search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Pierce v. Pierce (12/5/97), 949 P 2d 498
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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DONALD W. PIERCE, )
) Supreme Court No. S-7469
) Superior Court No.
v. ) 3AN-94-4783 CI
ROXANNE PIERCE, ) O P I N I O N
Appellee. ) [No. 4914 - December 5, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Margaret A. Hein Oldham,
Anchorage, for Appellant. Allison E. Mendel, Mendel & Huntington,
Anchorage, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
After the successful conclusion of settlement
negotiations in a divorce case, the attorney for Donald Pierce
agreed to prepare the final documents. When completing the child
custody and support order, Donald's attorney added a new term that
had not been agreed upon by the parties during their negotiations.
[Fn. 1] The superior court then signed the order. Roxanne Pierce
filed a motion for relief from judgment asking the court to delete
the term from the final agreement to accurately reflect the
settlement agreement of the parties. The superior court granted
Roxanne's motion. We affirm.
II. FACTS AND PROCEEDINGS
Donald and Roxanne Pierce were divorced in April 1995.
On March 9, 1995, the parties participated in a settlement
conference before Superior Court Judge John Reese during which they
reached agreement on all issues of child custody, child support,
and property division.
As part of the settlement, the parties agreed to joint
legal custody of their two minor children. Roxanne was given
primary physical custody of the children, and the parties agreed
that the children would visit Donald for a minimum of eight weeks
every summer, two weeks every other Christmas vacation, and two
weeks at spring break.
Alaska Rule of Civil Procedure 90.3(a)(3) provides:
The court may allow the obligor parent to
reduce child support payments up to 50% for any period in which
that parent has extended visitation of over 27 consecutive days.
The order must specify the amount of the reduction which is
allowable if the extended visitation is exercised.
(Emphasis added.) During the settlement negotiations the parties
did not discuss giving Donald a child support credit during times
of extended visitation exceeding twenty-seven days, such as the
summer visit, pursuant to Civil Rule 90.3(a)(3). A provision for
such a credit was not included in the final settlement.
After the settlement conference, Donald's counsel was to
draft findings of fact and conclusions of law, as well as a child
custody and support order memorializing the March 9, 1995
settlement agreement. In doing so, Donald's counsel inserted a
provision in the DR-300 form child custody and support order that
was not agreed to in the settlement: a fifty percent child support
credit for times of extended visitation pursuant to Rule
90.3(a)(3). Donald admits that his counsel inserted this new
provision into the form order knowing that it had not been agreed
to as part of the settlement. Donald's attorney then forwarded the
documents to Roxanne's counsel for review without highlighting or
otherwise calling attention to the changed term.
Roxanne's counsel reviewed and approved the final
documents before they were submitted to the superior court. She
apparently overlooked the addition of the fifty percent extended
visitation credit to the DR-300. The superior court signed the
final documents on April 25, 1995. Roxanne's counsel later
discovered the insertion of the additional provision and filed a
motion for relief from judgment asking the court to vacate the
child custody and support order and issue an amended order
accurately describing the child support arrangement agreed upon at
the settlement conference. Roxanne based her motion on Civil Rule
60(a), which provides in relevant part:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight
or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if
any, as the court orders.
Donald opposed Roxanne's motion for relief from judgment,
arguing that he should be entitled to the child support credit.
Judge Reese found that "[t]he settlement agreement does not include
the provision for child support reduction during extended
visitation." He thus concluded that Roxanne's "inadvertent signing
of the DR[-]300 form should not be binding." Judge Reese granted
Roxanne's motion and issued an amended DR-300 without the provision
for a child support credit during times of extended visitation.
Donald appeals this decision.
A. Standard of Review
The standard of review for a decision on a motion for
relief from judgment is abuse of discretion. See Babinec v.
Yabuki, 799 P.2d 1325, 1332 (Alaska 1990). In Gavel v. Alaskan
Village, Inc., 423 P.2d 273 (Alaska 1967), this court held that
[t]he granting of relief from a judgment is
addressed to the sound discretion of the trial court. That court's
ruling will not be disturbed except upon a showing of an abuse of
discretion, which would be the case only if we were left with the
definite and firm conviction on the whole record that the judge had
made a mistake . . . .
Id. at 277 (footnotes omitted).
B. Did the Superior Court Abuse Its Discretion in Granting
Roxanne's Motion Pursuant to Civil Rule 60?
Roxanne requested that the superior court amend the child
custody and support order pursuant to Rule 60(a), reasoning that
her counsel had made a clerical error in overlooking the newly
inserted settlement term. The trial court granted her motion for
relief from judgment without specifying the provision of the rule
upon which it relied. We conclude that the superior court's
authority to vacate the child custody and support order is found in
Civil Rule 60(b)(3), which provides relief from judgment for "fraud
. . ., misrepresentation, or other misconduct of an adverse party."
We may affirm the superior court's decision on any basis
appearing in the record. See Far North Sanitation, Inc. v. Alaska
Public Utilities Comm'n, 825 P.2d 867, 869 n.2 (Alaska 1992). Even
if a party has not raised a party's misconduct as a basis to set
aside a judgment on appeal, the court may set aside a judgment for
this reason sua sponte to protect the integrity of the judicial
process. See Higgins v. Municipality of Anchorage, 810 P.2d 149,
154 (Alaska 1991).
Donald admits that his counsel inserted a child support
credit in the DR-300 knowing that the parties had not agreed to
such a credit during negotiations. He also does not dispute that
his counsel failed to call this new provision to the attention of
Roxanne's counsel or the court. Donald contends that his attorney
simply inserted a credit to which he was already entitled under
Civil Rule 90.3, and that Roxanne accepted that new term when her
counsel signed the agreement. However, under Civil Rule
90.3(a)(3), the questions whether an obligor is entitled to the
child support credit and the actual amount of the credit, if one is
given, are questions left to the discretion of the court. The
obligor is not automatically entitled to the credit. It must be
negotiated for as part of a divorce settlement.
Judge Reese ordered Donald's counsel to draft the
settlement agreement and DR-300 as already negotiated and approved
by the court. Insertion of a new term without informing Roxanne or
the court amounts to an attempt to gain a concession that was not
bargained for. Insertion of the credit in the DR-300 was neither
an honest mistake nor a legitimate extension of negotiations, as
the settlement was already complete when Donald added the new term.
If Donald wished to add to the agreement a new term that had not
previously been negotiated, his counsel had the obligation to bring
the requested change to the attention of Roxanne's attorney. This
Donald's counsel failed to do. Rule 60(b)(3) gives the court the
authority to remedy such misconduct by a party or an attorney. In
fact, the court has a duty to rectify such a wrong to protect the
integrity of the judicial process. Id. at 438. We conclude that
Judge Reese was correct in amending the agreement to reflect the
actual agreement between the parties.
C. Did the Trial Court Err in Removing the Extended
Visitation Credit from the DR-300?
1. Failure to Raise the Issue Below Bars Donald's
As a general rule, an issue that was not raised in the
trial court will not be considered on appeal. See Padgett v.
Theus, 484 P.2d 697, 700 (Alaska 1971). This court has made
exceptions to the rule when the issue is "not dependent on any new
or controverted facts"and "is closely related to [the] trial court
theory and could have been gleaned from [the] pleadings." O'Neill
Investigations v. Illinois Employers Ins., 636 P.2d 1170, 1175 n.7
Donald did not raise the issue of a child support credit
for extended visitation during the parties' settlement
negotiations, nor did he file a motion for such a credit before the
superior court. To address the issue of the appropriateness of the
credit for the first time on appeal would prejudice Roxanne since
she did not have the chance to present evidence or counter
arguments on this issue below. Furthermore, resolution of the
issue could require the consideration of new and controverted
facts, such as the expenses Donald will incur while his children
are visiting during the summer. Therefore, Donald is barred from
raising the issue of his entitlement to a credit for the first time
2. The Superior Court Was Not Required To Consider
Whether a Credit under Rule 90.3(a)(3) Was Appropriate When the
Issue Was Not Raised by the Parties.
Donald also contends that the superior court had an
independent obligation to consider the appropriateness of a child
support credit during times of extended visitation even if this
issue was not raised by a party. He claims that the court failed
to fulfill this obligation. Donald relies on the following
language from Renfro v. Renfro, 848 P.2d 830, 832 (Alaska 1993):
Although affording a credit under Rule
90.3(a)(3) is a discretionary decision, that fact does not relieve
the superior court of its obligation to consider whether or not to
grant a credit.
He contends that because the superior court did not make findings
demonstrating that it had considered the issue, this court should
remand the issue to the superior court so that it may decide
whether such a credit is appropriate.
However, in Renfro, the obligor parent raised the issue
of the credit for extended visitation before the trial court,
arguing the entitlement to such a credit. We held that the trial
court must consider "any provision of Rule 90.3 whose application
is urged by a party where a sufficient factual predicate is
established." Renfro, 848 P.2d at 832 (emphasis added). Certainly
the trial court does not have an independent obligation to consider
the appropriateness of a child support credit during times of
extended visitation if the credit is not requested by one of the
We AFFIRM the superior court's order granting Roxanne's
motion for relief from judgment and amending the DR-300 to conform
to the original settlement agreement of the parties. Furthermore,
we hold that Donald is barred from raising his entitlement to the
credit for the first time on appeal and that the trial court had no
independent duty to consider the issue.
Donald's attorney on appeal was not the attorney who prepared
the documents in the trial court.