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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vazquez v. Campbell (07/28/2006) sp-6031
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
| SCOTT AND SHERRY VAZQUEZ, | )Supreme Court No. S-11316 |
| ) | |
| Appellants, | ) Superior Court Nos. |
| ) 3AN-03-4516 CI | |
| v. | ) 3AN-03-11 P/A |
| ) | |
| DIANA JEAN CAMPBELL, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6031 - July 28, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Kenneth P. Jacobus, P.C.,
Anchorage, for Appellants. Jonathon A.
Katcher, Pope & Katcher, Anchorage, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
Challenged in this case is an award of actual attorneys
fees and costs against Scott and Sherry Vazquez, who
unsuccessfully opposed Diana Campbells effort to enforce a child
custody order entered by an Oregon court. The trial court
concluded that the Vazquezes had engaged in bad faith litigation
and thus an award of full fees was justified.
We find it unnecessary to decide whether the Vazquezes
litigated in bad faith. The enforcement petition was brought
pursuant to Alaskas version of the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), AS 25.30.300.910. A
section of the act, AS 25.30.500(a), requires the award of actual
reasonable attorneys fees and expenses to the prevailing party in
an enforcement proceeding conducted under the act.1
Under Alaska Civil Rule 82, partial attorneys fees are
awarded to the prevailing party as a matter of course. An award
under Rule 82 may be increased to encompass full reasonable fees
in cases where a non-prevailing party has engaged in bad faith
conduct or pursued frivolous claims or defenses.2 Where statutes
call for an award of reasonable attorneys fees to a prevailing
party, we have concluded that reasonable actual fees are intended
rather than reasonable partial fees as would be the case under
Rule 82.3 In accordance with this approach, we interpret AS
25.30.500(a) as requiring the award of full reasonable attorneys
fees.4 On this basis we affirm the award of full fees made by
the superior court.5
The Vazquezes also argue that costs, as distinct from
attorneys fees, should not have been awarded for three reasons,
none of which, in our judgment, is meritorious. They claim first
that the right to costs has been waived because Campbell filed
her request in a motion presented to the superior court rather
than in the form of a cost bill presented to the clerk of court
as required by Civil Rule 79(b). Campbells motion requesting
costs was timely under Rule 79 and was sufficiently detailed to
meet the requirements of that rule. If the superior court had
wished, it could have referred the question of costs to the clerk
for an initial decision. Under these circumstances we conclude
that Campbell substantially complied with the requirements of
Rule 79.
The Vazquezes also argue that travel expenses for the
childs father were not authorized under Civil Rule 79 and
therefore they should not have been awarded even though such
expenses are authorized under AS 25.30.500(a). But this is
incorrect because Rule 79 itself provides for the allowance of
other costs allowed by statute.6
The Vazquezes third point concerning costs is that the
award was unconscionable because they incurred many expenses
caring for the child in reliance on Campbells adoption consent,
which she subsequently, and timely, revoked. The statutory
standard here is that reasonable expenses should be awarded
unless the party from whom costs . . . are sought establishes
that the award would be clearly inappropriate.7 A decision as to
whether this standard has been satisfied is committed to the
discretion of the superior court. We see nothing to persuade us
that the court abused its discretion in rejecting this argument.
The Vazquezes make two further arguments based on the
fact that Campbell was represented by Alaska Legal Services
Corporation and incurred no attorneys fees. They argue first
that the purpose of an award of attorneys fees is reimbursement
of the prevailing party, and since Campbell incurred no fees that
purpose will not be served. We reject this point because we have
consistently held that clients receiving free legal services may
recover attorneys fees.8 As we stated in Cizek v. Concerned
Citizens of Eagle River Valley, Inc.: [A] clients absence of
obligation to pay for legal services rendered does not preclude
an award of attorneys fees under Civil Rule 82.9
The Vazquezes also argue that a federal regulation
governing Alaska Legal Services Corporation prohibits the
corporation from requesting attorneys fees.10 Alaska Legal
Services sought to avoid this prohibition by arranging for
private counsel to appear pro bono and to move for costs and fees
in this case. The Vazquezes argue that this is impermissible.
The superior court did not reach this argument and instead ruled
that [t]he arguments raised concerning the legality of Ms.
Campbells counsel to receive legal fees is a matter between Ms.
Campbell and her counsel, and between ALSC and LSC. It is not
the concern of Mr. and Mrs. Vazquez. We agree with the superior
court. In our view the regulation is not enforceable by a
private litigant. The remedy for any violation resides with
Alaska Legal Services funding authority.
For the above reasons the judgment of the superior
court is AFFIRMED.
_______________________________
1 AS 25.30.500(a) provides:
To the extent authorized by court rules,
the court shall award the prevailing party,
including a state, necessary and reasonable
expenses incurred by or on behalf of the
party, including costs, communication
expenses, attorney fees, investigative fees,
expenses for witnesses, travel expenses, and
child care expenses incurred during the
course of the proceedings, unless the party
from whom costs, fees, or expenses are sought
establishes that the award would be clearly
inappropriate.
2 Rockstad v. Erikson, 113 P.3d 1215, 1224 (Alaska 2005)
([We] have held that full fee awards are manifestly unreasonable
unless the prevailing party has shown bad faith or vexatious
conduct by the losing party. ) (quoting Demoski v. New, 737 P.2d
780, 788 (Alaska 1987)).
3 See Still v. Cunningham, 94 P.3d 1104, 1117 (Alaska
2004); Bobich v. Stewart, 843 P.2d 1232, 1237 (Alaska 1992)
([W]hen interpreting a state statute that expressly calls for an
award of reasonable attorneys fees to successful plaintiffs, we
have held that full fees should be awarded to claimants as long
as those fees are reasonable.); Boyd v. Rosson, 713 P.2d 800, 802
(Alaska 1986).
4 The opening phrase of AS 25.30.500(a), to the extent
authorized by court rules, does not alter our conclusion. It
seems likely that this language was added to the Uniform Act by
the legislature so that subsection .500(a) would not be
considered to be an attempt to change court rules. See Leege v.
Martin, 379 P.2d 447, 450-51 (Alaska 1963) (a legislative
enactment will not be effective to change court rules of practice
and procedure unless the bill specifically states that its
purpose is to effect such a change and is passed by a two-thirds
vote of the members elected to each house). Civil Rule 82(a)
itself provides that statutory attorneys fees are to be awarded
in preference to those prescribed under the rule: Except as
otherwise provided by law . . . the prevailing party . . . shall
be awarded attorneys fees calculated under this rule. Alaska
Statute 25.30.500(a) is a law that otherwise provide[s] attorneys
fees as authorized by Rule 82.
5 This court may affirm a judgment on grounds other than
those relied on by the superior court. Ransom v. Haner, 362 P.2d
282, 285 (Alaska 1961).
6 Alaska R. Civ. P. 79(f)(15).
7 AS 25.30.500(a).
8 See, e.g., Sisters of Providence In Washington v. A.A.
Pain Clinic, Inc., 81 P.3d 989, 1011 (Alaska 2003); Cizek v.
Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 849
(Alaska 2003); Arctic Slope Native Assn v. Paul, 609 P.2d 32, 38
(Alaska 1980); Gregory v. Sauser, 574 P.2d 445, 445 (Alaska 1978)
(reviewing award of attorneys fees in case handled by Alaska
Legal Services Corporation).
9 Cizek, 71 P.3d at 849.
10 The regulation is 45 C.F.R. 1642.3. It provides:
Except as permitted by 1642.4, no recipient or employee of a
recipient may claim, or collect and retain attorneys fees in any
case undertaken on behalf of a client of the recipient.
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