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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rowland v. Monsen (05/19/2006) sp-6014
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| BENNITA ROWLAND, | ) |
| n/k/a BENNITA AGNOT, | ) Supreme Court No. S- 11603 |
| ) | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-93-4739 CI |
| ) | |
| ROLAND E. MONSEN, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6014 - May 19, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Allison E. Mendel, Mendel &
Associates, Anchorage, for Appellant.
Kenneth C. Kirk, Kenneth Kirk & Associates,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
After a protracted custody dispute, Roland Monsen
successfully moved for an award of attorneys fees against Bennita
Rowland under AS 25.20.115. Rowland then sought to have the
award set aside as void under Alaska Civil Rule 60(b)(4). She
also challenged the award under Civil Rule 60(b)(6) urging that
extraordinary circumstances warranted relief. The superior court
rejected her Rule 60(b) challenges and Rowland now appeals,
reiterating her arguments below. She further appeals the award
on the merits. We affirm on all points because the order for
attorneys fees is not void and Rowlands remaining contentions are
untimely.
II. FACTS AND PROCEEDINGS
Bennita Rowland and Roland Monsen, who never married,
have two children. After their relationship ended, they made an
agreement that gave Monsen custody of the children and Rowland
visitation rights. Several years later, Rowland petitioned for a
protective order against Monsen on behalf of the children. The
petition alleged that Monsen sexually abused the children. The
superior court treated the matter as a motion to modify custody.
The court returned the children, who had been in the interim
custody of their paternal grandmother, to Monsens custody after
finding that Rowland failed to prove any abuse.
Monsen then moved for an award of attorneys fees
pursuant to AS 25.20.115. He claimed the award to be justified
on the grounds that the lack of good faith on [Rowlands] part
substantially outweigh[ed] the financial circumstances of the
parties. More specifically, Monsen charged Rowland with
pressuring the children to make false allegations of abuse. The
motion did not mention the specific financial position of either
party. Rowland properly served her opposition to the motion for
attorneys fees on Monsen, but failed to file the pleading with
the court. The superior court ordered Rowland to pay the full
amount requested, $8,940, on August 15, 2000. The order included
an explicit finding that Rowland ha[d] not acted in good faith in
this litigation. Rowland then moved the court to reconsider its
order, complaining about the fact that her opposition never
reached the court. The motion for reconsideration was denied.
On May 13, 2004, Monsen moved to reduce the unsatisfied
order for attorneys fees to judgment. Rowland filed a cross-
motion for relief pursuant to Civil Rule 60(b). She argued under
Rule 60(b)(4) that the order was void and under Rule 60(b)(6)
that extraordinary circumstances warranted relief. Monsen
opposed the cross-motion on the merits and challenged it as
untimely, noting that it was filed nearly four years after
distribution of the underlying order for attorneys fees. The
superior court denied Rowlands motion to set aside the order
awarding attorneys fees as untimely and granted Monsens motion to
reduce that order to judgement.
III. DISCUSSION
Rowland appeals the superior courts denial of her Civil
Rule 60(b) motion as well as the underlying order for attorneys
fees.
A. Civil Rule 60(b)(4)
According to Rowland, she is entitled to relief under
Rule 60(b)(4) because the order awarding Monsen attorneys fees is
void for four reasons. She claims that Monsens motion for
attorneys fees was not timely filed; that the superior court did
not make adequate findings of fact; that the court did not
validly exercise its power; and that she was not given notice and
an opportunity to be heard.
Rule 60(b)(4) provides that [o]n motion and upon such
terms as are just, the court may relieve a party or a partys
legal representative from a final judgment, order, or proceeding
for the following reasons: . . . (4) the judgment is void.1 A
judgment or order is void
where the state in which the judgment was
rendered had no jurisdiction to subject the
parties or the subject matter to its control,
or where the defendant was not given proper
notice of the action and opportunity to be
heard, or where the judgment was not rendered
by a duly constituted court with competency
to render it, or where there was a failure to
comply with such requirements as are
necessary for the valid exercise of power by
the court.[2]
In reviewing the denial of a Rule 60(b)(4)
motion, this court does not defer to the
discretion of the trial court: [N]o question
of the lower courts discretion is presented
by a Rule 60(b)(4) motion because the
validity of a judgment is strictly a question
of law.[3]
Rowlands arguments regarding the timeliness of the
motion and the factual findings accompanying the order are
without merit. Assuming the motion was late, and the order was
not supported by adequate findings, the order would still not be
void under Rule 60(b). The untimeliness of a motion or the
inadequacy of findings are not fundamental flaws that would make
an order void.4
Rowland relies on AS 25.20.115 to support her argument
that the superior court lacked the power to order her to pay
Monsens attorneys fees. That statute provides that [i]n an
action to modify, vacate, or enforce that part of an order
providing for custody of a child or visitation with a child, the
court may, upon request of a party, award attorney fees and costs
of the action.5 According to Rowland, the court could not
validly award fees under AS 25.20.115 because no motion had been
made to modify, vacate, or enforce custody or visitation. She
thus reads into the statutes prerequisite that there be an action
to modify, vacate, or enforce an order, a further requirement
that a motion be filed before such an action can exist.
Assuming, arguendo, that Monsens failure to comply with
a requirement that he file a motion would render an award under
AS 25.20.115 void under Rule 60(b)(4), Rowlands claim that an AS
25.20.115 action requires a motion is not accurate. The
applicability of AS 25.20.115 depends, instead, on the nature of
the underlying proceeding.6
In B.J. v. J.D., we concluded that AS 25.20.115 may
apply notwithstanding the fact that no motion to modify, vacate,
or enforce was ever filed in the underlying proceeding.7 In that
case, J.D. believed that he was the father of V.J., and brought
an action to gain custody of V.J.8 When a paternity test showed
that J.D. was not the father, the court dismissed his complaint
and awarded custody to B.J.9 Several years later, J.D. filed a
new complaint seeking custody of V.J. B.J. ultimately moved for
an award of attorneys fees in the new action and a dispute arose
as to whether AS 25.20.115 or the so-called divorce exception to
Civil Rule 82 set the standard for an award.10 J.D. never filed a
motion to modify, vacate, or enforce custody. Nevertheless, AS
25.20.115 governed J.D.s efforts because his new complaint
attempted to modify the substance of the courts earlier custody
order and the status quo.11 Put simply, the applicability of AS
25.20.115 is determined by the potential effect of a proceeding,
not the procedure that gave rise to the proceeding.
Here too, it is the substance of the proceeding that
matters. The effect of the protective order sought by Rowland,
if granted, would be to withhold custody of the children from
Monsen. As a result the custodial status quo Monsens custody of
the children would be altered, and AS 25.20.115 therefore
governs Rowlands efforts.12 This remains true despite Rowlands
pronouncement to the superior court that she was not seeking a
modification of child custody. While she may not have been
seeking a modification in name, she was, in effect, trying to
alter the status quo. For these reasons, AS 25.20.115 applies
and Rowlands claim to the contrary fails.
Rowland also argues that the attorneys fees order is
void because she did not receive due process of law because she
had no opportunity properly to oppose the motion. An order is
void if the court that entered the order acted in a manner
inconsistent with due process of law.13 At the core of due
process is an opportunity to be heard and the right to adequately
represent ones interests.14 According to Rowland, her attorneys
failure to file an opposition deprived her of an opportunity to
be heard.
Rowland received notice of Monsens motion for attorneys
fees and had an opportunity to be heard. Monsen served Rowlands
attorney with the motion on May 13, 2000. Her attorneys
knowledge of the proceeding is imputed to Rowland.15 The superior
court also granted Rowland extra time to respond to the motion.
She therefore had an opportunity to respond. Rowlands failure to
file an opposition to Monsens motion for attorneys fees does not
render the resulting order void.
Additionally, Rowlands due process claims only
reiterate the argument she made in her August 2000 motion to
reconsider. She therefore knew of these potential grounds for
relief at the time the underlying order issued. Her appropriate
course would have been to appeal the merits of the order at that
time. As Rule 60(b) is neither a substitute for an appeal nor a
device for obtaining an extension of time for filing an appeal,16
Rowland waived her right to seek Rule 60(b) relief on these
claims.
B. Civil Rule 60(b)(6)
Rowland challenges the superior courts ruling that her
Rule 60(b)(6) motion was untimely. A party must move for relief
under subsection (6) within a reasonable time.17 What constitutes
reasonable time necessarily depends on the facts in each case.
Courts consider whether the party opposing the motion has been
prejudiced by the delay in seeking relief and whether the moving
party had some good reason for failing to act sooner.18 We review
orders denying relief under Rule 60(b)(6) for an abuse of
discretion.19 An abuse of discretion is typically found only when
the court is left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
ruling.20
Here, Rowland filed her Rule 60(b)(6) motion
approximately three years and nine months after the court ordered
her to pay Monsens attorneys fees. She offers no explanation for
the delay and none appears in the record. Monsen, on the other
hand, fails to illustrate how he may have been prejudiced by the
nearly four-year delay. Indeed, he waited that long to reduce
the order to judgment and thereby to recover. Neither the record
nor Monsens brief evidences how he detrimentally relied on the
validity of the order during the time between its issuance and
Rowlands Rule 60(b)(6) motion. On these facts, then, a balancing
of these factors favors neither party. Yet because nothing
indicates a good reason for Rowlands failure to move for relief
sooner, there is nothing on which to base a definitive and firm
conviction that the trial court erred.21 We therefore decline
Rowlands invitation to disturb the superior courts ruling on this
point.
To support her argument that the court abused its
discretion, Rowland points to three cases Schofield v.
Schofield,22 Juelfs v. Gough,23 and Lowe v. Lowe.24 In each, she
claims, this court concluded that a delay longer than hers was
reasonable. Schofield and Juelfs each involved the use of Rule
60(b)(6) to modify a dissolution decree. In Schofield six years
passed between the decree and the modification,25 and in Juelfs
approximately seven years had passed.26 We concluded in these
cases that the trial court did not abuse its discretion by
finding the delay reasonable. However, in each case, the parties
sought a modification only after fundamental assumptions
underlying their decrees changed.27 The delays were due to the
fact that the justifications for modification did not arise until
six and seven years after the respective decree. Here Rowland
points to no changed circumstances that justify a nearly four-
year delay. For this reason, her reliance on Schofield and
Juelfs is misplaced.
Rowlands reliance on Lowe is similarly off the mark.
There, the trial court made no reference to the reasonableness of
a four and a half-year delay.28 On review, we noted that such a
delay was not unreasonable as a matter of law and remanded the
case for further factual findings on the issue.29 In the present
case the reasonableness question is also a factual one; but it is
one which appears to have been properly dealt with by the
superior court. Therefore, the fact that a four and a half-year
delay is not per se unreasonable is of no help to Rowland.
C. Rowlands Appeal of the Underlying Order for Attorneys
Fees
To the extent that Rowland also challenges the superior
courts August 2000 order to pay attorneys fees, her appeal cannot
be considered timely. Alaska Appellate Rule 204(a)(1) requires a
notice of appeal to be filed within 30 days from the date shown
in the clerks certificate of distribution on the judgment
appealed from . . . . Here we consider the order a judgment for
these purposes because it effectively disposed of all matters
before the superior court.30 Rowland filed her notice of appeal
on August 11, 2004 some four years after the distribution of the
order. Her appeal from the order is therefore well beyond the
time allotted under Appellate Rule 204(a)(1).
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
_______________________________
1 Alaska R. Civ. P. 60(b)(4).
2 Burrell v. Burrell, 696 P.2d 157, 163 n.11 (Alaska
1984) (quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)).
3 Kennecorp Mortg. & Equities, Inc. v. First Natl Bank of
Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984) (quoting Aguchak v.
Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974))
(alteration in original).
4 See Burrell, 696 P.2d at 163 & n.11 (void order is one
issued by a court without jurisdiction or authority and Rule
60(b) is not a substitute for a timely appeal).
5 AS 25.20.115.
6 See B.J. v. J.D., 950 P.2d 113, 119 (Alaska 1997).
7 Id.
8 Id. at 114.
9 Id.
10 Id. at 115, 119.
11 Id. at 119.
12 See id.
13 State, Dept of Revenue, Child Support Enforcement Div.
v. Maxwell, 6 P.3d 733, 736 (Alaska 2000).
14 State, Dept of Natural Res. v. Greenpeace, Inc., 96
P.3d 1056, 1063-64 (Alaska 2004) (quoting Matanuska Maid, Inc. v.
State, 620 P.2d 182, 192-93 (Alaska 1980)).
15 Mead v. State, 445 P.2d 229, 231-32 (Alaska 1968)
(attorneys knowledge of trial date imputed to client).
16 See, e.g., Burrell, 696 P.2d at 163 (Rule 60 is not a
substitute for a timely appeal); Allen v. Bussell, 558 P.2d 496,
502 (Alaska 1976) (Rule 60 not meant to be an alternative to the
proper litigation of a case).
17 Alaska R. Civ. P. 60(b).
18 Harris v. Westfall, 90 P.3d 167, 173 (Alaska 2004)
(footnote omitted).
19 Id. at 172.
20 Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)
(quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-
79 (Alaska 1982)).
21 See Sandoval v. Sandoval, 915 P.2d 1222, 1224 (Alaska
1996) (declining to find an abuse of discretion in the trial
courts conclusion that delay was unreasonable where no reasons
for the delay were provided); cf. Harris, 90 P.3d at 173 (good
reasons for delay in the absence of prejudice to the non-moving
party showed that trial court abused its discretion in holding
that five-month delay was unreasonable).
22 777 P.2d 197 (Alaska 1989).
23 41 P.3d 593 (Alaska 2002).
24 817 P.2d 453 (Alaska 1991).
25 Schofield, 777 P.2d at 202.
26 Juelfs, 41 P.3d at 594-95.
27 Schofield, 777 P.2d at 201; Juelfs, 41 P.3d at 597.
28 Lowe, 817 P.2d at 459.
29 Id.
30 See D.L.M. v. M.W., 941 P.2d 900, 902 (Alaska 1997)
(order that effects the final disposition of a case starts the
clock for post-trial actions); North Slope Borough, Dept of
Admin. & Fin., Tax Audit Div. v. Green Intl, Inc., 969 P.2d 1161,
1163 (Alaska 1999) (quoting Appellate Rule 204(a)(5)(A) (If no
appeal or cross-appeal is pending, the allowance of costs and
attorneys fees . . . shall be considered a final judgment subject
to separate appeal limited to the subject of costs [and]
attorneys fees.)).
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