Carlson v. Carlson

722 P.2d 222, 1986 Alas. LEXIS 358
Alaska Supreme Court·Decided July 18, 1986·No. S-1014·Published·Cited by 50 cases

Opinion

OPINION

MOORE, Justice.

This appeal challenges a property division and award of spousal support ordered in a divorce action. Kenneth Carlson contends the trial court erred by refusing to consider the source of certain real property in determining the property division. He also challenges the award of rehabilitative alimony, interim spousal support, and attorney’s fees to Diane Carlson. We reverse the property division.

I. FACTS AND PROCEEDINGS BELOW

Kenneth and Diane Carlson were married in Fairbanks, Alaska in July 1983. He was 33 and she was 28. They had lived together previously in Michigan for approximately three years. The parties separated in August 1984 and Diane filed for divorce in January 1985. 1

After a one-day trial, the superior court granted a divorce, issued findings of fact and conclusions of law, and ordered an equal division of assets and liabilities. The assets included personal property plus three pieces of real property — a four-plex in Fairbanks, an unimproved lot in Michigan and a second Michigan parcel containing a small house and bam. The court also ordered Kenneth to pay $200 per month for two years as rehabilitative alimony and $1,500 in attorney’s fees. Interim spousal support had been awarded to Diane prior to the divorce.

II. DISCUSSION

A. The property division

The division of property in a divorce action involves a three-step process. The *224 court 1) determines what property is available for distribution, 2) values the property and 3) determines the most equitable allocation. Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). Property available for distribution includes all property acquired during marriage, whether title is joint or separate. AS 25.24.160(4). This statute also authorizes invasion of pre-mar-ital holdings “when the balancing of the equities between the parties requires it.” Id.

Kenneth asserts error because the trial court refused to permit testimony, with minor exceptions, regarding the source of the parties’ assets. The court based its ruling on two grounds. First, all property was listed on Kenneth’s Domestic Relations Scheduling Conference Memorandum under the heading of “Marital Assets.” The court deemed this an admission that the property was marital. Second, the court concluded that “the actions of the parties during the marriage demonstrated an intent to treat the property as joint holdings, both parties having joint use and control over the property.” During trial, the court stated that the source of the assets was not relevant because they had been comingled and therefore were marital assets.

The court erred in two respects. First, the Conference Memorandum did not constitute an admission by Kenneth that all assets were marital property. The form provided by the court included a single column for listing property. Although the column was titled “Marital Assets,” counsel stated that he viewed the Memorandum as a disclosure form on which to list all known property. This was a reasonable view since there was no other space for listing pre-marital or sepárate property.

Second, the court’s reliance on the finding that the parties had comingled their assets was improper. It is true that parties may, by their actions during marriage, demonstrate intent to treat specific properties as joint holdings even though they were acquired by one spouse prior to marriage. Wanberg, 664 P.2d at 571. Where such intent is established, usually through joint management and control of the property, a court will consider the property to be a marital asset. Id. However, the act of comingling, in itself, does not automatically establish intent to jointly hold property, and a court always should consider the property’s source when determining what assets are available for distribution. This is especially true in a marriage of short duration, such as occurred here.

Turning to the three properties in dispute, we conclude the trial court erred in ruling that the improved Michigan property was a marital asset. Kenneth purchased the land in 1972 and later built a small house and bam on it. Diane testified that some refinishing work was completed while she lived in the house during the summer or fall of 1983. This would have been either while the couple was living together or just after their marriage. However, this factor alone does not establish intent to jointly hold the property. Cf. Wanberg, 664 P.2d at 571-73; Rosson v. Rosson, 635 P.2d 469, 470-71 (Alaska 1981). It clearly was separate property acquired by Kenneth prior to the marriage. As such, the property should not have been deemed a marital asset available for division unless the court specifically found that a “balancing of the equities between the parties” required invasion of the pre-marital holding. See AS 25.24.160(4).

Regarding the other two properties, we conclude the court properly ruled that they were marital assets. Although the unimproved Michigan lot was purchased shortly before the parties' marriage, Diane had power of attorney to sign the purchase papers and title was taken jointly. The Fairbanks four-plex was actually purchased during the parties’ marriage. Although the down payment came from Kenneth’s separate property, the evidence established that he and Diane lived in one of the apartments and that Diane assisted in the management and maintenance of the rental property. Under these circumstances, the court’s finding that the parties had *225 demonstrated an intent to jointly hold these properties was not clearly erroneous.

Kenneth also argues that the court’s equal division of property was erroneous because the court did not consider the factors listed in Merrill v. Merrill, 368 P.2d 546, 547 n. 4 (Alaska 1962). Although Judge Greene stated that she had considered the Merrill factors, as well as the presumption that a 50-50 split is equitable, the court made no mention of the specific factors upon which it relied. On remand, when the court recalculates the property division after considering the pre-marital source of the improved Michigan property, the court should discuss the relevant Merrill factors. 2

B. Support obligations

Kenneth also appeals the award to Diane of $200 per month for two years as rehabilitative alimony. We have expressed a preference for providing for the financial needs of spouses by an appropriate property division rather than alimony. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986). However, an alimony award will be deemed just if there is not adequate property to provide for the party’s needs and he or she is unable to provide self-support through appropriate employment. Messina v. Messi-na,

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Carlson v. Carlson, 722 P.2d 222, 1986 Alas. LEXIS 358 (Ala. 1986).

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