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Clement v. Fulton4/8/2005
ated in his letter. When a court excludes unspecified evidence, a party's failure to make an offer of proof acts as waiver to any claim of error. Alaska Evidence Rule 103(a)(2) requires a party to show that "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." The letter does not clearly express an opinion that Mary Fulton would have lived no more than one year if she had been properly diagnosed and treated.
Because there was no offer of proof, Clement did not preserve any contention that Dr. Kiraly, if permitted to testify, would have offered an opinion that Mary would probably have lived no more than a year, or any other period.
Finally, Clement does not argue that there was a genuine factual dispute about Mary Fulton's life expectancy that requires remand and more evidence. She only argues that, as a matter of law, Dr. Kiraly's letter establishes that Mary Fulton would have died within one year. That was also her position below.
The superior court therefore cannot be regarded as having prevented her from offering better telephonic testimony from Dr. Kiraly.
C. The Superior Court Did Not Otherwise Abuse Its Discretion in Allocating the Settlement Proceeds
Clement also argues that the superior court erred by failing to adjust the allocation for other reasons. Alleging that Michael physically and emotionally abused Savannah and Christopher, she argues that Michael's misconduct requires an equitable adjustment of the allocation in favor of the minor children.
Although Horsford permits the court to modify or abandon its formula "if there is evidence of circumstances indicating a longer period of dependency," it requires that the allocation approximate the actual losses of each beneficiary. It assumes that the annual pecuniary loss of each statutory beneficiary is equal, but this assumption is not justified in every case. Here the superior court recognized that Savannah's health problems required special attention and would probably require treatment beyond her age of majority. The allocation therefore accounted for those needs. The court also considered Christopher's need for future counseling "to assist in his transition to his new environment and into adulthood." These were unquestionably relevant factors.
It was not error, however, for the court to disregard the other factors advanced by Clement. Whether Michael had abused the children is not relevant to the determination of their actual losses for their mother's death. Moreover, with regard to allegations of "patterns of physical and emotional abuse," Judge Tan found only that there were "instances of inappropriate discipline of the children by Michael."
In the superior court, Clement also offered evidence that Mary and Michael had separated and that Mary intended to divorce him. She briefly suggests on appeal that this evidence is an "additional factor" we should consider in reviewing the allocation. But her appellate briefs provide no substantive discussion of this proposition. It is therefore waived, and we do not consider it.
IV. CONCLUSION
The superior court did not clearly err in failing to find that Mary Fulton, even if properly diagnosed, would not have lived more than one year. Nor did it err in disregarding factors other than the children's future needs in allocating the settlement proceeds. We therefore AFFIRM the court's allocation of the proceeds.
FABE, Justice, dissenting.
I disagree with the court's conclusion that the superior court's allocation of the settlement proceeds can be affirmed. Because the supe
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