Bellanich v. Bellanich

936 P.2d 141, 1997 Alas. LEXIS 56, 1997 WL 185901
CourtAlaska Supreme Court
DecidedApril 18, 1997
DocketS-7021
StatusPublished
Cited by11 cases

This text of 936 P.2d 141 (Bellanich v. Bellanich) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bellanich v. Bellanich, 936 P.2d 141, 1997 Alas. LEXIS 56, 1997 WL 185901 (Ala. 1997).

Opinions

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

A husband appeals the superior court’s property division in a divorce ease.

II. FACTS AND PROCEEDINGS

Michael and Barbara Bellanich, both Ket-chikan residents, were married in 1954. They had five children. They divorced in 1959 but remarried after four or five months. Barbara filed for divorce on March 17, 1994. The end of the marriage and the divorce were acrimonious.

The parties acquired eight pieces of real estate during the marriage. Of these eight pieces of property, two were given or sold to individual children. Michael’s parents’ former home was sold to the parties’ son Mike Jr., and Lot 3 and part of Lot 1A were gifted to the parties’ daughter Tami. The remaining six pieces of property were subjected to distribution by the superior court.1

In making its property distribution, the superior court held that, given the almost forty-year marriage between the parties, all of the property involved was part of the marital estate. The court explicitly ignored testimony by Michael relating to recent or intended transfers of his interest in some of the property to the children.

The court awarded Barbara personal property and debts which it valued at $40,215. It awarded Michael personal property and debts valued at $28,330. It awarded Barbara three pieces of property — 17 Shoup, the Waterfront Lot, and a unitary parcel consisting of Lot 4 and half of Lot 5 — with a value of $206,800. It awarded Michael the remaining three parcels — 54 Shoup, Shangri-La, and the half-interest in the Pennock Island Lot— with a value of $328,300.

The court reasoned that because Barbara had been awarded $11,885 worth of personal property more than Michael, and Michael had been awarded $121,500 worth of real property more than Barbara, then there existed in the division an “overall disparity” of [143]*143$109,615 in Michael’s favor. The court wrote:

The best way to cure the inequity stemming from the unbalanced property division is to award [Barbara] a mortgage against the “Shangri-La” parcel in the amount of $109,615.00. The mortgage will require a liquidation schedule of 20 years at 10.5% with the initial monthly payment due January 10,1996.

Michael challenges the superior court’s ordered mortgage arrangement, the designation of certain real property as martial property, the division of the real property, and the court’s valuation of certain items of personal property.

III. STANDARD OF REVIEW

In dividing property in a divorce case, the superior court undertakes a three-step process: (1) determining what property is available for distribution; (2) valuing the property; and (3) determining the most equitable allocation. Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

Determining what property is available for distribution may involve both legal and factual questions. Legal questions decided by a subordinate court are reviewed de novo; we “adopt the rule of law that is most persuasive in light of precedent, reason and policy.” Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). Factual determinations made by a trial court may be set aside only if clearly erroneous. Alaska R.Civ.P. 52(a). The valuation of property is a factual determination. Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994). This court reviews a trial court’s allocation of property under the abuse of discretion standard, and will reverse a trial court’s determination only if it is clearly unjust. Compton v. Compton, 902 P.2d 805, 808 n. 2 (Alaska 1995). The trial court has broad discretion in fashioning a property division. Cox, 882 P.2d at 913.

IV. DISCUSSION

A The Mortgage Arrangement

1. The amount of the mortgage debt

Michael points out that, by awarding Barbara a mortgage in the same amount as the apparent inequity in the parties’ respective awards, the court has served only to reverse the disparity rather than to eliminate it. In other words, instead of giving a mortgage to Barbara in the amount of $109,615, the court should have awarded Barbara one-half of that amount, or $54,807.50. As it stands, the distribution would create an inequity of $109,615 in Barbara’s favor. Michael’s argument has obvious merit.

Barbara in response argues that there is evidence in the record to support the award in her favor. However, the superior court was clearly trying to divide the property equally.2 It wrote in its memorandum of decision: “The Court’s goal is to equalize the division between the parties.” And further: “The best way to cure the inequity stemming from the unbalanced property division is to award the plaintiff a mortgage_” Barbara’s task is not to justify an award in her favor, but to show that the court meant, despite its language to the contrary, to make a property award weighted unequally in her favor. She cannot do this.3

The court’s order must be reversed and remanded on this issue.

2. The propriety of the interest rate on the mortgage debt

Michael argues that the award of a twenty-year mortgage to Barbara at 10.5% creates an “unwarranted windfall” to Barbara since she would not be able to realize that rate of return on a similarly secure [144]*144investment. He also notes that, if he wanted to pay off the debt early, he would have to sell the property and renege on an understanding through which the parties’ daughter Jody occupies the “Shangri-La” property.

Michael has not demonstrated an abuse of discretion by these arguments. He has not demonstrated that the 10.5% rate is unusually high or is out of line with current interest rates on similar obligations.

B. The Pennock Island Property

The trial court found without elaboration that all of the real property held by the parties was marital property. Michael argues that the Pennock Island property was separate property because it was given by his parents to him.

Property which is inherited is the separate property of the recipient, even if the property is received when the recipient is married. Lundquist v. Lundquist, 923 P.2d 42 (Alaska 1996); Chotiner v. Chotiner, 829 P.2d 829 (Alaska 1992); Julsen v. Julsen, 741 P.2d 642, (Alaska 1987). We explained the policy underlying this rule in Julsen, 741 P.2d at 648:

The philosophy underlying equitable distribution is that marriage is a partnership and both spouses contribute, either directly or indirectly, to the acquisition of property obtained during the marriage.

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Bellanich v. Bellanich
936 P.2d 141 (Alaska Supreme Court, 1997)

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936 P.2d 141, 1997 Alas. LEXIS 56, 1997 WL 185901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellanich-v-bellanich-alaska-1997.