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In a divorce property division the superior court characterized a couple's major asset as marital property, awarded it to the husband, and ordered a $50,668 payment to the wife for an equal division of the marital estate. The husband appeals, arguing the court erred by: (1) characterizing an unfinished house as marital property; (2) valuing it at $146,000; (3) declining to apply a rescission theory in dividing the couple's marital property; and (4) excluding several of the husband's witnesses from testifying at trial. We affirm the superior court's decision in all respects.
Richard Schneider and Barbara Schneider married in September 2007 in Utah. At the time of the marriage Richard owned real property in Anchorage and several vehicles; Barbara had a retirement account and one vehicle of her own. They had both joint and separate financial accounts. Both were employed prior to the marriage. Richard had retired but continued to take occasional contract work; Barbara worked outside the home for only a short time during the marriage.
The couple visited Alaska in October 2007 and then purchased real property, referred to as the Birdsell property. They took title jointly and obligated themselves to a loan and a related mortgage against the property. They relocated to Alaska in February 2009 and began constructing a house on the property. Richard was an experienced mechanical inspector, and both Barbara and Richard had construction experience. They spent substantial time and money constructing a residence, which remained unfinished at the time of trial.
The couple separated in early December 2009 and Barbara moved to South Dakota. By the time they separated Richard had sold his Anchorage property and Barbara had almost exhausted her retirement account.
Richard filed for divorce in January 2010. Richard attached a property and debt worksheet with his initial divorce complaint, listing the credit card, two checking accounts, and the Birdsell property as marital items for division.
The superior court held trial in May 2010. Richard represented himself; Barbara was represented by counsel. Barbara's counsel invoked the rule excluding witnesses from the courtroom, and the court explained to Richard: "any witnesses that you intend to call for trial [will] need to wait outside."
Richard testified on his own behalf. The court reviewed Richard's property worksheet, discussing each item listed before confirming the property worksheet's accuracy with Richard. Richard then offered the court a number of exhibits, including a contractor's evaluation of the unfinished Birdsell property estimating its finished value at "close to $400,000," its unfinished value at between $140,000 and $152,000 if financing were available, and its "quick cash sale" value at $105,000 to $121,600. Richard sought to call several character witnesses on his behalf, and the court allowed Richard to call one witness, Cindy Rausa, to testify as to Richard's behavior during the marriage. Richard attempted to call one additional witness, but the court denied the witness's testimony as cumulative.
Barbara sought an unequal 65/35 marital property division in her favor; after Barbara presented her case, Richard attempted to call Mitch Rausa as a rebuttal witness. The court refused to allow him to testify because he had been in the courtroom during Barbara's testimony in violation of the court's exclusionary order.
The court made oral findings of fact and conclusions of law at the close of trial. Based in part on Richard's testimony and his exhibit containing the contractor's valuation of the Birdsell property, the court characterized the Birdsell property as a marital asset and valued it at $146,000. The court also characterized two vehicles as marital property and classified debts associated with the Birdsell property — the mortgage and a construction lien — as marital debts. The court valued the net marital estate at $101,336, assigned the marital assets to Richard, and made a 50/50 distribution of marital property by ordering Richard to make an equalization payment of $50,668 to Barbara in 36 monthly installments beginning August 1, 2010.
Richard appeals.
"A trial court's characterization of property as separate or marital may involve disputed facts and questions of law."
Richard argues that the superior court erred in characterizing the Birdsell property as marital property rather than as Richard's separate property. Richard notes that although placing property into joint title creates a presumption of marital property, evidence of a contrary intent can override this presumption. Richard asserts that in characterizing the property as marital the superior court failed to consider the time and manner in which the pair purchased the Birdsell property and claims that his payment of the $5,000 down payment and all subsequent mortgage payments establish he separately owned the property.
We have held before in a similar context that "we will not consider arguments that parties fail[ed] to raise in the lower court, let alone arguments they have conceded below, unless the trial court committed plain error."
Even if we entertained Richard's argument by interpreting his statements as merely conceding the couple held title jointly together, his argument fails. Assuming Richard could demonstrate the down payment to the Birdsell property came from his separate property, applying those funds to property purchased jointly creates a presumption Richard transmuted his separate property to marital property.
Richard claims the superior court "grossly overvalued" the Birdsell property by valuing it at $146,000. Richard complains that the superior court failed to assess the property's "fair market value" in its property division by ignoring an estimate valuing the property between $105,000 and $121,000. Richard argues this was clear error.
At trial Richard submitted a contractor's property valuation. The superior court relied on this valuation; Richard also relies on it on appeal. The evaluation stated that if financing for the Birdsell property were available, it would likely sell for between $140,000 and $152,000, but that under different conditions — without financing, looking for a quick sale, and with a buyer paying cash — the property would fetch between $105,000 and $121,600. The superior court valued the property at $146,000, the midpoint of the first range. To the extent Richard argues we should hold the superior court clearly erred by relying on one figure from his proffered appraisal and not another, his argument is without merit.
Richard asks us to vacate the property division and order the superior court to apply the rescission theory of property division articulated in Rose v. Rose.
We have held that when a marriage is of short duration and the parties have avoided substantially commingling funds, the superior court may exercise its equitable discretion to treat the property division as an action for rescission by dividing marital property in a manner designed to place the parties in a position similar to that prior to the marriage.
Richard argues that the superior court abused its discretion by failing to apply rescission principles. We have rejected such arguments before. In Nicholson v. Wolfe, a former husband asked this court to extend the rescission property division theory to all limited-duration marriages where the parties maintained separate finances.
Richard challenges two rulings excluding several of his proposed witnesses from testifying. While conceding that the superior court retains broad discretion to exclude witnesses at trial, Richard claims that his case was substantially prejudiced when: (1) two of his character witnesses were not permitted to testify; and (2) his rebuttal witness was excluded for remaining in the courtroom while Barbara testified.
The superior court did not abuse its discretion in either instance. The court denied one of Richard's witnesses as needlessly cumulative. Barbara conceded that Richard's character was not at issue in the case, and she stipulated to the testimony of one of Richard's character witnesses. The superior court allowed Richard one character witness on his behalf, Cindy Rausa, and then ruled additional character witness testimony would be needlessly cumulative. Evidence Rule 403 permits the superior court to exclude cumulative evidence, and Richard neither suggests how the witness's testimony would have differed from Cindy Rausa's nor provides authority demonstrating he was legally entitled to present multiple character witnesses.
Richard later attempted to call Mitch Rausa as a witness to rebut Barbara's testimony about her health and Richard's behavior in the relationship. The superior court refused to allow the testimony because Mitch Rausa had remained in the courtroom during Barbara's testimony. Richard argues that instead of excluding this witness from testifying, the superior court should have "broach[ed] this topic at the beginning of the trial and exclude[d] witnesses from the courtroom as appropriate." But the superior court did exactly that: at the beginning of trial, the superior court expressly directed Richard that any witnesses he wished to call had to wait outside in order to testify.
Richard further fails to demonstrate how he suffered prejudice to his substantial rights from either witness's exclusion. Character was not at issue in the case, and the superior court ultimately denied Barbara's proposal for a 65/35 uneven split of marital property and imposed the presumptively equitable 50/50 division. We therefore affirm the superior court's exclusion of Richard's witnesses.
We AFFIRM the superior court's decision in all respects.
