Keffer v. Keffer

RABINOWITZ, Justice,

with whom MATTHEWS, Justice, joins dissenting.

I dissent from the majority’s adoption and application in the instant case of the line of authority holding that: “Where a support provision is an integral part of the property settlement, courts generally hold that the support provision is not subject to later modification.” My reasons are as follows:

First, the payments that Thomas was required to make to Gypsy under Section F of their dissolution agreement were in the nature of alimony payments rather than a division of property. Since the parties' dissolution agreement was incorporated in the superior court’s decree these alimony provisions were subject to modification pursuant to AS 25.24.170, which provides that “any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony ... or for the maintenance of either party to the action.” We have held that a material and substantial change in circumstances generally is required to modify a support decree under AS 25.24.170. Hinchey v. Hinchey, 722 P.2d 949 (Alaska 1986). Given Thomas’ present unemployment, the record reflects a material and substantial change of circumstances has occurred. Therefore, a remand to the superior court is now required for the purpose of requiring that court to determine, with findings, whether alimony remains appropriate and if so in what amount.

Second, the majority’s opinion is based on its assumption that the spousal support and property settlement provisions were integrated. Integration in turn is grounded on the theory that spousal support was, at least in part, negotiated as a “trade off” for Thomas retaining sole ownership of his retirement pension. There is no evidence in the agreement itself as to such an integration. Instead, the only evidence of either party’s intent is statements of subjective intent that are susceptible of more than one interpretation.1 Given this record *400neither the parties’ testimony nor the relevant documents is sufficiently clear as to the parties’ intent to justify application of “the integration doctrine”.2

. Gypsy testified by affidavit that "I agreed to not take any of his retirement which I would have been entitled to from the Electrical Union because we agreed that he was going to be paying me alimony.” Gypsy testified that it was her understanding that the payments would be made "[u]ntil I remarried, one of us died or I no longer wanted or needed the money.” She explained: "The only thing said was, I told him I wasn’t going to ask for half of what was in his retirement fund at the time of the divorce. I knew eventually he would retire. I was trying to be nice, and I wanted him to have enough money to live comfortably, as well as keep paying me when he retired." Thomas testified that Gypsy told him she was "letting [him] off this light” by not coming after his retirement, and that based on this statement, “[t]his basically would be my understanding, that when my salary stopped, so did these payments.”

At the hearing Thomas was. asked the following question:

And you have figured all of these things, which she may not even really understand. Was there some reason that you didn't put in this agreement you drafted that this would end when you no longer had any income?

A portion of Thomas' response is particularly significant:

I had hoped, when I appeared before Jim Hornaday [District Court Judge], to go ahead and clarify the term of this thing, simply because this is not my realm of expertise. This is why no time was put in. Gyp didn’t want one, and I was hoping that if Jim reviewed this, he would go ahead and insert one *400or, you know, send it back to the drawing board.

. See Peterson v. Peterson, 434 N.W.2d 732, 735-36 (S.D.1989) (rejecting claim that alimony award was a disguised property settlement not subject to modification and observing that "when deciding whether an award of alimony is, in reality, a portion of a property settlement, a court must scrutinize the language of the divorce decree, the circumstances accompanying it, and the end sought to be achieved by the parties."); Wagner v. Wagner, 25 Wash.App. 439, 607 P.2d 1251, 1254 (1980) (holding that spousal payments provided for in a divorce decree were not an integral part of a property settlement, and therefore were subject to modification, where payments were termed alimony, payments would terminate upon the death of either party or the remarriage of the wife, and the agreement recognized that the alimony provisions were subject to the court’s approval); cf. Latham v. Latham, 570 So.2d 694, 697 (Ala.Civ. App.1990) (declining to find property division and child support payment schedule integrated absent greater specificity regarding the parties’ intent, and noting that ”[a]n integrated bargain agreement between divorcing parties is evidenced by a pronounced intent to finally settle all claim of property rights and maintenance .... This intent must be more specific than that of a regular property settlement.”).

In contrast, Kiffer v. Kiffer, 410 N.W.2d 454 (Minn.App.1987) illustrates the type of documentation that I would find adequate to establish an intent to enter an integrated agreement exchanging pension rights for alimony. • In Kif-fer, the court properly found such an exchange where the section of the property agreement that allocated the husbánd’s military pension rights stated: "The parties acknowledge that the alimony payments, as heretofore set forth in [the agreement], have been computed so as to compensate for Wife’s interest in said pension rights arising by reason of the seventeen and one-half years of marriage during which the Husband was in the military service.” Id. at 456.