author: WINFREE, Justice.

text:
    D&D SERVICES d/b/a Novus Auto Glass, and Liberty Mutual, Appellants, v. Kiel CAVITT, Appellee.
    Supreme Court No. S-17143
    Supreme Court of Alaska.
    July 5, 2019
    Stacey C. Stone, Holmes Weddle & Barcott, P.C., Anchorage, for Appellants.
    Keenan Powell, Anchorage, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

An employer disputes liability for attorney's fees the Alaska Workers' Compensation Appeals Commission awarded an employee, contending that the employee was not a successful party in the appeal and that the amount awarded was unreasonable. Because the Commission's underlying decision on the merits included a remand on one issue, we asked the parties to provide supplemental briefing on the question whether the attorney's fees order was final for purposes of appeal. We hold that such orders are not final for purposes of appeal, but we treat the putative appeal as a petition for review, grant review, and affirm the Commission's attorney's fees award.

II. FACTS AND PROCEEDINGS

Kiel Cavitt fractured his right elbow while working as an auto shop glazier for D&D Services in August 2015. He later received compensation for a permanent partial impairment. Cavitt was unable to continue working as a glazier, and he subsequently went to work as a pizza delivery driver.

Cavitt fell on his outstretched right hand in February 2017, and a medical scan the following month showed damage to the hardware inserted to repair the elbow injury. Cavitt's doctor said Cavitt was totally disabled from working from March 10 through April 15.

In March Cavitt filed a written workers' compensation claim against D&D Services seeking temporary total disability (TTD), a compensation rate adjustment, and attorney's fees. D&D Services initially denied liability and filed a notice of controversion. In early April Cavitt filed another written claim, including medical costs, transportation costs, penalty, unfair or frivolous controversion, and interest, in addition to TTD and attorney's fees. He also sought an order that D&D Services was responsible for paying future TTD. In late April D&D Services' doctor said that Cavitt needed a second surgery and that the work injury with D&D Services was the substantial cause of his disability and need for medical care. D&D Services then paid Cavitt TTD, but it did not pay penalty or interest.

The Alaska Workers' Compensation Board largely denied Cavitt's claim following an August 2017 hearing. The Board decided the controversion was in good faith, declined to impose a penalty, and denied the compensation rate adjustment. The Board agreed Cavitt was owed interest; additionally, it ordered D&D Services to pay Cavitt TTD "until such time as he becomes medically stable." The Board awarded Cavitt only $500 in attorney's fees for his success on these two issues: the order requiring D&D Services to pay TTD and the interest award. The balance of the attorney's fees award was for work done before the employer effectively withdrew its controversion by voluntarily paying TTD.

Cavitt appealed to the Commission, which for the most part affirmed the Board's decision. The Commission decided, however, that the Board had not awarded Cavitt sufficient attorney's fees. Discussing the difference between Board-ordered compensation and voluntary employer payments, the Commission observed precedent in Underwater Construction, Inc. v. Shirley requiring that when the Board orders an employer to pay compensation, the employer cannot simply file a notice of controversion and stop paying benefits; the employer must seek modification of the award. The Commission determined the Board had undervalued both the overall services the attorney provided and the importance of the TTD order, observing that D&D Services "strongly resisted" that order. The Commission decided that "additional attorney fees are owed to Mr. Cavitt's counsel" for prevailing on this issue, and it remanded to the Board "for a determination of the time involved by Mr. Cavitt's counsel on this issue among other benefits obtained for Mr. Cavitt."

Cavitt then requested attorney's fees in the Commission, seeking costs and nearly $12,000 in attorney's fees as a successful party in the appeal. D&D Services opposed the motion, contending that Cavitt "lost his appeal on every significant issue except for the remand back to the Board on the attorney's fee issue" but conceded the Commission should award Cavitt some fees.

The Commission awarded Cavitt $6,000 in attorney's fees, deciding he had won a significant issue on appeal and was entitled to reasonable attorney's fees. The Commission defined "reasonable ... as equitable for the work performed and the results obtained" and found that $6,000 was reasonable.

D&D Services appealed the attorney's fees order to us. Because the Commission remanded the case in part to the Board, and because we held in Huit v. Ashwater Burns, Inc. that the finality rule of City & Borough of Juneau v. Thibodeau applies to Commission decisions, the attorney's fees award in this case was not clearly appealable as a matter of right. In Municipality of Anchorage v. Anderson , a workers' compensation decision pre-dating the Commission's creation, we decided that a superior court's attorney's fees award was not final for appeal purposes when the court's remand to the Board meant the underlying court order was not final. We asked the parties in this case to brief questions related to the finality of Commission attorney's fees orders.

III. STANDARD OF REVIEW

"Whether the Commission correctly applied the law in determining an award of attorney's fees is a question of law that we review de novo." "We review the amount of fees awarded for abuse of discretion." "We interpret 'our civil [and appellate] rules de novo, adopting the rule of law which is most persuasive in light of precedent, policy, and reason.' "

IV. DISCUSSION

A. A Commission Attorney's Fees Award In A Case Remanding An Issue To The Board Is Not Appealable As A Matter Of Right.

The parties take the position that the Commission's attorney's fees award was final and appealable as a matter of right because it meets the tests for finality under administrative law precedent. We do not disagree with the parties that this attorney's fees decision is consistent with administrative finality tests. But under the appellate rules, the order cannot be appealed as a matter of right.

Alaska Statute 23.30.129(a) provides in part that "final decisions of the [C]ommission may be appealed to the supreme court, and other orders may be reviewed by the supreme court as provided by the Alaska Rules of Appellate Procedure." We decided in Huit that a "final decision of the [C]ommission" under this statute is not the same as a "final [C]ommission decision" in AS 23.30.128(e). We also held that Commission decisions remanding issues to the Board are subject to the rule in Thibodeau ; decisions remanded to the Board are not final for purposes of appeal under AS 23.30.129(a). Applying Huit , the Commission's decision on the merits of Cavitt's appeal was not a final decision under AS 23.30.129(a) because the Commission remanded the case in part for the Board to address attorney's fees anew.

Alaska Appellate Rule 201.1(a) applies Part 2 of the Appellate Rules to Commission appeals under AS 23.30.129. Alaska Appellate Rule 202(a) provides that "[a]n appeal may be taken to the supreme court ... from a final decision entered by the Alaska Workers' Compensation Appeals Commission in the circumstances specified in AS 23.30.129." Alaska Appellate Rule 204(a)(5)(A) allows a separate appeal related to attorney's fees when no appeal is pending: "[A] post-judgment order awarding or denying costs [and] attorney's fees ... may be considered a final judgment subject to an appeal limited to issues of costs [and] attorney's fees." Because no appeal related to the Commission's merits decision was pending in this court when D&D Services filed its attorney's fees appeal, Appellate Rule 204(a)(5)(A) governs whether the Commission's attorney's fees award was a final judgment subject to appeal. This, in turn, depends on whether the attorney's fees award was "a post-judgment order." It is not such an order.

Appellate Rule 201.1(c) provides that "judgment" includes "the final decision of the Alaska Workers' Compensation Appeals Commission, if that [C]ommission entered the decision being appealed under AS 23.30.129." Because "judgment" is defined in relation to AS 23.30.129, and because the merits decision in this case was not final under Huit 's interpretation of AS 23.30.129, the attorney's fees order is not, under the Appellate Rules, "a post-judgment order" awarding attorney's fees.

Both parties cite Humphrey v. Lowe's Home Improvement Warehouse, Inc. in their finality discussion, but Humphrey , predating Huit , expressly declined to consider the Thibodeau issue. Humphrey thus offers no guidance about the finality of the attorney's fees order.

We acknowledge that Commission attorney's fees decisions like this one may never be reviewed or that review may come only after a lengthy process. To address this concern, we will refer the issue to the Appellate Rules Committee.

Under Alaska Appellate Rule 402(b)(1) we may grant review of a nonfinal order if doing otherwise may result in "unnecessary delay, expense, ... or other related factors." The Commission attorney's fees award is a discrete issue, and the parties have fully briefed it; we therefore convert this putative appeal to a petition for review and consider the petition's merits.

B. The Commission Did Not Err By Awarding Cavitt Attorney's Fees As The Successful Party In The Appeal.

D&D Services argues that the Commission erred by awarding Cavitt attorney's fees because he "did not prevail on any issue before the Commission," and he "lost on every issue that he appealed to the Commission." D&D Services concedes that in Cavitt's Commission appeal he "merely could be considered to have prevailed in part on one issue out of five," but it argues that he in fact did not because he requested only that the Commission enter an order awarding him full fees and the remand order did not give him the exact relief he sought.

Cavitt responds that his case fits squarely within the holding of Humphrey , a case in which we reversed a denial of attorney's fees to a claimant who persuaded the Commission to remand an attorney's fees issue to the Board. D&D Services argues that Humphrey is distinguishable because Cavitt only "requested full attorney's fees, which he did not obtain," (emphasis in original) and he therefore "was simply not a successful party."

We agree with Cavitt that Humphrey controls the outcome of this question. In Humphrey the claimant succeeded in persuading the Commission that the Board had not awarded him sufficient attorney's fees, and the Commission remanded the case to the Board because there were insufficient findings on the issue. The Commission refused to award the claimant attorney's fees for the appeal because, in its view, he was not a successful party; we reversed the Commission's order denying attorney's fees and held that "a claimant who prevails on 'a significant issue' on appeal is a successful party." We did not require an exact match between the requested relief and the relief the Commission ordered. As we recently held in Warnke-Green v. Pro-West Contractors, LLC : "To determine success on appeal, the Commission needs to consider what the Board ordered, what the parties sought in the appeal, and what the appeal decided."

The Board awarded Cavitt minimal fees despite his attorney's work while his claim was controverted and his success on two issues. Cavitt appealed to the Commission to reverse the Board's decision on the merits; he also sought "full fees" for work before the Board under AS 23.30.145(b). The Commission instructed the Board to determine the amount of time Cavitt's counsel spent on the future TTD award, determined that the Board had undervalued that award, and observed that D&D Services "strongly resisted the Board making this order," indicating that the Commission expected the Board to award increased attorney's fees based on D&D Services' resistance.

Requiring a successful party to have requested exactly what the Commission orders undermines the purpose of attorney's fees awards to claimants, which is "to ensure that competent counsel are available to represent injured workers." Such a rule could prohibit a fees award when the Commission affirms on an alternative basis that was not argued and could lead to litigation about how closely the Commission decision matched the requested relief. Neither possibility is desirable.

The Commission decided a significant issue in Cavitt's favor, and it appropriately decided he was a successful party in the appeal.

C. The $6,000 Attorney's Fees Award Was Not Manifestly Unreasonable.

D&D Services argues that the amount of fees the Commission awarded Cavitt is "manifestly unreasonable." D&D Services provides two legal arguments, one based on a misreading of our precedent and the other based on a prior Commission decision. D&D Services maintains that in the past the Commission has awarded fees "in proportion to the discussion and authority devoted to the issue"; it compares the number of pages in Cavitt's brief about each issue and contends that the amount of fees awarded was unduly large.

Cavitt responds that the Commission's award was appropriate because the fees awarded were reasonable given the circumstances; he does not contend that the award is too low. He points out that D&D Services' proposed method of calculating fees based on counting pages or words could be abused: A party could be prolix in arguments with a good chance of success, even with an obvious outcome, or unduly terse in arguing less meritorious claims, manipulating an increased fees award. Cavitt summarizes his case's procedural history to illustrate the Commission's point about his attorney's services being more valuable than the Board considered them.

The Commission found that " 'fully compensatory' does not necessarily mean the full amount of fees sought as long as the amount awarded is sufficient to encourage attorneys to continue to represent injured workers." It then defined "reasonable" to mean "equitable for the work performed and the results obtained." It concluded that $6,000 in attorney's fees "satisfie[d] both the requirement to be fully compensatory and the requirement to be reasonable."

We are not persuaded that the Commission's fees award was manifestly unreasonable. We have recognized that the Commission has discretion to determine an appropriate fee as long as the record supports its factual findings. The Commission's factual findings are not an issue in this appeal. We have interpreted AS 23.30.008(d) as being consistent with and having the same purpose as former Alaska Appellate Rule 508(g). The Commission's award is consistent with the purpose of "ensur[ing] that competent counsel are available to represent injured workers." The award likewise fulfilled the statutory requirement that the attorney's fees be both "fully compensatory and reasonable."

V. CONCLUSION

We AFFIRM the Commission's attorney's fees award.

      884 P.2d 156, 161 (Alaska 1994).

      Cf. AS 23.30.145(b) (authorizing Board-ordered attorney's fees from employer who "otherwise resists" paying compensation).

      372 P.3d 904 (Alaska 2016).

      595 P.2d 626 (Alaska 1979), disavowed on other grounds by State v. Alex , 646 P.2d 203, 208 n.4 (Alaska 1982).

      Huit , 372 P.3d at 912-16.

      37 P.3d 420, 421 (Alaska 2001).

      Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska 2011).

      Warnke-Green v. Pro-West Contractors, LLC , 440 P.3d 283, 288 (Alaska 2019).

      Licht v. Irwin , 292 P.3d 915, 918 (Alaska 2013) (alteration in original) (quoting Kellis v. Crites , 20 P.3d 1112, 1113-14 (Alaska 2001) ).

      The test for administrative finality " 'is essentially a practical one' that considers 'whether the agency has completed its decisionmaking process[ ] and whether the result of that process is one that will directly affect the parties' "; it "should also consider whether the litigants still have an opportunity 'to submit evidence or alter the decision through administrative means.' " Huit , 372 P.3d at 914 (alteration in original) (first quoting Crawford & Co. v. Baker-Withrow , 81 P.3d 982, 985 (Alaska 2003) ; then quoting Allen v. State, Dep't of Revenue, Child Support Enf't Div. , 15 P.3d 743, 747 (Alaska 2000) ). The Commission has completed its decisionmaking process on the attorney's fees for this appeal, and the parties will not have an opportunity to alter the Commission's fees award through administrative means.

      Alaska Statute 23.30.128(e) sets out the requirements for a "final [C]ommission decision."

      372 P.3d at 912-16.

      337 P.3d 1174 (Alaska 2014).

      Id. at 1178 n.5.

      See Municipality of Anchorage v. Anderson , 37 P.3d 420, 423 (Alaska 2001) (Matthews, J., dissenting) (noting difficulties obtaining interlocutory order review).

      Cf. Cole v. State Farm Ins. Co. , 128 P.3d 171, 173 n.2 (Alaska 2006) (referring question to Appellate Rules Committee).

      See City & Borough of Juneau v. Thibodeau , 595 P.2d 626, 631 (Alaska 1979) (holding that we may treat improperly brought appeal as petition for review); see also Alaska R. App. P. 402(b).

      337 P.3d at 1177-78.

      Id. at 1181-82 (emphasis in original) (quoting Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1068 (Alaska 2011) ).

      440 P.3d 283, 291 (Alaska 2019).

      Id. at 294.

      D&D Services contends that under State, Division of Workers' Compensation v. Titan Enterprises, LLC , 338 P.3d 316 (Alaska 2014), the Commission is required to "consider the success of all parties on appeal." Our Titan Enterprises holding was limited to appeals in which both parties were nonclaimants. See id. at 32223.

      See Warnke-Green , 440 P.3d at 288.

      Lewis-Walunga , 249 P.3d at 1067-68. Under former Appellate Rule 508(g)(2), a successful claimant was to be awarded full reasonable attorney's fees, and a successful claimant was one who prevailed on a significant issue on appeal. Id. at 1068.

      Wise Mech. Contractors v. Bignell , 718 P.2d 971, 975 (Alaska 1986).

      AS 23.30.008(d).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    OLIVER N., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Lisa B., Appellant, v. State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellee.
    Supreme Court No. S-17067 Supreme Court No. S-17158
    Supreme Court of Alaska.
    July 5, 2019
    J. Adam Bartlett, Anchorage, for Appellant Oliver N.
    Chris Peloso, Juneau, for Appellant Lisa B.
    Anna Jay and Mary Lynn Macsalka, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
    Marika R. Athens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem in No. S-17158.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   PER CURIAM.

I. INTRODUCTION

In these separate appeals, consolidated for decision, the question we must decide is whether new federal regulations have materially changed the qualifications required of an expert testifying in a child in need of aid (CINA) case involving children subject to the Indian Child Welfare Act (ICWA). We conclude that they have.

To support the termination of parental rights, ICWA requires the "testimony of qualified expert witnesses ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Under the new federal regulations, experts who formerly could be presumptively qualified - based on their ability to testify about prevailing cultural and social standards in the child's tribe, for example - must now also be qualified to testify about the "causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding." We conclude that in these two cases the challenged expert witnesses failed to satisfy this higher standard imposed by controlling federal law. For this reason we reverse the orders terminating the parents' parental rights and remand for further proceedings.

II. UNDERLYING LEGAL FRAMEWORK

Congress enacted ICWA in 1978 in recognition of the need to protect Indian children as a "resource ... vital" to their families' and tribes' survival and to reduce the "alarmingly high percentage" of children removed from Indian families. Alaska's CINA Rules incorporate ICWA's mandates in cases involving Indian children.

CINA Rule 18(c) sets out the statutory predicates for terminating parental rights to an Indian child:

Before the court may terminate parental rights, the Department must prove:
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in AS 47.10.011 and
(i) the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) the parent has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; or
(B) a parent is incarcerated and the requirements of AS 47.10.080(o) are met; and
(2) by clear and convincing evidence ... in the case of an Indian child, that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful; and
(3) by a preponderance of the evidence that termination of parental rights is in the best interests of the child; and
(4) in the case of an Indian child, by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child .[ ] (Emphasis added.)

The final finding set out in that rule reflects the requirement of ICWA section 1912(f) :

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses , that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.[ ] (Emphasis added.)

ICWA does not specify the expertise required to support a finding of serious emotional or physical damage to a child, and, as we have noted previously, "ICWA does not define the term 'qualified expert witness.' " Because there is no statutory definition, we previously looked to persuasive authority in legislative history and non-binding Bureau of Indian Affairs (BIA) Guidelines. For many years this meant we looked to the BIA's 1979 Guidelines. More recently we looked to guidelines issued in 2015.

But in December 2016 the BIA issued formal regulations accompanied by new guidelines discussing their implementation. The introduction to the new regulations notes they were enacted because the Department of the Interior found that "implementation and interpretation of [ICWA] has been inconsistent across States" and that "[t]his disparate application of ICWA ... is contrary to the uniform minimum [f]ederal standards intended by Congress." Although the Department "initially hoped that binding regulations would not be 'necessary to carry out [ICWA],' a third of a century of experience has confirmed the need for more uniformity in the interpretation and application of this important [f]ederal law."

The regulations set out relevant expert witness requirements and the standard for the "likelihood of harm" finding: "Who may serve as a qualified expert witness?" is explained at 25 C.F.R. § 23.122(a):

A qualified expert witness must be qualified to testify regarding whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe. (Emphasis added.)

Regarding the likelihood of harm finding, 25 C.F.R. § 23.121 states:

(c) For ... termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.

In these two parental rights termination appeals, we consider the superior courts' reliance on experts whose expertise is primarily rooted in their knowledge of tribal customs rather than professional training; the question before us is whether, based on their tribal expertise alone, they have what they "must have" to be qualified to testify under the new regulations. Before reaching that question, we set out each appeal's relevant background.

III. FACTS AND PROCEEDINGS

A. Oliver N. (And Charlotte K.)

Charlotte K. is the mother of four Indian children; Oliver N. is the father of one of those children. Charlotte and the other children's fathers are not parties to this consolidated decision; we already have resolved her separate appeal.

Charlotte has a history of mental health issues, domestic violence, and substance abuse. Oliver has a history of domestic violence and substance abuse. At the parental rights termination trial, the superior court found the children were in need of aid under AS 47.10.011 (6) (actual or substantial risk of physical harm due to parent's conduct), (8) (actual or substantial risk of mental harm due to parent's conduct), (9) (parental neglect), (10) (actual or substantial risk of harm due to parental substance abuse), and (11) (actual or substantial risk of physical harm due to parental mental illness). The court then made all the other requisite findings for parental rights termination. The specific finding relevant to Oliver's appeal is as follows:

The [c]ourt finds evidence beyond a reasonable doubt, including the expert testimony of Dr. Bruce Smith and Richard Encelewski, that return of the children to [Charlotte] or [Oliver] is likely to result in serious emotional or physical damage to the children. The parents cannot safely care for the children at this time, as each continues to engage in violent behaviors and drug use.

Dr. Smith is a clinical and forensic psychologist who evaluated Charlotte. Dr. Smith testified that because of Charlotte's mental health issues and choices of partners who engage in substance abuse, the children should not yet be returned to her. Dr. Smith did not evaluate Oliver or testify about his parenting abilities.

Encelewski, who is the president, chairman of the board, and chief executive officer of Ninilchik Natives Association and president of Ninilchik Village, was qualified by the superior court "to provide an expert opinion regarding the prevailing cultural norms and traditions of the Ninilchik Village Tribe related to child-rearing, as well as ... whether the Tribe reasonably believes that the children in this case would be at risk if returned to either parent." Encelewski testified that he had safety concerns regarding both parents. He testified that he was concerned about Charlotte's pattern of behavior and inability to provide protection and care for the children, that Oliver was "a total disaster," and that if the children were returned to either parent's care

they would potentially end up being harmed, physically abused. I think that they would be living a very dangerous and tough life, and I just am not sure what would happen .... [W]e could all guess what may or may not happen. We can't predict that. But we know damn well that it's a bad situation.

Encelewski said he feared the children would imitate their parents' harmful behaviors, and repeating that pattern of behavior would be bad for their "emotional well being, as well as their physical and mental health." He testified that "[n]one of those behaviors are tribally accepted":

We have youth and elder outreach. We teach ... respect, we teach our people culture. We teach them to hunt and to fish and to, you know, be protected, to provide, and the parents to provide for them, and uncles take care of them, aunts. That's a totally, totally unbelievable behavior they're having to live in, from ... the life I've been brought up, the life that people that are brought up here in this community and our tribal people. It's just ... completely not acceptable.

Encelewski testified that his knowledge of the case was based on review of written reports, speaking with the tribe's ICWA workers, and speaking with people involved in the case. But he had neither interviewed nor even met Charlotte, Oliver, or the children. He testified he had no formal training in childhood trauma or mental health but had "seen plenty of it" and "worked with a lot of ... cases, lot of things in the tribe." He described his education background as "70 years of life .... I've got a lot of schooling in various other ways. I do not have a college degree, but I have a great wealth of knowledge over the years." He testified that the "tribe's taken a lot of [mental health] training," he works with those programs, and he has a "pretty broad knowledge." The court recognized that Encelewski, although neither a social worker nor a mental health expert, was "highly qualified to speak to the cultural norms" within the tribe.

B. Lisa B.

Lisa B., the mother of an Indian child, has a history of substance abuse and mental illness. At her parental rights termination trial, the superior court found that the child was in need of aid under AS 47.10.011 (9) (parental neglect), (10) (actual or substantial risk of harm due to substance abuse), and (11) (actual or substantial risk of harm due to parental mental illness). The court then made all the other requisite findings for parental rights termination. The specific finding relevant to Lisa's appeal is as follows:

There is proof beyond a reasonable doubt, including the testimony of a qualified expert witness, that continued custody of [the child] by [Lisa] would likely result in serious emotional or physical damage. The court heard the testimony of Jennifer Dale, who was qualified as an expert by the court. While the court does not believe that Ms. Dale was the best expert, she testified that she believed [the child] would be at risk if returned to [Lisa]. Ms. Dale testified to the import of parents being present to model behavior for their children and that [Lisa's] mental health and substance abuse issue[s] made it difficult for her to provide the necessary guidance .... She testified that significant substance abuse is not part of the Native value system. She testified that given [Lisa's] history, she would need to demonstrate sobriety for an extended period of time because she had previously had periods of doing well for a few months only to relapse. Ms. Dale testified that placing [the child] with her maternal grandmother is culturally appropriate. The court accepts Ms. Dale's testimony to make this finding.

Dale was qualified during trial as an "expert on ICWA." Dale testified that she is a member of the Orutsararmiut Tribe in Bethel, holds a bachelor's degree in social work, had been serving as OCS's ICWA Specialist for Southcentral Alaska for two years, previously served for several years as a protective services specialist, received training in ICWA, and previously was certified as an ICWA expert by an Anchorage superior court. But she conceded she had no training in psychology.

Dale testified that she was concerned Lisa would not be able to maintain stability for an extended period and therefore there was a danger to her child's safety. Dale also testified that continuity of parental involvement is critical to the child's learning of Yup'ik culture and customs and that Lisa's relapses deprived her child of education in her native culture. Dale further noted that substance abuse and parental absence are contrary to Yup'ik culture. She testified that in her opinion terminating Lisa's parental rights was in the child's best interests.

IV. DISCUSSION

Oliver N. and Lisa B. argue on appeal that in their respective trials the witnesses were not qualified under ICWA to testify as experts about whether returning to the parent's care would likely result in serious harm to the child. We conclude that under the new BIA regulations, neither Encelewski nor Dale was shown to be a qualified expert witness under ICWA for this type of testimony. We recognize that this represents a departure from our precedent, but our conclusion is compelled by the recent changes to federal law. Under the 2015 Guidelines we previously referenced, both Encelewski and Dale would have been presumptively qualified. In Caitlyn E. v. State, Department of Health & Social Services, Office of Children's Services - primarily involving parental substance abuse - we held under the 2015 Guidelines that, even in cases not involving tribal customs, such presumptively qualified experts could provide the necessary expert testimony supporting the superior court's finding that returning to the parent's care would likely result in serious harm to the child. But the 2015 Guidelines that we relied on have since been superseded by the binding 2016 regulations.

We first examined the 2016 regulations in Eva H. v. State, Department of Health & Social Services, Office of Children's Services . We noted that 25 C.F.R. § 23.122(a) and the new guidelines "recognize[d] the difference between the mandatory word 'must' and the admonitory word 'should': the ability to testify about the risk of harm is required of every qualified expert witness, but the ability to testify about 'the prevailing social and cultural standards' is not essential in every case." We acknowledged that the new regulations require an expert witness be qualified to testify to the relevant causal relationship - "whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Connecting the new regulations to the guidelines and our precedent, we stated that "[t]he expert witness who is qualified to draw this causal connection must have an 'expertise beyond normal social worker qualifications.' " The expert witness in Eva H. was a guardian ad litem who had testified many times in ICWA cases, had almost 20 years' experience "looking after the best interests of children" in Alaska Native communities, but "had no formal training in social work, psychology, or counseling" We concluded she "was well qualified to recognize a correlation between parental conduct and emotionally or physically damaged children," but she was not qualified to testify specifically about how the parent's conduct or the conditions of the home "pose[d] 'a threat to the specific child's emotional or physical well-being,' " as required by ICWA. Although we declined to specify the particular expertise a qualified expert must have, we stated that the expert in question was not qualified under the new regulations.

The 2016 regulations and the commentary accompanying their publication in the Federal Register make clear that these requirements also must apply to a non-professional expert on tribal customs, including a tribal member, if that person is the only expert to testify in the case. Just as an expert in child welfare, mental health, psychology, or social work must be qualified to testify about the "causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding," so too must an expert in tribal childrearing customs or the delivery of child and family services to the tribe.

In 2015 the BIA issued proposed rules for what would become 25 C.F.R. §§ 23.121-23.122. The proposed language mirrored the 2015 Guidelines, including the language under which Encelewski and Dale presumptively would have been qualified. Following the notice and comment period, and in response to concerns raised in the comments, the BIA redrafted the rule to its now-final, binding version. The BIA's publication of the new rules in the Federal Register was accompanied by commentary explaining the BIA's interpretation of the new regulation and responding to the comments received. This commentary makes clear that the BIA intended the requirement that experts be qualified to testify about the likelihood of harm to the child if returned to the parent's custody to apply to all experts, including tribal experts and elders. The BIA specifically stated, "Any potential qualified expert witness, including Native elders, would need to meet the requirements of FR § 23.122 to testify on whether continued custody is likely to result in serious emotional or physical damage to the child." A tribal expert does not need to be qualified to speak to the likelihood of harm to the child if there is a second qualified expert who can, but in proceedings involving only one expert, ICWA requires that the expert meet the qualifications of 25 C.F.R. § 23.122.

The 2016 regulations and the accompanying commentary indicate that the primary consideration in determining whether an expert is qualified under ICWA is the expert's ability to speak to the likelihood of harm to the child if returned to the parent's custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver's and Lisa's cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.

Encelewski is "the president of the Ninilchik Tribal Council, [a] grandfather, and [a] leader in his community." He also oversaw the tribe's ICWA committee, but there is no testimony discussing the specifics of his role or the knowledge and experience he gained through that position. Encelewski has no formal education beyond a high school degree; he testified that his knowledge derives from a wealth of life experience. He testified that he has no formal training in childhood trauma or mental health but that he has "seen plenty of it[,] ... worked with a lot of ... cases, ... [and] deal[t] with a lot of problems" in his role as tribal leader.

As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver's conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski's conclusion that Oliver's behavior would likely harm the child is based on anything other than Encelewski's extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski - as the sole expert testifying in support of terminating Oliver's parental rights - must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.

Dale was qualified as an expert in "ICWA compliance." She has a bachelor's degree in social work, has five and a half years' experience "doing active case work" for OCS, has received multiple trainings on ICWA, and spent two years as an ICWA specialist teaching other OCS staff about ICWA standards and Alaska Native tribal history, identity, culture, and values. She explicitly disclaimed academic training in child psychology and mental health. As a tribal member herself, Dale's experience and knowledge come from a combination of both formal training and life experience. But her bachelor's degree and her experience with OCS do not surpass the expertise of a "normal social worker."

Although we have never specifically defined "normal social worker qualifications," in every case in which we found an expert to be clearly qualified, the expert "had substantial education in social work or psychology and direct experience with counseling, therapy, or conducting psychological assessments," and we have questioned the qualifications of an expert with only a bachelor's degree and a shorter work history. Like the witness in Eva H. , Dale's bachelor's degree in social work and her work experience - a "large majority" of which involved parental substance abuse - "exposed her to many of the types of conduct and conditions that cause children to be in need of aid," and she was therefore "well qualified to recognize a correlation between parental conduct and emotionally or physically damaged children" But her expertise, that of a "normal social worker," is insufficient to testify to causation as required by ICWA.

Unlike the expert in Eva H. , Dale has the additional knowledge of tribal customs, values, and standards gained through life experience as a tribal member and possibly supplemented by formal training. But this additional knowledge and experience is not the expertise she "must" have to be qualified under ICWA; it is instead the knowledge and expertise that ICWA experts "should" have. Dale testified that Lisa's behavior was inconsistent with Yup'ik culture, particularly her substance abuse and inconsistent presence in the child's life. But inconsistency with tribal norms, while extremely relevant to providing context, does not necessarily mean returning to Lisa's care is likely to result in serious harm to the child.

Because neither Encelewski nor Dale had sufficient expertise to testify whether returning the child to the parent's care was likely to cause serious emotional or physical damage to the child, neither met ICWA's requirement of a "qualified expert witness." As experts in tribal customs, their testimony about whether parental behavior conforms to tribal customs and values is welcomed and extremely beneficial when there is an additional expert qualified to testify regarding the likelihood of harm. But neither can provide the only expert testimony on which a likelihood of harm finding is based.

V. CONCLUSION

In both cases, we REVERSE the superior court's order terminating parental rights and REMAND for further proceedings consistent with this opinion.

      25 U.S.C. § 1912(d), (f) (2018) ; see also CINA Rule 18(c)(4).

      25 C.F.R. §§ 23.121(c), 23.122(a) (2019).

      25 U.S.C. § 1901 (2018) ; Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069.

      CINA Rule 1(f).

      See AS 47.10.011, 47.10.080(o), 47.10.088 ; 25 U.S.C. § 1912(d), (f) (2018).

      Although ICWA uses the plural "witnesses," we have previously held that the testimony of a single expert witness may suffice, including when aggregated with lay testimony. Payton S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 349 P.3d 162, 171 (Alaska 2015).

      Cf. 25 U.S.C. § 1903 (2018) (setting out statutory definitions for ICWA).

      Caitlyn E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 399 P.3d 646, 652 n.11 (Alaska 2017).

      See, e.g. , Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504 (Alaska 2009) (noting that ICWA's legislative history suggested expert should demonstrate "expertise beyond the normal social worker qualifications" (quoting H.R. REP. NO. 95-1386, at 22 (1978) as reprinted in 1978 U.S.C.C.A.N. 7530, 7545)).

      See, e.g. , Caitlyn E. , 399 P.3d at 652-53 (looking to guidelines issued in 1979 and 2015 for assistance in interpreting expert witness qualifications); Marcia V. , 201 P.3d at 504-05 (looking to guidelines issued in 1979 for assistance in interpreting expert witness qualifications).

      Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67593 (Nov. 26, 1979) ("(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodians is likely to result in serious physical or emotional damage to the child. (b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings: (i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. (ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe. (iii) A professional person having substantial education and experience in the area of his or her specialty.").

      Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10,146, 10,157 (Feb. 25, 2015) (hereinafter 2015 Guidelines) ("(a) A qualified expert witness should have specific knowledge of the Indian tribe's culture and customs. (b) Persons with the following characteristics, in descending order, are presumed to meet the requirements for a qualified expert witness: (1) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. (2) A member of another tribe who is recognized to be a qualified expert witness by the Indian child's tribe based on their knowledge of the delivery of child and family services to Indians and the Indian child's tribe. (3) A layperson who is recognized by the Indian child's tribe as having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe. (4) A professional person having substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child's tribe.").

      25 C.F.R. §§ 23.101 -.144 (2019) ; Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016) ; U.S. Dep't of the Interior , Guidelines for Implementing the Indian Child Welfare Act (2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf (hereinafter 2016 Guidelines); see also CINA Rule 1(f) (explaining ICWA and its regulations' applicability to CINA proceedings).

      Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,779 (June 14, 2016) (final rule codified at 25 C.F.R. §§ 23.1 -.144 (2019) ).

      Id. at 38,782 (internal citation omitted).

      25 C.F.R. §§ 23.121(c)-(d), 23.122(a) (2019). The BIA issued these new regulations because it recognized that "[t]he Act is ambiguous regarding who is a 'qualified expert witness[ ]', " and it wanted to "provide[ ] the Department's interpretation of this requirement." Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,830 (June 14, 2016).

      We use pseudonyms to protect the family members' privacy.

      Charlotte K. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , No. S-17088, 2019 WL 2524181 (Alaska June 19, 2019).

      "We review de novo the court's conclusions of law, such as whether the superior court's findings and the expert testimony presented at trial satisfy the requirements of ICWA." Eva H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 436 P.3d 1050, 1052 (Alaska 2019) (quoting Bob S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 400 P.3d 99, 105 (Alaska 2017) ).

      2015 Guidelines, supra note 12, at 10,157. Under the 2015 Guidelines, Encelewski would be "presumed to meet the requirements for a qualified expert witness" under the first category, "[a] member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices," and Dale would be similarly qualified under the second category, "[a] member of another tribe who is recognized to be a qualified expert witness by the Indian child's tribe based on their knowledge of the delivery of child and family services to Indians and the Indian child's tribe."

      399 P.3d 646 (Alaska 2017).

      Id. at 651-52.

      Id. at 651-54. We specifically noted that reliance on tribal experts furthered ICWA's purpose - that decisions involving a child's removal be made by people knowledgeable about "cultural values," "social norms," and "family life." Id. at 653.

      2016 Guidelines, supra note 13, at 4; see also Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta , 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) ("Federal regulations have no less pre-emptive effect than federal statutes.").

      436 P.3d 1050 (Alaska 2019).

      Id. at 1054.

      Id. at 1056 (quoting 25 C.F.R. § 23.122(a) (2019)).

      Id. at 1054 (quoting 2016 Guidelines, supra note 13, at 54); see also Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504 (Alaska 2009) (noting that ICWA's legislative history suggested expert should demonstrate "expertise beyond the normal social worker qualifications" (quoting H.R. REP. NO. 95-1386, at 22 (1978) as reprinted in 1978 U.S.C.C.A.N. 7530, 7545)).

      Eva H. , 436 P.3d at 1052-53.

      Id. at 1052.

      Id. at 1058.

      Id. at 1057.

      Id. (quoting 2016 Guidelines, supra note 13, at 53).

      Id. at 1057-58.

      See 25 C.F.R. § 23.121(c) (2019). We reiterate that
      expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider 'reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record[,]' [b]ut ... trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.
      Eva H. , 436 P.3d at 1057 (footnote omitted) (quoting Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 355 P.3d 541, 548 (Alaska 2015) ).

      Regulations for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 14,880 (proposed Mar. 20, 2015).

      Compare id. at 14,891, with 2015 Guidelines, supra note 12, at 10,157.

      Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,829 -32, 38,873 (June 14, 2016).

      Id. at 38,832.

      See id. at 38,831 -32 ("The final rule states that the testimony of at least one qualified expert witness must address the issue of whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. ... The court may allow experts to testify for other purposes as well.").

      Eva H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 436 P.3d 1050, 1057 (Alaska 2019).

      See id. at 1055-58 (discussing qualifications of multiple experts in various cases); compare In re Candace A. , 332 P.3d 578, 586 (Alaska 2014) (two experts with master's degrees in social work and lengthy work history were "well-qualified"), with Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504-05 (Alaska 2009) (whether expert with bachelor's degree in administration of justice and seven years' experience working for OCS had expertise "beyond that of a normal social worker" "require[d] further inferences" which should have been more deeply inquired into at trial).

      Eva H. , 436 P.3d at 1057.

      See 25 C.F.R. § 23.122(a) (2019); 2016 Guidelines, supra note 13, at 53-54.

      2016 Guidelines, supra note 13, at 54 ("[T]he question of whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child is one that should be examined in the context of the prevailing cultural and social standards of the Indian child's Tribe.").

      The parents raise other claims on appeal. Oliver contends Encelewski's testimony was too generic and equivocal to support the likelihood of harm finding. Lisa argues the court erred in its likelihood of harm finding because it failed to account for her recent improvement and because Dale testified with insufficient knowledge of the case. Lisa also argues the court improperly relied on hearsay evidence and erred in finding that active efforts had been made. We see no error in either court's decision on these issues on the record then before it, but we recognize that the evidence will be different on remand due to the passage of time and new expert witnesses. We therefore do not address these issues.


author: BOLGER, Chief Justice.

text:
    Tamra FARIS, Appellant, v. Gordon TAYLOR, Appellee.
    Supreme Court No. S-16762
    Supreme Court of Alaska.
    July 12, 2019 Rehearing Denied September 11, 2019
    Tamra Faris, pro se, Portland, Oregon, and Fred W. Triem, Petersburg, for Appellant.
    Paul H. Grant, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

A couple divorced after over 40 years of marriage. Although the wife had moved to a different state several years prior, the superior court determined that their date of separation was in 2014. The court also recaptured pension payments the two received after this date. The wife appeals, arguing that these and various other aspects of the superior court's property division were erroneous.

The superior court neither erred nor abused its discretion in its determination of the date of separation. And most of the wife's other challenges to the property division are without merit. But we reverse the superior court's failure to make specific factual findings in its recapture analysis.

II. FACTS AND PROCEEDINGS

A. Facts

Gordon Taylor and Tamra Faris were married in 1973. For most of their marriage, they lived in Juneau. Faris spent her entire career working for the federal government, earning a Civil Service Retirement System (CSRS) pension. In 2004 Faris accepted a promotion and moved to Honolulu, Hawaii. She moved to Portland, Oregon, also for work reasons, in 2006 and currently resides there. She retired from her career with the federal government in 2010.

When Faris moved, Taylor remained in Juneau. Taylor held a variety of jobs during his marriage to Faris, including various positions with the State of Alaska that made him eligible for Public Employees' Retirement System (PERS). He retired in 2011 and now draws from a PERS annuity and Social Security.

B. Proceedings

1. The divorce trial

In 2013 Taylor filed for divorce. He and Faris reached a settlement agreement in February 2014 and the court entered a divorce decree at that time. Three days later, however, Faris sought to withdraw distribution of property from that agreement.

The superior court held five days of trial on the couple's property division in late 2015 and early 2016, after the settlement agreement had broken down. The court issued an order dividing the marital estate in May 2017. It concluded that the parties had not separated until 2014, when they divorced.

To divide the marital estate, the superior court first determined the properties available for distribution. These included two marital properties: a home in Juneau and a second home in Portland, Oregon. The court valued the Juneau home at $450,000 and awarded it to Taylor. It found that the Portland home was worth $580,000 and awarded the home to Faris.

The court then valued and distributed the remaining property, finding it "equitable to divide the estate with 50% of the assets awarded to each party." This split required dividing the parties' pension payments between them so that each would receive the same monthly income. The court heard expert testimony on the value of each party's pensions, but the testimony conflicted. The court elected to split the monthly pension payments in half, using a qualified domestic relations order (QDRO).

The court also considered the pension payments the parties had received since the date of separation in 2014. The court calculated the total benefit each party received from this income and credited that benefit against each party's award, thereby "recapturing" the parties' post-separation pension payments.

2. Post-trial motions

After the trial Faris filed several motions for reconsideration, arguing in relevant part that the court erred when it (1) recaptured the CSRS payments received between the date the divorce was granted and the close of trial and (2) determined that the date of separation was in 2014.

The superior court denied reconsideration of these issues. It found that both parties had "treated the [post-separation] PERS and CSRS payments as separate assets," effectively converting them to a non-marital form, and declined to revisit its decision to recapture. The court also declined to revisit its date of separation determination, noting that social relations had continued between the parties after 2004.

Faris appeals the superior court's order dividing the marital estate.

III. DISCUSSION

A. The Superior Court Correctly Determined That The Date Of Separation Was In 2014.

The superior court determined that the date of Faris's and Taylor's separation was February 11, 2014, the date on which the court issued their divorce decree. Faris argues that the court erred in two ways. First she argues that the court "selected the wrong legal rule" when determining the separation date. She claims that the superior court used "a legal rule that adopts the bright-line convenience of date of trial instead of the more equitable date of separation. " (Emphasis in original.) But Faris's argument incorrectly characterizes the superior court's analysis. The superior court did not rely solely on the date the divorce was granted to determine the date of separation. Instead, it analyzed the facts of the case to determine when the marriage functionally terminated. This was consistent with our precedent: we have expressly rejected defining the date of separation as a matter of law, and have instead granted the superior court the discretion to identify the date of separation according to the facts before it. The superior court did not commit legal error in its analysis.

Faris also argues that the court abused its discretion when it determined that the separation date was in 2014 because she contends that the parties separated in 2004 when she moved to Hawaii. "Alaska law has defined [the separation date] as the point at which 'the marriage has terminated as a joint enterprise' or when a couple is no longer 'functioning economically as a single unit.' " Identifying this termination requires considering whether the parties have objectively separated and "live physically apart from one another." It also requires evaluating whether at least one party subjectively intended to separate. A superior court abuses its discretion if its separation date determination lacks sufficient evidentiary support.

Here the evidence suggests that Faris and Taylor objectively separated in 2004, but they lacked the subjective intent to separate until 2014. Faris moved physically apart from Taylor in 2004. But the superior court found that "the parties' marriage ... would have continued if Mr. Taylor did not file for divorce." There is ample evidence in the record to support the superior court's finding, as Faris made repeated statements after 2004 demonstrating an intent not to separate. In 2013 she wrote a letter explicitly stating that she did "not want a divorce." And in January 2014 she wrote an email stating that she "would have never filed for divorce, no matter what, ever. That is still true. I do not want divorce." Even after the superior court issued its divorce decree in February 2014, Faris claimed in an affidavit that the "divorce was entirely [Taylor's] idea" and reiterated that she did "not want to be divorced."

Faris claims that her move to Hawaii evinced a declaration of "financial separation," yet the record indicates that a financial entanglement continued until 2014: Faris and Taylor filed joint tax returns until 2014. They also held properties jointly in a living trust. Faris's own words and actions undermine her argument that she intended to separate in 2004. The superior court did not abuse its discretion in determining that the date of separation was in 2014.

B. The Superior Court Did Not Clearly Err When It Determined That The Portland Home Was Marital Property.

It is uncontested that the parties' Portland, Oregon property was purchased in 2006. "Generally, 'all assets acquired by the parties during their marriage are marital property' except for gifts and inheritances." Faris sets the date of separation in 2004 and argues that consequently the Portland home cannot be marital property. But because we have upheld the superior court's finding that the date of separation was in 2014, the home was purchased during the marriage. The superior court thus did not clearly err in determining that the home was marital property.

C. The Superior Court Did Not Clearly Err In Its Valuation Of The Juneau Home.

At trial Faris argued that the parties' Juneau property could be subdivided, and thus it had a higher value than the $450,000 submitted by Taylor. The court found this suggestion to be "purely speculative." It reasoned that "[s]ince Mr. Taylor has not subdivided the land, built the necessary driveway, or otherwise taken any concrete action to solidify this intention, the court cannot accept Ms. Faris's $505,000 valuation for the [Juneau] property." The court rejected Faris's valuation and adopted Taylor's.

Faris argues that the court erred in its valuation of the property because it failed to consider evidence of Taylor's intention to subdivide the lot. This evidence included an application for a driveway permit, a plat showing a second driveway, the confirmed legality of a subdivision, Faris's own testimony, and letters from Taylor indicating a desire to "split the land" and "build a small efficient home."

We have instructed trial courts to avoid property valuations based on speculative improvements to property. In Edelman v. Edelman , we held such a valuation to be clearly erroneous, in part because of the unknown expenses that might be required to complete a subdivision on which the valuation was based. The superior court heeded that precedent here: it declined to use a higher valuation for a hypothetically subdivided plot when neither the subdivision nor the necessary construction of a driveway had occurred. It did not err in adopting the lower valuation for the unsubdivided plot.

D. The Superior Court Did Not Err By Awarding Faris Half Her Pension.

Faris argues that the superior court erred by not awarding her 100% of the payments from her CSRS pension. She contends that the parties' 2014 divorce decree incorporated a settlement agreement that made such an award. She contends that the terms of the settlement are still effective.

But Faris unilaterally sought withdrawal from that settlement. And the superior court later vacated the property distribution order and findings that had been based on the settlement. The superior court did not revive the settlement when it determined that the date of separation was in 2014. Accordingly the superior court did not err by distributing Faris's pension payments between Taylor and herself.

E. The Superior Court Did Not Abuse Its Discretion When It Used A QDRO To Divide Future Pension Income.

The superior court divided the parties' pensions evenly, using a QDRO, so that both parties would have the same monthly income. When explaining how this income would be divided, the court referenced the parties' expert witnesses, who assigned conflicting valuations to each of the pensions. The court concluded "that the equities in this case necessitate the equalization of income between the parties."

Faris argues that the court's division is incorrect because the court treated the pension income separately from the estate. She contends that the court should have instead determined the present value of the pension plans and included this within the estate. We review allocation of property for abuse of discretion; "[w]e will not disturb the [superior] court's allocation unless it is clearly unjust."

We have stated that it is not an abuse of discretion for a superior court to use a QDRO when the evidence does not permit an accurate valuation of the pensions. Here the parties presented conflicting evidence on the value of their retirement benefits. It was within the superior court's discretion to divide the income with a QDRO because the true value of the pensions was unclear.

F. The Superior Court Did Not Perform An Adequate Recapture Analysis.

Parties who control a marital asset during separation may be required to compensate the other party if they dissipate or waste the asset or convert it to non-marital form. A superior court may effect this compensation by ordering "recapture" of such assets, i.e., crediting them against the responsible party's property distribution award.

Here the superior court recaptured the total reduced retirement pay Faris received between the date of her separation from Taylor and the marital estate's final division in May 2017. The court reasoned that recapture of these marital assets was warranted because "neither party shared either of the [retirement] payments with the other." Faris argues that the superior court erred because the recaptured payments were not wasted, dissipated, or converted to non-marital form, but rather spent on her legitimate living expenses.

We review an order of recapture for an abuse of discretion. We have stated that a superior court abuses its discretion when, absent specific evidentiary findings of dissipation, waste, or conversion to a non-marital form, it orders recapture of marital assets no longer existing at the time of trial. We have also instructed that "findings cannot be merely conclusory, but must be based on evidence."

Here the superior court did not make "any findings about what [the parties] actually did with [their] pension income[s]." Furthermore the court failed to consider whether the funds "still existed at the time of trial." And if they did not exist, the superior court cited no evidence that the funds had been converted "with the intent to deprive the marital estate." It was an abuse of discretion for the court to order a recapture of those funds absent such specific findings. We therefore remand so the superior court has an opportunity to complete a full recapture analysis.

IV. CONCLUSION

We VACATE the superior court's decision on the recapture of the retirement pay received between the date of separation and the final property division order and REMAND for clarifying findings on this issue. Based on its recapture decision, the court is authorized to modify the property division order to the extent necessary to effect an equitable division. We AFFIRM on all other issues raised in this appeal.

      A third property, a cabin in Juneau, was also determined to be marital property and was awarded to Taylor. It is not at issue on appeal.

      See Day v. Williams , 285 P.3d 256, 260 (Alaska 2012) (noting that a court may only issue an order of recapture if assets at issue were "wasted, dissipated, or converted to a non-marital form").

      On appeal Faris alleges that the superior court failed to award her $100,000 in attorney's fees resulting from "procedural delay[s] and time-wasting actions." Yet Faris raised this argument only in her reply brief. "[W]e deem waived any arguments raised for the first time in a reply brief." Barnett v. Barnett , 238 P.3d 594, 603 (Alaska 2010).

      "[W]hether 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." Richter v. Richter , 330 P.3d 934, 937 (Alaska 2014) (alteration in original) (quoting Stanhope v. Stanhope , 306 P.3d 1282, 1286 (Alaska 2013) ).

      See Schanck v. Schanck , 717 P.2d 1, 3 (Alaska 1986) ("We decline to specify, as a matter of law, that the effective date when ... earnings become severable from marital property is at separation or at filing for divorce. Each case must be judged on its facts to determine when the marriage has terminated as a joint enterprise."); see also Dundas v. Dundas , 362 P.3d 468, 472 (Alaska 2015) ("Determining 'the separation date is a fact-specific inquiry.' " (quoting Tybus v. Holland , 989 P.2d 1281, 1285 (Alaska 1999) )); Hanlon v. Hanlon , 871 P.2d 229, 231 (Alaska 1994) ("Determining the cutoff date for distinguishing marital from non-marital property is a matter for resolution by the trial court on a case-by-case basis; we have declined to treat the matter as an issue of law."). We review the date of separation determination for an abuse of discretion. See, e.g. , Dunmore v. Dunmore , 420 P.3d 1187, 1195 (Alaska 2018) ; Dundas , 362 P.3d at 473 ; Tybus , 989 P.2d at 1284-85 ; Hanlon , 871 P.2d at 231.

      Fletcher v. Fletcher , 433 P.3d 1148, 1152 (Alaska 2018) (alteration in original) (quoting Tybus , 989 P.2d at 1285 ).

      Id. at 1153 (quoting Dundas , 362 P.3d at 472 n.2 ).

      Id . (quoting Dundas , 362 P.3d at 472 n.2 ).

      Id .

      Beals v. Beals , 303 P.3d 453, 460 (Alaska 2013) (quoting Johns v. Johns , 945 P.2d 1222, 1225 (Alaska 1997) ). We review the superior court's determination of what property is available for distribution for clear error. Dunmore , 420 P.3d at 1190.

      We review the valuation of property for clear error. Wagner v. Wagner , 386 P.3d 1249, 1251 (Alaska 2017) (citing Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) ).

      3 P.3d 348, 352-53 (Alaska 2000).

      Whether a settlement agreement remains binding on the parties is a question of law, reviewed de novo. See Calais Co. v. Ivy , 303 P.3d 410, 414 (Alaska 2013) ("We interpret settlement agreements as contracts. The interpretation of contractual terms is a question of law, which we review de novo.").

      Partridge v. Partridge , 239 P.3d 680, 685 (Alaska 2010).

      See id . at 687 ; see also Nicholson v. Wolfe , 974 P.2d 417, 425-26 (Alaska 1999) ("Trial courts have discretion to distribute retirement benefits to a non-employee spouse through either a qualified domestic relations order (QDRO) or through a lump sum payout.").

      Ethelbah v. Walker , 225 P.3d 1082, 1090 (Alaska 2009).

      See id.

      The superior court reduced its calculation of Faris's pension income to account for mortgage payments she made for the Portland home as well as state and federal income taxes.

      Day v. Williams , 285 P.3d 256, 260 (Alaska 2012).

      See, e.g. , id. ; Ethelbah , 225 P.3d at 1090 ; Foster v. Foster , 883 P.2d 397, 399-400 (Alaska 1994).

      Day , 285 P.3d at 260 (quoting Ethelbah , 225 P.3d at 1091 ).

      Ethelbah , 225 P.3d at 1091.

      Partridge v. Partridge , 239 P.3d 680, 692 (Alaska 2010).

      Brandal v. Shangin , 36 P.3d 1188, 1194 (Alaska 2001).