Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANNA YOUNG, )
) Supreme Court Nos. S-14857/14858
Appellant and ) and S-14897 (consolidated)
Cross-Appellee, )
v. ) Superior Court Nos. 3AN-12-06299 CI
) 3AN-11-05669 CI
) OPINION
DAVID KELLY, )
) No. 6944 - August 22, 2014
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Ted Stepovich, Law Office of Ted Stepovich,
Anchorage, for Appellant and Cross-Appellee. John E.
Casperson, Holmes, Weddle & Barcott, P.C., Seattle, for
Appellee and Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.
I. INTRODUCTION
Anna Young and David Kelly fished together on David’s boat during their
marriage, which lasted from 1982 to 1985. Eight years after the marriage was dissolved,
the federal government established a program assigning individual fishing quotas (IFQs)
to certain commercial fishers; David qualified for the program and was awarded quota
shares. In 1995 he approached Anna and asked whether they could reach an agreement
that would prevent litigation over her right to a marital share of the IFQs. Anna agreed
to forgo suit; David began paying her money, sporadically and in varying amounts.
After 13 years of this, David’s payments stopped. Anna filed suit in 2011, alleging that
David had breached their contract. She also filed a motion under Alaska Civil
Rule 60(b)(6), seeking to reopen their 1985 property division and allocate the IFQs as
a marital asset.
The superior court granted summary judgment to David, deciding that any
contract for something other than a marital share was too indefinite to be enforced, that
the IFQs were not marital property, and that Anna therefore had no right of recovery.
We affirm.
II. FACTS AND PROCEEDINGS
Anna Young and David Kelly were married in 1982. During their marriage
they both worked on David’s fishing boat, the F/V A RROW . In January 1985 the couple
dissolved the marriage, agreeing in the dissolution that they had no marital property and
that the F/V A RROW belonged to David.
Eight years later, in 1993, the federal government enacted regulations
assigning individual fishing quotas to vessel owners or lessees who had made fixed gear
landings of halibut or sablefish (black cod) during certain “qualifying years,” 1988,
1989, or 1990.1 David had fished during the qualifying years and thus qualified for
1
50 C.F.R. §§ 679.40(a)(2)(i)(A), 679.40(a)(3)(i) (2013); Pacific Halibut
Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian
Islands; Limited Access Management of Fisheries Off Alaska, 58 Fed. Reg. 59,376 (Nov.
9, 1993).
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IFQs. The amount of his quota shares for halibut was calculated under the federal
regulations using his five highest annual landings from the seven “base years,” 1984 to
1990.2 One of David’s highest-yielding base years was 1984, one of the years of his
marriage, when he and Anna fished together on the F/V A RROW .
In 1995, David learned that other ex-spouses had reopened their divorce
proceedings for the purpose of allocating IFQs as marital property. David approached
Anna about reaching an agreement that would dissuade her from litigating the ownership
of his IFQs. The substance of their resulting agreement is in dispute.
Anna described the agreement’s terms in her complaint, deposition
testimony, answers to interrogatories, and affidavits. The contract she alleged in her
complaint was an agreement that she “was entitled to her marital share of the IFQs and
that payments as to such would be made to [her] over time until paid in full.” The
complaint alleged that David had agreed to make the payments “when [Anna] needed
[money] upon a reasonable request,” and that his commitment would end ultimately by
“a lump sum payment to be made [when Anna] started a business [and] settled down.”
At her deposition, Anna testified that she and David never agreed on a
specific amount that he owed her, and she still had no firm figure in mind. She testified
that at the time they made their agreement no one knew what an IFQ was worth: “We
didn’t even know if [the IFQ program] was going to stick.” She and David also never
agreed that she was entitled to any particular percentage of the IFQs, were they to be
someday valued. What they agreed to instead of a dollar figure, according to Anna’s
2
50 C.F.R. § 679.40(a)(4)(ii) (2013). Unlike halibut, the base years for
sablefish began in 1985, after David and Anna had separated. There is no dispute that
Anna has no marital rights to sablefish IFQs, though she does claim an interest in them
as a remedy for David’s alleged breach of contract.
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deposition testimony, was that “I would not bring lawyers into our business as long as
he was fair with me, and we made a deal that he was going to be fair.”
Anna further testified that on the day they reached this agreement, David
wrote her a check for $6,000. She testified that the next payment was to be made
“[w]henever I needed money,” and that “for almost another ten years” she and David
adhered to an arrangement by which he was “to give me money whenever I needed it,
for a real good reason, because he didn’t want me to dwindle my money away.” She
testified that there was no set amount David was to pay; she just made sure they made
contact every year “and that he made some kind of a payment to me,” the payments
being “bigger in the beginning and . . . gradually [getting] smaller, down to two thousand
the last time he made a payment.” She also testified that David made some payments in
“goods,” entertaining her and her granddaughters at a restaurant in Seward and buying
them “the most expensive wines,” “[a]nd he worked on my boat quite a bit, bought a lot
of stuff for my boat,” such as a radar.
Anna testified at her deposition that she considered all these payments,
“during that period of time until we settled,” to be interest on what David owed her; she
calculated that these interest payments eventually totaled about $30,000.
Anna also testified that she and David probably never would have had to
place a value on the IFQs as long as David had “kept his agreement” — that is, as long
as he had “kept paying me until I was ready to start my business.” She testified that at
the time of her deposition she was ready to start her own business, a film-making studio,
and she needed $100,000 to do it; that she might need more money next year; and that
David “would have been obliged to [keep] supporting me with my business, as far as I’m
concerned,” because the IFQs “put him way up there [as] king of the mountain.” She
testified that there was “no limit” on what she could ask David for under their agreement.
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She also testified that since David had broken their agreement, what she wanted now was
“the IFQs and . . . fifty percent of the money he’s made with the IFQs so far.”
Anna also described the parties’ agreement in answers to interrogatories.
She again acknowledged that “[t]here was no set agreed amount as it was impossible to
set a [dollar] value on [the IFQs] at that time.” She again described a promise by David
that he would get her started “in any business [she] want[ed] that doesn’t involve
fishing,” and in the meantime she should “just ask [whenever] [she] need[ed] money for
something legitimate.” However, “I always had to have a good reason for why I
need[ed] the money[;] he didn’t want me to spend any of it on something that wasn’t a
necessity.” She attested that David would usually pay only about 75% of what she asked
for. She described one incident in which she demanded that David pay $1,500 for the
down payment on a friend’s hospitalization in Seattle, “or else our agreement not to get
lawyers involved was off.”
When David moved for summary judgment on Anna’s contract claim, Anna
filed two affidavits in opposition: her own and one by Peggy Parker, president of a
research firm with extensive experience in fisheries. In Anna’s affidavit, she asserted
that David “promised me that I would get my share of the IFQs earned by the
F/V A RROW while I was married to him and working as a crew member”; she also
characterized her agreement with David as that “I would get money as I needed it” and
“that he would provide a significant payment toward his debt once I was ready to settle
down or started another business as long as it wasn’t fishing.” In addition, she asserted
that “[n]ow I’ll be asking for some of the black cod IFQs since I paid for the gear that got
the ‘Arrow’ started fishing black cod.”3 Parker, Anna’s expert, calculated the value of
3
Anna had testified at her deposition that her agreement with David
encompassed only halibut IFQs, not black cod IFQs.
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Anna’s marital share of the halibut IFQs on the assumptions that Anna’s active fishing
during one of the five base years represented 20% of the IFQ shares; that in the divorce
she would have received half of those shares; and that she would then have fished those
shares herself as an IFQ holder on a halibut vessel and received a 40% share of the
recovery.
In Anna’s answers to interrogatories, however, she took issue with the
position of her expert as to the percentage of IFQs she was entitled to. Asserting that her
“attorney worked it out to be 5%,” she stated that “I personally feel that it should be
closer to 10% in light of the way [David] forced me out of our marriage. . . . [I] still
believe I should get 10% of the IFQs and 50% boat share of the money made using those
[IFQs] since 1994 [plus] interest in the gold David bought with his extra money since
[the IFQs] started.”4
It is undisputed that beginning in the fall of 1995, David made a number of
payments to Anna in varying amounts. The amount of the payments gradually decreased
over time, until eventually David stopped making payments altogether and avoided
further contact with his former wife.
In February 2011, Anna filed suit against David, alleging breach of contract
and promissory estoppel. A year later she filed a motion under Alaska Civil
Rule 60(b)(6), seeking to reopen the 1985 dissolution and allocate the IFQs as marital
property. The superior court initially ruled that Anna’s descriptions of the parties’
contract were in many respects too indefinite and uncertain to be enforced, but her claim
that David had promised her a marital share of the IFQs survived summary judgment
4
The source of the 5% figure is unclear from the record. The calculations
of Anna’s expert, Parker, result in a 4% share (20% of David’s total IFQ shares x .5
(Anna’s marital share) x .4 (Anna’s IFQ holder share)).
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because the court could determine her marital share; it further ruled that although the
statute of frauds applied, so did the full-performance exception to the statute of frauds.
The superior court also ruled that promissory estoppel could apply to David’s promise
to pay Anna a share of the quotas. In a subsequent order, however, the superior court
ruled that the IFQs were not marital, because David did not qualify for the IFQs until
years after the marriage had been dissolved, and Anna’s marital share of the IFQs was
therefore zero. Accordingly, the superior court dismissed Anna’s suit for breach of
contract and denied her Rule 60(b)(6) motion to reopen the dissolution.
Anna appeals, arguing that a portion of the IFQs was marital property
because she was married to and fished with David during one of the base years used to
determine the IFQs’ value. David cross-appeals, arguing that he has no contract with
Anna, that any contract was barred by the statute of frauds, and that promissory estoppel
does not apply to any promise he may have made.
III. STANDARDS OF REVIEW
We recently clarified the standard of review for decisions whether to
classify property as marital.
The characterization of property as separate or marital may
involve both legal and factual questions. Underlying factual
findings as to the parties’ intent, actions, and contributions to
the marital estate are factual questions. Findings of fact are
reviewed for clear error, but whether the trial court applied
the correct legal rule in exercising its discretion is a question
of law that we review de novo using our independent
judgment.[5]
5
Beals v. Beals, 303 P.3d 453, 458-59 (Alaska 2013) (footnotes, internal
quotation marks, and alterations omitted) (quoting Odom v. Odom, 141 P.3d 324, 330
(Alaska 2006); Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005)).
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We review motions for summary judgment de novo, affirming the superior
court if the record presents no genuine issues of material fact and if the movant is entitled
to judgment as a matter of law.6 In making this assessment, we draw all reasonable
inferences in favor of the non-moving party.7 We review for abuse of discretion an order
denying a Rule 60(b) motion.8
IV. DISCUSSION
A. With The Possible Exception Of An Agreement To Pay Anna Her
Marital Share, The Alleged Contract Is Not Enforceable Because It
Lacks Definite And Certain Terms.
In an action to enforce a contract, “Alaska plaintiffs must show: ‘an offer
encompassing all essential terms, unequivocal acceptance by the offeree, consideration,
and an intent to be bound.’ ”9 To be enforceable a contract must also “have reasonably
definite and certain terms.”10 “The contract amount, in particular, must be definite and
specific.”11 “The terms of a contract are reasonably certain if they provide a basis for
6
Beegan v. State, Dep’t of Transp. & Pub. Facilities, 195 P.3d 134, 138
(Alaska 2008).
7
Id.
8
Frost v. Ayojiak, 957 P.2d 1353, 1355 (Alaska 1998) (citing Benedict v.
Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996); McCall v. Coats, 777 P.2d 655,
657 (Alaska 1989)).
9
Magill v. Nelbro Packing Co., 43 P.3d 140, 142 (Alaska 2001) (quoting
Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)).
10
Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 879 (Alaska 2013);
Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 485 (Alaska 1981).
11
Magill, 43 P.3d at 142.
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determining the existence of a breach and for giving an appropriate remedy.”12 Courts
will fill in gaps where parties’ reasonable expectations are clear, but they cannot impose
performance where it is not clear the parties had a meeting of the minds.13
As explained above, the evidence Anna submitted described the parties’
agreement in various ways, including (1) that David would pay Anna her marital share
of the IFQs,14 and (2) that in lieu of determining Anna’s marital share, David would give
Anna money upon reasonable request, including the money to set her up in business
when she was ready, and he would continue to support her thereafter without limit as
long as she did not “bring lawyers into our business.”
The superior court carefully sifted through Anna’s descriptions of the
parties’ agreement in its order denying summary judgment. The superior court
concluded that Anna “has provided at least one description of her agreement with
[David] that has sufficient definition for the Court to identify a breach and to craft a
remedy,” that agreement being “that [Anna] would receive her share of the [IFQs].” The
other agreement described by Anna was essentially that David would pay indefinite sums
of money for an indefinite time (but only if he agreed that the payments were necessary,
and then not always in the amounts requested); the payments were either installments or
interest payments on a principal amount that was itself undetermined. Any such
agreement lacks the “reasonably definite and certain terms” necessary for contract
12
Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1087 (Alaska 1985) (quoting
Stenehjem, 631 P.2d at 485).
13
Magill, 43 P.3d at 142.
14
In her pleadings in the superior court, Anna also characterized the
agreement as one for “her fair share”; she appears to equate this with her marital share.
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formation,15 including the contract amount,16 and leaves the court without sufficient basis
for determining whether the contract has been breached and, if so, how to formulate a
remedy.17
Because there is no enforceable contract, we need not discuss the statute of
frauds or its exceptions for part performance or full performance. Nor does promissory
estoppel provide an alternate remedy; the doctrine requires an actual promise that “must
be definitive, must be very clear, and must use precise language.”18 The “actual promise”
necessary for the application of promissory estoppel “is ‘analytically identical’ to the
acceptance of an offer in contract law.”19
However, we agree with the superior court that a promise to pay the marital
share of the IFQs — with the amount left to be determined — could ordinarily be definite
enough to be enforced, since the law of marital property provides a basis for determining
whether there is a breach and for creating an appropriate remedy.20 But this is not an
ordinary case, given that (1) Anna herself at times described a different contract,21 (2)
Anna’s own testimony was in conflict over whether David’s periodic payments over the
15
Madonna, 298 P.3d at 879.
16
Magill, 43 P.3d at 142.
17
See Hall, 695 P.2d at 1087.
18
Alaska Trademark Shellfish, LLC v. State, Dep’t of Fish & Game, 172 P.3d
764, 767 (Alaska 2007) (internal footnote and quotation marks omitted).
19
Id. (quoting Brady v. State, 965 P.2d 1, 6, 11 (Alaska 1998)).
20
See Hall, 695 P.2d at 1087.
21
For example, Anna testified at her deposition that she and David would
never have had to value the IFQs if David had “kept paying me until I was ready to start
my business.”
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course of 13 years were part of her marital share or only interest on that undetermined
amount, and (3) Anna disagreed with the value of the marital share reached by her own
expert.22 Even so we do not need to decide whether Anna’s contract claim to a marital
share properly survived summary judgment. Like the superior court, we conclude that
the IFQs were not marital; there was thus no marital share to which Anna could have
been contractually entitled.
B. The IFQs Were Not Acquired During Marriage And Therefore Are
Not Marital Property.
We have held IFQs to be marital property and divided them between the
divorcing parties on three previous occasions.23 In Ferguson v. Ferguson, the parties
married in 1988 and divorced in 1994; their marriage spanned all the qualifying years.24
The parties in both Johns v. Johns and McGee v. McGee were married through all the
base years and the qualifying years.25 These cases are thus readily distinguished from
this one. Anna and David’s marriage had been dissolved for eight years before the IFQ
program even began; the first qualifying year was not until three years after the
dissolution.
22
Stating that her “attorney worked [her marital share] out to [be] 5%”
(apparently in reference to her expert’s calculations), Anna asserted in an interrogatory
answer that “it should be closer to 10% in light of the way [David] forced me out of our
marriage.”
23
Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996); Johns v. Johns,
945 P.2d 1222, 1224 (Alaska 1997); McGee v. McGee, 974 P.2d 983, 986 (Alaska 1999).
24
Ferguson, 928 P.2d at 598.
25
See Johns, 945 P.2d at 1224 (stating that parties “were married in
September 1984, and separated in October 1993”); McGee, 974 P.2d at 986 (stating that
parties “married in 1978” and “filed for dissolution in March 1993”).
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Determining whether property is marital begins with AS 25.24.160(a)(4).
The statute authorizes courts to “provide . . . for the division between the parties of their
property, including retirement benefits, whether joint or separate, acquired only during
marriage” (emphasis added). “The invasion of post-marital acquisitions for purposes of
property division is obviously not permitted by the statute.”26 And “the date for
segregating marital from post-marital property is ordinarily the date of the functional
termination of the marriage.”27 Thus, we may consider the IFQs at issue here to be
marital only if they were “acquired” during Anna and David’s marriage.
We have broadly interpreted the term “acquired” in order to accomplish the
statutory goal that property division “fairly allocate the economic effect of divorce.”28
For example, although pension benefits might not be received until long after divorce,
we deem them acquired during marriage to the extent the working spouse earns them
during marriage;29 we held in Laing v. Laing that this is so “regardless of whether they
have vested” before divorce.30 We adopted this rule because “[p]ension benefits are
generally viewed as deferred compensation for services rendered and the employee
26
Bandow v. Bandow, 794 P.2d 1346, 1347 n.2 (Alaska 1990).
27
Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994).
28
AS 25.24.160(a)(4) (stating that “the division of property must fairly
allocate the economic effect of divorce by being based on consideration of” various listed
factors).
29
Schmitz v. Schmitz, 88 P.3d 1116, 1129-30 (Alaska 2004) (citing Edelman
v. Edelman, 3 P.3d 348, 356 (Alaska 2000)) (holding that the IRA in question was a
marital asset subject to equitable division because it increased in value during the
marriage). See also Williams v. Crawford, 982 P.2d 250, 254 (Alaska 1999) (holding
that pensions earned during marriage are marital property subject to division upon
divorce).
30
741 P.2d 649, 655 (Alaska 1987).
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spouse’s right thereto is a contractual right,”31 and “ ‘[t]he fact that a contractual right is
contingent upon future events does not degrade that right to an expectancy.’ ”32 In short,
under Laing, the contingent contractual right to a future benefit is sufficient basis on
which to conclude that the benefit is “acquired” during marriage and is therefore marital.
It is undisputed in this case that the parties, during their marriage, lacked
even the “expectancy” of a future benefit related to the IFQs. Anna acknowledged in the
superior court that at the time of divorce the fishing business “had an uncertain[] but
limited value”; she asserted in her affidavit that David assured her of her fair share “if
IFQs ever happened.” This uncertainty and speculation fall far short of an “expectancy,”
let alone the contingent contractual right that we held in Laing was sufficient to show
that a future benefit was “acquired . . . during marriage.”
In Winther v. Samuelson, we interpreted McGee and Johns to mean that
“[quota] shares should be considered marital property to the extent that the [quota]
entitlement was earned during the marriage.”33 This is consistent with our pension
cases;34 it is also consistent with Ferguson, where the IFQ was acquired during a
marriage that spanned the qualifying years, and this court looked to the husband’s
premarital labor during the base years to determine whether a portion of the IFQ was his
31
Id. at 656 (citing Johnson v. Johnson, 638 P.2d 705, 708 (Ariz. 1981) and
In re Marriage of Brown, 544 P.2d 561, 567 n.8 (Cal. 1976)).
32
Id. at 656 (quoting Brown, 544 P.2d at 566 n.8 (Cal. 1976)).
33
10 P.3d 1167, 1171 (Alaska 2000) (emphasis added).
34
See Conner v. Conner, 68 P.3d 1232, 1235 (Alaska 2003) (“[R]etirement
benefits earned during the marriage are marital property subject to equitable division.”).
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separate property.35 The claim in Ferguson — that premarital work enhanced the value
of an asset that was plainly earned during the marriage — is unlike the claim here: that
marital work enhanced the value of an asset that did not even come into existence until
years after the marriage was over.36
Anna contends that it is unfairly restrictive for the court to consider only
the qualifying years in determining whether the IFQs are marital, since it is undisputed
that marital labor during one of the base years did add to the asset’s value once the asset
came into being. We have recognized that property acquired outside of marriage can
become marital property to the extent marital efforts contribute to its value.37 But cases
applying this principle address premarital property brought into the marriage or separate
property acquired during marriage; they do not address property that did not even exist
during marriage, even in the sense of a contract right to someday receive it.38 We have
never held that property acquired after divorce may become marital if, in retrospect, it
can be seen to have more value than it would have had absent the marriage, and
AS 25.24.160(a)(4) does not allow it. Practically speaking, there are few acquisitions
and achievements in life that cannot be traced to life’s earlier stages. Every
advancement, bonus, and business success is founded on a personal history that may well
include marriage and divorce. But if at the time of divorce the parties can only speculate
that certain property might come to exist in the future, with not even a contingent
35
See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska 1996) (holding that
a fishing quota is marital property to the extent that “the size of the quota share” is
attributable to labor performed during the marriage).
36
Id.
37
Harrower v. Harrower, 71 P.3d 854, 858 (Alaska 2003).
38
See id.
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contractual right to ensure that it does, such property was not “acquired . . . during
marriage.” We would do a major disservice to the express statutory language if we were
to hold that such property was marital.39
The dissent argues that our decision today “ignor[es] the definition of
‘acquisition’ adopted in almost all equitable distribution states,” i.e., “that property is
acquired whenever contributions create real value, and not only at the moment when
legal title passes.”40 But if the dissent’s understanding of the general definition were
correct, one would expect to find case law from other equitable distribution states
holding that property not existing yet at the time of divorce — even in the inchoate sense
of a contract right or expectancy — was nonetheless marital. Our decision is consistent
with the majority definition as we understand it. The “real value” at issue in this case is
the value Anna’s work added to the value of the IFQ shares; that value was not created
until the IFQ program came into existence, eight years after the marriage ended.
39
For example, if a spouse holds an interest in intellectual property at the time
of divorce, future royalties flowing from that property are marital “so long as such
proceeds . . . are neither ‘indefinite nor speculative.’ ” Lynch v. Lynch, 43 A.3d 667, 675
(Conn. App. 2012) (holding that where an author during marriage secured “a contractual
right to royalties from the sale of his book,” the royalties were marital property subject
to division); In re Marriage of Heinze, 631 N.E.2d 728, 731 (Ill. App. 1994) (holding
that where “the book royalty contracts were executed by petitioner and [her publisher]
during the marriage” and future royalties were not “unproven or speculative,” the
royalties were “analogous to pension payments to be made in the future” and “should
have been classified as marital property”). Similarly, “[c]ourts have generally held that
the mere possibility of a future inheritance or gift does not constitute divisible property”;
“[t]he lack of a legally enforceable right distinguishes future inheritances and gifts from
other contingent assets such as unvested pensions, where the owning spouse has a
presently existing legal right.” 2 BRETT R. TURNER , EQUITABLE D ISTRIBUTION OF
PROPERTY § 6.91, at 476 (3rd ed. 2005) (emphasis omitted).
40
Dissent at 24 (quoting TURNER , supra note 39, § 5.21, at 345).
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C. The Superior Court Did Not Err In Denying Anna’s Civil Rule
60(b)(6) Motion.
We held in McGee that a motion to reopen a property division and allocate
IFQs was properly brought under Civil Rule 60(b)(6).41 We reasoned that the creation
of the IFQ program in 1993 was the type of “extraordinary circumstance” contemplated
by Rule 60(b)(6) because the couple “did not address or anticipate” the program when
dividing their property.42 But since the quotas here are not marital property, there is no
justification for reopening Anna and David’s 1985 dissolution. The superior court did
not err in denying the Rule 60(b)(6) motion.
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
41
McGee v. McGee, 974 P.2d 983, 990 (Alaska 1999).
42
Id.
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FABE, Chief Justice, with whom BOLGER, Justice, joins, dissenting.
I agree with the court that the only potentially enforceable promise made
by David Kelly was his promise to pay Anna Young her marital share of the IFQs.1 The
court avoids deciding whether that promise included sufficiently definite and certain
terms to be enforceable because it concludes that there was no marital share of the IFQs
to divide.2 It is with that latter conclusion that I disagree.
When Anna and David fished together on the F/V A RROW in 1984, they
were married. The product of their labor in that year was indisputably marital property.3
Yet the court concludes that the IFQs at issue here belong entirely to David, despite the
fact that the IFQs’ value increased — and increased directly and measurably — as a
result of marital labor.
This unfair result is inconsistent with the explicit purpose of the applicable
statute, is not required by our prior decisions, and runs counter to the principles of
equitable distribution. In my view, because marital labor increased the value of the IFQs,
Anna is entitled to her marital share of that increase in value, even if the IFQs are not
themselves marital property.
1
Op. at 9-11.
2
Id. at 11-15.
3
See Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004) (“Marital
property includes all property acquired during the marriage, excepting only inherited
property and property acquired with separate property which is kept as separate
property.” (internal quotation marks and citation omitted)); see also Lewis v. Lewis, 785
P.2d 550, 558 (Alaska 1990).
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A. The Explicit Purpose Of AS 25.24.160 Is Equitable Distribution.
Alaska Statute 25.24.160(a)(4) instructs that when a court distributes
property after a married couple parts ways, “the division of property must fairly allocate
the economic effect of divorce.” I acknowledge that the statute also instructs courts to
divide “property . . . acquired only during marriage,” but we must understand that
language in the context of the legislature’s clear statement of the statute’s purpose.4
Fairness was the legislature’s intent, and that goal must be our guide. Equitable
distribution of property is no vague policy concern conjured up to avoid unappealing
results in particular cases; rather, it is an explicit statutory command that the legislature
has indicated must drive our analysis in all cases.5
The circumstances of the present case are unusual in that the property at
issue was not formally acquired while the parties were married, nor was it acquired by
one of the parties before marriage. Instead, it was formally acquired after the marriage
was over, but the extent of the property was partly determined by contributions of labor
during the marriage. The legislature could not easily have anticipated these unusual
circumstances.
4
AS 25.24.160(a)(4).
5
For example, the legislature has recognized that in order to achieve a fair
division of property, it may be necessary for the court to “invade the property . . . of
either spouse acquired before marriage when the balancing of the equities between the
parties requires it.” Id. In creating such a significant exception, the legislature has
expressed its policy that in dividing property during a divorce proceeding, fairness
should prevail over formalism.
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B. We Have Previously Interpreted The Phrase “Acquired During
Marriage” Broadly When Necessary To Fulfill The Statutory Mandate
Of Equitable Distribution.
As the court acknowledges, in our prior cases we have emphasized
equitable distribution over a strict interpretation of the phrase “acquired . . . during
marriage.”6 In particular, our prior decisions relating to pensions, and our application
of active appreciation analysis to pre-marital assets, favor the conclusion here that Anna
is entitled to compensation for the increase in the value of the IFQs attributable to marital
labor in 1984.
In our decisions addressing equitable distribution of pension benefits, we
have repeatedly interpreted AS 25.24.160(a)(4) as permitting the conclusion that an
ex-spouse is entitled to a share of the marital portion of an employee-spouse’s retirement
benefits, to the extent that the employee-spouse earned those benefits during marriage.7
We have held that pension benefits earned for labor performed during marriage may be
deemed “acquired . . . during marriage” even if they vest after divorce.8 The court tries
to distinguish nonvested pension benefits from the IFQs at issue here, noting our
observation in Laing v. Laing that “[p]ension benefits are generally viewed as deferred
compensation for services rendered and the employee spouse’s right thereto is a
contractual right.”9 The court also concludes that Anna is ineligible for a marital share
6
Op. at 12.
7
See, e.g., Schmitz, 88 P.3d at 1129-30; Williams v. Crawford, 982 P.2d 250,
254 (Alaska 1999).
8
Laing v. Laing, 741 P.2d 649, 656 (Alaska 1987).
9
Op. at 12-13 (alteration in original) (quoting Laing, 741 P.2d at 656).
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because while nonvested pension benefits constitute a contractual (even if contingent)
right, the parties in this case lacked even an “expectancy” in the IFQs.10
But why is it significant that nonvested pension benefits are viewed as
deferred compensation? It may be more obvious that an ex-spouse is entitled to the
deferred compensation of the other spouse because a salary is clearly marital property,11
but the claim in this case is not really so different. The underlying reason that deferred
compensation is treated as marital property is that the product of labor during marriage
is marital property.12 And this reason supports the conclusion that IFQs are marital
property to the extent their value was determined by marital labor. Here, while the IFQs
themselves are not compensation for marital labor, there is no question that their size was
determined by labor in the base years, including the marital labor in 1984.
We did remark in Laing on the contractual nature of nonvested pension
benefits,13 and as the court notes, the present existence of a legal right may help
distinguish property subject to distribution from things of value that should not be so
distributed.14 But we did not say in Laing that a contractual right was necessary to show
10
Id. at 13.
11
See Schmitz, 88 P.3d at 1124 (“Assets acquired during marriage . . . — most
commonly salaries earned by either spouse during marriage — are considered marital
assets” (quoting BRETT R. TURNER , EQUITABLE D ISTRIBUTION OF PROPERTY § 5.23, at
263 (2d ed.1994)).
12
See 1 BRETT R. TURNER , EQUITABLE D ISTRIBUTION OF PROPERTY § 5.22,
at 356 (3rd ed. 2005) (noting that “the primary reason for treat[ing a pension] as marital
property is . . . that the benefit is commonly awarded to employees as actual
compensation for marital efforts”).
13
Laing, 741 P.2d at 656.
14
Op. at 15 n.39.
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that a future benefit was “acquired . . . during marriage”; we merely concluded that in
that case it was sufficient.15
And we also indicated in Laing that our focus was a fair distribution of
assets under AS 25.24.160(a)(4). In reaching our conclusion in Laing that nonvested
pensions could be marital assets, we explained that regardless of the label placed on the
employee-spouse’s interest — “a mere expectancy, or a contingent future interest” —
“[t]he non-employee spouse’s contribution to the pension asset is exactly the same.”16
The formal designation of the asset was relevant in that case to address whether the
contingent nature of the right made it too speculative to be considered marital property.17
But we indicated that allowing “the contingencies that may prevent the employee spouse
from ever collecting his or her nonvested pension . . . [to] bar the non-employee spouse
from recovering a share if the pension is in fact paid out . . . would frustrate the statutory
command that Alaska courts effect a ‘just division of the marital assets.’ ”18
Emphasizing the legislature’s intent to favor equitable distribution, we noted that “[i]t
would be wholly inconsistent with this policy to ignore the existence of so substantial an
15
Laing, 741 P.2d at 655-56.
16
Id. (italics removed) (quoting L AWRENCE J. G OLDEN , EQUITABLE
D ISTRIBUTION OF PROPERTY 172 (1983)).
17
Id. at 655.
18
Id. at 656 (quoting AS 25.24.160(a)(4)). As we noted in Laing, at least at
the time of that decision many jurisdictions considered nonvested pensions “too
speculative” to treat them as property subject to equitable distribution at divorce. Id. at
655. Yet we rejected that view, noting that the potentially speculative nature of the
pension rights has no bearing on the non-employee spouse’s rights vis-à-vis the
employee. Id. at 656.
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asset as a party’s pension rights.”19 And we reached that conclusion in Laing even
though there was still uncertainty at the time of the divorce proceeding as to whether the
asset would materialize.20 Here there is no uncertainty at all — the asset now exists —
and the statutory command of equitable distribution remains unchanged.
Our precedents applying active appreciation analysis are also relevant
here.21 In a nod to our decisions in this area, the court acknowledges that property
acquired outside of marriage can become marital to the extent that marital efforts
increase its value.22 As we explained in Hanson v. Hanson, under active appreciation
analysis “the asset’s value at the inception of the marriage retains its separate character,
but any subsequent increase in value is treated as marital property to the extent that it
results from active marital conduct.”23
The court stresses that our decisions applying active appreciation analysis
“address premarital property brought into the marriage or separate property acquired
during marriage” rather than “property [like the IFQs here] that did not even exist during
19
Id.
20
Id.
21
See Hanson v. Hanson, 125 P.3d 299, 305 (Alaska 2005) (applying active
appreciation analysis and characterizing as marital property the increase in value of
business attributable to husband’s marital labor); Harrower v. Harrower, 71 P.3d 854,
860 (Alaska 2003) (remanding to trial court for active appreciation analysis); Martin v.
Martin, 52 P.3d 724, 727 (Alaska 2002) (explaining and approving the doctrine);
Lowdermilk v. Lowdermilk, 825 P.2d 874, 877 (Alaska 1992) (explaining that “[t]he time
and energy of bo th spouses during the marriage is to be considered in dividing marital
property”).
22
Op. at 14 (citing Harrower, 71 P.3d at 858).
23
125 P.3d at 304 (quoting Harrower, 71 P.3d at 858).
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marriage.”24 The court interprets our decisions as permitting characterization of IFQs as
marital only if the “entitlement was earned during marriage” or the “asset . . . was plainly
earned during the marriage.”25 I recognize that in the typical active appreciation scenario
the separate asset exists before it appreciates in value due to a marital contribution, and
I do not suggest we should apply that analysis unaltered to the present case. But our
active appreciation analysis decisions establish that increases in asset value attributable
to marital labor should be treated as marital property, even if the asset itself remains the
separate property of the other spouse. And active appreciation analysis counsels against
giving undue consideration to formal designations, as our overarching approach has
been — and must be — equitable distribution and fairness to the parties whose marital
contributions have increased the value of an asset. Thus under active appreciation
analysis, the disputed IFQs should remain David’s separate property, but Anna should
be entitled to her marital share of the increase attributable to the couple’s labor in 1984.
Our decisions relating to pensions and our decisions applying active
appreciation analysis demonstrate that we have frequently used a broad definition of the
phrase “acquired . . . during marriage” in carrying out the legislature’s instruction to
divide property in a way that “fairly allocate[s] the economic effect of divorce.”26 There
are good reasons to continue to do so. As one commentator has explained, “substantial
disparities often exist between the legal title to an asset and the contributions made to
obtain it.”27 To address that disparity, courts in many equitable distribution states have
24
Op. at 14.
25
Id. (emphasis removed).
26
AS 25.24.160(a)(4).
27
TURNER , supra note 12, § 5.21, at 344. The typical factual situation in
which this concern arises is one in which the economic value of an asset accrues after
(continued...)
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concluded that “the . . . definition of acquisition must be entirely independent of legal
title.”28 Defining “acquisition” in a way that provides for fairer outcomes, “[e]quitable
distribution states have almost uniformly held that property is acquired whenever
contributions create real value, and not only at the moment when legal title passes.”29
Here, labor during the base years fed directly into the value of the IFQs.
Moreover, in the IFQ context we have previously held that labor during the base years
should have some bearing on the determination of a marital share in IFQs.30 Our
decision in Ferguson v. Ferguson indicated that labor during the base years — which can
only affect the size of the entitlement, not whether it is granted — must have some
bearing on how the quotas are characterized.31 In concluding that Anna cannot be
entitled to any of that value, the court loses sight of the principle behind Ferguson. And
by ignoring the definition of “acquisition” adopted in almost all equitable distribution
states, the court makes an unduly strong distinction between the qualifying years (which
led to the passing of legal title) and the base years (which contributed real value to the
IFQs).
27
(...continued)
legal title is taken, for instance in the case of a purchase of real property, with title
passing at the time of purchase and mortgage payments building equity over time. See
id. at 339.
28
Id. at 344 (italics removed).
29
Id. at 345 (italics removed).
30
See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska 1996) (concluding
that proportion of marital to separate property in IFQ depended on extent to which value
was determined by marital labor).
31
Id.; see also TURNER , supra note 12, § 5.22, at 377 (interpreting our
decision in Ferguson to mean that “the proportion [of marital to separate property] must
be based on the period used in determining value, and not the period used in determining
entitlement”).
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The court reasons that if my understanding of “acquisition” were correct,
“one would expect to find case law from other equitable distribution states holding that
property not yet existing at the time of divorce . . . was nonetheless marital.”32 But the
court should not take much solace in the fact that no other jurisdiction has yet dealt with
the very unusual factual situation of this case involving IFQs. And the court identifies
no decisions within an IFQ or other fishery management context in which any
jurisdiction, faced with the novel issue of timing presented here, has taken the position
the court now adopts.
The IFQs at issue here are a property right with identifiable dimensions and
a definite market value: They entitle David to harvest up to a certain amount of halibut
each year, or to sell that right to someone else.33 If David and Anna had not fished in
1984, David presumably would have substituted the F/V A RROW ’s next-best year when
he applied for IFQs, and he would likely have received some smaller entitlement. But
David and Anna did fish in 1984, putting their labor — marital labor — into the fishing
enterprise. The IFQs David actually received are partly the product of that labor; their
increased value can be specifically and precisely traced to the fish that Anna and David
caught in 1984. The argument that their labor in that year did not create real value is
belied by the inclusion of the 1984 catch, rather than some other year’s catch, as a base
year in the formula used in calculating the size of the IFQs. If that cold mathematical
formula comprehends that marital labor in 1984 created real value, then surely we should
too.
32
Op. at 15.
33
See Individual Fishing Quota (IFQ) Program,
A LASKAFISHERIES .NOAA .GOV , http://alaskafisheries.noaa.gov/ram/ifq.htm (last visited
August 5, 2014).
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I would therefore reverse the superior court with respect to its dismissal of
Anna’s suit for failure to state a claim and its denial of her petition to reopen the
dissolution.34
34
However, contrary to Anna’s assertion, she is not entitled to half of a 20%
share of the IFQs. Marital labor in 1984 increased the value of the IFQs that David
received by some proportion. Anna should be entitled to half the value of that increase,
that is, half the difference between the value of the IFQs that David actually received and
the value of the IFQs David would have received if he had used a non-marital year,
rather than 1984, as one of his base years.
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