search the entire site.
or go to the recent opinions, or the chronological or subject indices.
R. Gallagher v. G. Gallagher (1/7/94), 866 P 2d 123
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
ROSLYN GALLAGHER, )
) Supreme Court No. S-5484
) Superior Court No.
v. ) 3AN-90-9272 Civil
GERARD ROBIN GALLAGHER, ) O P I N I O N
______________________________) [No. 4041 - January 7, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan M. Katz, Judge.
Appearances: Albert Maffei, Anchorage,
for Appellant. No appearance by Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating].
This case presents three issues: (1) the power of a
successor judge to amend the findings of fact and conclusions of
law that have been entered by a judge who heard the case on its
merits, (2) the power of the court to sua sponte vacate its
previous orders and judgment, and (3) the effect of uncontested
motions and orders. Because we find no reversible error we
affirm the judgment of the superior court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Roslyn Gallagher sued Gerard Robin Gallagher for
divorce. The case was heard on the merits by Judge Joan M. Katz.
Judge Katz entered written Findings of Fact and Conclusions of
Law on June 13, 1991, and signed the Judgment of Divorce the next
On June 21, Judge Brian L. Shortell, the Presiding
Judge of the Third Judicial District, entered a general order
placing Judge Elaine M. Andrews in the Family Court Division, and
assigning to her even numbered domestic cases, including the case
now before this court. On July 1, the assignment order signed by
Judge Shortell became effective and Judge Andrews then became
responsible for all the cases assigned to her.
On June 27, Roslyn filed a Motion to Amend Findings of
Fact and Conclusions of Law. In October Judge Andrews entered an
Order Amending Findings of Fact and Conclusions of Law in
accordance with the motion made by Roslyn.1 In November she
entered a final Judgment of Divorce and a Qualified Domestic
Relations Order (QDRO). In March 1992 Judge Andrews sua sponte
entered an order vacating all previous orders and the judgment in
the case which had been signed by her. She stated that they had
been signed in error and that she had no intention to change,
substantively, any factual findings or conclusions of law reached
by Judge Katz, who had heard the case on its merits. The case
was then referred to Judge Katz. In April Judge Katz entered an
order denying Roslyn's Motion to Amend Findings of Fact and
Conclusions of Law, which had previously been granted and later
vacated by Judge Andrews. Roslyn then filed a petition for
review, which was denied; however, it was treated as a timely
appeal if a notice of appeal, statement of points on appeal, and
a designation of record were filed by December 28, 1992. Roslyn
Roslyn asserts that after Judge Andrews entered her
orders and judgment, they could not be vacated by either Judge
Andrews or Judge Katz, regardless of whether they were entered in
error. We disagree.
Judge Andrews had authority to vacate the orders and
judgment sua sponte under Civil Rule 60(b). Martin v. Leonard
Motor-El Paso, 402 P.2d 954, 956 (N.M. 1965); see also McDowell
v. Celebrezze, 310 F.2d 43, 44 (5th Cir. 1962); Packard v.
Whitten, 274 A.2d 169, 173 (Me. 1971).
Judge Andrews' action in vacating the orders and
judgment was not an abuse of discretion. She earlier had erred
in signing them when Judge Katz was still available to make the
determinations requested. See Alaska R. Civ. P. 63(c), 40(d).
Merely because the amended Findings of Fact and
Conclusions of Law submitted by Roslyn were unopposed and the
resulting Judgment and Decree of Divorce was not appealed does
not mean that they were invulnerable to collateral attack under
Alaska Civil Rule 60(b). The fact that a motion is uncontested
does not mean that it must be granted as a matter of right. See
Willie v. State, 829 P.2d 310, 312 (Alaska 1992) ("the state's
failure to respond does not entitle [the defendant] to automatic
suppression of the evidence"); Bauman v. State, Div. of Family &
Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989) ("the proponent
has no absolute right to summary judgment merely because the
opponent fails to respond"); Weaver Bros., Inc. v. Chappel, 684
P.2d 123, 126 (Alaska 1984) (since the moving party did not meet
the burden of showing that there were no issues of material fact
the summary judgment motion should be denied even if it was
unopposed); Greater Anchorage Area Borough v. Real Prop.
Taxpayer's Ass'n, 513 P.2d 1103, 1104 (Alaska 1973) (in remanding
the case, the court noted that there may be reason for denial of
the unopposed motion for attorney's fees). Further, Gerard had
no way of knowing, within the thirty-day period for an appeal,
that Judge Andrews had not intended to change, substantively,
the factual findings and legal conclusions reached by Judge Katz.
Thus the rule that "[c]ontentions based on facts which are known
to a party at a time when a direct appeal is possible must either
be raised on direct appeal or in a Rule 60(b) motion made during
the time for taking the appeal"does not apply. See Kenai
Peninsula Borough v. English Bay Village Corp., 781 P.2d 6, 7
(Alaska 1989) (citations omitted).
For the above reasons the judgment of the superior
court is AFFIRMED.
1. The original Findings of Fact and Conclusions of Law
provided that "an attempt to formulate a precisely equal property
division is neither feasible nor necessary"and that the "parties
should be left in approximately the same condition now as
obtained at the start of their relationship and marriage." The
amended Findings of Fact and Conclusions of Law provided for
equal division of the property, including the real estate.
2. No brief was filed by Gerard.