text:
    Newton Patric LAMBERT, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-11699
    Court of Appeals of Alaska.
    November 16, 2018
    Judge ALLARD, writing for the Court and concurring separately.
   In 1982, Ann Benolken and her husband, James Benolken, were discovered brutally murdered in their Juneau apartment. Both victims had been sexually assaulted.

The physical evidence at the murder scene indicated that there were at least two perpetrators. The State charged Emmanuel Telles and nineteen-year-old Newton Patric Lambert as principals and accomplices in the murders. The two men were tried separately. At Lambert's trial, the jury convicted Lambert of Ann Benolken's murder but acquitted him of James Benolken's murder. Telles was acquitted of both murders at his later trial.

In 2010, almost thirty years after the Benolken murders, the Alaska legislature enacted a post-conviction DNA testing statutory scheme. These statutes created a procedural mechanism through which defendants who claimed to be factually innocent of the crimes for which they were convicted could seek DNA testing of material physical evidence that could support their claim of innocence. Lambert filed an application under the new statutes, seeking DNA testing of the only physical evidence remaining in his case-forensic samples of the blood and semen stains found on Mr. Benolken's clothing. Lambert argued that DNA testing of the blood and semen samples could lead to the identification of the true perpetrators of this double murder, thereby raising a reasonable probability that Lambert was wrongfully convicted of Mrs. Benolken's murder.

The State opposed the proposed DNA testing and the superior court ultimately denied Lambert's application, concluding that Lambert had failed to show that the proposed testing of blood and semen on Mr. Benolken's clothing could raise a reasonable probability that Lambert was not guilty of Mrs . Benolken's murder, given all of the State's evidence that directly linked Lambert to Mrs. Benolken's murder.

For the reasons explained here, we affirm this ruling.

Factual background and prior proceedings

On April 6, 1982, a Juneau building manager entered the apartment of James and Ann Benolken due to a bad smell emanating from the apartment. Inside the apartment, the manager found the Benolkens' bodies. Both the husband and the wife had been sexually assaulted and violently killed.

Mrs. Benolken's body was found naked and lying face up on a bloody mattress on the floor. The mattress was saturated with blood, and there was blood spray extending six to seven feet up the wall at the head of the mattress. At trial, the medical examiner testified that Mrs. Benolken had been stabbed approximately sixty times. A broken piece of a knife was found beneath Mrs. Benolken's body, and strands of hair were found between her legs. To the immediate left of Mrs. Benolken's body was a void in the blood spatter. The State's expert later testified that this void was consistent with a person kneeling next to the body during the murder. A paper bag with a liquor bottle was found within arm's reach of where that person would have been kneeling. A single latent fingerprint was found on the paper bag. The fingerprint was later identified as belonging to Lambert.

Mr. Benolken's body was lying next to the bloody mattress, with his body bent over and his face lying on the mattress. Mr. Benolken's body was still clothed, and there was a bloodstain on his shirt and a semen stain on his pants. The medical examination indicated that both Mr. and Mrs. Benolken had been sexually assaulted.

The police investigated multiple suspects, but their investigation ultimately focused on Lambert. In addition to Lambert's finger print on the paperbag, Lambert had also been seen by a Juneau police officer near the Benolkens' apartment on the morning after the murders occurred. Witnesses had also seen two dark-haired men with Mr. Benolken in the apartment building the night before the murders. (Lambert has dark hair.)

However, when Lambert was questioned by the police, Lambert denied having been near the building that morning. Lambert told the police that he had been drinking heavily the night before and had woken up in a cave under Gastineau Avenue. He claimed to have no idea how his fingerprint could have ended up on the paper bag found next to Mrs. Benolken's murdered body.

Shortly after his interview with the police, Lambert went to a friend, Gary Moses, and asked him to lie to the police on his behalf. Moses reported this conversation to the police, and Moses later testified to this conversation at trial. Moses's girlfriend, who was present during the conversation, corroborated Moses's account.

During the course of their investigation, the police also discovered that Lambert had gone to a local emergency room the day after the murder with a wound on his arm. At trial, the State introduced evidence that the wound could have either been caused by broken glass or by the broken knife found under Mrs. Benolken. (The Benolken apartment had a window with broken glass.) The State also introduced evidence that Lambert had bought a new knife a few days after the murder occurred.

The State introduced additional evidence from two jailhouse informants who testified that Lambert had confessed to them while he was in jail following his arrest on the murder charges. The first jailhouse informant, Robert Ewers, was housed with Lambert at Ketchikan Correctional Center. Ewers testified that Lambert confessed to stabbing Mrs. Benolken while his co-defendant, Emannuel Telles, killed Mr. Benolken. Ewers also testified that Lambert said that he had thrown the knife he used to kill Mrs. Benolken in the water.

The second jailhouse informant, Jeff Bowen, was housed with Lambert at Lemon Creek Correctional Center. Bowen testified that Lambert confessed to stabbing and raping Mrs. Benolken while Telles raped and killed Mr. Benolken. According to Bowen, Lambert said that he stabbed Mrs. Benolken to make her stop screaming while he raped her. Bowen also testified that Lambert told him that he threw the knife in the channel after the murders. (The Juneau police officer who saw Lambert near the Benolkens' apartment building on the morning of the murder testified that Lambert was in the general area where Lambert told Bower he threw the knife into the channel.)

Lastly, the State introduced the testimony of Michael Malone, an FBI expert on microscopic comparative hair analysis. Malone testified that, in his expert opinion, the strands of hair found between Mrs. Benolken's legs came from an Alaska Native and the hair visually "matched" sample hairs taken from Lambert, who is Alaska Native. According to Malone, the visual match meant that there was only a one-in-five thousand chance that the strands of hair did not belong to Lambert.

(We note that the reliability of this expert testimony is seriously in dispute. Since the advent of DNA testing, microscopic comparative hair analysis has come under increased scrutiny, and there is now significant doubt as to its scientific reliability. Agent Malone's expert testimony has been discredited in other cases, and there has been at least one case in which a defendant who was convicted based on Agent Malone's testimony has since been exonerated by DNA testing. According to the record, Lambert is litigating the reliability of Agent Malone's testimony separately and that issue is not currently before us in this appeal.)

Lambert testified in his own defense at trial. In his trial testimony, Lambert admitted that he lied to the police about his whereabouts on the night of the murder, and he admitted that he was at the Benolkens' apartment when the Benolkens were murdered. Lambert testified that he had ingested cocaine, marijuana, amphetamines, LSD, and alcohol that night, and that he had a very limited memory of what had occurred. Lambert recalled having a seizure, seeing "red flashes," waking up in the Benolkens' bathtub, and discovering their murdered bodies in the living room. Lambert denied any involvement in the murders, although he testified that "[a]t one point [he] thought [he] might have done it."

During closing arguments, the State argued it had proven, beyond a reasonable doubt, that Lambert had killed Mrs. Benolken and had aided and abetted another person-either Telles or someone else-in killing Mr. Benolken. Lambert's attorney argued that the State had failed to prove beyond a reasonable doubt that Lambert was anything other than an innocent bystander to a brutal double murder committed by any number of other people.

After deliberating for two days, the jury convicted Lambert of first-degree murder for the intentional killing of Mrs. Benolken. However, the jury acquitted Lambert of killing Mr. Benolken. Lambert was sentenced to 99 years to serve.

Lambert's co-defendant, Emmanuel Telles, was later tried for the murders of Mr. and Mrs. Benolken at a separate trial. The jury acquitted Telles of both murders. A few years after these acquittals, Telles died.

Lambert appealed his conviction for Mrs. Benolken's murder to this Court. We affirmed Lambert's conviction and his sentence in an unpublished memorandum decision.

The enactment of Alaska's post-conviction DNA testing statutory scheme

In 2010, almost thirty years after the Benolken murders, the Alaska legislature enacted AS 12.73, Alaska's post-conviction DNA testing statutory scheme. Under AS 12.73.010, a person convicted of a felony crime against a person under AS 11.41 may apply to the superior court for an order for DNA testing of physical evidence in their case. The application must be filed in the court that entered the judgment of conviction, and a copy must be sent to the prosecuting authority responsible for obtaining the conviction.

An application filed under AS 12.73.010 must specifically identify the evidence sought to be tested, and it must include facts from which the court can make the findings required under AS 12.73.020. The application must include, inter alia , an affidavit in which the defendant swears under oath that he or she is factually innocent of the crime for which they were convicted-i.e. , the person must swear under oath that they did not commit the crime for which they were convicted, nor did they commit any lesser included offense, solicit another person to commit the crime, or aid or abet another person in planning or committing the crime.

Alaska Statute 12.73.020(7) requires that the defendant "identify a theory of defense that would establish the [defendant's] innocence." Unlike its federal counterpart, Alaska's post-conviction DNA testing statute does not require this theory of defense to be consistent with the defense that was raised at trial.

Alaska Statute 12.73.020(9) also requires the defendant to show, by a preponderance of the evidence, that:

[t]he proposed DNA testing of the specific evidence may produce new material evidence that would
(A) support the theory of defense described in [ AS 12.73.020(7) ]; and
(B) raise a reasonable probability that the applicant did not commit the offense.

Alaska Statute 12.73.020(7) and AS 12.73.020(9) work in concert and essentially require the defendant to explain two things: (1) how the proposed DNA testing could produce evidence that would be materially relevant to the defendant's guilt or innocence; and (2) why the DNA results, if favorable to the claim of innocence, would raise "a reasonable probability" that the jury would find reasonable doubt in this case where previously it had found none.

Lambert's application

Prior to the enactment of AS 12.73, Lambert filed an application for post-conviction relief alleging "newly discovered evidence" regarding the unreliability of Agent Malone's comparative hair analysis and seeking DNA testing of the hairs used in that analysis, as well as DNA testing of any other physical evidence still remaining from the case. After the new statutory scheme went into effect, Lambert's request for DNA testing was converted into an application for post-conviction relief under AS 12.73. In support of his application, Lambert submitted an affidavit attesting that he was factually innocent of Mrs. Benolken's murder. Lambert also requested discovery on whether there was any physical evidence still remaining in his case that could be tested. In response, the State provided documentation establishing that the evidence no longer existed.

Lambert's attorney continued to investigate what had happened to the evidence that had been sent to outside agencies for testing. Although most of this evidence had also been destroyed, Lambert's attorney discovered that a private crime laboratory in California still had physical evidence from the murders. This evidence consisted of blood and semen samples taken from stains on Mr. Benolken's clothing. These samples had been sent to the California laboratory at the request of Telles's attorney who had apparently considered having them tested. Although this testing had not occurred, the laboratory had still preserved the samples and they were therefore available for DNA testing.

Lambert filed a theory of defense, requesting DNA testing of the blood and semen samples. Lambert argued that the blood and semen samples should be tested to determine if the DNA belonged to James Benolken, Ann Benolken, Newton Lambert, or Emmanuel Telles. Lambert asserted that if the DNA results excluded Lambert, Telles, and the victims, then the results would support his theory of innocence-i.e. , the results would be consistent with his claim that two other persons (who were not Lambert or Telles) had killed the Benolkens. Conversely, if the blood and semen were determined to belong to the victims, Lambert, and/or Telles, then these results would be consistent with the State's theory of prosecution and could potentially confirm Lambert and/or Telles's guilt.

Lambert also asserted that testing the blood and semen could yield two different DNA profiles. Lambert posited that the semen could have come from the first man who raped and killed Mr. Benolken, while the blood could have come from the second man who killed Mrs. Benolken-the theory being that the second man injured himself while stabbing Mrs. Benolken and then transferred his own blood onto Mr. Benolken's clothing when he assisted the first man in subduing Mr. Benolken.

Lambert also argued that if the DNA results excluded Lambert, Telles, and the victims as possible sources of the blood and semen, the results could be run through the national DNA database (CODIS ), which could lead to the identification and future prosecution of the true perpetrators of this double homicide.

The State opposed any DNA testing of the blood and semen samples. The State's initial concern was that the evidence had been contaminated. The court held an evidentiary hearing on these concerns and ultimately concluded that it would not deny the proposed testing on these grounds alone.

The State also argued that Lambert had failed to meet the statutory requirements under AS 12.73.020(7). The State argued, in particular, that Lambert had failed to show how the proposed DNA testing would actually establish his innocence for purposes of AS 12.73.020(7). The State also argued that Lambert was required to meet the three-part test articulated by this Court in Osborne v. State , and to show that the DNA testing would be conclusive on the issue of perpetrator identity.

In addition, the State argued that Lambert had failed to show how the identification of two previously unidentified perpetrators based on evidence from Mr. Benolken's clothing would materially undermine the State's evidence linking Lambert to Mrs. Benolken's murder given the strength of that evidence.

The superior court agreed with the State that Lambert had failed to make an adequate showing under AS 12.73.020(7). Applying Osborne , the court found that Lambert failed to show that the DNA testing could conclusively establish his innocence. The court also separately ruled that Lambert had failed to satisfy the statutory requirements under AS 12.73.020(9). The court concluded that, given the weight of the evidence against Lambert, the DNA results, even if favorable, would not raise a reasonable probability that Lambert was not guilty of killing Mrs. Benolken. The court therefore denied Lambert's application on these two grounds.

This appeal now follows.

The superior court erred in applying Osborne to Lambert's application

On appeal, Lambert argues that the superior court misconstrued AS 12.73.020(7) and the court held Lambert to a higher standard than the statutory provision requires. Lambert also argues that the superior court erred when it structured its analysis around Osborne v. State .

We agree with Lambert that the superior court's analysis of AS 12.73.020(7) is flawed. We also agree that the superior court's reliance on the three-pronged test in Osborne was error.

In the first part of its order, the superior court interpreted AS 12.73.020(7) as requiring Lambert to prove that the proposed DNA testing would conclusively establish his innocence. But Lambert's burden in relation to AS 12.73.020(7) was far more modest. Alaska Statute 12.73.020(7) requires the defendant to "identif[y] a theory of defense that will establish the defendant's innocence," but it does not require the defendant to prove that this theory is true or that the DNA testing will prove the theory true.

As the State acknowledges on appeal, the defendant bears only a burden of pleading with regard to AS 12.73.020(7) -that is, the defendant is only required to identify his or her theory of innocence. Alaska Statute 12.73.020(9)(A) also requires the defendant to show how the proposed DNA testing could produce new material evidence that would "support"-i.e. , be consistent with-that theory of innocence. But neither statutory provision requires the defendant to prove that the DNA testing, if favorable, will "establish" his or her innocence or that the DNA testing will "conclusively" exclude the defendant as a possible perpetrator.

Instead of recognizing the limited showing required under AS 12.73.020(7) and AS 12.73.020(9)(A), the superior court appears to have conflated the statutory requirements with the three-pronged constitutionally based test we articulated in Osborne . As Lambert correctly points out, Osborne was decided prior to the enactment of AS 12.73, and our decision in that case has been largely superseded by that subsequent legislation.

The question we faced in Osborne was whether, in the absence of any statutory right to post-conviction DNA testing, there was a free-standing constitutional right to post-conviction DNA testing in cases involving claims of actual innocence. We concluded that a defendant might have such a due process right if the defendant could meet the following three-part test: (1) his conviction rested primarily on eyewitness identification evidence; (2) there was a demonstrable doubt concerning the identification of the defendant as the perpetrator; and (3) scientific testing of the available evidence would likely be conclusive on this issue.

When the Alaska legislature enacted AS 12.73, it did not adopt this three-part test. Instead, the legislature modeled Alaska's post-conviction statutory scheme after the federal Innocence Protection Act. Osborne is therefore of marginal relevance to applications for post-conviction DNA testing and likely to simply muddy the analysis of claims brought under AS 12.73, as it did here.

The superior court did not err when it concluded that the DNA testing, even if favorable, would not raise a reasonable probability that the outcome of Lambert's trial would be different

To fulfill the statutory requirement under AS 12.73.020(9)(B), a defendant must show that the proposed DNA testing may produce new material evidence that would "raise a reasonable probability that the applicant did not commit the offense." Importantly, the defendant need not show any likelihood that the DNA results will actually be favorable to his claim of innocence. Instead, he need only show that, assuming the results are as favorable as the defendant has shown they could be , these favorable results would raise "a reasonable probability" that the outcome of the defendant's trial would be different.

The reasonable probability analysis requires the trial court to look at the trial record as a whole and to assess the potential evidentiary significance of these favorable DNA results in light of all the known evidence in the case. This fact-intensive inquiry is probably best made by the trial judge who presided over the original trial. In Lambert's case, however, the original trial judge is no longer available.

The term "reasonable probability" has a specialized legal meaning. Reasonable probability means "a probability sufficient to undermine confidence in the defendant's conviction." A "reasonable probability" is "a reasonable chance and not merely an abstract possibility." Notably, the reasonable probability standard does not require a showing of more likely than not. Thus, a defendant need not show that the favorable DNA test results would likely result in an acquittal. Instead, he is only required to show a "reasonable chance, not an abstract possibility" that the DNA test results, if favorable, would create a reasonable doubt where none had previously been found to exist.

This is the same standard that is used to evaluate the prejudice prong of an ineffective assistance of counsel claim in federal law under Strickland v. Washington . However, it is a higher standard than is used to evaluate the prejudice prong of an ineffective assistance claim in Alaska law under Risher v. State . Under Risher , a defendant is required to show only that there is "a reasonable possibility" that the outcome of his trial would have been different but for his attorney's deficient performance. This is a "less demanding" standard than the reasonable probability standard required here.

The relative strength of the State's evidence and the importance of the evidence to be tested has clear import in analyzing whether the reasonable probability standard has been met in a given case. Thus, in cases where the evidence to be tested could be dispositive on the question of the defendant's guilt or innocence, the strength of the State's evidence will be largely irrelevant. However, in cases where the evidence to be tested is only tangentially relevant to the defendant's guilt or innocence, the relative strength or weaknesses in the State's evidence will become more determinative of whether the standard has been met.

One of the problems that Lambert faces in the current case is that the evidence he seeks to test is blood and semen found on Mr. Benolken's clothing, but Lambert was not convicted of Mr. Benolken's murder. The jury convicted Lambert only of Mrs. Benolken's murder, and the jury rejected the State's theory that Lambert had assisted another person or persons in killing Mr. Benolken. Thus, demonstrating that Lambert's DNA was not on Mr. Benolken's clothing would not directly undermine confidence in the jury's verdict.

Demonstrating that the DNA belonged to two unknown men (i.e. , not Lambert, Telles, or either of the victims) could potentially undermine confidence in the jury's verdict, but the significance of such a finding depends on the weight of the evidence directly linking Lambert to Mrs. Benolken's murder. Although the State's primary theory of prosecution was that only two men (Lambert and Telles) were involved in the murders, the forensic evidence suggested that more than two people may have been involved. This was a particularly brutal and violent double homicide that involved the murder and rape of two victims. In his arguments to the jury, the prosecutor emphasized that the person who killed Mr. Benolken-whether Telles or someone else-could not have done it alone. Lambert's defense attorney similarly argued that there could have been any number of people involved in the murders.

The question therefore becomes, if the DNA testing showed that there were two additional perpetrators who were involved in killing Mr. Benolken (neither of whom was Lambert and Telles), would these favorable test results raise a reasonable probability that Lambert was not involved in killing Mrs. Benolken? As the superior court noted, the "biggest problem" that Lambert faced in making this showing was that Lambert himself had admitted to being present at the Benolken apartment when the murders occurred. Lambert also admitted that "at one point [he] thought [he] might have done it." As the superior court also emphasized, the State's evidence linking Lambert to Mrs. Benolken's murder was strong. This evidence included not only Lambert's own admissions at trial, but also Lambert's out-of-court confessions to two different inmates in two different correctional facilities. The State's evidence also included (1) Lambert's fingerprint on a paper bag next to Mrs. Benolken's body and within arm's reach of where the person stabbing Mrs. Benolken would have been situated given the blood splatter; (2) the broken knife found under Mrs. Benolken's body and Lambert's purchase of a new knife a few days after the murders; (3) Lambert's visit to the emergency room to treat a wound that could have been caused by broken glass or the broken knife; and (4) Lambert's various lies to the police and his efforts to get his friends to lie to the police on his behalf.

On appeal, Lambert argues that the superior court erred in assuming that this evidence could not be controverted through other means. Lambert argues, in particular, that the superior court erred when it assumed that Lambert's trial testimony was true. According to Lambert, the superior court should have questioned the veracity of Lambert's trial testimony because his admissions bore all of the hallmarks of a false confession, in that they were admissions by a young defendant who was confronted with seemingly incontrovertible, but perhaps false, physical evidence-i.e. , Agent Malone's hair comparison analysis.

But Lambert never argued that his trial testimony was false in his application for post-conviction DNA testing. Nor did he ever claim that he was not present in the apartment at the time the murders occurred. He also did not refute any of the other evidence against him (other than asserting Agent Malone's general lack of reliability as an expert). Given all this, we conclude that the superior court did not err when it determined that Lambert failed to show that the proposed DNA testing, if favorable, would raise a reasonable probability that the outcome of trial would be different-i.e. , a reasonable chance, not an abstract possibility, that reasonable doubt regarding Lambert's guilt would be found where none had previously existed. Accordingly, we uphold the superior court's denial of Lambert's application for post-conviction DNA testing.

Conclusion

The judgment of the superior court is AFFIRMED.

Judge ALLARD, concurring separately.

I write separately to point out that there is nothing preventing the State from DNA testing the evidence in this case for its own reasons. As the United States Supreme Court noted "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices." Here, the jury's verdicts from the two defendants' trials have left the public with many unanswered questions about these brutal murders. How many people were involved in these murders? Was Telles involved? Was Lambert involved in killing Mr. Benolken as well as Mrs. Benolken? Testing the blood and semen from Mr. Benolken's clothing has the potential to provide answers to at least some of these questions. Moreover, if the results are matched to DNA profiles in the national FBI database CODIS, the testing could potentially lead to the identification and future prosecution of at least one (if not two) previously unknown perpetrator(s) from this thirty-year-old double homicide.

It is also worth noting that DNA testing is relatively inexpensive, generally costing no more than a few thousand dollars. In contrast, the costs of fully litigating the requirements under AS 12.73 can be quite high, consuming a significant amount of attorney, judge, and court time-most of which comes from public funds. Partially for this reason, the Alaska legislature has recognized the benefits of proceeding with the initial testing outside the formal requirements of AS 12.73 in certain circumstances. Alaska Statute 12.73.060 therefore provides:

The provisions of this chapter do not prohibit an applicant and the prosecuting authority from agreeing to conduct post-conviction DNA testing without the person's filing an application under this chapter. The parties may also stipulate to the payment of costs for the DNA testing and other costs associated with the terms of the agreement.

One advantage of this approach is that the parties are not forced to speculate as to the universe of potentially exculpatory results. Instead, they can streamline the litigation and focus on the actual known results. Moreover, in cases where the specific evidence to be tested is particularly material to the question of guilt or innocence, there will likely be times when the DNA testing simply confirms the defendant's guilt, thereby obviating the need for costly litigation altogether.

      See AS 12.73.010.090.

      Id.

      As part of his request for DNA testing, Lambert provided the police reports from the case. The police reports indicate that the police investigated a number of other suspects including two men who allegedly confessed to murdering and raping the Benolkens, a man who allegedly confessed to "two homicides last night" the day after the bodies were discovered, various local drug dealers, and a Vietnam veteran who was implicated in the murders by an FBI informant.

      See Spencer S. Hsu, FBI admits flaws in hair analysis over decades , The Washington Post , (April 18, 2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18 ("The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000."); see, e.g. , Pitts v. State , 2016 Ark. 345, 501 S.W.3d 803, 804-06 (2016) (permitting defendant to seek relief via a writ of error coram nobis after determining that the tainted testimony of Malone was material to the defendant's conviction); Horstman v. State , 530 So.2d 368, 370 (Fla. App. Dist. 1988) (holding that the court does "not share Mr. Malone's conviction in the infallibility of hair comparison evidence. Thus, we cannot uphold a conviction dependent on such evidence.").

      See, e.g. , Pitts , 501 S.W.3d at 804-06 ; Horstman , 530 So.2d at 370 ; see also Geoff Earle, Discredited ex-FBI agent hired back as a private contractor years later , New York Post, (July 21, 2014), https://nypost.com/2014/07/21/discredited-ex-fbi-agent-hired-back-as-a-private-contractor-years-later/ ("Malone's criminal forensics work has come under heavy scrutiny by investigators-including his involvement in a case that sent former DC resident Donald Gates to prison for 28 years for a murder he didn't commit.").

      See Lambert v. State , 1985 WL 1078006, at *7 (Alaska App. Dec. 26, 1985) (unpublished).

      AS 12.73.010(a).

      Id.

      AS 12.73.010(b).

      AS 12.73.020(1) -(11).

      AS 12.73.010(b)(1)(A)-(B).

      AS 12.73.020(7).

      See Minutes of House Finance Comm., Senate Bill 110, at 2:16-2:21 (April 12, 2010) (amending the proposed bill to eliminate this consistency requirement on the ground that a factually innocent defendant should not be precluded as a matter of law from seeking DNA testing that could establish his innocence based on the strategic decisions that his defense attorney may have made at trial-decisions over which the defendant did not exercise direct control).

      AS 12.73.020(9).

      CODIS is the generic term used to describe the FBI's program of support for criminal justice DNA databases as well as the software used to run these databases. See https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited Nov. 7, 2018).

      See AS 12.73.020(5) (requiring court to find that "the evidence to be tested has been subject to a chain of custody and retained under conditions that ensure that the evidence has not been substituted, contaminated, or altered in any manner material to the proposed DNA testing").

      See AS 12.73.020(7).

      Osborne v. State , 110 P.3d 986 (Alaska App. 2005).

      See id. at 995.

      Osborne v. State , 110 P.3d 986, 995 (Alaska App. 2005).

      AS 12.73.020(7) (emphasis added).

      Osborne , 110 P.3d at 995.

      Id.

      Id. ; see Osborne v. State , 163 P.3d 973, 982 (Alaska App. 2007) (holding Osborne was unable to meet this three-part test).

      Compare 18 U.S.C. § 3600 (2004)et seq. with AS 12.73.010 -090.

      See State v. Armour , 446 N.J.Super. 295, 141 A.3d 381, 391 (N.J. App. 2016) ("Given the difficulty of anticipating the outcome of a DNA (or fingerprint) test, 'the trial court should postulate whatever realistically possible test results would be most favorable to [the] defendant' "); State v. Peterson , 364 N.J.Super. 387, 836 A.2d 821, 827 (N.J. App. 2003) (emphasizing that a court may not deny a motion for DNA testing because the court finds it unlikely that DNA testing would produce favorable results; instead the court has to consider the evidential significance of whatever "favorable" DNA test results could be obtained).

      See State v. Marra , 295 Conn. 74, 988 A.2d 865, 874 (2010) (reasonable probability analysis requires court to take into account totality of evidence adduced at original trial in order to determine whether absence of exculpatory DNA evidence undermines confidence in verdict).

      See United States v. Jordan , 594 F.3d 1265, 1269 (10th Cir. 2010) (noting that trial judge considering a motion for post-conviction DNA testing "is most often the judge who presided over the defendant's trial," and that this judge is "in a unique position to assess the evidence against the defendant and to evaluate whether new DNA testing may produce evidence which would raise a reasonable probability that [the defendant] did not commit the offense").

      See AS 01.10.040 (declaring that words and phrases "that have acquired a peculiar and appropriate meaning, whether by legislative definition or [judicial construction] shall be construed according to the peculiar and appropriate meaning").

      Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also Hood v. United States , 28 A.3d 553, 564 (D.C. App. 2011) (applying Strickland "reasonable probability" standard to claim brought under federal Innocence Protection Act); Richardson v. Superior Court , 43 Cal.4th 1040, 77 Cal.Rptr.3d 226, 183 P.3d 1199, 1205 (2008) (applying Strickland reasonable probability standard when construing comparable post-conviction DNA testing statute); State v. Dupigney , 295 Conn. 50, 988 A.2d 851, 859 (2010) (same); In re Towne , 195 Vt. 42, 86 A.3d 429, 432 (2013) (same).

      Richardson , 77 Cal.Rptr.3d 226, 183 P.3d at 1205.

      See Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ; Richardson , 77 Cal.Rptr.3d 226, 183 P.3d at 1205 (emphasizing that that a "reasonable probability" for purposes of obtaining post-conviction DNA testing "does not mean more likely than not") (citations omitted); State v. Cote , 129 Conn.App. 842, 21 A.3d 589, 593 (2011) ("The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."). See generally Jed Handelsman Shugerman, Unreasonable Probability of Error , 111 Yale L. J. 435, 440 (2001) (explaining that courts have misinterpreted the "reasonable probability standard" to mean "more likely than not" when in fact the burden is less than that).

      Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; Richardson , 77 Cal.Rptr.3d 226, 183 P.3d at 1205 ; In re Towne , 86 A.3d at 432 ("A petitioner must demonstrate that the evidence 'creates a reasonable doubt that did not otherwise exist.' ") (internal citations omitted).

      Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

      Risher v. State , 523 P.2d 421 (Alaska 1974).

      Id. at 425.

      State v. Jones , 759 P.2d 558, 572 (Alaska App. 1988) (comparing the "reasonable possibility" standard to the "harmless beyond a reasonable doubt" standard used for constitutional errors under Chapman , with the critical distinction being that the defendant (not the State) bears the burden of showing the prejudice under this standard).

      See In re Towne , 86 A.3d at 435-36 ; see also Strickland , 466 U.S. at 696, 104 S.Ct. 2052 ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support").

      Dist. Attorney's Office for Third Dist. v. Osborne , 557 U.S. 52, 55, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).


source: Caselaw Access Project

author: Judge ALLARD.

license: Public Domain

text:
    R.C., a minor, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12323
    Court of Appeals of Alaska.
    November 23, 2018
    Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

When R.C. was fifteen years old, he and another juvenile started a fire on the playground of an elementary school in Anchorage, causing extensive damage. R.C. returned to the playground later that same day and started another fire by himself.

R.C. admitted his conduct and was adjudicated a delinquent minor. Following a restitution hearing, the court ordered R.C. to pay $159,161.17 in restitution to the school district and its insurance company.

On appeal, R.C. argues that the trial court erred in failing to consider his ability to pay when it ordered this restitution amount. R.C.'s case requires us to resolve a question of statutory interpretation that we discussed (but did not resolve) in W.S. v. State - whether AS 12.55.045(g), the statutory provision in Title 12 that prohibits trial courts from considering a criminal defendant's ability to pay when determining the amount of restitution in a criminal case, applies equally to restitution determinations in juvenile court.

For the reasons explained here, we conclude that AS 12.55.045(g) 's prohibition does not apply to juvenile delinquency cases. The trial court was therefore authorized to consider R.C.'s ability to pay when setting the amount of restitution that R.C. would personally be obligated to pay. Because the record does not establish that the trial court understood it could take R.C.'s limited ability to pay into account when determining the amount of restitution that R.C. would owe, we vacate the current restitution judgment, and we remand this case to the trial court for further proceedings consistent with this decision.

Background facts and prior proceedings

Early on the morning of July 26, 2014, fifteen-year-old R.C. and his friend, L.G. started a fire on the playground of Willowcrest Elementary School in Anchorage. Later that afternoon, R.C. returned and started a second fire on the playground by himself. Both R.C. and L.G. admitted the charges of attempted third-degree criminal mischief and second-degree criminally negligent burning, and they were adjudicated delinquent minors.

During the restitution proceedings, the State argued that each juvenile (and their respective parents) should be jointly and severally liable for the full amount of damages caused by their actions. The State therefore asked the court to find L.G. and his parents jointly and severally liable for $108,325.92 (the amount of damage caused by the first fire), and to find R.C. and his parents jointly and severally liable for $159,161.17 (the amount of damage caused by both fires).

R.C.'s attorney objected to R.C. being personally liable for the full amount of restitution. The attorney argued, in particular, that R.C. did "not have any savings or the ability to earn any money," and he asserted that restitution should be set at an amount that R.C. could "realistically" pay during his juvenile probationary period. In support of his attorney's argument, R.C. testified at the restitution hearing that he had never held a job before and he was not sure how much money was in his bank account. (It was later determined that the bank account contained around $100.) R.C. indicated that he wanted to pay restitution, and he thought he might be able to get a job at Subway. R.C. also indicated that eventually he hoped to work in construction, doing drywall.

Magistrate Judge Sidney Billingslea presided as a master over the restitution hearing. At the conclusion of the hearing, she issued a report and recommendation on restitution for R.C. This report detailed R.C.'s limited assets in a section entitled "Minor's ability to pay." The report also recommended that the superior court order the Department of Law to set up a payment schedule that addressed R.C.'s ability to pay. But the report otherwise adopted the State's proposed restitution orders, and made no adjustment to the amount of restitution that R.C. would personally owe.

The superior court adopted the magistrate judge's recommendation and ordered the full restitution requested by the State.

Thus, under the current restitution order, R.C. is jointly and severally liable with his parents for $159,161.17 in restitution. He also shares joint and several liability with L.G. and L.G.'s parents for $108,325.92 of that amount. Although R.C.'s liability is joint with these other parties, R.C. will remain personally liable for whatever remains to be paid until the full amount is paid. This personal liability will continue into R.C.'s adult life, and when R.C. reaches adulthood the restitution judgment can be enforced through the civil process.

R.C. now appeals, arguing that the trial court erred when it failed to consider his limited ability to pay when setting the amount of restitution R.C. would personally owe. We note that R.C.'s parents filed a separate appeal challenging their restitution judgment. But this appeal was dismissed after R.C.'s parents negotiated a private settlement with the school district for an undisclosed restitution amount. It is unknown whether L.G. or L.G.'s parents have negotiated similar settlements. However, for purposes of our analysis here, R.C.'s liability for the full $159,161.17 remains unchanged.

The State's waiver arguments

Before we reach the merits of R.C.'s claim on appeal, we must first address the State's argument that R.C. waived this claim by failing to adequately argue it in the restitution proceedings.

The purpose of the rule requiring parties to preserve an argument in the trial court is to ensure that the trial court has the opportunity to respond to the argument, and to ensure that there is a sufficient legal ruling and factual record to allow meaningful review by the appellate court.

Here, R.C. argued that he did not have the ability to pay the full restitution amount requested by the State, and he requested that restitution be set in an amount that he could realistically be expected to pay. This same argument was also presented, in more detail, in his co-defendant L.G.'s brief. L.G.'s attorney also raised many of the same legal arguments raised here. Although R.C. did not explicitly join L.G.'s "ability to pay" argument, R.C.'s parents did. Moreover, the magistrate judge issued nearly identical restitution reports for R.C. and L.G., documenting their assets in sections entitled "Minor's ability to pay." Given all this, we conclude that the trial court had adequate notice of the arguments that R.C. now raises in this appeal, and there is a sufficient record for us to meaningfully review this question of law.

The State also argues that we should reject R.C.'s claim under the doctrine of invited error. We find no merit to this argument. The State's invited error argument is based on one sentence in R.C.'s opposition to the State's restitution memorandum, in which R.C. stated that "suitable restitution" for purposes of the juvenile delinquency statutes "is essentially the restitution imposed in adult criminal cases." As we have previously emphasized, the invited error doctrine only comes into play "when the trial court takes erroneous action at the request of the party claiming error on appeal." From our review of the restitution record, it is apparent that the court did not interpret this sentence in R.C.'s pleading as a concession by R.C. that his ability to pay could not be considered in determining the amount of restitution. The invited error doctrine is therefore inapplicable.

Lastly, the State argues that R.C.'s claim is moot because (according to the State) the court did properly consider R.C.'s ability to pay in setting the restitution amount. The State points out that the magistrate judge was clearly aware of R.C.'s limited ability to pay because she documented R.C.'s limited earning potential in her report, and because she recommended that payment schedules be set up for each party in accordance with their individual ability to pay.

But the question before us in this appeal is whether the trial court had the authority to take into account R.C.'s limited financial resources when setting the amount of restitution that R.C. would personally owe, not just how that limited ability to pay should impact his payment schedule. We previously addressed this question in W.S. v. State , a decision from 2008. However, in that case, we concluded that we did not need to resolve this question of statutory interpretation because the restitution at issue in W.S. - $3,185 - was well within the minor's ability to pay.

The same cannot be said of the restitution amount in R.C.'s case. Here, the restitution amount is $159.161.17, far above what R.C. could ever realistically be expected to pay in the discernible future given the evidence R.C. submitted regarding his financial status and limited future earning potential. Accordingly, we do not find the question of whether the trial court has any authority to reduce this amount based on R.C.'s demonstrated inability to pay a moot question.

Why we conclude that the statutory prohibition against considering a criminal defendant's ability to pay does not apply to restitution judgments in juvenile delinquency cases

When we interpret a statute, our task is "to ascertain the legislature's intent and then to construe the statute so as to implement that intent." To ascertain that intent, we are required to look at the plain meaning of the statute's language, its legislative history, and its purpose. Moreover, where there is an ambiguity in the definition of a word or phrase, "Alaska courts apply a sliding scale approach to statutory interpretation, which considers the legislative history of a statute and whether that history reveals a legislative intent and meaning contrary to the plain meaning of the statute."

Chapter AS 12.55 governs sentencing in criminal proceedings in Alaska. Chapter AS 47.12 governs juvenile delinquency proceedings. Alaska Statute 12.55.045(g) declares, "The court may not, in ordering the amount of restitution, consider the defendant's ability to pay." This prohibition was enacted in 2004, and it has since been upheld as constitutional by this Court. Prior to the enactment of this provision, Chapter 12.55 permitted courts to consider a defendant's ability to pay when setting the amount of restitution in certain situations.

There is no provision equivalent to AS 12.55.045(g) in AS 47.12. Instead, AS 47.12.120(b)(4) provides that a court shall order a minor and the minor's parents to make "suitable restitution" following the adjudication of a minor as delinquent. The term "suitable restitution" is not defined in the statute. However, there is some statutory guidance regarding how "suitable restitution" should be determined in this context.

Under AS 47.12.120(b)(4)(A), "the court may require the minor to use the services of a community dispute resolution center that has been recognized by the commissioner under AS 47.12.450(b) to resolve any dispute between the minor and the victim of the minor's offense as to the amount of or manner of payment of the restitution." (Emphasis added). Similarly, under AS 47.12.120(b)(4)(C), the court has the authority to obtain financial information from the minor and the minor's parents "for the purpose of establishing the amount of restitution or enforcing an order of restitution." (Emphasis added).

Thus, the plain language of AS 47.12 suggests that, unlike in criminal cases, the legislature expects courts to consider a minor's ability to pay when determining the amount of restitution in a juvenile case.

This interpretation is supported by the legislative history that accompanied the various legislative changes to AS 47.12.120(b)(4) and AS 12.55.045(g) over the last three decades. Prior to 1988, Alaska law required trial courts to affirmatively inquire into a defendant's ability to pay when setting restitution in a criminal case. The public policy behind this rule was addressed in Karr v. State . In Karr , the Alaska Supreme Court held that a defendant's ability to pay restitution should be taken into account at the initial sentencing hearing, not just at a later requested hearing or probation revocation where the defendant asserted their inability to meet the restitution obligation. The Alaska Supreme Court explained its reasoning as follows:

Restitution should not only compensate the victim for the harm inflicted by the offender, but should further the rehabilitation of the offender. If restitution is ordered in an amount that is clearly impossible for the offender to pay, the offender's rehabilitation will be inhibited and not furthered. If the offender is haled into court for nonpayment of restitution under AS 12.55.051(a), or if the offender petitions the court under AS 12.55.051(c) to avoid this sanction, his reintegration into society will be disrupted. Also, an offender might simply give up and make no payments at all if the restitution ordered is clearly impossible to pay.

Thus, restitution orders were viewed as serving the dual purposes of compensating the victim and furthering the rehabilitation of the offender. These two goals were traditionally viewed as mutually reinforcing. Paying restitution was seen as helpful to the victim and to the rehabilitative process, while setting restitution above what could ever be paid was seen as detrimental to the rehabilitative process without providing any additional advantage to the victim, who cannot recover restitution that a defendant cannot pay. As the California Court of Appeal noted in People v. Kay : "to subject a defendant to a judgment which he cannot pay and has no reasonable prospect of paying ... is of little use to the victim of the crime, and is apt to be either frustrating to a repentant probationer or perversely satisfying to a rebellious one."

This same reasoning is evident in a 1994 decision by this Court, J.C.W. v. State . In J.C.W. , we held that trial courts were required to consider a minor's ability to pay before determining the amount of "suitable restitution" in a juvenile delinquency case. We based this decision, in large part, on the fact that, at that time, the criminal code still required sentencing courts to inquire into a defendant's ability to pay when setting restitution. We also noted that other states appeared to require inquiry into earning capacity in delinquency cases and to prohibit restitution orders exceeding a minor's ability to pay.

By the time J.C.W. was issued, the Alaska legislature had amended Chapter 12.55 to partially restrict a trial court's consideration of an adult defendant's ability to pay when setting the amount of restitution. We noted this legislative change in J.C.W. , but we also made clear that we expressed no view "on whether this restriction would affect juvenile delinquency proceedings." In the years since J.C.W. , the legislature continued to amend AS 12.55 to further restrict a trial court's consideration of a criminal defendant's ability to pay when setting restitution amounts in criminal cases. But, for the most part, the legislature did not make the parallel changes to the statutes that govern restitution judgments in juvenile delinquency cases.

The substantive changes to the statutory provisions that govern restitution in juvenile cases occurred in 1996, 1998, 2001, and 2002. In 1996, the Alaska legislature enacted AS 47.12.120(b)(4), which was nearly identical to former AS 47.10.080(b)(4). The legislature specifically retained the term "suitable restitution" for juvenile delinquency cases - a term that does not appear in the criminal code. In 1998, the legislature added language permitting a court to require a minor to use the services of a community dispute resolution center to resolve any dispute between the minor and the victim "as to the amount of or manner of payment of the restitution." In 2001 and 2002 the legislature amended both the criminal code and the juvenile code to address how restitution judgments become executable as civil judgments once the offender has finished his or her probation.

In 2002, the legislature also amended AS 47.12.120(b)(4) to add subsection (C). Subsection (C) provides, in relevant part:

[A]t the request of the department, the Department of Law, the victims' advocate, or on its own motion, the court shall, at any time, order the minor and the minor's parent, if applicable, to submit financial information on a form approved by the Alaska Court System to the court, the department, and the Department of Law for the purpose of establishing the amount of restitution or enforcing an order of restitution under AS 47.12.170. (Emphasis added).

The legislative history that accompanied the enactment of this provision makes clear that the legislature intended to streamline the restitution process in juvenile cases and to require full financial disclosures from the minor and the minor's parents only in those cases where there were legitimate concerns that the restitution amount was beyond what either could pay.

Subsection (C) was an addition to House Bill 297, a 2002 legislative bill that primarily dealt with statutory aggravating factors in criminal cases. This amendment to the juvenile code was included as one of several "non-controversial" amendments to the restitution statutes in Title 12 and Title 47. A staff member to Rep. Kevin Meyer (the sponsor of the bill) explained the purpose of AS 47.12.120(b)(4)(C) as follows:

Current law requires juveniles and parents to submit full financial statements when restitution is being decided. This amendment will require full financial statements only in cases where one party requests them, that being the Department of Law, the court, or the defendant. Full financial statements, in most cases, are usually unnecessary if the amount of the restitution is comparable to the permanent fund dividend. If damage is in the tens of thousands, one of those parties would likely request full financial disclosure.

Thus, as of 2002, it appears that the legislature expected courts to continue to consider a minor's ability to pay when setting restitution amounts that would likely exceed the minor's ability to pay, despite the additional restrictions that the legislature had placed on considerations of ability to pay in adult criminal cases.

The same legislative intent can also be seen in the 2004 legislative history that accompanied the enactment of AS 12.55.045(g), the statutory provision that now expressly prohibits trial courts from considering a defendant's ability to pay when setting the amount of restitution in a criminal case. As part of the same legislative bill (House Bill 357), the legislature amended AS 47.12, but the legislature did not make any amendments to AS 47.12 that would have paralleled the statutory prohibition contained in AS 12.55.045(g).

Instead, a review of the 2004 legislative history indicates that the legislature expected that juvenile courts would continue to consider a minor's ability to pay when setting restitution amounts in juvenile cases. During the debate on House Bill 357, the members of the House Judiciary Committee considered amending AS 47.12.120(b)(4) to explicitly authorize courts to take into consideration a delinquent minor's ability to pay past the age of nineteen (the age at which the juvenile court loses jurisdiction over a minor). This amendment to House Bill 357 was ultimately rejected because the legislators were reassured that courts "already had the authority to take a minor's longterm ability to pay into account." As we previously observed in W.S. v. State , this legislative history strongly suggests that the 2004 legislature intended to retain the authority of courts to consider a minor's ability to pay in establishing the amount of restitution, while simultaneously prohibiting consideration of this factor in setting the restitution amount for adult offenders.

Despite this legislative history, the State takes the position that the Alaska legislature intended courts to treat adult offenders and juvenile offenders the same, and that the legislature intended the same prohibition against considering ability to pay to apply equally to both. In support of this claim, the State points to the Alaska Constitution, which grants victims the right to receive "restitution from the accused." The State argues that if the drafters of this constitutional provision had intended a victim's right to restitution to be limited by an offender's ability to pay, the drafters would have included that limitation in the text of the provision.

We are unpersuaded by this argument. A victim's right to restitution was added to the Alaska Constitution in 1994 as part of a larger victims' right amendment. At that time, the criminal code still permitted courts to consider an adult offender's ability to pay when setting the amount of restitution. It was not until 2004 that the Alaska legislature amended AS 12.55.045(g) to prohibit consideration of a defendant's ability to pay in criminal cases. Thus, contrary to the State's claim, there is nothing to suggest that a victim's constitutional right to restitution was seen as incompatible with setting restitution at an amount that the defendant could actually pay. Indeed, as already noted, as a purely practical matter, a victim cannot recover restitution that an offender will never be able to pay.

The State's briefing also relies on AS 47.12.010(b)(12), which states that one of the purposes of AS 47.12 is to "ensure that victims ... of crimes committed by juveniles are afforded the same rights as victims ... of crimes committed by adults." The State argues that this provision requires courts to apply the prohibition contained in AS 12.55.045(g) to juvenile delinquency cases. We disagree. Alaska Statute 47.12.010(b)(12) was added to AS 47.12 in 1998, as part of a comprehensive revision of the juvenile delinquency code that began in 1996. The goal of this larger revision was to create a "balanced" juvenile justice system. In accordance with this goal, the legislature announced multiple purposes for the juvenile justice system, demonstrating an intent to balance the rehabilitative needs of juvenile offenders with the rights of crime victims. At the time this revision was enacted, the law was clear that courts were required to consider a minor's ability to pay when ordering restitution in a delinquency proceeding. There is nothing in the 1996 legislation or in any of the subsequent amendments to AS 47.12 to suggest that the legislature intended to change the law allowing consideration of a minor's ability to pay. Nor is there anything in the legislative history to suggest that the legislature viewed considering a juvenile's ability to pay as incompatible with protecting a crime victim's right to restitution.

As already mentioned, when we interpret a statute, our task is "to ascertain the legislature's intent and then to construe the statute so as to implement that intent." Here, the plain language of the relevant statutes, the accompanying legislative history, and the underlying purposes of the juvenile justice system indicate that the legislature did not intend to prohibit courts from considering a juvenile's ability to pay when setting restitution amounts in juvenile cases. The courts are therefore authorized to consider all relevant factors when setting restitution orders in juvenile cases, including but not limited to the minor's ability to pay, the detrimental effect of setting restitution at an amount beyond what the minor could ever realistically be expected to pay, and a victim's constitutional right to restitution. In cases such as the present one, where the minor affirmatively presents evidence of inability to pay and the amount of damages is substantially beyond what could be paid anytime in the foreseeable future, the court has the responsibility to take the minor's limited ability to pay into account when setting the amount of restitution that the minor will personally be required to pay.

Because the trial court does not appear to have recognized that it had this responsibility in the current case, we vacate the restitution order entered against R.C. and we remand this case to the trial court for further proceedings consistent with this decision.

Conclusion

The restitution judgment against R.C. is VACATED and this case is REMANDED to the trial court for further proceedings consistent with this decision.

      W.S. v. State , 174 P.3d 256, 262-63 (Alaska App. 2008).

      AS 11.46.482(a)(1) and AS 11.46.430, respectively.

      The State actually requested that R.C. and his parents be jointly and severally liable for $159, 179.17. It is unclear how the State reached this total, as the damage from both fires actually totals $159,161.17 ($108,325.92 for the first fire and $50,835.25 for the second). The total restitution is correctly noted in Appellant's opening brief. The restitution judgment lists the damages from each fire separately.

      See Thompson v. State , 64 P.3d 132, 134-35 (Alaska App. 2003) (holding that in situations of joint and several liability, ability to pay has to be analyzed in terms of full amount of potential restitution, not just the portion that defendant would have to pay if accomplice paid his portion).

      AS 47.12.170(a).

      See Thompson , 64 P.3d at 134-35.

      Moreno v. State , 341 P.3d 1134, 1139 (Alaska 2015) ; see also Pierce v. State , 261 P.3d 428, 433 (Alaska App. 2011).

      Frankson v. State , 282 P.3d 1271, 1273 (Alaska App. 2012) ; see also Muller v. State , 478 P.2d 822, 828 (Alaska 1971).

      See Hodges v. State , 158 P.3d 864, 866 (Alaska App. 2007) (upholding constitutionality of AS 12.55.045(g) 's prohibition against considering a criminal defendant's ability to pay when assessing the amount of restitution in a criminal case but emphasizing that the court must still consider defendant's ability to pay when determining the payment schedules).

      W.S. v. State , 174 P.3d 256, 258 (Alaska App. 2008).

      Id. at 258, 264.

      Williams v. State , 2015 WL 4599554, at *3 (Alaska App. July 29, 2015) (unpublished) (citing Y.J. v. State , 130 P.3d 954, 959 (Alaska App. 2006) ).

      ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013).

      Liddicoat v. State , 268 P.3d 355, 360 (Alaska App. 2011).

      AS 12.55.045(g), as amended by SLA 2004, ch. 17, § 3; Hodges v. State , 158 P.3d 864 (Alaska App. 2007).

      See former AS 12.55.045(f) (pre-2004 versions). From 2000 until repealed in 2004, the statutory provision read:
      If a court proposes to order a defendant to pay restitution under this section of more than $5,000, and the defendant's sentence includes a period of unsuspended incarceration exceeding 90 days, the court may take into account at the time of sentencing the defendant's present and future ability to pay the restitution proposed.

      Former AS 12.55.045(a) (pre-1988 version) required sentencing judges to "take into account the financial resources of the defendant and the nature of the burden its payment will impose" in ordering restitution.

      Karr v. State , 686 P.2d 1192, 1197 (Alaska 1984).

      Id. at 1196-97.

      Id. at 1197 ; see also Paroline v. United States , 572 U.S. 434, 453-54, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014) (explaining that, "aside from the manifest procedural differences between criminal sentencing and civil tort lawsuits," restitution serves different purposes than the purposes of tort law, for example, as "an effective rehabilitative penalty" (quoting Kelly v. Robinson , 479 U.S. 36, 49 n.10, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) ) ).

      Kelly , 479 U.S. at 49 n.10, 107 S.Ct. 353 (citing Note, Victim Restitution in the Criminal Process: A Procedural Analysis , 97 Harv. L. Rev. 931, 937-41 (1984) ).

      People v. Kay , 36 Cal.App.3d 759, 763, 111 Cal.Rptr. 894, 896 (1973), quoted in Karr , 686 P.2d at 1197 n.14.

      J.C.W. v. State , 880 P.2d 1067, 1072 (Alaska App. 1994).

      Id.

      Id. A review of current juvenile delinquency codes in other states indicates that there are at least ten states that either cap the amount of restitution that a juvenile can be required to pay, or require the court to affirmatively take a juvenile's ability to pay into account when setting the amount of restitution in a juvenile case. See, e.g. , Conn. Gen. Stat. Ann. § 46b140(d) (ability to pay); Fla. Stat. Ann. § 985.437(2) (ability to pay); Md. Code Ann., Crim. Proc. § 11-604(b) (cap of $10,000); N.J. Stat. Ann. § 2A:4A-43(b)(9) (ability to pay); N.Y. Fam. Ct. Act § 353.6 (cap of $1500); In re Laurance S. , 274 Neb. 620, 742 N.W.2d 484 (2007) (ability to pay); see also S.D. Codified Laws § 26-8B-6(4) ; In re M.D.D. , 774 N.W.2d 793 (S.D. 2009) (juvenile bears the burden of raising inability to pay). Additionally, a substantial number of states authorize courts to impose non-financial performance of restitution in lieu of financial restitution, such as through community service. See, e.g. , 705 Ill. Comp. Stat. Ann. 405/5-710(4) ; Kan. Stat. Ann. § 38-2361(d)(1) ; Mont. Code Ann. § 41-5-103(35).

      Compare former AS 12.55.045(a) (1991 version) with former AS 12.55.045(a), (f), (g) (1992 version).

      J.C.W. , 880 P.2d at 1072 n.7.

      See, e.g. , SLA 2004, ch. 17 § 3; SLA 2001, ch. 92 § 10; SLA 1992, ch. 71 §§ 3, 4.

      SLA 1996, ch. 59, § 46.

      SLA 1998, ch. 108, § 2.

      SLA 2001, ch. 92, §§ 10, 37; SLA 2002, ch. 23, §§ 1, 4.

      SLA 2002, ch. 23, § 3.

      See, e.g. , Minutes of Senate Rules Comm., House Bill 297, statements of Lorali Carter, staff to Rep. Kevin Meyer (Apr. 23, 2002).

      See Minutes of Senate Rules Comm., House Bill 297 (Apr. 23, 2002).

      Minutes of Senate Rules Comm., House Bill 297, statements of Lorali Carter, staff to Rep. Kevin Meyer (Apr. 23, 2002).

      SLA 2004, ch. 17, §§ 3, 6; compare AS 12.55.045(g)with AS 47.12.120(b)(4).

      See W.S. v. State , 174 P.3d 256, 263 (Alaska App. 2008) (citing Minutes of House Judiciary Comm., House Bill 357 (Feb. 9, 2004) ).

      W.S. , 174 P.3d at 263.

      Alaska Const. art. I, § 24.

      See Minutes of House Health, Education and Social Services Standing Comm., House Bill 387, statement by Rep. Pete Kelly, bill sponsor (Feb. 22, 1996).

      See id. ; AS 47.12.010(a).

      AS 47.12.010(b).

      See J.C.W. v. State , 880 P.2d 1067, 1072 (Alaska App. 1994).

      Williams v. State , 2015 WL 4599554, at *3 (Alaska App. July 29, 2015) (unpublished) (citing Y.J. v. State , 130 P.3d 954, 959 (Alaska App. 2006) ).

      Contrast W.S. v. State , 174 P.3d 256, 263 (Alaska App. 2008) (concluding that any error in failing to consider a minor's ability to pay is harmless in a case where restitution could likely be paid through the minor's permanent fund dividends); see also AS 47.12.120(b)(4)(C) (authorizing court to obtain financial information from a minor and a minor's parents "for the purpose of reestablishing the amount of restitution or enforcing an order of restitution" in a juvenile case); AS 47.12.120(b)(4)(A) (authorizing use of community dispute resolution centers to resolve disputes about the amount of restitution and/or manner of payment).


author: McMURDIE, Judge:

text:
    In re the Marriage of: Billy William BUCKHOLTZ, Petitioner/Appellant, v. Mirta Elizabeth BUCKHOLTZ, Respondent/Appellee.
    No. 1 CA-CV 17-0596 FC
    Court of Appeals of Arizona, Division 1.
    FILED January 15, 2019
    Udall Shumway PLC, Mesa, By Steven H. Everts, Counsel for Petitioner/Appellant
    Berkshire Law Office, PLLC, Tempe, By Keith Berkshire (argued), Erica L. Gadberry, Counsel for Respondent/Appellee
    Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
   McMURDIE, Judge:

¶1 Billy William Buckholtz ("Husband") appeals the decree dissolving his marriage to Mirta Elizabeth Buckholtz ("Wife"). We hold when a marital separation agreement is presented to the superior court under Arizona Revised Statutes ("A.R.S.") section 25-317, the superior court must determine whether the agreement is enforceable, and if the agreement is enforceable, determine whether it is "unfair." We also hold that parties to a separation agreement may consider their sole and separate property when creating an agreement, and if they do so, the superior court also may consider the parties' sole and separate property in determining whether the agreement is unfair under A.R.S. § 25-317. We emphasize, however, that this is so only if they have acted with full knowledge of the nature of the property involved, including knowing whether the property at issue is a community or separate asset. For the following reasons, we reverse and remand the decree in this case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife were married in 1978. On June 3, 2013, after individually consulting with attorneys, they signed a Marriage Separation Agreement (the "Agreement") to divide their property and debts. The Agreement stated Husband "will remain" in their marital residence and the parties "agreed upon a division of all assets, owned or possessed by them as marital property or separate property ... [and] are in possession of all of those assets to which he or she is respectively entitled." The parties also agreed that any "debt accumulated as of the date of this Agreement is the debt of the individual party, regardless if the debt was incurred as a result of joint credit." The Agreement did not specifically reference any other assets or debts.

¶3 The parties have raised arguments regarding two significant assets. The first asset is the parties' home. Approximately one month before signing the Agreement, the house was appraised at $257,500. Around the time the Agreement was signed, Wife quit-claimed all right, title, or interest in the house to Husband. Husband refinanced the house, and the same day the parties signed the Agreement, Husband transferred $127,435 to Wife, approximately one-half of the house's equity.

¶4 The other significant asset is Wife's 401(k) account. After the parties married, Wife began working for an airline and in April 2013, her 401(k) was valued at $152,122. On June 3, 2013, in a separate document, Husband quit-claimed all right, title, or interest in Wife's 401(k) to Wife "as her sole and separate property." It is unclear why the parties used a "quit-claim deed" to transfer Husband's interest in Wife's 401(k), but Husband testified he knew that by signing the document he was giving up his rights to Wife's 401(k).

¶5 The Agreement, however, did not reference Wife's 401(k) account or the equity in the community home. The Agreement also did not reference a monthly benefit payment Husband receives from the military related to his service before the parties married. The parties and the superior court referred to Husband's military benefit as both a disability payment and a pension. Regardless of the type of military benefit, both parties agree on appeal the benefit is Husband's sole and separate property.

¶6 More than three years after Husband and Wife signed the Agreement and the "quit claim deeds," Husband petitioned for dissolution of the marriage. Neither party sought spousal maintenance and they do not have any minor children; therefore, the only issue before the court was division of the parties' assets and debts. In his petition, Husband admitted that the parties entered into the Agreement, but alleged that provisions of the Agreement were not fair and equitable. At an evidentiary hearing, Husband argued the Agreement unfairly and inequitably divided the parties' home and Wife's 401(k) because Wife received approximately half the equity in the house and all of her 401(k) account. Husband claimed he was entitled to fifty percent of the value of Wife's 401(k) as of the date the parties signed the Agreement, plus any increase in value he would have obtained from his share between that date and the termination of the community estate.

¶7 Following the evidentiary hearing, the superior court entered a decree of dissolution. The court found the parties freely, knowingly, and voluntarily entered into the Agreement, and that the Agreement was valid and binding and fairly and equitably divided the community property and debts as of June 3, 2013. The court then incorporated the Agreement into the decree. The court affirmed the house as Husband's separate property pursuant to the Agreement; affirmed the payment of $127,435 to Wife as her share of the community interest in the house; and awarded Wife her 401(k), with Husband having no claim to the account. The court confirmed Husband's "military pension" was his sole and separate property, with Wife having no claim to the benefit. The court also distributed the parties' community debts and other community assets, including household furnishings, cars, life insurance policies, and bank accounts.

¶8 Pursuant to Arizona Rules of Family Law Procedure 82 and 83, Husband moved to correct the findings of fact, for an amended judgment, and for a new trial. The court denied the motions. Husband timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

A. When a Marital Separation Agreement is Presented to the Court, the Court Must First Determine Whether the Agreement is Enforceable.

¶9 "To promote amicable settlement of disputes between parties to a marriage attendant on their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them." A.R.S. § 25-317(A). In a dissolution proceeding, the terms of a separation agreement "except those providing for the support, custody and parenting time of children, are binding on the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unfair ." A.R.S. § 25-317(B) (emphasis added).

¶10 A marital separation agreement is a contract, see Muchesko v. Muchesko , 191 Ariz. 265, 268, 955 P.2d 21, 24 (App. 1997), and when a property settlement agreement is incorporated into a decree, contract law governs the agreement, MacMillan v. Schwartz , 226 Ariz. 584, 588, ¶ 12, 250 P.3d 1213, 1217 (App. 2011). For an enforceable contract to exist, there must be "an offer, acceptance, consideration, a sufficiently specific statement of the parties' obligations, and mutual assent." Muchesko , 191 Ariz. at 268, 955 P.2d at 24 (citing Savoca Masonry Co. v. Homes & Son Constr. Co. , 112 Ariz. 392, 394, 542 P.2d 817, 819 (1975) ). The validity and enforceability of a contract is a mixed question of law and fact, which we review de novo . Armiros v. Rohr , 243 Ariz. 600, 605, ¶ 16, 416 P.3d 864, 869 (App. 2018).

¶11 "[B]efore a binding contract is formed, the parties must mutually consent to all material terms. A distinct intent common to both parties must exist without doubt or difference, and until all understand alike there can be no assent." Hill-Shafer P'ship v. Chilson Family Tr. , 165 Ariz. 469, 473, 799 P.2d 810, 814 (1990). Mutual assent is based on objective evidence, not on the hidden intent of the parties, and objective evidence includes both written and spoken words, as well as acts. Johnson v. Earnhardt's Gilbert Dodge, Inc. , 212 Ariz. 381, 384, ¶ 11, 132 P.3d 825, 828 (2006). A misunderstanding "must be reasonable before a court may properly find a lack of mutual assent." Hartford v. Indus. Comm'n , 178 Ariz. 106, 112, 870 P.2d 1202, 1208 (App. 1994). "Relief is proper if the writing evidencing the purported agreement is uncertain or ambiguous." Hill-Shafer , 165 Ariz. at 474, 799 P.2d at 815. But, "some extrinsic facts could create 'a latent ambiguity in otherwise clear and intelligible language.' " Id. (quoting Buckmaster v. Dent , 146 Ariz. 521, 523, 707 P.2d 319, 321 (App. 1985) ).

¶12 In this case, the superior court found the Agreement was valid and binding. Finding Wife's testimony about discussions between the parties to be credible, the court also found that "when the parties entered into the [Agreement], they had full knowledge of the community property in their respective possession. In addition, the totality of the evidence showed that the parties held deliberative discussions about the distribution of the community property." We agree that the evidence presented shows the parties had a binding agreement regarding the disposition of some assets listed in the decree, including their vehicles, life insurance policies, and bank accounts. However, the record does not support a conclusion that the parties had a binding agreement concerning Husband's payment of the home equity to Wife.

¶13 Based on the evidence in the record, we cannot say Husband and Wife shared a common understanding regarding Husband's home equity payment to Wife such that there was mutual assent. See Hill-Shafer , 165 Ariz. at 473, 799 P.2d at 814. Husband and Wife both testified it was their understanding Husband would "keep" the house and that Wife would keep her 401(k). And yet, Wife also received $127,435-approximately one-half of the house's equity. Husband testified he paid Wife one-half of the house's equity, not because that was what the parties agreed to, but because a mortgage advisor told him to do so for liability purposes. Wife, meanwhile, testified that she was not involved in Husband's refinancing of the house; when she was preparing the Agreement she was unaware of Husband's actions related to the house; and it was Husband's choice to pay her a share of the house's equity.

¶14 Consistent with Wife's testimony, she argues on appeal that Husband "gifted" her the equity in the house. Wife maintains that Husband's intent to gift her a portion of the equity in the home was outside the scope of the Agreement. Such an argument is inconsistent with the requirement that the parties had a common understanding regarding the distribution of the home equity when they entered into the Agreement. And here, the record does not reflect such a common understanding concerning distribution of the home's equity.

¶15 Relying on Muchesko , Wife alternatively argues the superior court's property distribution can be upheld based on the parties' performance of the contract. See 191 Ariz. at 268, 955 P.2d at 24. In Muchesko , a husband and wife prepared a property-settlement agreement three years before they filed for divorce. Id. at 267, 955 P.2d at 23. Although the wife did not sign the settlement agreement, the parties' conduct was consistent with the terms of the settlement agreement, and this court found a binding agreement existed. Id. at 268-71, 955 P.2d at 24-27. In the present case, for the reasons explained above, Husband and Wife's testimony and argument do not support that they had a binding agreement regarding the payment of some of the house's equity by Husband to Wife.

¶16 We remand to the superior court to consider the equity payment to Wife, as well as any other property owned by Husband or Wife that was not accounted for in the Agreement. The superior court must determine the community or separate nature of the asset, and any other outstanding assets, and make an appropriate distribution pursuant to A.R.S. § 25-318. See A.R.S. § 25-318(A) ("In a proceeding for dissolution of the marriage ... the court shall assign each spouse's sole and separate property to such spouse ... [and] shall also divide the community ... equitably, though not necessarily in kind...."). On remand, the court may revisit whether the parties had a binding agreement if they did not have a common understanding regarding the nature or disposition of the major assets of the community.

B. If a Valid and Binding Separation Agreement Exists, the Superior Court Must Also Determine Whether the Agreement is Unfair.

¶17 Husband also challenges the court's finding that the Agreement was not unfair. See A.R.S. § 25-317(B). Because the court erred by finding the parties knowingly agreed on the distribution of the home equity to Wife, on remand the court must also reassess whether the Agreement as contemplated by the parties was unfair. We also address other arguments raised by Husband as the issues may occur on remand. See State v. Abdi , 226 Ariz. 361, 366, ¶ 18, 248 P.3d 209, 214 (App. 2011) (court to address issues likely to arise on remand); Dawson v. Withycombe , 216 Ariz. 84, 113, ¶ 98, 163 P.3d 1034, 1063 (App. 2007).

¶18 Husband argues that if the Agreement results in Wife retaining all of her 401(k) and half of the home's equity, then it was not equitable, which he equates to being equal. As an initial matter, we recognize several of our cases have stated in dicta that a separation agreement is binding unless the court finds the agreement is "unfair or inequitable." See, e.g. , Breitbart-Napp v. Napp , 216 Ariz. 74, 79, ¶ 14, 163 P.3d 1024, 1029 (App. 2007) ; Cohen v. Frey , 215 Ariz. 62, 67, ¶ 14, 157 P.3d 482, 487 (App. 2007) ; Sharp v. Sharp , 179 Ariz. 205, 210, 877 P.2d 304, 309 (App. 1994), superseded on other grounds by rule as recognized in Hutki v. Hutki , 244 Ariz. 39, 43, 417 P.3d 804, 808 (App. 2018) ; Keller v. Keller , 137 Ariz. 447, 448, 671 P.2d 425, 426 (App. 1983). However, as recently recognized by this court in Hutki , A.R.S. § 25-317"does not use the term equitable." Hutki , 244 Ariz. at 42, ¶ 16, n.5, 417 P.3d at 807. While often what is fair will also be equitable, it is plausible that a separation agreement could be inequitable or unequal, but not "unfair" under the specific facts of a case. See A.R.S. § 25-317(B) (when reviewing a separation agreement, the superior court should consider "the economic circumstances of the parties and any other relevant evidence produced by the parties"); Toth v. Toth , 190 Ariz. 218, 221, 946 P.2d 900, 903 (1997) (under A.R.S. § 25-318, when awarding community assets "[i]n most cases, ... an equal distribution of joint property will be the most equitable" but in some circumstances "equal is not equitable"); Sharp , 179 Ariz. at 210, 877 P.2d at 309 (court must consider all the evidence before it concerning the agreement, as well as the parties, their relation, ages, finances, opportunities, and contributions to the community estate). Moreover, had the legislature intended the superior court to determine if an agreement was "unfair or inequitable," it could have done so. See A.R.S. § 25-318(A) (requiring the superior court to divide community property "equitably, though not necessarily in kind"); Egan v. Fridlund-Horne, 221 Ariz. 229, 239, ¶ 37, 211 P.3d 1213, 1223 (App. 2009) ("[W]e presume that when the legislature uses different wording within a statutory scheme, it intends to give a different meaning and consequence to that language."). Accordingly, when a separation agreement is presented to the superior court under A.R.S. § 25-317, the court's obligation is to determine whether the agreement is "unfair." A.R.S. § 25-317(B).

¶19 Husband further argues the court erred by considering his military benefit, which is his sole and separate property, in finding the agreement was not unfair under A.R.S. § 25-317. He posits that there is no authority permitting the superior court to consider one spouse's sole and separate property in determining whether a separation agreement is unfair. We agree with Husband that his military benefit is his sole and separate property because his military service occurred before the parties' marriage. See A.R.S. § 25-213(A). However, we disagree with Husband's contention that the superior court cannot consider the parties' sole and separate property when a separation agreement is presented to the court under A.R.S. § 25-317.

¶20 We hold that when determining whether a separation agreement is unfair under A.R.S. § 25-317, the superior court may consider the parties' sole and separate property if the parties considered their sole and separate property as a basis for making the agreement. See A.R.S. § 25-317(B) (directing the superior court to consider "the economic circumstances of the parties and any other relevant evidence produced by the parties"). Husband is correct that the superior court may only "assign" each spouse his or her own separate property when it is distributing property in a divorce proceeding pursuant to A.R.S. § 25-318(A). However, A.R.S. § 25-317 does not limit parties who enter into a separation agreement to only considering community property. Rather, "[t]o promote amicable settlement of disputes between parties to a marriage attendant on their separation or the dissolution of their marriage," under A.R.S. § 25-317(A), "the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them." (Emphasis added.) Accordingly, we hold a separation agreement may be based on one or both party's separate property if the parties intend to do so when arriving upon the settlement agreement, and the resulting agreement is not unfair.

¶21 Husband also argues the superior court erred by considering his military benefit based on A.R.S. § 25-318.01, which provides that when making a property disposition, a court cannot "[c]onsider any federal disability benefits awarded to a veteran for service-connected disabilities" pursuant to certain portions of the United States Code. We agree the superior court may not consider such federal disability benefits when it is distributing community property under A.R.S. § 25-318, but A.R.S. § 25-317 does not prohibit parties from considering such benefits when entering into a separation agreement nor does it limit the court from considering the parties' intentions when determining whether the agreement is unfair.

¶22 However, when entering into a separation agreement, as a "built-in safeguard[ ]," In re Harber's Estate , 104 Ariz. 79, 88, 449 P.2d 7, 16 (1969), parties must act with "full knowledge of the property involved and [their] rights therein," Wick v. Wick , 107 Ariz. 382, 384, 489 P.2d 19, 21 (1971). This necessarily includes knowing whether the property at issue is community or separate. See Sharp , 179 Ariz. at 210-11, 877 P.2d at 309-10 (remanding for the superior court to hold an evidentiary hearing on the fairness of a separation agreement in part because no evidence was presented regarding what property constituted community property and the wife "attested that she was unaware of the nature and extent of the community assets").

¶23 In this case, the superior court expressly considered Husband's sole and separate property when determining whether the Agreement was unfair. Wife testified she and Husband discussed his military benefit and her 401(k) and that Husband thought it was fair for him to keep his military benefit and her to keep her 401(k) because that is Wife's only retirement account. The superior court noted this testimony and found "[i]t is quite likely that [Husband] will receive far more from his pension than [Wife] will receive from her 401k over the respective parties' lives. In fact, from June 3, 2013 to the time of trial, [Husband] has received approximately $143,000.00 solely from his military pension."

¶24 Husband and Wife could have believed it was "fair" for Husband to keep his military benefit in exchange for Wife keeping her 401(k) and could have agreed to such terms, despite Husband's military benefit being his separate property. However, on appeal Husband asserts he was unaware his military benefit was his sole and separate property until he hired an attorney and petitioned for dissolution, more than three years after he signed the Agreement. Wife testified at trial she understood that Husband's military benefit predated their marriage and was his sole and separate property. But there is nothing in the record showing Husband knew his military benefit was his sole and separate property when he and Wife entered into the Agreement or that he understood Wife did not have a community interest in his benefit. Accordingly, on remand the superior court must determine whether the Agreement was "unfair" considering the lack of agreement regarding the equity issue in the marital home, and whether Husband acted with full knowledge of his separate property rights in his military benefit. See A.R.S. § 25-317(B).

C. The Superior Court Erred by Considering Equitable Defenses Not Raised by the Parties.

¶25 Husband also argues the superior court erred by finding that Wife had equitable defenses of laches, ratification, and detrimental reliance. The court found that Husband relied on the Agreement to relieve him of a tax debt that would have been a community debt but for the existence of the Agreement and waited more than three years to challenge the Agreement. The court further found that Wife relied to her detriment on the Agreement "by expending the majority of the funds she received [from the home equity payment] pursuant to the division of property and debts, as confirmed by the [Agreement], without any formal or legal objection to the [Agreement] for over three years." Without making any further findings, the court found the equitable defenses precluded Husband's claims.

¶26 The superior court erred to the extent it relied on equitable defenses. "Every defense, in law or fact, to a claim for relief in any pleading, shall be asserted in the response if one is required." Ariz. R. Fam. Law P. 32(B). Wife, however, did not assert or argue equitable defenses to Husband's claims before the superior court. Husband testified the parties operated under the Agreement for three-and-a-half years and that in a filing with the Internal Revenue Service he referenced some of the parties' actions around the time the Agreement was signed. But Husband's testimony did not establish that he received a benefit from, or that Wife relied to her detriment on, the IRS filing. Likewise, Wife testified about what she did with some of the home equity money she received, but the fact that she used the money to invest in certain assets does not establish an equitable defense. And, beyond that testimony, no other significant evidence was presented at trial regarding the elements of the equitable defenses found by the court. Therefore, the superior court erred by finding equitable defenses precluded Husband's claims. See Reed v. Hinderland , 135 Ariz. 213, 215, 660 P.2d 464, 466 (1983) ("An affirmative defense must be both pleaded and proven."); see also Diaz v. Bachelier , 2 CA-CV 2014-0136, 2015 WL 4169990, at *2, ¶ 12 (Ariz. App. July 9, 2015) (mem. decision) (citing In re Guardianship of Stanfield , 276 P.3d 989, 1001 (Okla. 2012) ) (superior court erred by sua sponte concluding a claim for relief was barred by laches).

ATTORNEY'S FEES AND COSTS ON APPEAL

¶27 Husband and Wife both request attorney's fees on appeal pursuant to A.R.S. § 25-324. In the exercise of our discretion, we decline to award either party attorney's fees. As the prevailing party, Husband is entitled to costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶28 For the foregoing reasons, we reverse the decree of dissolution relating to the distribution of community property and remand for proceedings consistent with this opinion.

      The Arizona Rules of Family Law Procedure were amended on January 1, 2019. For this opinion, we cite to the prior version of the rules because they were in effect at the time the superior court entered the decree.

      Wife never raised the gift argument in the superior court. Therefore, we do not reach the issue of whether the home equity payment was a gift. Wife is free to properly raise and prove the issue on remand. See Bobrow v. Bobrow , 241 Ariz. 592, 595, ¶ 10, 391 P.3d 646, 649 (App. 2017) (the burden is on the party claiming an action was a gift to establish the claim by clear and convincing proof).

      We note the court in Muchesko based its finding that a binding agreement existed on contract principles, and neither the superior court nor this court analyzed whether the agreement was unfair under A.R.S. § 25-317(B). Muchesko , 191 Ariz. at 268, 955 P.2d at 24.

      The Uniform Marriage and Divorce Act, on which A.R.S. § 25-317 was modeled, provides that the terms of a separation agreement are binding upon the court unless the court finds the agreement is "unconscionable." Unif. Marriage & Divorce Act § 306(b) (1973). The uniform act's unconscionability test imposes a more stringent standard on a party seeking to challenge a separation agreement than A.R.S. § 25-317(B) 's "unfair" standard. See In re Marriage of Pownall , 197 Ariz. 577, 580-81, ¶ 10, 5 P.3d 911, 914-15 (App. 2000) (factors indicative of substantive unconscionability of a premarital separation agreement are "contract terms so one-sided as to oppress or unfairly surprise an innocent party," "as well as 'an overall imbalance in the obligations and rights imposed by the bargain' " (quoting Maxwell v. Fid. Fin. Servs., Inc. , 184 Ariz. 82, 89, 907 P.2d 51, 58 (1995) ) ).

      We note that on remand, when determining whether the Agreement is unfair, the superior court must look at the time the Agreement was entered. See Nelson v. Rice , 198 Ariz. 563, 568, ¶ 14, 12 P.3d 238, 243 (App. 2000) (citing Maxwell , 184 Ariz. at 88, 907 P.2d at 57 ) ("Unconscionability is determined as of the time the parties entered into the contract."); see also A.R.S. § 25-202(C)(2) (the court looks at the time of execution when determining whether a premarital agreement is unconscionable).

      The only reference in Wife's pretrial statement that could arguably be viewed as raising an equitable defense is "WIFE relied on the parties' agreements." This reference is insufficient to raise and address the issue. See Manicom v. CitiMortgage, Inc. , 236 Ariz. 153, 160, ¶ 27, 336 P.3d 1274, 1281 (App. 2014) (reliance is just one element of the defense of estoppel and the party seeking estoppel must establish both actual reliance and that such reliance was reasonable); Contempo Constr. Co. v. Mountain States Tel. & Tel. Co. , 153 Ariz. 279, 283, 736 P.2d 13, 17 (App. 1987) (pleadings insufficient to raise estoppel defense where party did not allege facts supporting every element).