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Wright v. Shorten (9/11/98), 964 P 2d 441
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
JASON P. WRIGHT, )
) Supreme Court No. S-8133
) Superior Court No.
v. ) 3GL-96-06 CI
KELLY D. SHORTEN, ) O P I N I O N
Appellee. ) [No. 5033 - September 11, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Glennallen,
William J. Bonner, Judge pro tem.
Appearances: Tara N. Logsdon, Tull &
Associates, Palmer, for Appellant. No appearance by Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Kelly Shorten filed for sole legal custody of her
daughter, alleging that Jason Wright was the father and seeking
child support from him. Upon receipt of the filing, Wright,
proceeding pro se, wrote to the superior court denying paternity.
Because it did not view Wright's response as an answer, the court
entered default judgment against him. Wright filed an Alaska Civil
Rule 60(b) motion to set aside the default judgment, arguing that
his letter constituted an answer to Shorten's complaint and that
any defect in its form resulted from mistake or excusable neglect.
The superior court denied Wright's motion and he appeals. Because
Wright's letter should have been treated as an answer to Shorten's
complaint, we reverse and remand.
II. FACTS AND PROCEEDINGS
Jason Wright and Kelly Shorten were married in February
1991 in California. Shorten gave birth to Sally [Fn. 1] in
December 1992. The birth certificate lists Wright as the child's
father. At some point after Sally's birth, the couple separated.
Shorten moved with Sally to Alaska in September 1993. In May 1995
Shorten filed a petition for dissolution of marriage. The petition
was granted in September 1995. Because Wright was never actually
served with the petition, and notice was by publication, the court
made no findings regarding custody, visitation, or child support.
In April 1996 Shorten filed a "Complaint for Custody,"
claiming that Wright was Sally's "natural"father and seeking child
support from him. Wright was served with the complaint in
California on July 25, 1996, and responded five days later in a
letter to the court. He denied paternity, referring to medical
documentation in support of his claim:
I must declare that I am not the natural
parent of [Sally] Wright. I am currently investigating a facility
that will test Kelly [Shorten], [Sally] and myself to establish
scientific proof that I am not a parent. I have medical
documentation of the Blood Types of all three of us. It is obvious
with just this amount of information that I am not the Father. . .
I will contact the Court and the Plaintiff as
soon as I find a Facility that will test myself and the child.
Please send me any information/advice as to exactly how to proceed
with this issue. Any other evidence needed will be provided upon
request (Blood types, etc.).
The standing master in the case treated Wright's letter
as an appearance, not as an answer. In October 1996 Wright wrote
to the court to explain that he had arranged for genetic testing
for Shorten, Sally, and himself, and to notify the court of his new
address. It appears that the court may not have received this
letter, as evidenced by the court's statement at a later date that,
after Wright's July 30, 1996 letter, "[n]o further response or
pleadings were received by the court from defendant until . . . on
or about February 7, 1997."
In November 1996 Shorten applied for entry of a default
and default judgment against Wright. Although it appears that
Shorten tried to send a copy of the application to Wright, he
claims that he was never notified of the default proceedings.
Nothing in the record indicates that Wright was notified. The
clerk of court entered a default later that month on the ground
that Wright had "failed to plead in or otherwise defend this
action." A default hearing was held before a standing master on
December 10, 1996. The standing master concluded that the parties
were Sally's natural parents, that Shorten should receive custody,
and that Wright should be ordered to pay $375 a month in child
support. [Fn. 2] On December 30, 1996, the superior court issued
a child custody and support order incorporating the standing
master's findings of fact and conclusions of law.
On February 1, 1997, counsel entered an appearance for
Wright for the first time. Six days later, Wright filed a formal
answer to the complaint for custody in which he reiterated his
denial of paternity. In a motion filed the same day, Wright
provided evidence that his and Shorten's blood types are "O
positive"and that Sally's is "A negative." He also produced a
medical text stating that "if both parents are blood type O, only
children with blood type O can be conceived." The clerk of court
returned the answer to counsel as untimely because default had
already been entered. Wright filed a Rule 60(b) motion for relief
from default judgment in March 1997, arguing that his letter
denying paternity constituted an answer adequate to avoid default
and that he had never been served with Shorten's default
The standing master then issued a report recommending
that Wright's claims be rejected. The superior court accepted the
master's recommendation and affirmed the default judgment. Wright
appeals the court's denial of his Rule 60(b) motion. Shorten has
not filed a brief in this appeal.
A. Standard of Review
We review the denial of Wright's Rule 60(b) motion for
abuse of discretion. [Fn. 3] "We will not find an abuse of
discretion unless we are left with a definite and firm conviction
on the whole record that a mistake has been made."[Fn. 4]
Furthermore, absent unusual circumstances, "we will not reverse the
superior court's denial of a Rule 60(b) motion as an abuse of
discretion where the movant has not made a showing of a meritorious
B. It Was Error to Deny Relief under Rule 60(b).
Wright argues that the default judgment against him
should have been set aside under Rule 60(b)(1) because his July 30,
1996 letter should have been treated as an answer and because he
had a meritorious defense to the claim that he owed child support.
Rule 60(b)(1) provides that a court may relieve a party
from a final judgment for "mistake, inadvertence, surprise or
excusable neglect."[Fn. 6] "The purpose of [Rule] 60(b) is to
provide relief from judgments which, for one reason or another, are
unjust."[Fn. 7] Entry of default judgment precludes a trial on
the merits of an issue. Although we recognize that setting aside
a final judgment may disrupt the judicial process, [Fn. 8] we have
established that a trial on the merits is preferable to a default
judgment. [Fn. 9]
1. It was error not to treat Wright's letter as an
We turn first to Wright's contention that the trial court
erred by treating his July 30, 1996 letter as an appearance instead
of as an answer. Wright argues that his denial of paternity in the
letter "constituted a complete defense to the relief sought against
him." He characterizes any technical defect in his letter as one
of mistake, inadvertence, or excusable neglect under Rule 60(b)(1).
Pleadings should be construed liberally. [Fn. 10] Where
an affirmative defense "provides the opponent fair notice of the
nature of the defense,"it is adequately pleaded. [Fn. 11] The
Alaska Rules of Civil Procedure provide that "[a]ll pleadings shall
be so construed as to do substantial justice,"[Fn. 12] that
averments "shall be simple, concise and direct,"and that "[n]o
technical forms of pleading or motions are required."[Fn. 13]
Moreover, we hold the pleadings of pro se litigants "to
less stringent standards than those of lawyers."[Fn. 14] Where a
pro se litigant's default results from "'lack of familiarity with
the rules,'"rather than "'gross neglect or lack of good faith,'"
[Fn. 15] and where the litigant is "unversed in the rules of civil
procedure,"setting aside a default judgment may be warranted. [Fn.
16] Indeed, in some cases a trial court has a duty to inform pro
se litigants of defects in their pleadings and to give them an
opportunity to remedy those defects. [Fn. 17]
Given the general rule that pleadings are construed
liberally, and the relaxed standards for pro se pleadings, Wright's
letter should have been considered an answer to Shorten's
complaint. It is unclear what deficiencies the superior court saw
in Wright's letter. [Fn. 18] The letter was timely and responded
directly to the allegation that Wright was Sally's biological
father. [Fn. 19] It provided fair notice of the nature of Wright's
defense. [Fn. 20] We attribute any technical deficiencies in
complying with the rules to Wright's inexperience, not bad faith or
gross neglect. [Fn. 21] In fact, Wright's request for information
"as to exactly how to proceed"illustrates his inexperience and
Given our determination that Wright established mistake
or excusable neglect under Rule 60(b)(1), we need not reach his
alternative claim that he did not receive notice of Shorten's
default application and that his failure to respond provided a
separate basis for finding excusable neglect. [Fn. 22] We note,
however, that when a party has appeared in a proceeding, as the
trial court concluded that Wright had, notice of an application for
default is required under Rule 55(a)(2), and nonreceipt of service
"may justify a finding of excusable neglect."[Fn. 23]
2. Wright presented a meritorious defense.
A Rule 60(b) movant usually must show a meritorious
defense. [Fn. 24] A showing of a meritorious defense requires more
than "'a perfunctory statement that a meritorious defense exists.'"
[Fn. 25] The defaulting party must show that the result of
granting relief may differ from the outcome of allowing the default
judgment to stand. [Fn. 26] This requirement may not apply where
relief is predicated on a trial court's fundamental procedural
In this case, even assuming that the requirement does
apply, we agree with Wright that his "defense of non-paternity is
a meritorious defense." In response to Shorten's complaint, Wright
squarely denied that he is Sally's biological father. [Fn. 27]
Further, he presented medical evidence in support of his claim.
The result of granting relief is likely to differ from the outcome
of allowing the default judgment to stand.
Because Wright has shown mistake or excusable neglect and
has alleged a meritorious defense to the claims against him, we
REVERSE the denial of Wright's Rule 60(b) motion and REMAND this
matter for further proceedings.
Sally is a pseudonym.
This figure was based upon 20% of Wright's income, which
Shorten estimated at $30,000 a year; the standing master estimated
that Shorten would pay 25% of his income in taxes.
See Johnson v. Doris, 933 P.2d 1139, 1142 (Alaska 1997)
Balchen v. Balchen, 566 P.2d 1324, 1328 n.11 (Alaska 1977).
Alaska Rule of Civil Procedure 60(b) provides in relevant
Mistakes -- Inadvertence -- Excusable Neglect
-- Newly Discovered Evidence -- Fraud -- Etc.
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
excusable neglect; . . . .
Wellmix, Inc. v. City of Anchorage, 471 P.2d 408, 411-12 n.13
(Alaska 1970) (citation omitted).
See Hertz v. Berzanske, 704 P.2d 767, 770-71 (Alaska 1985).
See Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 380
See Gamble v. Northstore Partnership, 907 P.2d 477, 482
Alaska R. Civ. P. 8(f).
Alaska R. Civ. P. 8(e)(1).
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
Kennedy v. First Nat'l Bank of Fairbanks, 637 P.2d 297, 298
(Alaska 1981) (quoting Sanuita v. Hedberg, 404 P.2d 647, 651
Rodriguez v. Rodriguez, 908 P.2d 1007, 1010 (Alaska 1995).
See Collins v. Arctic Builders & Home Ins. Co., 957 P.2d 980,
982 (Alaska 1998).
The superior court's denial of Wright's motion to set aside
default judgment appears to have been influenced by its belief that
Wright may have had access to counsel before sending his July 30,
1996 letter to the court:
It is evident that defendant had access to
legal counsel at least by July 9, 1996, even though no appearance
was made until about February 7, 1997, since attorney Holliday made
a request for a copy of the court file on the former date. If
defendant had legal counsel in preparation of his July 30, 1996,
letter, it is inexcusable that he did not make a proper and timely
answer, as was finally attempted after default was entered.
But even if Wright contemplated hiring a lawyer or was assisted by
counsel in preparation of his letter, we conclude that his denial
of paternity constituted an answer sufficient to avoid default.
See Alaska R. Civ. P. 8(e)(1).
See Gamble, 907 P.2d at 482.
See Kennedy, 637 P.2d at 298.
Nothing in the record indicates that Wright was served with
notice of Shorten's application. Wright has consistently
maintained that he never received notice. Indeed, Shorten
acknowledged in her "Answer to Motion for Relief from Default
Judgment"that although she had mailed the required notices of
default proceedings to Wright, "some of these notices were
returned"to her, further suggesting that Wright may not have
4A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure sec. 1148 (2d ed. 1987).
See Balchen, 566 P.2d at 1328 n.11.
Melendrez v. Bode, 941 P.2d 1254, 1258 (Alaska 1997) (quoting
Hertz, 704 P.2d at 772).
See id. (citation omitted).
Cf. Gregor v. Hodges, 612 P.2d 1008, 1009 (Alaska 1980)
(concluding that party asserted meritorious defense to claim that
she had fraudulently obtained property by arguing that she had
purchased the property).