Post-Separation Income of a Marital Business Remains Marital; Dissipation May Be Recaptured; Late Corroborative “Rebuttal” Evidence May Be Excluded

Case: Festus K. Jibade v. Olukemi A. Ogunniyi
Court: Supreme Court of the State of Alaska
Date: December 31, 2025
Disposition: Superior court affirmed (memorandum decision under Alaska Appellate Rule 214)

1. Introduction

This divorce appeal arose from the short marriage of Festus K. Jibade (husband, appellant, self-represented on appeal) and Olukemi A. Ogunniyi (wife, appellee, no appearance). Shortly after marrying in September 2020, the couple formed and operated an assisted living facility, Bethsaida Assisted Living, LLC (“Bethsaida”), as 50/50 members, operating out of their jointly owned marital home. Licensing rules required a qualified administrator, a role Ogunniyi (a nurse) initially filled. After the parties’ relationship deteriorated, disputes centered on (i) control and ownership of Bethsaida, (ii) alleged dissipation of business revenue for personal purposes, and (iii) an unequal property division.

The key appellate issues were:

• Evidentiary control: whether the trial court abused discretion by not admitting late-produced “reimbursement” documents.
• Property division and dissipation: whether findings about business value, business “draws,” post-separation contributions, and home down-payment credit were clearly erroneous or an abuse of discretion.
• Judicial disqualification: whether alleged conflicts involving the judge’s spouse and adverse rulings required recusal.

2. Summary of the Opinion

The Alaska Supreme Court affirmed in full. It held:

• The superior court did not abuse its discretion in declining to admit or consider Jibade’s late-presented documents, particularly where counsel stated she was not moving for admission and where the documents were not proper rebuttal.
• The superior court did not clearly err or abuse discretion in its valuation and division of marital property, including assigning Jibade $104,362 in unauthorized personal draws, valuing Bethsaida at $500 at trial, awarding Bethsaida to Ogunniyi, and dividing the marital estate 70/30 in her favor based on dissipation/unreasonable depletion under AS 25.24.160(a)(4)(E).
• The superior court did not err by denying an additional $17,000 separate-property credit to Jibade for the marital home down payment.
• Jibade failed to demonstrate actual bias or an appearance of bias warranting disqualification under AS 22.20.020 and Alaska Code of Judicial Conduct 3(E)(1)(a).

3. Analysis

3.1 Precedents Cited (and Their Role)

A. Standards of review and the property-division framework

• Anderson v. Wilson (quoting Guilford v. Weidner Inv. Servs., Inc.): supplied the abuse-of-discretion standard for evidentiary rulings and the harmless-error concept (“substantial justice”).
• Layton v. O'Dea (quoting Downs v. Downs, and Ethelbah v. Walker): reiterated the three-step divorce property analysis (classification, valuation, equitable division) and the “clearly unjust” threshold for reversal of division.
• Beals v. Beals: distinguished review of factual findings (clear error) from legal rule selection/application (de novo) in classification disputes.
• Stevens v. Stevens (quoting Haines v. Cox): reinforced deference to trial courts on valuation date (abuse of discretion) and valuation factfinding (clear error).

B. Evidentiary sequencing and “rebuttal” limits

• Sirotiak v. H.C. Price Co. (quoting Riffey v. Tonder): anchored the principle that trial courts have “wide discretion” to control the order of proof and defined rebuttal evidence as evidence that directly replies to or contradicts material evidence, not merely corroboration.

C. Post-separation earnings, marital businesses, and dissipation/recapture

• Brown v. Brown: stated the baseline that a spouse’s post-separation income is separate property; the court used it as a contrast to explain why business income is treated differently when generated by a marital entity.
• Rohde v. Rohde: supported the notion that courts must consider post-separation contributions to maintain marital property but have discretion whether to credit them.
• Hudson v. Hudson: used to distinguish conduct that constitutes “economic misconduct” (or not) based on whether it negatively impacts marital value or the other spouse’s share; supported the superior court’s view that Ogunniyi’s resignation did not sabotage value.
• Pasley v. Pasley: cited for the proposition that third-party property is not divisible—relevant to the opinion’s careful explanation that LLC property is technically the entity’s, while the value of the marital interest in the entity is divisible.
• May v. Peterson: supported valuing a marital business based on market value of the business’s assets; used to validate the concept of valuing the business as an asset even though it owns property.
• Faris v. Taylor (quoting Ethelbah v. Walker): provided Alaska’s “recapture” concept—compensating for dissipation/waste of a marital asset controlled during separation.
• Miller v. Miller: supplied the technical detail that recapture can be done by valuing at an earlier date and crediting all or part to the dissipating spouse.
• Numann v. Gallant (quoting State v. Nw. Constr., Inc.): set the plain-error standard for issues not preserved below (obvious mistake + high likelihood of injustice).

D. Credibility deference

• Downs v. Downs (quoting Limeres v. Limeres): reinforced deference to trial judges on witness credibility and weighing conflicting evidence.
• Sean B. v. State, Dep't of Health & Soc. Servs.: reiterated the trial court’s superior vantage point on credibility determinations.

E. Home down-payment credits and equitable division discretion

• Bussell v. Bussell: recognized courts should consider relative contributions to the marriage.
• Choitner v. Choitner: confirmed it is not an abuse of discretion to decline to give a spouse a separate credit for a down payment on the marital home.

F. Judicial disqualification and bias

• Heber v. Heber: set abuse-of-discretion review for a judge’s self-assessment of ability to be fair.
• Mengisteab v. Oates: treated “appearance of bias” as an objective legal question reviewed de novo.
• Hanson v. Hanson: required showing that alleged bias came from a “nonjudicial source.”
• Braun v. Borough (abrogated on other grounds by Matter of 2021 Redistricting Cases): used for the allocation of the burden of proof on the party alleging bias.
• Kinnan v. Sitka Counseling and Downs v. Downs: emphasized that bias cannot be inferred merely from adverse rulings and that the objective record must support an appearance of partiality.

3.2 Legal Reasoning

A. Evidentiary ruling: late “reimbursement” records and the limits of rebuttal

Jibade’s central factual defense was that transfers and personal expenses paid from the Bethsaida operating account were not “personal draws” but reimbursements for business expenses he allegedly paid with personal funds. The trial judge gave him a direct opportunity: bring and produce the records the next day. He did not do so when prompted. On the final trial day, counsel showed documents to the court but expressly disclaimed seeking admission, and the documents were not admitted.

The Supreme Court’s affirmance rests on two related evidentiary-control rationales:

• No abuse in “not considering” unoffered exhibits: the court cannot be faulted for not admitting evidence when counsel did not move to admit it.
• No abuse in refusing to reopen proof: under Sirotiak v. H.C. Price Co., the trial court has wide discretion to control the order of proof. Under Alaska R. Civ. P. 46(c), after a case-in-chief a party is generally confined to rebuttal unless “justice and good reason” justify reopening. The Supreme Court agreed the records were aimed at corroborating Jibade’s own prior testimony rather than directly contradicting new matter—hence not proper rebuttal under Sirotiak/Riffey v. Tonder.

The practical upshot is that litigants must treat documentary substantiation of their own narrative as case-in-chief evidence, not a “save it for later” item. The court’s emphasis on trial-management constraints (avoiding prolonging the trial beyond its scheduled conclusion) fits comfortably within Alaska’s abuse-of-discretion framework.

B. Marital business: ownership, post-separation income, dissipation, and valuation

(i) Ownership: resignation as administrator did not equal resignation as LLC member

Jibade argued that Ogunniyi’s November 2021 resignation as Bethsaida’s qualified administrator amounted to abandoning the business itself. The court rejected that conflation, emphasizing the legal separation between a regulatory/licensing role and ownership.

Statutorily, the court pointed to AS 10.50.185(a): a member may not resign except as permitted by the LLC operating agreement and specified events. Jibade produced no operating agreement provision showing that stepping down as administrator triggered membership resignation. Thus, the superior court’s finding that she “did not give up her ownership interest voluntarily” had both factual (she was “forcibly and wrongly removed”) and legal support.

(ii) Post-separation business revenue: separate income doctrine does not transfer to the entity’s income

The opinion draws a careful line: while Brown v. Brown recognizes that a spouse’s post-separation wages are separate property, the court treated post-separation revenue of a marital business as belonging to the business and therefore embedded in the marital estate through the valuation of the marital ownership interest. In effect, the court treated the relevant question as not “whose labor produced the revenue,” but “what happened to the value of the marital asset (the business interest) during separation,” including whether a controlling spouse depleted it.

Within that frame, the superior court’s refusal to credit Jibade for his claimed post-separation contributions was upheld as a discretionary decision under Rohde v. Rohde, particularly because the factual findings painted not “maintenance and preservation,” but depletion: he delayed compliance with court orders, continued spending income, lost clients, and delivered a business with no patients, employees, contracts, or cash.

(iii) Dissipation and “recapture”

The superior court found $104,362 in “personal draws” and assigned that value to Jibade, then made an unequal division (70/30) favoring Ogunniyi based on unreasonable depletion under AS 25.24.160(a)(4)(E). Although the Supreme Court noted some imprecision in the trial court’s “framing” (addressing the business and its revenue separately), it concluded the analysis functionally tracked Alaska’s recapture doctrine as described in Faris v. Taylor (quoting Ethelbah v. Walker) and Miller v. Miller: dissipated value can be restored to the marital balance sheet by crediting the dissipating spouse.

(iv) Valuation date and valuation number

Jibade argued on appeal that valuation should have been pegged to the date he transferred control back to Ogunniyi (when he asserted there was $40,000 in the account). Because he did not raise the valuation-date argument below, the Supreme Court reviewed for plain error under Numann v. Gallant (quoting State v. Nw. Constr., Inc.) and found none—especially where the record did not support the claimed $40,000 and where the court had already accounted for wrongful withdrawals.

As to the $500 business valuation at trial, the court deferred to the trial judge’s credibility findings under Downs v. Downs and Sean B. v. State, Dep't of Health & Soc. Servs.. Ogunniyi testified the operating account held about $657 at trial; Jibade’s contrary narrative was undermined by missing corroboration and adverse credibility findings.

C. Marital home: down-payment credit denied

Jibade sought a $17,000 credit for a down payment he claimed came from separate funds. Relying on the equitable-division discretion recognized in AS 25.24.160(a)(4) and the contribution principle in Bussell v. Bussell, the court nevertheless upheld the trial court’s refusal to “reimburse” him in addition to awarding him his share of total home equity. Choitner v. Choitner squarely supports that denial as a discretionary call: down payments are commonly reflected in equity and need not be separately credited.

D. Disqualification: proof, nonjudicial-source bias, and adverse rulings

The disqualification claim rested on an alleged conflict: the judge’s spouse purportedly represented a firm that threatened litigation against Jibade’s attorney. Applying AS 22.20.020 and Alaska Code of Judicial Conduct 3(E)(1)(a), the Supreme Court stressed two limitations grounded in prior cases:

• Burden and evidentiary support: under Braun v. Borough (abrogated on other grounds by Matter of 2021 Redistricting Cases), the party alleging bias bears the burden. Here, the allegation was not supported by sworn affidavit or other evidence, and the judge denied knowledge of the alleged matters.
• Nonjudicial-source requirement and “adverse rulings”: under Hanson v. Hanson, disqualifying bias must arise from a nonjudicial source. Under Downs v. Downs (quoting Kinnan v. Sitka Counseling), bias cannot be inferred merely from adverse rulings; the record must objectively support partiality under Kinnan.

On this record, the Supreme Court found neither actual bias (reviewed for abuse of discretion per Heber v. Heber) nor an appearance of bias (reviewed de novo per Mengisteab v. Oates).

3.3 Impact

Although nonprecedential, the decision is a useful “application blueprint” for recurring Alaska divorce/business disputes:

• Marital-business disputes: The opinion reinforces that a spouse cannot unilaterally treat a marital LLC as personal property during separation, and that courts may respond to depletion through unequal division and recapture-style accounting tied to AS 25.24.160(a)(4)(E).
• Operational roles vs. ownership: Resigning a licensed/administrative position does not, without operating-agreement support, terminate LLC membership (AS 10.50.185(a)). This matters for family-run, regulated businesses where only one spouse can hold the credential.
• Trial practice and proof discipline: Parties who claim “reimbursements” must timely produce documentary support. Courts will treat late corroboration as improper rebuttal and will protect trial schedules through order-of-proof discretion (Sirotiak v. H.C. Price Co.).
• Recusal motions: Unsworn, unsupported allegations—especially those tied to counsel rather than parties—are unlikely to establish appearance or actual bias under AS 22.20.020 and Canon 3(E).

4. Complex Concepts Simplified

• “Dissipation” / “unreasonable depletion”: spending, transferring, or wasting marital value so that there is less left to divide. Alaska requires courts to consider this conduct in property division (AS 25.24.160(a)(4)(E)).
• “Recapture”: an accounting remedy that adds wasted value back into the marital ledger—often by assigning the dissipated amount to the spouse who caused the loss (discussed via Faris v. Taylor and Miller v. Miller).
• Business income vs. personal income after separation: your wages after separation are generally yours (see Brown v. Brown), but revenue generated by a marital business affects the value of the marital asset and can be addressed through valuation and recapture when one spouse controls the business.
• “Rebuttal evidence”: evidence used to answer the other side’s new points; it is not meant to merely strengthen (corroborate) what you already said in your own case. Courts can exclude “late” corroboration offered as rebuttal (Sirotiak v. H.C. Price Co.).
• Standards of review:
  • Clear error: appellate court defers unless the finding is plainly wrong.
  • Abuse of discretion: appellate court defers unless the decision is unreasonable.
  • De novo: appellate court decides the legal question fresh (used for “appearance of bias” per Mengisteab v. Oates).
• “Appearance of bias” vs. “actual bias”: appearance asks whether a reasonable person would question impartiality (objective); actual bias asks whether the judge cannot be fair. Adverse rulings alone don’t prove either (Kinnan v. Sitka Counseling).

5. Conclusion

The Alaska Supreme Court affirmed a strongly dissipation-driven property division arising from a spouse’s unilateral control of a marital assisted living business. The decision’s central lessons are practical and doctrinal: (1) post-separation handling of a marital business is scrutinized through valuation and recapture principles, not merely through whose labor generated revenue; (2) operational resignation does not equal ownership resignation absent operating-agreement authority under AS 10.50.185(a); (3) credibility and missing financial records can be outcome-determinative; (4) trial courts have broad power to enforce orderly proof and exclude late corroboration; and (5) recusal requires substantiated facts showing nonjudicial-source bias or a reasonable appearance of partiality, not speculation or dissatisfaction with rulings.