       Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
       Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
       303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
       corrections@akcourts.us.



                THE SUPREME COURT OF THE STATE OF ALASKA

DAVID B. FLETCHER,                               )
                                                 ) Supreme Court No. S-16508
                       Appellant,                )
                                                 ) Superior Court No. 3AN-14-05223 CI
       v.                                        )
                                                 ) OPINION
LINDA FLETCHER, n/k/a Linda                      )
Occhipinti,                                      ) No. 7318 – November 30, 2018
                                                 )
                       Appellee.                 )
                                                 )

               Appeal from the Superior Court of the State of Alaska, Third

               Judicial District, Anchorage, Gregory Miller, Judge.


               Appearances: Mario L. Bird, Ross, Miner & Bird, PC,

               Anchorage, for Appellant. David S. Houston, Houston &

               Houston, PC, Anchorage, for Appellee.


               Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,

               and Carney, Justices.


               WINFREE, Justice.

               STOWERS, Chief Justice, dissenting in part.



I.     INTRODUCTION
               The primary issues in this divorce case are whether the superior court
abused its discretion by determining the parties’ separation date and erred by dividing
the marital estate 50/50. For the reasons that follow, we answer “no” to the former and
“yes” to the latter.
II.   FACTS AND PROCEEDINGS
      A.     Facts
             Linda and David Fletcher were married in 1990. They have three children,
one of whom was a minor at the time of their 2015 divorce trial. The parties dispute their
separation date: Linda argues it was in 2010, when David physically moved out of the
house and began living in his truck; David argues it was in 2014, when Linda filed for
divorce.
             1.      Domestic violence; David moves out of the house
             Linda twice petitioned for domestic violence protective orders against
David during the marriage, first in 2001 and again in 2010. Both petitions were granted.
David moved out of the marital home and into his truck around the time Linda filed the
second petition in February 2010. Although David came to the house to pick up his mail,
see the children, and do repair and improvement projects (some of which Linda testified
she did not request), he did not live or sleep in the house again.
             2.      Linda’s and David’s employment and finances
             During the marriage Linda worked in the legal administrative field, and
David worked through the International Brotherhood of Electrical Workers (IBEW) local
union hall as an electrical contractor and an electrician. Linda handled the parties’
finances. They ceased maintaining a joint bank account a couple of years into the
marriage, and in 2001 separately filed bankruptcy declarations “due to debts arising from
David’s business.” Linda paid the family’s monthly expenses and invoiced David each
month for his share of the costs to feed, clothe, and house the family. She also paid and
invoiced David for his expenses, including car insurance. Linda testified that in 2010,
after David moved out of the marital home, they agreed he would pay $1,200 per month
for his share of the family expenses. David made these payments sporadically and in



                                           -2-                                      7318

installments until 2012, when he instead “made multiple direct and indirect payments to
Linda and/or to/for the children.”
              The parties obtained the marital home in 2002 through a foreclosure sale;
it was purchased in Linda’s name only, and the loan was in her name only. David made
major improvements to the home. Linda refinanced the property in 2012; David testified
that he had to sign documents “even though [he] wasn’t living in the house.” The parties
agreed the home was marital property.
              3.     David’s health; insurance
              David was diagnosed with type II diabetes in 1992. He has since suffered
two heart attacks and a stroke; he had surgery related to the first heart attack. David
takes between 17 and 20 medications daily.
              Until 2007 the family had health insurance through Linda’s employer.
Linda then switched the children’s healthcare to Alaska Native Tribal Health Consortium
(ANTHC) and dropped David from her employer’s insurance plan. David had access
to health insurance through IBEW, but he could not rely on coverage because he was not
always able to maintain the required minimum number of hours worked each week.
According to one of David’s attorneys, David would qualify for Medicare in January
2017, two years after trial.
       B.     Proceedings
              Linda filed for divorce in February 2014, alleging a February 2010
separation date. David admitted to the February 2010 separation date when he filed his
answer, but he later argued in his pretrial brief and at trial that the February 2014 divorce
filing should be the separation date.
              Trial was held over five days in the summer of 2015, and it was continued
for a month due to David’s medical issues. When requesting the continuance, David’s
counsel also began arguing that the February 2010 separation date admission in David’s

                                            -3-                                        7318

answer had been amended to conform to the evidence presented at trial. The superior
court did not hear complete argument on this issue and did not expressly rule on this
issue at that time or later in its findings; the issue was not addressed again by either party
during trial.
                In December 2015 the superior court issued a divorce decree and
supplemental findings of fact and conclusions of law. The court determined that,
“[a]lthough a close call,” the separation date was February 2010, finding “[a]s of that
date, the parties moved away from being an ‘economic unit’ or in any other sense a
married couple, and . . . they have never reversed that course.”
                The superior court also considered the AS 25.24.160(a)(4) property
division factors (the Merrill factors)1 and made relevant findings. At the time of trial
Linda was 52 and David was 62; Linda was in “better health,” and “David’s health [was]
quite poor.” Linda was employed as a billing manager in a local law firm, and her future
income was secure; she had about $6,000 in savings; she had two retirement accounts,
one a marital IRA valued at about $87,000 and the other a non-marital 401(K) valued
around $178,000; and she had health insurance through her employer and ANTHC.
David was medically retired and receiving Social Security disability; he had two pension
accounts, both marital; he had about $1,200 in savings; and he would have to pay for
healthcare until 2017, when he would become eligible for Medicare. The court also
found that Linda cared for the couple’s minor daughter in the family home and received
child support from David’s Social Security disability benefits; and that David lived in his
truck, but would soon have an opportunity to live in a friend’s house for 18 months at
$600 per month.       Determining there was “no reason to depart from the 50[/]50




       1
                Merrill v. Merrill, 368 P.2d 546, 547 n.4 (Alaska 1962).

                                             -4-                                        7318
presumption” property division, the court awarded Linda the marital home and ordered
her to make an equalization payment of about $72,000 to David.
             After both parties timely moved for reconsideration, the superior court
issued amended supplemental findings of fact and conclusions of law in May 2016. The
court once again considered the Merrill factors and determined that, although a “close
call,” it would not depart from the presumptively 50/50 property division.
             The parties appeared before the superior court in June to argue whether
David should retain Linda’s half of his monthly pension payments until the equalization
payment she owed him was extinguished or whether David’s pension should be split
50/50 via Qualified Domestic Relations Order (QDRO). The court issued an order
immediately entitling David to half of Linda’s marital IRA and directed the parties to
determine whether Linda’s equalization payment to David would be made in a lump
sum, with his pension payments then split equally, or whether he would retain his
pension payments in full until Linda’s equalization payment was offset. The court “again
considered the Merrill factors” and found that, but for the changes regarding Linda’s
marital IRA, “th[e] court’s Merrill findings remain[ed] unchanged.”
             Linda then moved for reconsideration or clarification, and David filed a
cross-motion for relief from judgment. David argued that his medical condition had
worsened due to kidney disease, constituting newly discovered evidence sufficient to
merit reconsideration of the 50/50 property division. The superior court ordered half of
Linda’s marital IRA transferred to David within ten days, executed QDROs dividing his
pension payments, and ordered her to pay the balance of the equalization payment in full
by refinancing the marital home. The court denied David’s cross-motion, reasoning that
it had known of his extensive health issues and had properly balanced the parties’ health
when weighing the Merrill factors and allocating the marital estate 50/50.



                                           -5-                                     7318

              David appeals, arguing that the superior court erred by determining a
February 2010 separation date and by dividing the marital estate 50/50.
III.	   STANDARD OF REVIEW
              “Determining ‘the separation date is a fact-specific inquiry’ ”2 reviewed for
abuse of discretion.3 “There are three basic steps in the equitable division of marital
assets: (1) deciding what specific property is available for distribution, (2) finding the
value of the property, and (3) dividing the property equitably.”4 “A property division is
an abuse of discretion if it is clearly unjust; it will also be set aside if it is based on a
clearly erroneous factual finding or mistake of law.”5
IV.	    DISCUSSION
        A.	   The Superior Court Did Not Abuse Its Discretion By Determining
              February 2010 Was The Separation Date.
              David contends the superior court erred by determining the parties’
separation date was February 2010, when Linda filed for a domestic violence protective
order and he moved out of the marital home, rather than February 2014, when she filed
for divorce. David admitted in his answer the complaint’s allegation that the separation
date was February 2010, but at trial he testified that the parties separated when Linda
filed for divorce in 2014. Generally “admissions made in the pleadings are conclusively




        2
            Dundas v. Dundas, 362 P.3d 468, 472 (Alaska 2015) (quoting Tybus v.
Holland, 989 P.2d 1281, 1285 (Alaska 1999)).
        3
              Tybus, 989 P.2d at 1285.
        4
             Engstrom v. Engstrom, 350 P.3d 766, 769 (Alaska 2015) (quoting Beals v.
Beals, 303 P.3d 453, 458 (Alaska 2013)).
        5
           Dunmore v. Dunmore, 420 P.3d 1187, 1190 (Alaska 2018) (quoting
Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)).

                                            -6-	                                       7318

established.”6 But Linda has not argued on appeal that the answer conclusively
established the separation date. Moreover, this issue was actively litigated, and the court
ruled on its merits.7 We therefore review whether the court abused its discretion by
determining February 2010 was the separation date.
              “Alaska law has defined [the separation date] as the point at which ‘the
marriage has terminated as a joint enterprise’ or when a couple is no longer ‘functioning
economically as a single unit.’ ”8 “Determining ‘the separation date is a fact-specific
inquiry,’ ”9 involving analysis of the parties’ objective and subjective intent to terminate
the marital relationship.10 The superior court “has considerable discretion in this area”;11
separation date determinations have been affirmed based upon various factors such as
sexual relations, economic support, commingled assets, joint tax returns, joint liability,
a manifested desire to continue the marriage, and one party’s physical act of re-keying




       6
            Darnall Kemna & Co. v. Heppinstall, 851 P.2d 73, 76 (Alaska 1993)
(holding admissions in answer conclusive of liability and affirming partial summary
judgment) (citing 9 JOHN H ENRY W IGMORE , W IGMORE ON EVIDENCE § 2590, at 822
(James H. Chadborn rev. ed. 1981)).
       7
             Cf. Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 394 (Alaska 2017)
(“We have recognized trial by consent when the new issue was identified at the
beginning of trial and litigated by both sides . . . .”).
       8
            Tybus, 989 P.2d at 1285 (quoting Hanlon v. Hanlon, 871 P.2d 229, 231
(Alaska 1994)).
       9
             Dundas v. Dundas, 362 P.3d 468, 472 (Alaska 2015) (quoting Tybus, 989
P.2d at 1285).
       10
              Id. at 472 n.2 (quoting 1 BRETT R. TURNER , EQUITABLE D ISTRIBUTION OF
PROPERTY    § 5.28, at 435-36 (3d ed. 2005)).
       11
              Id. at 472 (citing Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986)).

                                            -7-                                       7318

locks.12 We review whether the determination has sufficient evidentiary support in the
record.13
              1.     Objective separation intent
              The objective element of separation is that “the parties must separate — live
physically apart from one another.”14 Linda testified that the parties physically separated
in February of 2010. The superior court found that in February 2010 Linda filed for and
obtained a long-term domestic violence protective order against David; he moved into
his truck, and he never again lived in the marital home.
              David nonetheless argues the date of separation should be February 2014
because his “presence at [the] marital home was unrestricted from the time of the 2010
[domestic violence] order until 2014,” when one of his daughters informed him that the
“locks were changed.” David cites Linda’s testimony that from 2010 until 2014 “[he]
would just come into the house whenever he wanted.” But her statement was in response
to questions about his contact with their youngest child, not whether he still lived in the
marital home.
              Linda testified that David frequently came to the house to fix things he
observed to be broken, although she did not want him to do so. There is conflicting
testimony about whether Linda asked David to come to the house to fix certain things;
he concedes that at least some work was done without her knowledge or consent. For
example, David was installing a barbeque in the backyard as a “surprise” for Linda and



      12
              Id. at 473 (first citing Inman v. Inman, 67 P.3d 655, 659-60 (Alaska 2003);
then citing Tybus, 989 P.2d at 1285).
       13
              See Hanlon, 871 P.2d at 231.
       14
             Dundas, 362 P.3d at 472-73 & n.2 (quoting 1 TURNER , supra note 10, §
5.28, at 435-36).

                                            -8-                                      7318

admits that he did not discuss it with her. He also testified that he moved out of the
marital home in 2010 and that he never actually lived there again. Even if David did
freely come and go from the house, the record supports the superior court’s finding that
David and Linda began “liv[ing] physically apart from one another”15 in February 2010.
              2.     Subjective separation intent
              “The subjective element is that at least one party must intend to terminate
the marriage.”16 David contends both parties intended to continue working on the
marriage from 2010 through 2014. For example, he notes they attended church
counseling gatherings with other couples on Fridays; he alleges Linda commented at the
2010 domestic violence hearing that she wanted to continue working on the marriage;
he points to his continued financial support, child care, and home improvements; and he
cites his participation in refinancing the marital home. David argues that he did not
subjectively intend to terminate the marriage in 2010. At trial he testified that he did not
want a divorce and that the impending divorce was causing him to “fear for [his] eternal
soul.”
              Linda testified at trial that she wanted to be separated in February 2010 and
that in her mind there was no indication the parties were continuing to work on the
marriage. Linda also testified that she made no effort to reconcile the marriage after
David moved out in 2010. She informed him during the 2010 domestic violence
proceedings of her desire to obtain a divorce, which he acknowledged; and she continued
to attend Friday evening gatherings through their church only to maintain normalcy for
their children. Linda testified that, even though David continued to make repairs and




         15
              See id. at 472 n.2 (quoting 1 TURNER , supra note 10, § 5.28, at 435-36).
         16
              Id. (quoting 1 TURNER , supra note 10, § 5.28, at 435-36).

                                            -9-                                       7318
improvements on the house, she did not want him there. Thus, evidence supports the
superior court’s finding that Linda’s subjective intent was to end the marriage in 2010.
              3.	    Joint economic enterprise
              The superior court’s findings also discussed the economic facets of the
parties’ marriage. The court found February 2010 to be the separation date because “[a]s
of that date, the parties moved away from being an ‘economic unit’ or in any other sense
a married couple.” The court noted that the February 2010 separation date was a “close
call due to the unique way the parties handled their finances long before 2010,” but
ultimately found that despite their “exceptionally dysfunctional marriage, . . . after 2010
the parties grew even further apart, including economically, such that in th[e] court’s
estimation they were no longer an ‘economic unit.’             They still had financial
entanglements, but they did not act as a unit, no matter how that might be defined.”
              The superior court’s assessment is supported by the evidence in the record.
A few years into the marriage they ceased maintaining a joint bank account. Linda
instead invoiced David each month for his share of the household expenses. This
continued until February 2010, when David ceased making regular contributions. This
shift in the parties’ economic enterprise supports the February 2010 separation date.
              4.	    Conclusion
              Because the record, including the shift in finances, supports the parties’
objective and subjective intentions to separate in February 2010, the superior court did
not abuse its discretion by determining February 2010 was the separation date.
       B.	    Based On The Findings Made, It Was An Abuse Of Discretion To
              Divide The Marital Estate 50/50.
              When addressing the marital estate division, the superior court repeatedly
found “no reason to depart from the 50[/]50 presumption.” David argues “[the court]
committed clear error by accurately describing David’s reduced circumstances, yet


                                           -10-	                                     7318

neglecting to award him a commensurately larger portion of the marital estate.”17 “A
property division is an abuse of discretion if it is clearly unjust; it will also be set aside
if it is based on a clearly erroneous factual finding or mistake of law.”18
              “In determining the most equitable division, the ‘starting point is the
presumption that an equal division is the most just.’ ”19 “The superior court may divide
the [estate] unequally if it finds that such a division is just after considering” “the Merrill
v. Merrill factors now codified in AS 25.24.160(a)(4).”20 The factors21 “are ‘not


       17
              David also argues that we should reverse and direct that a 70/30 property
division be entered for him. But this would be procedurally improper. If we determine
the “findings and evidence in the record do not justify” the superior court’s marital estate
division, we “vacate the property division and remand for an equitable division.”
McDougall v. Lumpkin, 11 P.3d 990, 993-94 (Alaska 2000).
       18
           Dunmore v. Dunmore, 420 P.3d 1187, 1190 (Alaska 2018) (quoting
Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)).
       19
             Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008) (quoting Burcell v.
Burcell, 713 P.2d 802, 805 (Alaska 1986)).
       20
              Id. at 686 (footnote omitted); see Tollefsen v. Tollefsen, 981 P.2d 568, 570
(Alaska 1999) (“[I]n making an equitable division of the property, the superior court
must state the facts forming the basis of the division and address the relevant statutory
factors.”).
       21
            AS 25.24.160(a)(4) provides that “division of property must fairly allocate
the economic effect of divorce . . . based on consideration of the following factors”:
                     (A) the length of the marriage and station in life of the
              parties during the marriage;
                     (B) the age and health of the parties;
                    (C) the earning capacity of the parties, including their
              educational backgrounds, training, employment skills, work
              experiences, length of absence from the job market, and
                                                                            (continued...)

                                             -11-                                        7318

exhaustive, and the trial court need not make findings pertaining to each factor, but its
findings must be sufficient to indicate the factual basis for the conclusion reached.’ ”22
             In Day v. Williams we vacated and remanded a property division because
we were “unable to determine how the superior court reached its conclusion that an equal
division was just and equitable given the facts and circumstances of the case and the
court’s rather cursory explanation.”23 We noted the court’s failure to make a specific
finding regarding the parties’ health insurance although “it was apparent that [the wife]
had incurred and would likely continue to incur significant health care expenses.”24 We
also noted that, despite acknowledging the wife’s income would be dramatically reduced


      21	
             (...continued)

             custodial responsibilities for children during the marriage;

                    (D) the financial condition of the parties, including the
             availability and cost of health insurance;
                   (E) the conduct of the parties, including whether there
             has been unreasonable depletion of marital assets;
                     (F) the desirability of awarding the family home, or the
             right to live in it for a reasonable period of time, to the party
             who has primary physical custody of children;
                    (G) the circumstances and necessities of each party;
                   (H) the time and manner of acquisition of the property
             in question; and
                    (I) the income-producing capacity of the property and
             the value of the property at the time of division.
      22
             Young v. Lowery, 221 P.3d 1006, 1014 (Alaska 2009) (quoting Nicholson
v. Wolfe, 974 P.2d 417, 422 (Alaska 1999)).
      23
             285 P.3d 256, 262 (Alaska 2012).
      24	
             Id.

                                           -12-	                                    7318

and the economic downturn had negatively impacted the parties’ assets, the court “did
not make any finding” how this “affected the equitable distribution of the marital
property.”25 Ultimately, we held:
              When even a superficial examination and balancing of the
              statutory factors appear to weigh in favor of the spouse who
              earns substantially less than the other spouse, a conclusory
              statement that “a 50[/]50 distribution of the marital estate is
              fair given all of the circumstances” does not provide
              sufficient information to permit meaningful review.[26]
              Similar to the wife in Day, David’s income was substantially less than
Linda’s. At trial his income was about one-third less;27 following trial his retirement
income was halved by QDRO, leaving his income nearly two-thirds less than hers.28
Also similar to the wife in Day, the superior court’s examination and balancing of the
relevant statutory factors weigh heavily in David’s favor. The court found Linda was ten
years younger, in better health,29 had better earning capacity,30 and had better health and


       25
              Id. at 263.
       26
              Id.
       27
              David’s monthly income consisted of $1,450 from Social Security
disability, $1,866 from his IBEW pension, and a potential benefit from National
Electrical Benefit Fund of $352, totaling $3,668 per month. Linda earned $65,000 a
year, or $5,417 per month.
       28
             Linda receives half of David’s monthly IBEW pension and National
Electrical Benefit Fund payments ($1,109) via QDRO, reducing his monthly income to
$2,559 and increasing her monthly income to $6,526. David became eligible for Social
Security in January 2018; this provides an additional income source, but it may also
decrease his current pension payments.
      29
              See AS 25.24.160(a)(4)(B).
      30
              See AS 25.24.160(a)(4)(C).

                                           -13-                                      7318

retirement benefits.31 The court also awarded Linda the marital home, the only real
property in the marital estate, and designated one of her retirement accounts, a 401(K)
valued at $178,000, as non-marital property.32
             The superior court’s justification for “find[ing] no reason to depart from the
50[/]50 presumption” rested primarily on the requisite equalization payment of $72,020
to David from a “small” estate that had “virtually no truly liquid assets.” The court also
noted David would have access to a furnished rental for 18 months at $600 per month
and would have to pay for health insurance only until he qualified for Medicare in 2017,
about 18 months after trial. The court reconsidered its presumptively even distribution
three times after its initial supplemental findings, each time finding no reason to
unevenly distribute the marital estate.33 But — in light of the factors weighing heavily


      31
             See AS 25.24.160(a)(4)(D).
      32
               The superior court also was entitled to, but apparently did not, consider
Linda’s substantial separate assets when equitably dividing the marital property. See
Cartee v. Cartee, 239 P.3d 707, 715 (Alaska 2010) (holding court’s unequal marital
property award to wife was not abuse of discretion because husband’s “ ‘significant non-
marital assets’ would cushion him from the ‘effects of an unequal property division’ ”);
see also AS 25.24.160(a)(4)(D) (directing court to consider “the financial condition of
the parties”).
      33
              In May 2016 the court amended its supplemental findings to add that “any
equalization payment [David] is to receive from Linda will likely not be paid . . .
immediately.” Despite finding it “a close call,” the court was “not inclined to say that
the marital estate should be unevenly divided.”
              In August the court ordered distribution of David’s half of Linda’s IRA,
about $43,500, but it left her the option whether he kept his full monthly pension
payments until her nearly $70,000 equalization payment was satisfied or she paid it in
full. The court noted that “[it] ha[d] again considered the Merrill factors. With the
exception of the IRA funds now available to [David], this court’s Merrill findings remain
unchanged.”
                                                                            (continued...)

                                          -14-                                       7318

in David’s favor, particularly the substantial age, health, and income disparity, which the
dissent does not discuss — we conclude that a post-division equalization payment cannot
justify an equal division of this marital estate. Based on the findings the superior court
made, the property division was clearly unjust.
              We therefore vacate the superior court’s property distribution and remand
for further consideration.
V.     CONCLUSION
              The superior court’s separation date finding is AFFIRMED, but its
presumptive 50/50 property distribution is VACATED and REMANDED for renewed
consideration.




       33
               (...continued)
               In October the court denied David’s Rule 60(b) motion despite all factors
appearing to weigh more heavily in his favor; although he had received the equalization
payment, he was even less healthy due to kidney problems and was still living in his
truck. But the court found that David had presented no “new evidence that would result
in a different result” because it had already “specifically addressed his health issues in
the context of the Merrill factors and allocation of the estate.”

                                           -15-                                      7318

STOWERS, Chief Justice, dissenting in part.
              I disagree with that part of the court’s opinion that holds the superior court
failed to sufficiently explain its 50/50 equitable distribution. I cannot conclude that the
superior court failed to do so or that it abused its discretion in making a 50/50 equitable
distribution. In its discretion, the court permissibly could have made an unequal
distribution, but the abuse of discretion standard gives a trial court broad discretion, and
on the facts and circumstances of this case, I do not think the court’s decision violates
any of the principles we have articulated in applying the abuse of discretion standard.
Specifically, I do not think the court’s decision grossly misweighed the statutory factors
or was clearly unjust.
              The court’s opinion concludes that the superior court failed to sufficiently
explain its 50/50 distribution of the marital estate given the findings it made. Unlike the
Day v. Williams1 case which the court cites, where the superior court made only a
conclusory statement that a 50/50 distribution was fair,2 the superior court here reviewed
each relevant statutory factor four times and the husband concedes the court “thoroughly
analyzed each factor.”
              We have held that “the trial court need not make findings pertaining to each
factor, but its findings must be sufficient to indicate the factual basis for the conclusion
reached.”3 We have stated that it is not the role of our court to reweigh the factors in our
abuse of discretion analysis.4 We have also explained that “when a couple has sufficient


       1
              285 P.3d 256 (Alaska 2012).
       2
              Id. at 263.
       3
              Young v. Lowery, 221 P.3d 1006, 1014 (Alaska 2009).
       4
              Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007) (“[I]t is not our role as an
                                                                          (continued...)

                                           -16-                                       7318

assets, the spouse with the smaller earning capacity can and should receive a larger share
in the property distribution.”5 A necessary corollary follows: when a couple does not
have sufficient assets, it may not be possible or fair to both parties that the trial court
depart from the presumptively fair 50/50 distribution of the property.
              Applying these principles to the case at hand, there is no question that the
parties’ marital estate was modest and the trial court took this important fact into
consideration. The superior court’s justification for “find[ing] no reason to depart from
the 50[/]50 presumption” rested, in part, on the division of the wife’s marital pension via
QDRO and the requisite equalization payment by the wife to the husband of $69,204
from a “small” estate that had “virtually no truly liquid assets.” Also, the court
considered that the husband was receiving some retirement benefits and would have
access to Medicare beginning in 2017. When the court learned that the husband’s share
of the wife’s marital retirement account could be withdrawn without penalty, it ordered
that $43,534.50 be immediately paid to the husband plus any appreciation accrued since
the date of separation. The immediate economic effect for the husband was a sizable
lump sum payment from the wife’s IRA, low or no health care costs under Medicare, and
a nearly $70,000 equalization payment to supplement his own pension. Given the small
size and illiquid nature of the estate, in my view it was within the range of acceptable
discretion to divide the estate 50/50 and require the wife to pay the husband almost
$70,000, and I think the court did an adequate job of explaining why it made this
decision. I would affirm the superior court’s 50/50 equitable distribution and I therefore




       4
             (...continued)
appellate court to reweigh the evidence . . . .”).
       5
              Odom v. Odom, 141 P.3d 324, 340 n.75 (Alaska 2006).

                                           -17-                                      7318

dissent from this portion of the court’s opinion. I agree with this court’s conclusion that
the superior court did not abuse its discretion in selecting the date of separation.




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