| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morgan v. Morgan (09/22/2006) sp-6047
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
| CHARLES SIMON MORGAN, | ) | |
| ) Supreme Court No. S- 11728 | ||
| Appellant, | ) | |
| ) Superior Court No. | ||
| v. | ) 3AN-74-2726 CI | |
| ) | ||
| ELIZABETH DARLENE MORGAN | ) O P I N I O N | |
| (now SWANSON | ), | ) |
| ) | ||
| Appellee. | ) No. 6047 - September 22, 2006 | |
| ) | ||
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Elizabeth D. Morgan (Swanson),
pro se, Anchorage.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
When the parties divorced in 1974, no account was taken
in the decree dividing the parties property of Charles Morgans
unvested pension. In 2000 Elizabeth Morgan learned of the
pension, and in 2003 she moved to modify the property division
decree. The superior court granted her motion. We reverse
because the motion was untimely given the three-year delay
between when she learned of the pension and when she moved to
modify the decree.
II. FACTS AND PROCEEDINGS
Charles and Elizabeth Morgan married on October 10,
1963, and divorced on August 8, 1974. During the marriage, the
parties acquired a home, a lot in Bear Valley, a one-hundred-year
lease at $250 per year on a cabin site near the Kenai River, a
truck, and a station wagon. In 1968 Charles joined the
International Brotherhood of Electrical Workers and began working
for the Anchorage Telephone Utility. He retired in 1994. That
job came with a pension that paid Charles $2,400 per month as of
October 2004. Charles testified that his pension vested some
time after the divorce.
In the divorce proceeding, one attorney represented
both Charles and Elizabeth. The resulting decree awarded the
marital home, the Kenai River property, and the truck to Charles.
The station wagon and the Bear Valley lot went to Elizabeth. The
decree did not mention Charless pension. This is not surprising
since how nonvested pensions should be treated upon divorce was
not settled until 1987, when this court decided Laing v. Laing.1
In Laing we held that nonvested pension rights should be
considered marital property and divided using a reserved
jurisdiction approach under which the trial court orders the
employee spouse to pay to the former spouse a fraction of each
pension payment actually received.2
In June 2003 Elizabeth filed a Civil Rule 60(b) motion
to modify the dissolution decree. Her motion sought, in relevant
part,3 to recover one-hundred percent of the portion of Charless
pension earned during the marriage. She claimed that the pension
was a marital asset unknown to her at the time of the divorce.
As a result, she argued, the dissolution decree did not account
for all of the marital assets and warranted modification under
Rule 60(b). The superior court found that Elizabeth did not
learn of the pension until approximately 2000.
The superior court granted Elizabeths motion, finding
Civil Rule 60(b)(6) to be applicable.4 The court left the
ultimate determination of the marital amount up to a pension
administrator upon the filing of a qualified domestic relations
order. Elizabeth was to receive one-hundred percent of the
marital portion of the pension because Charles has been receiving
the entire pension for a substantial time, . . . received all the
equity in the [marital] home, which substantially appreciated
during his subsequent ownership. . . . [and] raised no objection
that the requested allocation would be unfairly burdensome to
him. The monthly payment to which Elizabeth was entitled as a
result of the qualified domestic relations order turned out to be
$247.38.
III. DISCUSSION
In this appeal Charles argues, inter alia, that the
superior court should not have granted Elizabeths motion under
Rule 60(b)(6) to divide his pension because she did not file it
within a reasonable time. We agree and therefore do not reach
Charless other claims of error.
A party must move for relief under Rule 60(b)(6) within
a reasonable time.5 What constitutes reasonable time necessarily
depends on the facts in each case.6 We review orders denying
Rule 60(b)(6) relief under the abuse of discretion standard.7
Here, nothing indicates that Elizabeth moved for relief
under Rule 60(b) within a reasonable time. The superior court
found that Elizabeth learned of the pensions existence in 2000.
She moved for relief in 2003. Elizabeths stated reason for the
three-year delay is a fear of Charles[] and his anger problem.
While we appreciate Elizabeths fear in light of the superior
courts findings of repeated abuse suffered by her at the hands of
Charles during the marriage,8 she offers no explanation why that
fear prevented her from moving for relief when she discovered the
pension in 2000, twenty-six years after the divorce, rather than
2003, and none appears in the record. There is no evidence of
circumstances beyond [Elizabeths] control which prevented [her]
from asking for relief sooner.9
Further, the nature of Elizabeths motion for relief
weighs heavily against holding that her three-year delay was
reasonable. While her motion was considered to be a Rule
60(b)(6) motion, which carries only a reasonable time
requirement, her motion, in substance, sought relief because of
newly discovered evidence in the form of Charless pension.
Clause (2) of Rule 60(b) provides that relief from a judgment may
be obtained for newly discovered evidence but carries a strict
one-year-limitations period that is applicable from the date of
the judgment.10 Clause (2) arguably does not strictly apply
because of the uncertainty as to whether an unvested pension was
marital property in 1974 when the judgment was entered. After
our Laing decision in 1987, there was no longer any uncertainty,
and thus, when Elizabeth learned of the pension in 2000, its
relevance as evidence that an item of marital property had not
been divided was not in doubt. In our view it would be
inconsistent with the one-year limit for newly discovered
evidence to allow Elizabeth more than one year after learning of
the pension to seek modification of the judgment at least
barring persuasive reasons for greater delay.11
Taken together, the absence of a viable explanation for
Elizabeths delay in moving for relief under Rule 60(b) and the
fact that her request was based on newly discovered evidence
that, when explicitly relied on under Rule 60(b)(2), carries a
one-year-limitations period, lead us to conclude that the
superior court abused its discretion by ruling that Elizabeths
motion was timely.
IV. CONCLUSION
The modification order is therefore REVERSED and this
case is REMANDED.
_______________________________
1 741 P.2d 649, 655-58 (Alaska 1987).
2 Id. at 657.
3 Elizabeths Rule 60(b) motion also argued that
modification was warranted with regard to the property actually
adjudicated, claiming that habitual abuse suffered at the hands
of Charles caused her to be emotionally unable to participate in
the hearing. The superior court denied this request as untimely.
Elizabeth does not challenge this ruling.
4 Civil Rule 60(b) provides in relevant part:
On 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:
(1) mistake, inadvertence, surprise or
excusable neglect;
(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).
5 Alaska R. Civ. P. 60(b).
6 Harris v. Westfall, 90 P.3d 167, 173 (Alaska 2004)
(footnote omitted).
7 Id. at 172. 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. Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
8 The superior court found the marriage to be marked by
severe violence.
9 Dewey v. Dewey, 886 P.2d 623, 629 (Alaska 1994)
(affirming finding that motion under Rule 60(b)(6) was not
brought within a reasonable time where movant could not show that
circumstances beyond his control caused a seven-year delay).
10 Further, it is generally held that clause (6) does not
apply to circumstances covered by the specific clauses of Rule
60(b) that precede it. Vill. of Chefornak v. Hooper Bay Constr.
Co., 758 P.2d 1266 (Alaska 1988) ([c]lause (6) and the first five
clauses of Rule 60(b) are mutually exclusive. Relief under
clause (6) is not available unless the other clauses are
inapplicable. (quoting Farrell v. Dome Labs., 650 P.2d 380, 385
(Alaska 1982)).
11 We thus conclude that the one-year limit applicable to
motions based on newly discovered evidence should inform
decisions as to whether a delay in making a similarly based
motion under Rule 60(b)(6) is reasonable.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
