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Richmond v. Pluid (10/25/96), 925 P 2d 251
Notice: This opinion is subject to 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, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SUSAN RICHMOND, ) Supreme Court No. S-6765
Appellant, ) Superior Court No.
) 3AN-94-689 CI
v. ) (originally 3PA-89-275 DR)
FRANK PLUID, ) O P I N I O N
Appellee. ) [No. 4418 - October 25, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Kathleen A. Weeks, Law Offices
of Kathleen A. Weeks, Anchorage, for
Appellant. Thom F. Janidlo, Law Offices of
Thom F. Janidlo, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
Frank Pluid and Susan Richmond were never married. They
had one child, born in 1982. Susan moved out of the residence she
shared with Frank in 1989. In March 1989 Frank was indicted.
Eventually the indictment was dismissed.
On May 8, 1989, the parties signed a custody and child
support agreement that obligated Frank to pay $830.37 per month in
child support. On the same day that the parties executed the child
support agreement, they also executed a "Partial Waiver of Child
Support,"in which they agreed that Frank's obligation to pay any
child support over $300 was waived. This document also stated that
the agreement and waiver was "based on the fact that Frank Pluid
has consistently provided clothing and other necessities for [the
child] and he agrees to continue to do so, thereby paying a
substantial amount of support in kind." There was a post-it note
attached to Frank's copy of the waiver document that said "Frank DO
NOT FILE w court Keep this in case it becomes necessary in the
future if any welfare is involved -D ZWINK. (EN1)"
On July 14, 1989, there was a custody hearing before
Master Joseph O'Connell in Palmer. Susan and her attorney were
present, but Frank was not. At the hearing, Master O'Connell
recommended approval of the settlement agreement which set the
child support at $830.37 per month. The master was not made aware
of the waiver document.
Although Master O'Connell made his recommendations in
July 1989, there was no order entered approving the parties'
agreement until Judge Beverly Cutler entered such an order on
February 23, 1993, nunc pro tunc to July 14, 1989. The order
provided that "[t]his document shall constitute a judgment."
From July 1989 until December 1991, Frank paid $300 per
month in child support, plus additional miscellaneous expenses.
From December 1991 until September 1993 he paid $400 per month. In
the summer of 1993 Susan went to the Child Support Enforcement
Division to attempt to collect on the child support she said she
was owed under the settlement, claiming that Frank should have been
paying her $830.37 per month since 1989. Frank then filed a motion
for relief from the February 23, 1993 judgment pursuant to Civil
Rule 60(b). On March 10, 1994, Susan filed a motion to reduce
child support arrearages to judgment, seeking to collect $21,832.74
Hearings on these motions were held before Master Andrew
Brown on May 27, June 30, July 15, and July 20, 1994. At these
hearings Susan testified that she only signed the waiver because
she believed it likely that Frank would be incarcerated, and she
would have to go on welfare. She claims that she thought the
purpose of the waiver was to provide a "future means to promptly
modify Pluid's obligation of $830.37 monthly child support if he
were incarcerated and Pluid would thereby avoid incurring punitive
arrearages." Frank stated that the $300 per month figure was based
on the fact that Susan was receiving $250 per month child support
for her other children and did not need more than that for their
child, and that Frank would reimburse her for expenses above $300
Master Brown did not find it necessary to determine which
party was telling the truth about the reasons for the waiver of
child support, because he concluded that the waiver was invalid
under Cox v. Cox, 776 P.2d 1045, 1048 (Alaska 1989). He
recommended that the court not give the waiver any effect, that the
Rule 60(b) motion be denied, that judgment for arrearages of
$21,832.74 be entered against Frank, and that Frank's ongoing
support obligation should continue to be $830.37 per month.
The trial court accepted and adopted the master's
findings of fact but came to different legal conclusions. Because
the parties claimed to have been unaware of Cox, which was decided
two weeks before the 1989 uncontested hearing but after the child
support waiver agreement was signed, and the parties' actions were
in keeping with the waiver, the court concluded that "the parties
intended to waive child support, and that there was good cause to
waive the child support"until Frank received notice of Susan's
efforts to void the agreement by moving for arrearages. The court
set the child support payments at $830.37 from the time of such
notice, which was received by Frank in July 1993. Susan appeals,
claiming that the partial child support waiver agreement should not
have been given effect.
The judgment entered on February 23, 1993, nunc pro tunc
to July 14, 1989, requiring Frank to pay child support of $830.37
per month, was presumptively valid. Like other judgments, it was
subject to being set aside pursuant to the procedures and grounds
set forth in Civil Rule 60(b). The trial court did not refer to
Rule 60(b) or any of the grounds listed in the rule which might
justify relief from a judgment. The master in his recommendation
addressed Frank's Rule 60(b) motion and recommended that it be
We agree with the master's analysis and set it forth
Mr. Pluid's Sept. 3, 1993 Motion for
Relief relies on various Civil Rule 60(b)
theories. However, none are applicable in
light of the parties' conduct.(EN6) There was
no 60(b)(1) "mistake, inadvertence, surprise
or excusable neglect"by the parties in July
1989, because they deliberately did what they
set out to do - enter into a side agreement on
support and not inform the court about it.
Mr. Pluid cannot now claim that he made a
mistake when he intentionally held from the
court the very document which might have
caused the court to inquire if the amount of
support was to be different from the $830.37
in the Agreement of the Parties.
Mr. Pluid has also alleged the
possibility that 60(b)(3) applies as to "fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party." However,
both parties conspired to keep the waiver
document from the court. There was insuffi-
cient evidence to make any finding that Ms.
Richmond or her attorney used overbearing
influence on Mr. Pluid, so that he would not
be able to make his own choice. The evidence
clearly showed that both parties misled the
court, but that is not good cause to relieve
either of their misconduct, since one of the
main reasons for their misconduct - the
possibility of Mr. Pluid going to jail and
losing his high income with Ms. Richmond going
on welfare - never came about.
To have been a "fraud on the court"it
would have to been shown to be "'the most
egregious conduct involving a corruption of
the judicial process itself.'" Allen v.
Bussell, 558 P.2d 496, 500 (Alaska 1976).
Here, the parties' misconduct of hiding their
wavier agreement only resulted in the court
entering a support order for the very amount
required by Civil Rule 90.3(a). So they may
have attempted to thwart the court, but in the
end they failed. Therefore, 60(b)(3) relief
is not called for.
The final possible 60(b) relief would be
under subsection (6)'s "any other reason
justifying relief from the operation of the
judgment." The following from Hartland v.
Hartland, 777 P.2d 636, 645 (Alaska 1989) is
Relief under 60(b)(6) is inap-
propriate when a party takes a deli-
berate action they later regret as a
mistake. See O'Link, 632 P.2d at
229-30 (quoting Wright and Miller).
As Professor Moore notes, "a party
who takes deliberate action with
negative consequences, or who makes
an informed choice as to a parti-
cular course of action will not be
relieved of the consequences when it
subsequently develops that the
choice was unfortunate." 7 J.
Moore, Moore's Federal Practice
60.22, at 60-182 (1985).
Mr. Pluid intentionally kept the Partial
Waiver of Support document from the court.
Without that document the court had no means
to determine if there should have been a
variation in or credit for support under Civil
Rule 90.3(c). The information the court was
given about Mr. Pluid's income was from his
own hand and was accurate, so the approval of
the $830.37 per month amount was proper.
While Mr. Pluid may face a large
arrearage judgment, as noted below, due to not
paying the full $830.37 per month from July
1989, that does not amount to an extraordinary
reason for 60(b)(6) relief. "As to relief
under the catch-all provision of 60(b)(6),
this court has stated that only extraordinary
cases are subject to relief under this
section." Hartland, 777 P.2d at 645. Mr.
Pluid has not proven that had the court known
in 1989 of the attempted waiver and questioned
its validity then, that the court would have
approved it. Findings of Fact #12 through #16
showed that many of his claimed child support
expenditures were not those in fact. Based on
the parties' testimony concerning their wavier
agreement and Mr. Pluid's history of purported
support payments, it is more likely that the
real purpose of the waiver was to avoid paying
the full amount of support, so his facing an
arrears judgment only rights the wrong the
parties attempted by their Partial Waiver of
Child Support document. Therefore, it is
recommended that the court deny any Civil Rule
60(b) relief from judgment.
Implicit in our acceptance of the master's rationale
concerning Frank's Rule 60(b) motion is our legal conclusion that
child support waivers are not valid or enforceable until and unless
a court has reviewed and approved their substantive adequacy under
Civil Rule 90.3. See Nix v. Nix, 855 P.2d 1332, 1334 (Alaska
1993); Cox v. Cox, 776 P.2d 1045 (Alaska 1989).
We first announced this rule in Cox, basing it on Civil
Rule 90.3. Id. at 1047-48. We referred to our decision in Malekos
v. Yin, 655 P.2d 728 (Alaska 1982), which held that parties could
by agreement waive court ordered child support, and indicated that
the rule of accepting waivers by agreement was no longer valid in
light of the adoption of Civil Rule 90.3: "We therefore conclude
that the decision in Malekos has been superseded by Rule 90.3."
Cox, 776 P.2d at 1048.
Civil Rule 90.3 was adopted effective August 1, 1987. If
Cox applies retroactively as well as prospectively, the parties'
waiver agreement was never effective. Normally court decisions are
given retroactive as well as prospective effect so that they "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).
Occasionally, however, a judicial ruling should be applied only
prospectively. We have identified four conditions which can point
to the propriety of non-retroactive treatment in civil cases. They
(1) the holding is one of first impres-
sion, or overrules prior law, and was not
foreshadowed in earlier decisions;
(2) there has been justifiable reliance
on an alternative interpretation of the law;
(3) undue hardship would result from
retroactive application; and
(4) the purpose and intended effect of
the holding is best accomplished by prospec-
Id. at 503.
The first factor points in both directions. Cox was the
first case to consider whether agreements providing for child
support payments lower than those called for under Civil Rule 90.3
would be valid without prior court approval. Case law prior to the
adoption of Civil Rule 90.3 held that such agreements were valid.
See Malekos, 655 P.2d 728. Cox was thus a case of first impression
and, in a sense, it overruled prior law. However, the result in
Cox was foreshadowed by the adoption of Civil Rule 90.3. Cases
decided in other jurisdictions under federally mandated child
support guidelines had concluded that agreements calling for lower
support payments than provided for by guidelines did not, as such,
justify deviation from the guidelines. Peerenboom v. Peerenboom,
433 N.W.2d 282, 285 (Wis. App. 1988); Ching v. Ching, 751 P.2d 93,
96 (Haw. App. 1988).
All of the other factors indicate that retroactive
treatment should be given. The second factor, justifiable reliance
on an alternative interpretation of law, did not exist at the time
that the agreement was presented to the court. Our decision in Cox
was handed down two weeks before the hearing in this case. Any
justifiable reliance on the partial waiver agreement terminated
with the Cox decision. The same is true for the undue hardship
Concerning the fourth factor, the purpose and intended
effect of the ruling, this factor also suggests that retroactive
treatment is appropriate. The purpose of Civil Rule 90.3 is to
ensure that child support be set at an adequate level in recogni-
tion that "many parents underestimate actual child support costs."
Cox, 776 P.2d at 1048. That purpose can be best accomplished by
giving broad application to the Cox ruling.
In consideration of these factors we conclude that Cox
should be applied retroactively to the date of enactment of Civil
Based on the foregoing, the orders of the superior court
dated October 17, 1994, and February 22, 1995, are REVERSED and
this case is REMANDED with directions to enter (1) an order denying
the Civil Rule 60(b) motion for relief from judgment, and (2) a
judgment for arrearages in accordance with the recommendation of
1. David Zwink was Susan's attorney.
6. Mr. Pluid's Motion for Relief of Judgment was filed within one
year of the Feb. 23, 1993 entry of the nunc pro tunc Order of July
14, 1989, so although the focus is on what occurred in 1989, his
motion is regarded as within the one year time limit for the
purpose of dealing with Civil Rule 60(b)(1) and (3) issues.