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Lowe v. Lowe (8/15/97), 944 P 2d 29
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, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TOMMY R. LOWE, )
) Supreme Court No. S-6995
) Superior Court No.
v. ) 3AN-84-7148 CI
LINDA R. LOWE, ) O P I N I O N
Appellee. ) [No. 4865 - August 15, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: J. Mitchell Joyner, Law Office of
J. Mitchell Joyner, Anchorage, for Appellant. Charlene Lichtmann,
Nicholasville, Kentucky, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
I. FACTS AND PROCEEDINGS
Linda R. Lowe and Tommy R. Lowe were married in 1965.
They filed a Petition for Dissolution of Marriage in the superior
court in July 1984. They had two minor children at the time. The
petition made no mention of a marital residence in Abilene, Texas,
or of military retirement benefits which Tommy possessed. Linda
signed a quitclaim deed for the marital residence at the time she
signed the dissolution petition. The superior court issued a
Decree of Dissolution of Marriage in September 1984.
In July 1987, Linda filed a motion to modify and enforce
the decree of dissolution. She sought modification of the child
custody agreement, as the children had lived with her, not Tommy,
during the school years since separation, contrary to an agreement
she and Tommy made at the time of the dissolution. She also sought
child support and payment from Tommy of an amount representing her
estimate of one half of the value of the marital residence. She
claimed that she and Tommy had an unwritten agreement regarding an
equal division of the proceeds from the sale of the residence, that
Tommy had not followed through on the sale, and that she wanted her
share. In June 1989, almost two years later, Linda and Tommy
settled issues relating to custody and visitation.
In May 1989, prior to settlement of the child custody and
visitation issues, Linda moved for relief from judgment, pursuant
to Alaska Civil Rule 60(b). She requested that the court set aside
the property settlement and award her a share of Tommy's retirement
benefits. The superior court amended the decree in February 1990,
awarding Linda a share of these benefits. Tommy appealed.
On appeal, we observed that "[t]here is no dispute that
the dissolution petition provided that Tommy would have primary
custody of the children and that Linda in fact had primary custody
after the dissolution." Lowe v. Lowe, 817 P.2d 453, 458 (Alaska
1991)(Lowe I). We held that "[t]his provides a valid basis for
modifying the dissolution decree under subsection (6) of Rule
60(b)." Id. We remanded the case to the superior court with the
following instructions, however:
[A] motion under subsection (6) of Rule 60(b)
must be made within a "reasonable time." [Schofield v. Schofield,
777 P.2d 197, 202 (Alaska 1989).] We cannot say that a motion for
relief made four and a half years after entry of judgment is per se
unreasonable. See id. (Rule 60(b)(6) motion made eight years
after judgment was made within a reasonable time.). Since the
superior court made no reference to the timeliness of Linda's
motion in either its oral or written decision, we remand the case
to the superior court for a determination of whether Linda's motion
was made within a reasonable time. In determining what is a
reasonable time for purposes of Rule 60(b), the superior court
should take into account the purposes of the rule: "Rule 60(b), in
its entirety, attempts to preserve the delicate balance between the
conflicting principles that litigation be brought to an end and
that justice be done in light of all the facts."[Livingston v.
Livingston, 572 P.2d 79, 85 (Alaska 1977).] It is undisputed that
the key fact justifying relief, that the children did not go to
live with Tommy as contemplated, arose immediately after the
Lowe I, 817 P.2d at 459.
On remand, the superior court determined that Linda's
motion for relief from judgment had been made within a reasonable
time. It made the following written findings in support of this
11. During the course of the custody
litigation, Mrs. Lowe learned that Mr. Lowe did not intend to
follow through on his agreement for the division of the marital
home. At the time the parties executed the Petition for
Dissolution, the parties had an agreement, according to Mrs. Lowe's
testimony, that the marital home located in Abilene, Texas, be sold
and proceeds equally divided. After the dissolution, Mr. Lowe
assured Mrs. Lowe on a number of occasions that he was making
improvements to the home so that it could be sold.
12. I find that after the dissolution Mrs.
[Lowe] had a reasonable belief that Mr. Lowe was working toward a
resolution of the property issue concerning the marital home; that
Mrs. Lowe reasonably relied upon these assurances and that in view
of this there is a sufficient explanation for the delay in the
filing of the Civil Rule 60(b) Motion. The custody litigation
began in July, 1987 and ended in June, 1989. Sometime between
those dates, it became clear to Mrs. Lowe that Mr. Lowe was not
going to sell the home, and I find that she acted promptly in
raising this issue during the course of the litigation and that,
under the circumstances, the delay in filing the Civil Rule 60(b)
motion in May, 1989 was not an unreasonable one.
13. This is not a case where one party
attempts to resurrect and retract a divorce settlement 10 to 15
years after the fact. The parties to this action have been in some
form of litigation or dispute since the day they were divorced.
Given this, the principle of finality of litigation is entitled to
less weight than the conflicting principle that justice be done in
light of all the facts.
In its oral findings, the superior court further stated "that
legally this may not make a lot of sense, but I think probably what
happened was that there was a thinking that if I get half the house
I don't really need his retirement, but if I don't get half the
house, then I do want his retirement."
The court issued its amended final judgment in February
1995. Once again, Tommy has appealed. As a condition of his
appeal, the superior court required Tommy to pay Linda half of his
net disposable retirement pay each month until the appeal is
A. Standard of Review
We will not disturb a trial court's grant of a
Rule 60(b) motion except upon a showing of an abuse of discretion.
Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska 1967).
"On the other hand, whether the trial court applied the appropriate
legal standard in exercising its broad discretion is a question of
law regarding which this court may substitute its independent
judgment on appeal." Laing v. Laing, 741 P.2d 649, 651 (Alaska
Lowe I, 817 P.2d at 456-57. Findings of fact will be reversed as
clearly erroneous only "if, based on the record as a whole, the
court is left with a definite and firm conviction that a mistake
has been made." Headlough v. Headlough, 639 P.2d 1010, 1011
B. Civil Rule 60(b)(6)
Civil Rule 60(b) provides in part that
On motion and upon such terms as are just, the
court may relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or
(2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a
new trial under Rule 59(b);
(3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or
(6) any other reason justifying relief
from the operation of the judgment.
The motion shall be made within a
reasonable time, and for reasons (1), (2) and (3) not more than one
year after the date of notice of the judgment or orders as defined
in Civil Rule 58.1(c).
Alaska R. Civ. P. 60(b) (emphasis added).
"Clause (6) is reserved for extraordinary circumstances
not covered by the preceding clauses." O'Link v. O'Link, 632 P.2d
225, 229 (Alaska 1981). "Rule 60(b) in general, and clause (6) in
particular, should be liberally construed to enable courts to
vacate judgments whenever such action is necessary to accomplish
justice." Id. at 230. However, "Rule 60(b), in its entirety,
attempts to preserve the delicate balance between the conflicting
principles that litigation be brought to an end and that justice be
done in light of all the facts." Livingston v. Livingston, 572
P.2d 79, 85 (Alaska 1977).
C. The Superior Court Did Not Err In Concluding that Linda's
Delay in Moving for Relief from Judgment Was Reasonable.
The superior court correctly determined that Linda had
relied on Tommy's assurances about the sale of their marital home.
It also correctly determined that Linda's delay in filing a
Rule 60(b) motion was reasonable based on this reliance. The
superior court's conclusion that the delay was reasonable is also
supported by the uncertainty arising from the unresolved custody
dispute between Linda and Tommy.
1. The superior court correctly determined that Linda
had reasonably relied on Tommy's assurances at the time of the
dissolution of their marriage.
Linda affied in July 1987 that Tommy had "not had the
house listed with a real estate agent and does not intend to sell
it anytime soon." In September 1987, she further stated that
After the divorce, [Tommy] reassured me on a
number of occasions that he intended to sell the home and cash me
out. At one point he offered to pay me in monthly installments but
I now believe he will not sell the home or make provision to pay me
my portion unless he is ordered to do so.
Linda testified on remand that Tommy "assured me clear up
-- I believe up until '87, off and on, that he would sell that
house." Linda's statements indicate that by September 1987, Linda
no longer believed that Tommy would follow through on any
subsequent "assurances"he might have made, and that according to
Linda's recollection, such assurances ceased about that time.
On remand, the superior court accepted as true Linda's
testimony that, at the time the Lowes petitioned for dissolution,
they had an agreement that the marital residence would be sold and
the proceeds evenly split. [Fn. 1] It found that only later "Mrs.
Lowe learned that Mr. Lowe did not intend to follow through on his
agreement for the division of the marital home."
The court found that "[a]fter the dissolution, Mr. Lowe
assured Mrs. Lowe on a number of occasions that he was making
improvements to the home so that it could be sold." Because "Mrs.
Lowe reasonably relied upon these assurances,"the court found that
"there is a sufficient explanation for the delay in the filing of
the Civil Rule 60(b) Motion." Read literally, the superior court's
finding simply states that "after the dissolution"Linda reasonably
believed that Tommy "was working toward a resolution of the
property issue concerning the marital home,"that she "reasonably
relied [on Tommy's] assurances,"and that "in view of this there is
a sufficient explanation for the delay in the filing of the Civil
Rule 60(b) motion." The court's findings are supported by the
record and are not clearly erroneous.
2. The superior court did not err in deciding the
delay was reasonable.
On the basis of these findings, the superior court
concluded that "under the circumstances, the delay in filing the
Civil Rule 60(b) Motion in May, 1989 was not an unreasonable one."
It further concluded that although an additional twenty-two months
elapsed between July 1987, and May 1989, Linda "acted promptly in
raising this issue during the course of the litigation."
Linda was pursuing other legal approaches between 1987
and 1989. She had filed the motion to modify and enforce the
judgment in July 1987, which Tommy then opposed for two years. In
that motion she sought modification of the judgment with respect to
disposition of the residence, seeking $18,000 for her interest in
it. Insofar as the delay between 1987 and 1989 can be justified by
the fact that Linda "acted promptly in raising this issue during
the course of the litigation,"it is clear that she was asserting
an interest in the residence even before she concluded that
whatever interest she had in it was of little value to her, and
that she was going to have to find another asset from which to
obtain a fair adjustment of her own interests.
The motion for relief from judgment was brought at a
reasonable point in the proceedings. The superior court did not
abuse its discretion in arriving at this conclusion.
3. The unresolved custody dispute also supports the
superior court conclusion that Linda's delay was reasonable.
While the superior court's written findings base
reasonable delay on "assurances"regarding the residence, Linda
also argues that "the dispute over the house was only one of the
factors [the superior court] utilized in supporting [its]
findings." She points to the court's oral finding that "I find
most reasonable the notion and the testimony that there was -- that
at the time of the divorce in 1984 and up until -- well, and up
until '89 there was an unresolved custody dispute."
The superior court does not explicitly present this
"factor"as an alternative basis justifying the delay, although it
does state in its written findings that "Mrs. Lowe did not know
whether Mr. Lowe would send for the children and from the time of
the dissolution until 1989 there was an unresolved custody dispute
between the parties." The superior court also stated, in its oral
I think that there is an explanation for the
delay. As I've indicated, we have [a] kind of reliance [on] how
this thing is really going to work out, reliance on things will be
done, we're working towards selling the house, a fear of bringing
the custody dispute to a head.
Like the explanations that revolve around the status of
the residence, the unresolved custody dispute provides an
additional explanation why Linda delayed bringing her motion until
The custody and visitation dispute was resolved in June
1989, [Fn. 2] one month after Linda moved for relief from judgment.
Since the superior court found that "Mrs. Lowe did not know whether
Mr. Lowe would send for the children,"we cannot say that it was
not reasonable for Linda to refrain from moving for relief from
judgment until after it had become clear that she would have
primary custody of Tiffany, their daughter. [Fn. 3] Had Tommy
taken Tiffany back, "the fundamental, underlying assumption of the
dissolution agreement"- "that Tommy would have primary custody of
the children"- would not have evaporated, and relief from judgment
under Civil Rule 60(b) might not have been supportable otherwise.
Lowe I, 817 P.2d at 458. While "[i]t is undisputed that the key
fact justifying relief, that the children did not go to live with
Tommy as contemplated, arose immediately after the dissolution,"
id. at 459, it is also undisputed that the custody dispute over
Tiffany remained unsettled until about the time Linda moved for
relief from judgment. Tommy has not appealed the trial court's
finding that Linda "did not know whether Mr. Lowe would send for
the children,"i.e., Tiffany, during that time. The record
supports the conclusion that Linda reasonably waited until she knew
she would secure primary custody of Tiffany before moving for
relief from judgment based upon the change in fundamental
underlying assumptions regarding custody. [Fn. 4]
The written findings of the superior court rely solely on
the status of the residence to explain why Linda's delay was
reasonable. "'Generally, where inconsistencies exist between a
court's written findings and its oral statements, the written
findings control.'" Schofield v. Schofield, 777 P.2d 197, 202 n.5
(Alaska 1989)(quoting K.T.E. v. State, 689 P.2d 472, 477 (Alaska
1984)). Furthermore, it is correct that the superior court never
clearly explained, in either its oral or written findings, just how
the "unresolved custody dispute"could provide an alternative basis
for its finding of reasonable delay, although it hinted that this
might be the case. However, we note that these findings are not
inconsistent. They provide separate, though not mutually
exclusive, bases for concluding that the delay was reasonable.
D. The Issue Whether the Superior Court Could Condition
Tommy's Appeal upon Monthly Payments Is Moot.
Tommy appeals the superior court's requirement that he
pay half of his disposable retirement income each month to Linda as
a condition of his appeal. Although he filed a cost bond, pursuant
to Appellate Rule 204(c), he did not request a supersedeas bond
pursuant to Appellate Rule 204(d). He acknowledges that a bond
under Rule 204(c) does not stay the enforcement of a judgment, and
that Linda was free to seek direct payment of his retirement
benefits from the Air Force, Tommy's former employer. The Air
Force refused to make such payments, however, because the judgment
was under appeal. He argues that this refusal "was a matter out of
Tommy's control,"and that because the court ordered him to make
direct payments to Linda instead of depositing money with the
court, the requirement of monthly payments was error.
"Whenever in a civil case an appellant entitled thereto
desires a stay on appeal, the appellant may present to the superior
court for its approval a supersedeas bond . . . ." Alaska R. App.
P. 204(d). Tommy could have complied with this rule, had he wished
to avoid the judgment being executed.
In view of our resolution of the correctness of the
superior court's ruling on the Rule 60(b) motion, this issue is
moot. [Fn. 5]
E. The Superior Court Did Not Err in Awarding Attorney's
The superior court awarded attorney's fees and costs to
Linda, stemming from the 1990 proceedings before the superior
court. [Fn. 6] We perceive no abuse of discretion in this award.
The judgment of the superior court is AFFIRMED.
While the superior court acknowledged in its
findings that the existence of the alleged agreement was "according
to Mrs. Lowe's testimony,"it accepted her testimony on this issue
as true, stating without qualification that "Mrs. Lowe learned that
Mr. Lowe did not intend to follow through on his agreement."
The superior court found that the Lowes settled the
custody dispute in June 1989. This would appear to conflict with
the 1990 finding that the custody dispute was settled in June 1988.
However, since the settlement agreement was clearly dated June
1989, and was attached to the 1990 findings of the superior court,
it is clear that "1988"was a typographical error.
Tony, the Lowes' other minor child at the time of
the dissolution, had already reached majority by 1989. Thus, the
Lowes' 1989 settlement provided that Linda "shall have sole legal
and primary physical custody of Tiffany Lowe,"and made no
provisions for Tony.
In reaching this conclusion, it is not problematic
that Linda moved for relief from judgment a month before the
custody dispute was resolved. The dispute was resolved by
settlement, and it is reasonable that Linda might have realized,
during the course of negotiations and a month before the actual
execution of the settlement agreement, that she would be receiving
We note that regardless of how tempting it may be to engage in
creative post-judgment assistance, the Rules of Civil Procedure and
the Alaska Statutes are the source of the trial court's power to
enforce or stay execution of judgments. In this instance, the
superior court impermissibly conditioned Tommy's right to obtain
appellate review on his continued payment of half of his net
disposable retirement pay to Linda during the pendency of the
This court had held, in Lowe I, that "[i]f Linda
prevails on remand, the [superior] court must . . . reconsider the
 attorney's fee award." 817 P.2d at 460. The superior court
did this. It required "[e]ach party to bear their own costs and
fees associated with the remand,"however.