MEMORANDUM OPINION AND JUDGMENT*
I. INTRODUCTION
Star page 1*1 A woman and a man separated after several years of cohabitation. The woman subsequently filed a complaint in superior court alleging the couple had formed a domestic partnership in which there was property to be divided. When the man admitted the allegations, the woman changed her position and denied the existence of a domestic partnership.
After the woman repeatedly failed to appear, the superior court proceeded in her absence on the second day of trial. The court ultimately determined that the couple intended to enter into a domestic partnership. It equally divided property acquired during the period of cohabitation and also awarded attorney's fees to the man.
On appeal, the woman challenges the superior court's findings and determinations regarding domestic partnership, the classification and distribution of property, and the award of attorney's fees. The woman also asserts that the court violated her due process rights by proceeding in her absence.
For the reasons explained below, we affirm the superior court's findings and determinations pertaining to domestic partnership and the classification and distribution of property. We also hold that the court did not violate the woman's due process rights. However, because the findings supporting the award of attorney's fees are insufficient, we vacate and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Sari Brockway filed a complaint for dissolution of domestic partnership in the superior court in February 2022. Brockway alleged that she and Mark Ratcliffe had been “in a domestic partnership from approximately 2012 until approximately 2022” and that they “made joint financial arrangements, commingled their assets, acquired partnership assets together, and maintained and improved their properties.” Brockway asked the court to dissolve the partnership and equally divide the partnership property. In his answer, Ratcliffe admitted all of the allegations in Brockway's complaint.
Both parties initially agreed to attempt settlement. But after settlement efforts stalled, Brockway moved to dismiss the case and asserted that there were no jointly held assets, debts, accounts, or real property. Ratcliffe opposed dismissal. The superior court then denied Brockway's motion and scheduled the matter for trial.
At the time of trial, Brockway had not filed a trial brief or any exhibits. By contrast, Ratcliffe had timely filed his trial brief, exhibits, and a property division table.
After Brockway appeared by telephone on the first day of trial in August 2024, the superior court partially granted her request for a continuance. Specifically, the court rescheduled the second day of trial to provide Brockway with additional time to confer with her attorney, but it allowed Ratcliffe to go forward with his case in chief on that day. Ratcliffe testified and provided other evidence regarding the parties’ shared financial arrangements. He also described the property the couple had acquired during the period of cohabitation, including a home and associated mortgage and the retirement accounts of both parties.
Star page 2*2 When Brockway failed to appear for trial on two subsequent occasions, the superior court proceeded in her absence and allowed her attorney to make an offer of proof. Brockway's attorney proffered that the parties had not formed a domestic partnership and that they did not intend to share any property. The court then took the case under advisement and later issued a written decision.
In its decision, the superior court determined that Brockway and Ratcliffe had formed a domestic partnership. The court allocated partnership property by awarding the home and mortgage to Ratcliffe and awarding each party their respective retirement accounts. In order to achieve a 50/50 split of partnership assets, the court required Brockway to make an equalization payment of $237,166.74 to Ratcliffe. The court also found that Brockway had been “evasive during the[ ] proceedings,” and that “she [was] attempting to delay the inevitable in this matter.”
Ratcliffe later moved for an award of attorney's fees, arguing that Brockway's conduct during litigation had been vexatious. The court awarded Ratcliffe $18,765 in attorney's fees.
III. STANDARD OF REVIEW
We review the trial court's factual findings about intent for clear error.1 But we review de novo the superior court's ultimate decision as to the formation of a domestic partnership.2 The classification of property in a domestic partnership is an application of law to fact also subject to de novo review.3
We “review the trial court's allocation decisions, and its decision to order an equalization payment, for abuse of discretion.”4 Likewise, we review an award of attorney's fees,5 as well as the denial of a continuance, for abuse of discretion.6 “Whether there was a violation of due process is a question of law, which we review de novo.”7
IV. DISCUSSION
A. The Superior Court Did Not Err By Determining That The Parties Formed A Domestic Partnership.
When an unmarried couple intends to share the fruits of their relationship as if married, a domestic partnership is formed.8 When a domestic partnership ends, property acquired during the partnership must be distributed equitably based on the parties’ intent.9
“ ‘If the parties dispute whether a domestic partnership exists, ... the trial court must examine if or when the parties cohabited in a marriage-like relationship,’ including consideration of the factors we articulated in Bishop v. Clark.”10 The Bishop factors include whether the parties have
(1) made joint financial arrangements such as joint savings or checking accounts, or jointly titled property; (2) filed joint tax returns; (3) held themselves out as husband and wife; (4) contributed to the payment of household expenses; (5) contributed to the improvement and maintenance of the disputed property; ... (6) participated in a joint business venture[; and (7)] raised children together or incurred joint debts.[11]
Star page 3*3 Brockway argues that the superior court erred by determining that a domestic partnership had been formed, challenging both the court's ultimate conclusion and some of the supporting factual findings. Observing no clear error in the court's factual findings or error in its application of law to the facts, we affirm.
1. The superior court's findings were not clearly erroneous.
Brockway contests two factual findings.
First, she argues it was clear error for the superior court to find that both parties made contributions to the maintenance and upkeep of the residence they shared during the period of cohabitation. However, there is ample support in the record for this finding. Ratcliffe testified that Brockway “[a]bsolutely” helped in the upgrade of the residence and that she purchased an ATV for plowing snow at the home. Through responses to interrogatories that were admitted at trial, Brockway confirmed that she had purchased an ATV “for plowing and property upkeep.” She also admitted to paying “all [of] the utilities” and purchasing two refrigerators, a washing machine, trees, flowers, supplies for planting and upkeep, curtains, sheets, blankets, towels, and various small kitchen appliances for the residence.
Second, Brockway challenges the court's implicit finding that the couple had used a jointly held bank account. Although Ratcliffe testified that he was unsure about whether he had deposited money into the account, the account statements he submitted into evidence clearly demonstrate that the joint account was used, apparently to pay for household utilities.
Because we are not left with a definite and firm conviction on the record that a mistake has been made,12 we hold that the two factual findings challenged by Brockway were not clearly erroneous.
2. The superior court did not err in evaluating the Bishop factors.
Brockway argues the superior court erred by determining that the parties formed a domestic partnership. Our review of the record convinces us that the court did not err because the balance of the Bishop factors weighs in favor of the conclusion that Brockway and Ratcliffe intended to live together indefinitely and to share in the fruits of their relationship as though they were married.
The Bishop factors “may help inform” the trial court's analysis, but they are not exclusive.13 The touchstone of the trial court's analysis is whether, based on the totality of the circumstances, the parties intended to share property as though married.14
Here, the superior court adequately considered the Bishop factors in its determination. The court found that the parties made joint financial arrangements, contributed to the payment of household expenses, contributed to the improvement and maintenance of a disputed property, and incurred joint debt. The court acknowledged that although the parties did not hold themselves out as husband and wife, they did hold themselves out as partners.
Pertaining to the parties’ joint financial arrangements,15 the superior court found that Brockway and Ratcliffe held a joint bank account and that Brockway would use Ratcliffe's individual bank accounts. The court also found that the couple shared credit cards and gave each other permission to use those cards. Further, the court found that the parties had liquidated Ratcliffe's retirement account to pay for their living expenses, that Brockway made Ratcliffe the primary beneficiary on her retirement account, and that the couple went to Ratcliffe's financial advisor to discuss investment options for Brockway's retirement account and “discussed sharing this account later in life.”16
Star page 4*4 With regard to the parties’ contributions to the payment of household expenses,17 the superior court found that “[b]oth parties contributed to household expenses between 2011 and 2022.” Additionally, the court found that both parties “contributed to the maintenance and upkeep of” their shared residence. With regard to improvement and maintenance of disputed property, the court found that the parties worked together to invest Brockway's funds in a retirement account for their shared benefit.18
In determining the intent of cohabiting parties, courts consider whether the parties have “held themselves out as husband and wife.”19 Although the superior court found that the parties did not hold themselves out as husband and wife, it did find that they held themselves out as partners. Brockway implies that this circumstance should weigh against the determination of a domestic partnership. But the fact that Brockway and Ratcliffe held themselves out as “partners,” as opposed to “husband and wife,” did not preclude the superior court from weighing this circumstance in favor of the formation of a domestic partnership. The purpose of the Bishop factors is to aid in the determination of whether the parties had the intent “to live together indefinitely and to share in the fruits of [their] relationship as though they were married.”20 And it was reasonable for the court to consider the fact that Brockway and Ratcliffe held themselves out as “partners” as evidence of their intent to live together indefinitely.21
Brockway incorrectly asserts that “most of” the Bishop factors were not present in her relationship with Ratcliffe. As explained above, most of the Bishop factors weigh in favor of a conclusion that the parties formed a domestic partnership. With regard to the remaining Bishop factors, the superior court acknowledged that Brockway and Ratcliffe did not file joint tax returns or have children,22 and the court did not find that the parties participated in a joint venture.23 But the absence of these factors does not preclude the conclusion that a domestic partnership was formed.
Brockway also fails to acknowledge the significance of the complaint that she used to initiate this lawsuit. Brockway stated in her complaint that “[t]he parties were in a domestic partnership from approximately 2012 until approximately 2022” and that “[d]uring the course of the domestic partnership, [she] and [Ratcliffe] made joint financial arrangements, commingled their assets, acquired partnership assets together, and maintained and improved their properties.” Further, Ratcliffe submitted evidence of admissions made by Brockway in the form of handwritten notes in which she clearly expressed her intent for the couple's property to be shared. He also submitted Brockway's responses to interrogatories in which she acknowledged the parties’ financial entanglements. Brockway's complaint and her other admissions provide additional evidence of her intent to form a domestic partnership.
Star page 5*5 Brockway appears to suggest that it is “not possible to find the intent of the cohabiting parties based only on one party's testimony.” This argument is unpersuasive. First, Brockway fails to provide any legal authority for this assertion; it appears to be an extension of her due process claim, which we address below. Second, adopting the approach Brockway suggests would lead to absurd results: A party would be able to gain an advantage by deciding not to participate or testify, effectively rendering the trial court's credibility determinations irrelevant.24 Third, the court's findings were not based solely on Ratcliffe's testimony because he provided documentary evidence that corroborated his testimony.
Given the totality of the circumstances here, we are convinced that the superior court properly applied the Bishop factors and did not err by determining that Brockway and Ratcliffe formed a domestic partnership.
B. The Superior Court Did Not Err By Classifying Brockway's Retirement Account As Partnership Property.
Brockway argues the superior court erred by classifying her retirement account as partnership property. Given that neither party asserts that there is a contract or controlling statute that should govern the classification of the retirement account, the account “must be classified strictly according to the parties’ intent.”25 What the parties intended in this regard is based on application of the Bishop factors26 and the “totality of the circumstances.”27 Here, we hold that the superior court did not err in its application of the Bishop factors to determine that the parties intended for Brockway's retirement account to be partnership property.
Regarding joint financial arrangements and contributions to disputed property, Ratcliffe testified that he cashed out his retirement account to fund the couple's living expenses, and both he and Brockway went to his financial advisor to invest $675,000 of Brockway's funds into a retirement account for their shared benefit. He corroborated this claim with documentation that Brockway made him the primary beneficiary on this account.
As additional evidence of intent regarding classification of the retirement account,28 in one of her handwritten notes, Brockway made a list of property, including “[b]ank accounts,” “[r]etirement accounts,” and “anything else that is community property.” Ratcliffe testified that the note was a preliminary list of their partnership property and that he was present when Brockway wrote the note. The fact that the parties held themselves out as partners also weighs in favor of finding that the retirement account was partnership property. This is because that act is consistent with a couple who intend “to live together indefinitely and ‘to share in the fruits of [their] relationship as though they were married.’ ”29 The remainder of the Bishop factors are not relevant to this particular inquiry.
Star page 6*6 Brockway's assertion that the superior court could not competently determine the parties’ intent regarding her retirement account without first hearing evidence or testimony from her is not persuasive.30 This refrain is nearly identical to the argument addressed above, where Brockway suggests that it is not possible to find the intent of cohabiting parties based only on one party's testimony. Again, she provides no legal authority to support this assertion, and we reject it for the reasons explained above.
Brockway's argument that her retirement account should not be classified as partnership property because it was established “on the brink” of their separation is also unpersuasive. There is no dispute that the account was created within the period of the partnership. And our precedent is clear that “[p]roperty acquired ... during a domestic partnership should be distributed according to the partners’ intent.”31
Brockway further asserts that Ratcliffe's designation as beneficiary is not probative of her intent because a beneficiary designation “is easily revoked.” Although it may be true that such a designation is easily revoked, we have previously determined that a similar designation was relevant to, though not dispositive of, the parties’ intent to share one party's pension.32 Thus, the superior court did not err by considering this circumstance as weighing in favor of classifying Brockway's retirement account as partnership property.
Considering the totality of the circumstances and after weighing the Bishop factors,33 we hold that the superior court did not err by classifying Brockway's retirement account as partnership property.
C. The Superior Court Did Not Abuse Its Discretion In The Distribution Of Partnership Property.
The superior court divided the partnership property equally, awarding the home and associated mortgage to Ratcliffe and Brockway's retirement account to her, with a $237,166.74 equalization payment from Brockway to Ratcliffe. Brockway faults the superior court for awarding the entire value of the home to Ratcliffe “since the only evidence as to the parties’ intent was that it was a partnership asset.” Brockway argues that the division was “clearly unfair” because the court awarded “the majority of the partnership property” to Ratcliffe.
Partnership property “generally must be distributed equally (or unequally if the parties intended unequal shares), while separate property must be distributed solely to its owner.”34 However, “[t]here may be a number of reasonable ways to fairly allocate property” in a domestic partnership dissolution, and “the trial court may assign different items of partnership property to the parties and order an equalization payment to ensure that each party receives the correct total share of partnership property.”35
Star page 7*7 First, Brockway's argument that the superior court improperly awarded the home to Ratcliffe appears to be based on the incorrect assumption that the court classified the home as Ratcliffe's separate property. But the court clearly treated the home as a partnership asset by factoring the value of the home and the mortgage into the total value of partnership property. Second, Brockway is incorrect that Ratcliffe received the “majority” of partnership property. The property table reflects that the superior court took the gross value of the partnership property, subtracted partnership debt, and calculated an equalization payment to balance the distribution so that each party received an equal share of the net value. This is a reasonable approach to an equal division of partnership property; accordingly, the superior court's distribution was not an abuse of discretion.36
D. Brockway Failed To Demonstrate That The Superior Court Violated Her Due Process Rights.
Brockway argues that the superior court violated her rights to due process by conducting the second day of trial in her absence. Brockway asserts that she was not given notice of the trial date, and that, at a minimum, the court should have either given her a chance to appear telephonically or granted a continuance. She claims that the court's failure to do so negatively impacted her “private property interests, including hundreds of thousands of dollars of her retirement account” and “her right of access to the courts.”
“Procedural due process under the Alaska Constitution requires notice and opportunity for hearing appropriate to the nature of the case.”37 The provision of adequate notice generally guarantees the opportunity to be heard and to adequately represent one's interests.38 Notice for purposes of procedural due process “must be sufficiently early and specific to allow the party to prepare and present a defense.”39
Brockway claims that she did not have notice of the second day of trial and blames her attorney for her failure to appear. But Brockway had notice both times that the second day of trial was continued: On the first day of trial, the superior court granted a continuance specifically to accommodate Brockway's request for additional time to consult with her attorney. Brockway failed to appear on the first continued trial date, and when the court granted a second continuance, Brockway's attorney assured the court that Brockway would be present for what would be the second and final day of trial. Knowledge of this second continued trial date is imputed to Brockway because her attorney had knowledge of the rescheduled date.40
Brockway again failed to appear at the second continued trial date, because, according to her attorney, she had a very important medical appointment. Brockway asserts that the fact that the superior court held the second trial day while it was aware she was receiving treatment violated her due process rights because she did not have the opportunity to be heard. But Brockway has not demonstrated that the scheduling of her medical appointment was a circumstance “beyond [her] immediate control.”41 For example, she did not submit an affidavit or other evidence demonstrating that the trial date was the only date on which she could receive treatment. Nor did she submit any evidence corroborating her attorney's statement that she was receiving treatment that day. The superior court specifically asked Brockway's attorney whether he had any evidence to support his assertion that she was unavailable because she was in treatment, to which he replied he did not.42 Further, Brockway could have sought an additional continuance as soon as she was aware of any conflict, but she did not do so. Accordingly, Brockway has not demonstrated that she lacked an adequate opportunity to be heard.43
Star page 8*8 Brockway's conduct throughout the trial also supports the conclusion that the superior court did not violate her due process rights.44 Specifically, Brockway behaved in a manner that suggests her failure to appear at trial was part of her pattern of avoiding trial rather than due to her lack of knowledge or opportunity to be heard. The court found that Brockway had been “evasive” during the proceedings, and that she was “attempting to delay the inevitable in this matter.” This finding is supported by the record. First, in her complaint, Brockway alleged the existence of a domestic partnership and then spent the remainder of the litigation in an unconvincing attempt to deny its existence. Second, Brockway repeatedly failed to appear and did not file a trial brief or any exhibits. Third, Brockway made at least one representation to the court that was demonstrably untrue: that she had not received notice of the first day of trial. Further, Brockway's attorney told the court on the first day of trial that she had informed him that she was undergoing a major medical procedure, when, in fact, she subsequently confirmed that she was at work. The record establishes that Brockway actively and consistently chose not to engage with the court proceedings. Therefore, the court's finding of Brockway's evasiveness supports the decision to proceed in her absence.45
The court also recognized the countervailing interests that would be implicated by another continuance. Ratcliffe's attorney was waiting to schedule major surgery, and her symptoms were getting “incrementally worse every day.” Accordingly, the court concluded that another continuance would potentially prejudice Ratcliffe. Further, the court itself had an interest in expeditiously resolving the matter given that trial had already been repeatedly rescheduled.
For the reasons explained above, Brockway has failed to demonstrate that the court violated her rights to due process.
E. It Was Error To Award Attorney's Fees Without Making Sufficient Findings.
We have previously held that the divorce exception to Alaska Civil Rule 82 attorney's fees may be applied in domestic partnership cases involving “ ‘the initial division of property’ after ‘the break-up of the long-term relationship.’ ”46 Here, Ratcliffe requested attorney's fees under the divorce exception, and the superior court granted his request. Brockway does not argue that the divorce exception is inapplicable, so for purposes of this case we will assume, without deciding, that it applies here.47
Fee awards under the divorce exception “are to be based primarily on the relative economic situations and earning powers of the parties,” 48 but they “may be enhanced because of bad faith or vexatious behavior.”49 Brockway argues that the superior court erred by awarding Ratcliffe attorney's fees based on allegations of vexatious litigation.
The superior court's two paragraph order did not explain why it awarded Ratcliffe attorney's fees or how it arrived at the figure of $18,765. It is possible to infer that the award was based on Ratcliffe's assertion that Brockway engaged in vexatious conduct. However, such an inference is inadequate for purposes of appellate review.50 Additionally, there is no documentation in the record to support the amount of the fee award; it appears as though the court took Ratcliffe's motion at face value.
Star page 9*9 The superior court must make sufficient factual findings regarding the parties’ “relative economic situations and earning powers” to justify the award of attorney's fees.51 Here, the superior court made no such findings. Further, the court's award appeared to lack adequate documentation.52 Finally, assuming the court intended to award enhanced fees based on vexatious conduct, the findings are inadequate to support such an award.53 Thus, we vacate the award of attorney's fees.
V. CONCLUSION
For the reasons explained above, we AFFIRM the superior court's findings and conclusions related to the domestic partnership, VACATE the superior court's award of attorney's fees, and REMAND for proceedings consistent with our decision.