In an Unpublished Decision, Alaska Supreme Court Upholds Contempt Order

Bryan S. Perez v. Sally O. Alhiwage (Supreme Court of Alaska, February 5, 2020) Memorandum decisions do not create legal precedent. This case should be treated as persuasive authority only.

Brian Perez and Sally Alhiwage filed for divorce in January 2016 and reached a settlement agreement in December 2016. A central component of the agreement was that Perez agreed to transfer seventeen months of his Post-9/11 GI Bill education benefits to Alhiwage and pay Alhiwage spousal benefits until Alhiwage was able to take advantage of the GI Bill benefits. However, due to procedural issues, Alhiwage was unable to take advantage of the educational benefits and the included stipend until May 2017, when Alhiwage began school. In 2017, Alhiwage moved for the Superior Court to require Perez to adhere to the terms of the agreement regarding the GI Bill benefits and spousal support. Perez opposed by arguing that he should not have had to pay spousal support because the benefits were transferred to Alhiwage in December 2016, and Alhiwage could have begun her education immediately. The Superior Court granted Alhiwage’s motion and held that Alhiwage was entitled to spousal benefits for that entire period, and it held Perez in contempt for not adhering to the terms of the agreement. Representing himself, Perez raised two main issues on appeal.

First, Perez argued that the Superior Court’s order holding him in contempt was an erroneous interpretation of the agreement after the court found that he willfully violated an order enforcing the parties’ settlement agreement. Second, Perez argued that the Superior Court’s enforcement order of that settlement agreement was an abuse of discretion because the order violated federal law. In August 2018, the Supreme Court affirmed the Superior Court’s order holding Perez in contempt, because he willfully violated the settlement agreement by refusing to pay spousal support. In 2020, Perez appealed once again and raised the same issues. The Supreme Court held that res judicata barred him from making the exact same claim a second time and did not address the claim further. Res judicata will bar claims when there is (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties . . . about the same cause of action.

Second, Perez argued that it was an abuse of discretion for the Superior Court to enforce the settlement agreement because it violated 38 U.S.C § 3319 (the federal statute that grants authority to transfer unused education benefits of a member of the Armed Forces to family members). However, in order to preserve an issue for appeal, appellants must show that they raised the issue previously. Perez first cited this specific federal statute in his motion for reconsideration of the Superior Court’s contempt order. Perez acknowledged that he chose not to raise this issue until after the Superior Court made its ruling. An issue raised for the first time in a motion for reconsideration is not timely, and thus not preserved for appeal. The Supreme Court held that because Perez did not raise this issue before the Superior Court until his motion for reconsideration, it was not timely and not preserved for appeal.

Because the Supreme Court previously ruled against Perez on his appeal of being held in contempt, and his second claim was not preserved for appeal, the Court affirmed the Superior Court’s contempt order.

By Jenna Sutton