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R. Rodriguez v. J. Rodriguez (12/29/95), 908 P 2d 1007
NOTICE: This opinion 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
ROLANDO T. RODRIGUEZ, )
) Supreme Court No. S-5706
) Superior Court No.
v. ) 1JU-91-1402 DR
JULIETA S. RODRIGUEZ, ) O P I N I O N
Appellee. ) [No. 4302, December 29,
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry C. Zervos, Judge.
Appearances: Patrick W. Conheady and James
E. Curtain, Olmstead & Conheady, Juneau, for
Appellant. Anthony M. Sholty, Faulkner,
Banfield, Doogan & Holmes, Juneau, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
This appeal arises from a divorce action between
Rolando and Julieta Rodriguez. On appeal, Rolando challenges a
number of the superior court's pre-trial rulings. He also argues
that when distinguishing marital from separate property, the
superior court should have considered the effect of a period of
separation that did not lead to divorce. Finally, he contends
that the superior court should have valued the marital home as of
the time of final separation, rather than as of the time of
I. FACTS AND PROCEEDINGS
Rolando married Julieta in the Philippines in November
1977. The couple had three children, all of whom were born
before the marriage. Three months after the wedding, Rolando
moved to the United States to seek employment, leaving Julieta
and the children behind. Soon thereafter, the marital
relationship became troubled, and Rolando ceased contact with
Julieta in 1978. However, he continued to send money to the
Philippines to support his children. He moved from California to
Alaska in 1979.
Julieta moved to San Francisco in 1981. According to
Rolando, he did not hear of her move until 1982, when he learned
from medical authorities that she needed a gall bladder
operation. He permitted them to charge the cost of the procedure
to his insurance. Rolando states that he had no contact with
Julieta until 1986. At that time he agreed to help her bring
their children to the United States.
After the arrival of the children in May 1987, Rolando
visited them and Julieta several times in San Francisco. During
this time, Rolando and Julieta decided to reconcile, and she and
the children moved to Rolando's home, in Juneau. The Rodriguezes
bought a new home in July 1989. Rolando and Julieta stayed
together until July 1991, when the couple once again separated.
Julieta, and eventually the children, returned to California.
In August 1991 Rolando filed an action for a divorce
from Julieta. After Julieta failed to plead or appear in the
action, Rolando applied for and obtained an entry of default.
Julieta filed an answer pro se on the same day that the court
clerk entered the default. Consequently, the superior court set
aside the default, but warned Julieta that "[f]rom this point
forward, . . . [she would] be required to comply with the Alaska
Civil Rules." The court also recommended that she hire counsel,
which Julieta subsequently did.
In mid-May 1992 -- one and one-half months after the
deadline for amending complaints and two months and ten days
before the original trial date -- Rolando moved to amend his
complaint to allege that his marriage to Julieta was void under
Alaska law.1 Rolando asserted that Julieta had previously been
married to another man in the Philippines, and that because
Philippine law recognized separation only, not divorce, any
subsequent marriage by Julieta would be bigamous. The superior
court denied Rolando's motion on the grounds that the trial would
be delayed, that litigation would be more complex and costly, and
that the prejudice to Julieta would be too great.
The divorce proceeding took place in November and
December of 1992. In April 1993 the superior court issued
written findings and orders. In its orders, the superior court
rejected Rolando's characterization of property acquired during
the 1978-1988 separation as non-marital. Additionally, applying
Doyle v. Doyle, 815 P.2d 366 (Alaska 1991), the superior court
valued the Rodriguez home at the time of trial, but allowed
Rolando credit for mortgage payments made between the date of the
parties' final separation and the date of trial.
Julieta filed a motion for reconsideration, arguing
that the superior court had mistakenly concluded that it was
required to give credit for post-separation mortgage payments.
She cited Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992), where we
clarified that Doyle does not require such a credit, but rather
only requires that the trial court consider that such post-
separation payments were made when dividing the property. In
July 1993 the superior court decided on reconsideration to deny
Rolando credit for post-separation mortgage payments. The
superior court then issued its final decree of divorce. Rolando
A. Setting Aside the Default Judgment
Rolando contends that the superior court erred when it
set aside its entry of default because this decision resulted in
"unforeseen" prejudice to him. Between the setting aside of the
default and the final divorce decree, we issued our opinion in
Ramsey. In Ramsey we held that when dividing a marital estate,
the trial court is not required to give credit to a spouse who
made payments from post-separation income to maintain marital
property. Id. at 809. As a result, Rolando claims he was
prejudiced because the superior court relied on this precedent
when denying him credit for post-separation mortgage payments on
the marital home.
At the time the superior court entered the default
judgment, Julieta was acting pro se. Where, as here, the
litigant is unversed in the rules of civil procedure, the
litigant's failure to comply with the rules is not a result of
bad faith or gross neglect, and the infraction is relatively
minor, it is not an abuse of discretion for the trial court to
set aside the default judgment. See Kennedy v. First Nat'l Bank
of Fairbanks, 637 P.2d 297, 298 (Alaska 1981); Sanuita v.
Hedberg, 404 P.2d 647 (Alaska 1965). This holding is consistent
with the mandate, stated in Alaska Civil Rule 94, that the Rules
of Civil Procedure "may be relaxed or dispensed with by the court
in any case where it shall be manifest to the court that a strict
adherence to them will work injustice."
Rolando is correct in arguing that the superior court
should consider any resulting prejudice to the plaintiff when
deciding whether to set aside an entry of default. Hertz v.
Berzanske, 704 P.2d 767, 771 (Alaska 1985). However, our review
must necessarily be based on the reasonably foreseeable
consequences at the time of the superior court's ruling. Because
the superior court could neither foresee nor weigh the prejudice
that might arise from future changes in the law, we conclude that
such changes may not be used to establish prejudice on appeal.
We therefore hold that it was not an abuse of discretion for the
trial court to set aside the default judgment.2
B. The Motion to Amend the Complaint
Rolando's next argument on appeal is that the superior
court erred in denying him leave to amend his pleadings to allege
that his marriage to Julieta was void. Rolando contends that
"[s]ince the issue concerns subject matter jurisdiction, Civil
Rule 12(h)(3) allows [him] to raise this issue at anytime."3 The
superior court denied the motion because it was filed after the
pretrial deadline for amendments to the pleadings. The court
also noted that if amendment was allowed, the trial might be
delayed and would be much more complex and costly, and therefore
that the prejudice to Julieta would be great.
Under Alaska Civil Rule 15(a), once a responsive
pleading has been served, parties may amend their pleadings "only
by leave of court or by written consent of the adverse party
. . . ." Generally, the superior court is given broad discretion
to allow or deny an amendment of the pleadings. Betz v. Chena
Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). However,
because "a court which does not have subject matter jurisdiction
is without power to decide a case, this issue cannot be waived,
and can be raised at any point during the litigation." Wanamaker
v. Scott, 788 P.2d 712, 713-14 n.2 (Alaska 1990). Therefore,
where a proposed amendment challenges the trial court's subject
matter jurisdiction, it is an abuse of discretion to deny the
party's amendment. Noting that numerous courts in our sister
states have held that they lack jurisdiction over dissolution
proceedings and cannot grant relief predicated on the spousal
relationship if a marriage is found to be void,4 we address the
question of whether the superior court properly exercised
jurisdiction in the present action.
"The question of a court's jurisdiction goes to its
power to hear and adjudicate the subject matter in a given case."
Matter of C.D.M., 627 P.2d 607, 610 (Alaska 1981). Article IV,
section 1 of the Alaska Constitution states, "The jurisdiction of
courts shall be prescribed by law." Thus, where the legislature
specifically authorizes the court to enter a judgment in a
particular class of cases, the court properly has subject matter
Whether this action is treated as an action for divorce
under AS 25.24.050 or an action to declare the marriage void
under AS 25.24.020, we conclude that the superior court had
jurisdiction to divide the couple's property. Alaska Statute
25.24.160(a) states in part,
In a judgment in an action for divorce or
action declaring a marriage void or at any
time after judgment, the court may provide
. . . (4) for the division between the
parties of their property, including
retirement benefits, whether joint or
separate, acquired only during marriage, in a
just manner and without regard to which of
the parties is in fault . . . .
(Emphasis added.) By including the phrase "or action declaring a
marriage void," the legislature must have intended to allow the
division of property acquired during a putative marriage which is
found to be void because it was "contracted by a person during
the life of a former husband or wife which marriage has not been
annulled or dissolved." AS 25.24.020. Thus, we conclude that
the superior court properly exercised jurisdiction to divide the
parties' property and that any error in failing to grant
Rolando's motion for leave to amend his pleadings to raise lack
of subject matter jurisdiction was harmless error.
C. The Determination of Marital Property
Rolando next challenges the superior court's
determination that certain property which he acquired from 1978
to 1988, when the couple lived apart, was part of the marital
estate.5 He cites Schanck v. Schanck, 717 P.2d 1 (Alaska 1986),
and several other cases for the proposition that the only assets
subject to division are those acquired during periods in which
the marriage was a joint economic enterprise.
In making this argument, Rolando mischaracterizes
Alaska law. The cases on which he relies require a determination
on the existence of a joint economic enterprise, but only with
regard to distribution of property acquired "with income earned
after a final separation that is intended to, and does in fact,
lead to a divorce . . . ." Id. at 3 (emphasis added); accord
Ramsey, 834 P.2d at 809; Bays v. Bays, 807 P.2d 482, 486 (Alaska
1991); Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987). These
cases are inapposite here, because Rolando and Julieta reconciled
after their informal separation, without ever filing for divorce,
and lived together as husband and wife for a full three years
after the separation.
The superior court properly applied the first step of a
property division analysis by identifying what specific property
was available for distribution. Wanberg v. Wanberg, 664 P.2d
568, 570-71 (Alaska 1983). We have previously held that pursuant
to AS 25.24.160(a)(4), "[p]roperty available for distribution
includes all property acquired during marriage, whether title is
joint or separate." Lewis v. Lewis, 785 P.2d 550, 555 (Alaska
1990) (emphasis added). We further note that AS 25.24.160(a)(4)
provides that the trial court should ensure that there are
sufficient assets available to "fairly allocate the economic
effect" of the divorce. Because the property at issue was
obtained "during marriage" and the parties subsequently
reconciled, we conclude that the superior court did not abuse its
discretion in declining to apply the post-separation analysis for
the period from 1978 to 1988.
D. Valuation Date of the Marital Home
Finally, Rolando contends that the superior court erred
in valuing the marital home as of November 1992, the date of
trial, rather than as of July 1991, the date when he and Julieta
separated.6 Between these two dates, the home appreciated in
value significantly.7 Rolando contends that because he made the
mortgage payments during that time, his efforts alone caused the
property to increase in value.
Though generally the proper date by which to value
property is the date of trial, under special circumstances the
superior court may value the property as of the date of
separation. Ogard v. Ogard, 808 P.2d 815, 819-20 (Alaska 1991).
One instance where valuing property from the date of separation
may be warranted arises when the efforts of only one of the
spouses leads to an increase in the value of the marital
Post-separation mortgage payments simply cannot be
considered "sole efforts" for any fortuitous increase in the
home's value that occurs during the interim period before trial.
Ogard's "special circumstances" exception applies, for instance,
to pension benefits accumulated after separation, because the
additional assets would not have existed had not one spouse, and
that spouse alone, earned them in the course of his or her
employment. See, e.g., Hunt v. Hunt, 698 P.2d 1168, 1172 (Alaska
1985) (holding it was not an abuse of discretion in that case to
apply the "special circumstance" exceptions to these pension
benefits). By contrast, Rolando's post-separation payments may
have allowed the parties to keep the home, but the value of the
property would have increased whether or not Rolando made the
payments. Therefore, we conclude that the post-separation
payment of the mortgage on the marital home by Rolando does not
constitute a special circumstance warranting valuation at the
time of separation.
Nonetheless, under some circumstances a spouse may be
entitled to reimbursement of payments made out of post-separation
earnings to maintain marital property. See Wood v. Collins, 812
P.2d 951, 958 (Alaska 1991). In the present case the superior
court determined that Rolando was not entitled to reimbursement
because he had lived in the house after the parties separated and
thus a credit would constitute an unfair advantage to Rolando.
In other words, any benefit which he may have imparted to the
marital estate was offset by the benefit he received from the
estate by living rent-free.
We conclude that the superior court did not err in
applying such reasoning. We held in Wood that where the use of
marital property after separation effectively excludes the other
spouse, the rules of cotenancy require payment to the marital
estate of the fair market rental value for use of the property.
Id. This reasoning is also consistent with our statement in
Ramsey, 834 P.2d at 809:
We have required that trial courts
consider payments made to maintain marital
property from post-separation income when
dividing marital property. Doyle v. Doyle,
815 P.2d 366, 369 n.5 (Alaska 1991). We have
not, however, held that the spouse who makes
such payments must necessarily be given
credit for them in the final property
Thus, we hold that the superior court did not abuse its
discretion in ruling that Rolando was not entitled to a credit
for any post-separation payments he made on the parties' home.
Based on the foregoing, we AFFIRM the superior court in
1 According to Julieta, the superior court's pretrial
scheduling order set a trial date of July 27, 1992, and a
deadline of March 31, 1992, for motions to amend the pleadings.
The trial date was subsequently moved back to October 26, 1992.
In September, Rolando filed a renewed motion to amend the
pleadings, on the same grounds as before. The superior court
denied this motion as well.
2 We also reject Rolando's argument that because the
trial court set aside the default judgment it should have applied
pre-Ramsey law. "Absent special circumstances, a new decision of
this court will be given effect in the case immediately before
the court, and will be binding in all subsequent cases in which
the point in question is properly raised, regardless of the fact
that the events to which the law is applied occurred prior to the
actual decision of the Court." Plumley v. Hale, 594 P.2d 497,
502 (Alaska 1979). This rule applies even where the subsequent
case is currently pending in superior court. Because Rolando
fails to identify any reason which would justify purely
prospective application of the rule adopted in Ramsey, we
conclude that the superior court properly applied our holding in
Ramsey to the present case.
3 Alaska Civil Rule 12(h)(3) provides, "Whenever it
appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter the court shall dismiss
4 See, e.g., Ex parte Cook, 108 P.2d 46, 47 (Cal. Dist.
App. 1940); In re Marriage of Zubia, 558 P.2d 1003, 1004 (Colo.
App. 1976); Williams v. Williams, 460 N.E.2d 1226, 1228 (Ind.
5 The dispute appears to focus upon Rolando's SBS
benefits, which were worth $73,937 at the time of trial and
$65,150.55 in July 1991, the date of the parties' final
separation. Of this amount, $29,291.98 accrued during the period
when Rolando and Julieta had reconciled, from July 1988 to July
6 Because valuation of property involves factual
questions, this court reviews the superior court's valuation of
property for clear error. Thomas v. Thomas, 815 P.2d 374, 375
7 The parties purchased the house in July 1989 for
$89,900. The value of the home was appraised at $85,000 in July
1991, when the parties separated, and $89,000 in December 1992,
the time of trial.