees and costs cited AS 25.24.140(a), which states:
AS 25.24.140(a)(1).
During the pendency of the action, a spouse may, upon application and in appropriate circumstances, be awarded expenses, including (1) attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action . . .; (2) reasonable spousal maintenance, including medical expenses; and (3) reasonable support for . . . children. . . .
We have held that in divorce cases, post-judgment attorney's fees may be awarded "based on the `relative economic situations and earning powers' of the parties, rather than on a prevailing party determination." We addressed the statute's "during the pendency of the action" clause in Coleman v. Coleman. That opinion characterized as "suspect" the argument that the statute barred post-judgment awards, because
L.L.M. v. P.M., 754 P.2d 262, 263-64 (Alaska 1988) (quoting Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981)).
968 P.2d 570 (Alaska 1998).
we do not in fact require courts to award attorney's fees only during the "pendency of the action." In Hilliker v. Hilliker, we said that we favor "a broad reading of AS 25.24.140(a)(1)." We noted that, while the statute "is most logically read as applying only to interim pre-judgment orders," we have in fact treated it as authorizing "post-judgment awards of attorney's fees for trial services." We could, however, apply the statute's plain language to require that a party at least request fees "during the pendency of the action," even if the court might award fees after the judgment. [The appellant's] argument, however, would still founder on the fact that [the appellee] requested fees in both her original complaint and her amended complaint.
Id. at 574 (internal citations omitted).
Similarly, in this case Nataliya requested attorney's fees in her original answer and cross-complaint. While the language above from Coleman leaves some ambiguity about whether a trial court in a divorce case would have discretion to award post-judgment attorney's fees that were not requested prior to entry of the judgment, that question does not arise in this case. We conclude that under Coleman the superior court in this case did not err in awarding such fees.
3. The superior court did not err in awarding fees for litigating the causes of marital breakdown.
Ashley argues that the court abused its discretion in awarding fees because trial time was improperly devoted to litigating allegations of domestic violence and other factors leading to the cause of the marital breakdown, instead of focusing on his fraud allegations. However, as noted in Part IV.D, this argument is without merit. By alleging that Nataliya fraudulently married him with a premeditated plan to destroy the marriage using false allegations of domestic violence, Ashley himself brought these issues into play and required that the court and the parties devote resources and time to hearing evidence on them. It is clear this would have been a much shorter trial had the court merely been required to grant a divorce and divide the marital estate.
We therefore conclude that the court did not abuse its discretion in awarding attorney's fees and costs, and we affirm these awards.
V. CONCLUSION
Because Ashley did not meet the burden of proving by clear and convincing evidence that he was induced into marriage by fraud, we AFFIRM the superior court's denial of an annulment. Because the court did not abuse its discretion or otherwise err in valuing and dividing the pension benefits and the tax burden, or in granting Nataliya attorney's fees and costs, we AFFIRM these rulings as well. Finally, because evidence relating to the causes of marital breakdown was relevant and Ashley's hearsay allegations have not been presented to us with sufficient specificity, we AFFIRM the court's evidentiary rulings.