Pasley v. Pasley

442 P.3d 738
CourtAlaska Supreme Court
DecidedJune 7, 2019
DocketSupreme Court No. S-16612
StatusPublished
Cited by26 cases

This text of 442 P.3d 738 (Pasley v. Pasley) 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
Pasley v. Pasley, 442 P.3d 738 (Ala. 2019).

Opinion

STOWERS, Chief Justice.

I. INTRODUCTION

A husband appeals multiple aspects of a divorce order. He argues that his wife's bank accounts, personal leave from her job, and house should be treated as marital property; that he should be reimbursed for damage his wife allegedly caused to his separate property and to marital property he received (which he also alleges the superior court over-valued); that he and his wife should share legal and physical custody of their children; and that the conditions placed on his unsupervised visitation with the children were unwarranted. We affirm the court's decisions for the most part; however, we vacate and remand on the classification of the wife's bank accounts and the valuation of the husband's damaged property.

II. FACTS AND PROCEEDINGS

A. Background Facts

Cynthia Deneen Pasley (Cindy) and David Sean Pasley (Sean) married in August 2005. They separated in February 2014 and Cindy filed for divorce in March. A divorce trial was held across 11 days spanning May through October 2016. The superior court issued an order after trial in December 2016 and an order after a motion for reconsideration in January 2017. Sean appeals multiple aspects of the court's decision, which are summarized in the next section. Part IV presents additional facts relevant to his appeal in further detail.

B. Summary Of Sean's Arguments

1. Cindy's bank accounts

Cindy had a checking account which existed prior to the marriage. During the marriage Cindy deposited her paychecks in the checking account. Sean cashed his paychecks and provided cash to Cindy. Cindy deposited these funds in her checking account, and she paid the marital bills from this account. Cindy *742testified that, out of a balance of over $ 15,000, $ 2,000 belonged to her adult son, Robert, and another $ 10,000 consisted of child support payments held for her adult children.1

Cindy also had a savings account with a balance of about $ 22,000 at the time of separation. Cindy claimed that $ 10,000 in that account belonged to Robert and the remainder was comprised of child support payments held for her children.

The superior court valued the marital portion of the checking account at $ 3,559.33. It valued the marital portion of the savings account at $ 11,652.60. The court's only finding with respect to Cindy's bank accounts was that "$ 12,000 of the ... accounts belongs to Cindy's son, Robert, and therefore the value of those accounts is reduced."

Sean argues that both accounts should be viewed as entirely marital.

2. Cindy's personal leave

From prior to the marriage until March 2013, Cindy accrued personal leave through her employer. When Cindy married Sean, she had 483 hours of accrued leave.2 Her "balance" of hours available changed as she earned and expended leave during the marriage, never falling below 438 hours. When the parties separated in February 2014, Cindy had 534 hours of leave available. She "cashed out" these hours in June 2014.

The parties disagreed over how to "trace" this asset. Sean proposed a first-in, first-out method while Cindy argued for a last-in, first out approach. Under Sean's proposal, Cindy consumed all her premarital leave hours, and her entire balance at separation was marital property. Using Cindy's approach, leave earned during the marriage was used whenever it was available, preserving most of her premarital leave as separate property. The superior court rejected Sean's first-in, first-out method and equally divided the small portion of Cindy's leave that it designated as marital property.

On appeal Sean recapitulates his argument for first-in, first-out tracing.

3. Cindy's house

Cindy owned a house prior to the marriage, which she and Sean used as the marital home. Cindy retained exclusive title to the house throughout the marriage, including when she refinanced it. Cindy asserted that Sean's credit was not used to improve the property. Sean testified he remodeled parts of the house, but Cindy maintained she paid him for this work. The superior court found Cindy more credible on this point and found Sean did not conduct ongoing maintenance of the property.

Sean gave Cindy part of his paychecks in cash, which she then deposited in the bank account that she used to pay the mortgage on the house; Sean testified he believed he was contributing to the mortgage, but Cindy maintained she alone paid that expense. Sean argued that Cindy's house had transmuted into marital property, but the court found that the house remained Cindy's separate property.

Sean appeals this finding.

4. Sean's possessions

Sean was arrested on February 13, 2014, for fourth-degree assault, and on February 14 Cindy filed for and received an ex parte domestic violence protective order. Under the protective order's terms Sean did not have access to the marital home throughout the divorce case.

In April Sean obtained a writ of assistance to retrieve his possessions from the home. Cindy had packed his belongings and left them either in the front yard or in Sean's van, which had been parked on the premises.

*743Sean was only allowed a limited amount of time to retrieve his possessions, and he ended up leaving with some possessions still in the yard and without his van. A few weeks later a mutual friend of Sean's and Cindy's retrieved the van. Sean's possessions left in the yard remained there until September, when a moving company retrieved them for Sean.

Sean alleged that many of his possessions were ruined either because Cindy damaged them while packing or because they remained outside for so long. He also claimed that Cindy was responsible for his delay in retrieving the possessions that had been left outside. Cindy countered that Sean's possessions were damaged before they separated, and she introduced photographs showing the general state of Sean's possessions during the marriage. She testified she exercised reasonable care in packing them and Sean was responsible for the delays in retrieving his possessions.

Sean also argued that the damaged items should be valued at replacement cost and these amounts should be assigned to Cindy because she damaged them. On his property spreadsheet Sean listed his estimates of replacement costs for the damaged items. In the alternative, he requested that the property be valued at zero.

The court awarded the items to Sean and assigned non-zero values for this property. Sean appeals, arguing both that Cindy's conduct was not reasonable and that the court over-valued the damaged items.

C. The Children

Sean and Cindy have two boys. Both are in elementary school and have special needs. Cindy requested sole legal and primary physical custody, while Sean requested joint legal and shared physical custody.

The superior court found that Sean had a history of perpetrating domestic violence against Cindy.

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Bluebook (online)
442 P.3d 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pasley-v-pasley-alaska-2019.