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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hicks v. Pleasants (05/25/2007) sp-6128
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
| FRANCIS LYNN HICKS, | ) |
| ) Supreme Court No. S- 12110 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-11374 CI |
| ) | |
| GRACE LILY PLEASANTS, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6128 - May 25, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Robert C. Erwin, LLC, Anchorage,
for Appellant. Michael Gershel, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. The trial court divided a divorcing couples property
following entry of a default divorce. The defaulted defendant in
the underlying divorce asserts that the courts property division
differed in kind and exceeded the amount prayed for in the
complaint and is therefore void. He further argues that the
court applied an incorrect standard of proof to the property
division. Because we determine that the language in the prayer
for relief was sufficient to put the defendant on notice that the
court would divide the marital estate, we conclude the court had
the authority to adjudicate the property rights of the parties.
However, because the court applied an erroneous standard of proof
at the property division hearing, we vacate the property division
order and remand for a new property division.
II. FACTS AND PROCEEDINGS
Grace Pleasants and Francis Hicks were married in 1985.
In February 2005 Pleasants served Hicks with a summons and
complaint for divorce. Hicks did not file an answer or otherwise
appear in the action, and Pleasants moved for entry of default.
The clerk of court entered default against Hicks in April 2005.
Pleasants sent Hicks a letter notifying him of the scheduled
default hearing. On June 6, 2005, Master Andrew Brown commenced
a default divorce hearing. Hicks arrived as the hearing was
underway. He told Master Brown that [when] I defaulted I only
defaulted because I was not contesting the fact of divorce. . . .
I wasnt stipulating to any values or anything like that because
none of that had been put before me. The master informed Hicks
that although he was a defaulted party, Hicks maintained the
right to a contested default hearing. The master then set a
contested default divorce hearing for July 22. He issued an
order to hear . . . evidence and argument concerning the
contested default divorce. The order required both parties to
file with the court and exchange up-to-date financial
declarations, copies of their last two pay stubs, and 2004
federal tax returns. The order also noted that [s]ince it will
be a default judgment hearing the following applies . . .
[O]nce a default has been entered and entry
of judgment pursuant to the default is
sought, the function of the trial court is
not to weigh conflicting evidence; rather,
the court must make the sole determination
whether the allegations of the party in whose
favor the default has been entered are
susceptible of proof. . . . [G]iven
conflicting but legitimate evidence on both
sides, the court is bound to enter judgment
for the party in whose favor the default has
been entered.
The hearing was held July 22nd and July 26th. Neither
party was represented by an attorney. At the hearing, the
parties disagreed primarily about the values of various items of
personal property, the value of a condominium, a bank note, and
the characterization of monies withdrawn from a trust account.
Following the hearing, Master Brown took the property
distribution issue under advisement. The superior court entered
a partial decree of divorce.
On August 9, 2005, the master issued his report,
findings of fact, and proposed property division. The report
recommended allocating property and debts to both parties and
that Hicks pay Pleasants a monthly cash sum to equalize the
difference in marital debt allocated to each. Hicks then
retained counsel and objected to the report. He asked that the
court modify or set aside the recommendations on the grounds
that the judgment exceeded Pleasantss prayer for relief and was
therefore void under Alaska Civil Rule 54. He further argued
that the court applied an incorrect standard of proof in valuing
and dividing the marital property. Without comment on Hickss
objections, Superior Court Judge Stephanie Joannides adopted the
report. Hicks filed for and was granted a stay of judgment.
Hicks now appeals the property division order.
III. STANDARD OF REVIEW
The validity of a judgment is a question of law to
which we apply our independent determination.1
The entry of a default judgment and the refusal to set
aside a default judgment are reviewed for abuse of discretion.2
An abuse of discretion is found only where we are left with a
definite and firm conviction, after reviewing the whole record,
that the trial court erred in its ruling.3
We review legal determinations made during a trial
courts division of property de novo.4
IV. DISCUSSION
A. The Courts Property Division Falls within the Scope of
the Prayer for Relief.
Hicks does not contest the entry of default or the
divorce decree portion of the default judgment.5 But he does
contend that because Pleasants did not list each marital asset
and debt and its corresponding value in her prayer for relief,
the property division order was outside the scope of relief
requested. Judgments issued outside the scope of the prayer for
relief are void.6
Civil Rule 54(c) limits the scope of recovery in
default judgments: a default judgment shall not be different in
kind from or exceed in amount that prayed for in the demand for
judgment.7 In order for a default judgment to comply with Rule
54(c), a complaint must therefore give a defendant adequate
notice upon which to make an informed judgment on whether to
default or actively defend.8
In the prayer for relief in her complaint, Pleasants
requested that the court adjudicate the assets and liabilities in
a fair and [e]quitable manner. Hicks contends that this language
is insufficient to permit the court to equitably divide the
assets and debts of the parties in a default context. He asserts
that only where a prayer for relief specifies each piece of
marital property and debt and its value can a court issue a
default judgment. We reject Hickss contention.
If Pleasants had included each asset and debt in her
complaint, and its corresponding value, both the items and their
values could then be considered factual allegations of the
complaint. Where the court determines that a defendant is in
default, the factual allegations of the complaint, except those
relating to the amount of damages, will be taken as true.9
Therefore, if Pleasants had listed each item as Hicks contends,
and Hicks had defaulted, his default would obviate the need for
any subsequent hearing on valuation of the property. Pleasantss
claim would be for a sum certain within the scope of Alaska Civil
Rule 55(b) and the clerk, rather than the court, could
theoretically enter default judgment.10 Civil Rule 55 therefore
already contemplates the very procedural scheme that Hicks
suggests is somehow necessary for entry of judgment under Rule
54.
Even where a prayer for relief does not specify the
property subject to division or the exact parameters of the
division requested, we have held that a more general claim can be
sufficient to invoke the courts jurisdiction to adjudicate
property rights. In Rhodes v. Rhodes,11 the complaint alleged
that there are property rights to be adjudicated, sought such
other and further relief as the court might deem equitable, and
listed the equity of the family home and business but did not ask
for a judicial division of the property of the parties.12 The
allegations were admitted by defendant.13 We relied on the
language in the complaint and the facts in the record, which
reflected that both parties were previously aware of the property
dispute and had contemplated that the issues would be before the
court, in upholding the superior courts authority to adjudicate
the property rights.14
The plain language in Pleasantss prayer for relief
contemplated the division of property and liabilities. Hickss
claim that this language failed to provide him with notice is
belied by the language. Moreover, Hickss status as Pleasantss
husband renders him uniquely situated to and intimately familiar
with the property subject to division. As one California court
noted:
[Allowing a default and default judgment to
stand against the defaulting spouse] makes
sense in the marital dissolution arena, where
the parties are both aware of the property
subject to division, the responding party
knows that the petitioner seeks a division of
that property, and the court is statutorily
bound to value and divide the community
property equally.15
Finally, we note that Alaskas civil rules clearly
contemplate that a partys identification and itemizations of
assets, liabilities, and their proposed values in a divorce
proceeding might not be produced until trial nears. Alaska Civil
Rule 90.1 allows parties to a divorce proceeding involving
property disputes to file a list of items and debts at issue five
days before trial.16 Hickss claim that Pleasants was required to
list every asset and debt and their value immediately upon filing
her complaint in order to receive a default judgment is therefore
without merit.
Hicks further asserts that the Master took the legal
view that Rule 54(c) does not apply to default divorce
proceedings. Hicks relies on Oaks v. Grocers Wholesale, Inc.17
for the proposition that the courts order violated the
requirements of Rule 54(c).18 In that case, Oaks gave a
promissory note to Grocers and secured the note by property.
Oaks defaulted on the note. Grocers sued, claiming $19,000 plus
interest now due and owing, and requested a foreclosure and sale
of the mortgaged property.19 The clerk of court entered a $20,000
default judgment against Oaks on the note.20 On appeal, we held
that the default judgment was improper because the plaintiffs
demand for judgment did not include a request for a money
judgment and therefore the plaintiffs relief was limited to the
amount satisfied through a sale of the property.21
Unlike Oaks, here Pleasantss complaint plainly sought
an equitable distribution of liabilities and therefore
contemplated that either party could be left with more
outstanding debts than the other. Moreover nowhere does the
record support Hickss argument that the court was unaware of or
ignored the limitations imposed by Rule 54(c). Master Brown
plainly contemplated Rule 54(c) at the hearing as evidenced by
his attention to what relief was requested: [the prayer for
relief] has the basic language . . . that the court adjudicate
the assets and liabilities in a fair and equitable manner . . .
even though [Pleasants] didnt specify any of the particular items
of property or debts she wanted to divide . . . . This basic
language was sufficient to put Hicks on notice that the court
would divide the marital property.22
For all of these reasons, we hold that the language in
Pleasantss prayer for relief was sufficient to put Hicks on
notice that the court would undertake to divide the marital
estate. Because he elected to default in the face of that
notice, the court could properly exercise its jurisdiction and
adjudicate the property rights of the parties. The property
division order is therefore consistent with Civil Rule 54.
B. The Court Applied an Incorrect Standard of Law in
Adjudicating the Property Rights of the Parties.
Hickss second argument is that the trial court
incorrectly applied Syndoulos Lutheran Church v. A.R.C.
Industries, Inc.,23 thereby (1) ignoring Pleasantss burden of
proof at the hearing; (2) dividing the property solely on the
testimony of [Pleasants]; and (3) denying Hicks due process. He
contends that the courts application of Syndoulos improperly
shifted the burden of proof and precluded the court from
independently considering the evidence. Because a divorcing
couples property division falls within a unique category of
family law defined by well-established procedures, and because
Syndoulos is more properly confined to the traditional liability
context of default judgments, we conclude that Syndoulos does not
apply in the context of property division.
In Syndoulos, plaintiff sued a subcontractor business
and Farr, alleging Farr was an associate or partner of the
subcontractor.24 The clerk entered default. At the post-default
trial on damages, Farr appeared and attempted to introduce
evidence that he was not a partner in the business as originally
alleged.25 Judgment was entered against all defendants, but on
reconsideration the judgment against Farr was quashed because the
trial court was not persuaded that Farr was a partner.26 On
appeal, we held that Civil Rule 55(c)(1) permits the court to
question a defendants liability at his damages trial under
certain circumstances:
If . . . in order to enter the judgment it
is necessary for the plaintiff to present
evidence supporting one or more of the
plaintiffs allegations and if the plaintiff
is unable to adduce any evidence tending to
support the questioned allegations, then a
judgment should be entered dismissing the
plaintiffs complaint. The plaintiff need
not, however, establish the truth of the
allegations by a preponderance of the
evidence.27
We went on to note: Given conflicting but legitimate
evidence on both sides, the court is bound to enter judgment for
the party in whose favor the default has been entered.28 Thus the
defaulting party was left to bear a heavy burden if he or she
elected to later challenge allegations of the complaint that were
deemed admitted by default. Because plaintiff had relied on the
entry of default to establish its allegation that Farr was a
partner, and because plaintiff had not been permitted an
opportunity to rebut Farrs evidence disproving the partnership,
we reversed and remanded.29
Hicks contends that Syndoulos was only intended to
permit the trial court to have a limited ability to focus on
liability issues. He argues that by applying Syndoulos to the
default hearing on property distribution, the court divided the
property and debts solely on the basis of Pleasantss testimony.
Hickss contention concerning how the court applied
Syndoulos has merit. In the final property division Master Brown
noted:
Because this has been a contested
default divorce
consideration of the
facts and law has been
based on the Syndoulos
rule . . . except in the
particular instances
noted below, while Mr.
Hicks may have disputed
various parts of Ms.
Pleasants testimony, her
testimony has been given
the greater weight
because, as noted in
Syndoulos, if the
evidence offered by the
defaulted party merely
tends to show that an
allegation is not true,
then the allegation must
be taken as true.
The Syndoulos standard of weighing conflicting evidence
in favor of the non-defaulting party serves as a mechanism for
circumscribing attempts by a defaulted party to attack the
validity of the allegations considered proven by the partys
default. In Syndoulos, this standard was applied and directed at
the question of liability as it arose in the context of a damages
hearing. Nowhere, however, have we held that this standard also
applies to factual questions that are not pled in the original
complaint, or to a determination of damages in cases where a
hearing is required to determine damages.30
Pleasants suggests that this courts decision in Snyder
v. American Legion Spenard Post No. 2831 requires Syndouloss
application in damages actions. But Snyder, at most, extends the
Syndoulos rule to cases involving liability for specifically-
alleged amounts of damages or where the questions of liability
and damages are intertwined. In Snyder, Post 28 alleged that its
finance officer, Snyder, wrote 144 checks payable to himself in
the amount of $111,522 and failed to provide an accounting. The
Post sued Snyder for misappropriation of these funds.32 When
Snyder failed to appear for trial, the superior court entered
summary judgment against him based on an earlier motion that
Snyder had failed to oppose.33 On appeal, we held that the
judgment was proper because Snyders failure to appear at trial
meant that he was a defaulting party under Civil Rule 55(c)(1) to
whom no further notice was owed. Moreover, because the damages
claim satisfied the sum certain criterion, no hearing on damages
was required.34 In reaching this conclusion we explained that the
Syndoulos could not possibly be rebutted standard would apply if
there had been a damages hearing because this is in part an
accounting action in which liability and damages are inextricably
intertwined.35 We explained that there was a well-pleaded
allegation that Snyder fraudulently embezzled each of the
checks, and that there was also some evidence that not all of the
checks represented fraudulent transactions. Employing the
Syndoulos standard, we concluded that the evidence of lack of
fraud was not uncontroverted evidence and was insufficient to
overcome a default.
Unlike Syndoulos, Hickss default status did not arise
from a civil action where liability was at issue. And unlike
Snyder, this is not a case in which damages for a sum certain are
claimed or where the questions of liability and damages are
inextricably intertwined. This case instead concerns a party who
defaults to a divorce proceeding and then desires to contest the
parameters of a subsequent property division. We view these as
distinctly different inquiries, and hold that where marital
property remains to be divided, a partys default to the
underlying divorce action does not trigger Syndouloss
applicability to the property division.
We have for decades articulated a well-defined three-
step process that courts must engage in when dividing property
upon divorce.36 We therefore conclude that regardless of default,
the trial court must (1) determin[e] what property is available
for distribution; (2) valu[e] the property; and (3) allocat[e]
the property equitably.37 Syndoulos does not change either partys
burden of proof, and the trial courts role as fact finder, in
this distribution process.38
A review of the record indicates that the court applied
Syndoulos in reaching its findings and recommendations on at
least five disputed property issues.39 On each, we find this
application to be problematic.
(1) The trust withdrawal
The court characterized an $88,500 withdrawal made by
Pleasants from Pleasantss personal trust fund as a loan to the
marriage and therefore as a marital liability. Evidence
presented on the issue was confined to the conflicting testimony
of the parties. Hicks objected to the characterization of the
money as a loan. He asserted that one-half of the funds were
used to support Pleasantss separate business enterprise.
Pleasantss testimony revealed that the money was taken out for
the couple to live on, that the purpose of the trust was for
investments or [my] personal savings, and that the trust limited
the types of things she could use the monies for. Pleasants
further testified that documents existed which discussed the
trust fund, interest rates, and other details, but did not
provide any documentary evidence to the court. She conceded that
Hicks did not sign any document pertaining to terms of the
withdrawal or reimbursement.
The characterization of property as marital or
separate is largely a legal conclusion, but it is
based on facts.40 In ultimately characterizing the
money as a marital liability, the court found that
[w]hile Mr. Hicks says the $88,500 amount really
does not involve a debt owed by Ms. Pleasants to
her trust, the Syndoulos rule is controlling . .
. and so that is regarded as a debt. In applying
Syndoulos, the court afforded Pleasantss testimony
on the issue greater weight than it may otherwise
have deserved. (2) The Mat-Maid
business debt
The courts order also characterized a $150,000 debt
arising out of a failed Mat-Maid investment by Pleasantss
business as a marital liability. The court found that Pleasants
was a twenty percent partner in the business Heritage Properties,
LLC, that Pleasants owed $150,000 for her share of a business
note, and that Hicks co-signed on the note because he was her
spouse . . . [o]therwise, his doing so does not reflect any
ownership, management or other interest in the business. The
court further found that Hicks would not receive any income from
the business. In reaching his conclusions on this issue, Master
Brown found that Syndoulos . . . applied as to including Ms.
Pleasants $150,000 Mat-Maid debt in the overall mix, because Mr.
Hicks was a signatory on the note, and thus his liability cannot
be ignored.
Similar to the findings with respect to the trust
withdrawal, the court invoked Syndoulos in making determinations
regarding the Mat-Maid debt. There are no independent findings
as to the evidence presented or to either partys intent.41
Additionally, it is unclear from the record why the court found
that while Hicks maintained no interest in the business and would
not derive any affirmative benefit from it, his signature on the
underlying note was sufficient to characterize the note as a
marital debt.42
(3) The Anchorage condominium
Throughout the hearing Hicks objected to Pleasantss
valuations of various household personal items and the value of
an Anchorage condominium.
Where a party identifies a significant marital asset
but presents no evidence as to its value, the best practice is
for the trial court to direct the parties, or the delinquent
party having best access to the proof, to fill the evidentiary
void.43 [It] is the duty of the parties, not the court, to ensure
that all necessary evidence is before the court in divorce
proceedings.44 The parties presented little documentary evidence
of the condominiums value at the hearing, and the evidence was
limited primarily to their testimony.
In his original property distribution spreadsheet filed
in court, Hicks listed the value of the Anchorage condominium at
$215,300. Pleasants testified that the value of the condominium
was $250,000 and listed that amount on her property spreadsheet.
She conceded the tax assessment of the home listed the property
at $215,300. In determining the value of the condominium the
court found that [i]n light of their conflicting testimony and
the Syndoulos rule Ms. Pleasants testimony is regarded as
convincing that the condo . . . has a present value of about
$250,000.
It is plainly within the trial courts province to make
factual determinations based on witness credibility.45 By relying
on Syndoulos, however, the court afforded Pleasantss testimony on
the issue greater weight than it may otherwise have deserved.
(4) Distribution and valuation of the parties personal
property
The court found that Pleasantss valuations of various
items of personal property would be used taking into account the
Syndoulos rule and in light [of] Mr. Hicks not proving that
[Pleasantss valuations] are high or unreasonably high.46 The
courts final order applied Syndoulos in valuing and awarding
various items of personal property to Pleasants upon her request.
The record does not reflect whether the court independently
weighed the evidence or evaluated the credibility of either party
in its findings on these issues.
(5) Award of the post office box to Pleasants
The parties had shared the use of a post office box in
Anchorage. The court awarded Pleasants the P.O. box because she
wants it and in light of the Syndoulos rule that is not
unreasonable.
In light of the foregoing, it is evident that the
courts application of Syndoulos precluded a complete and
independent consideration of the evidence in characterizing,
valuing, and distributing the property of the parties on at least
five matters.
C. Hicks Was Not Denied Due Process.
Hicks asserts that he was denied due process of law
because he did not have notice of the amounts claimed from the
pleadings and he was not given an opportunity to have his
testimony considered at the hearing. To the extent that Hickss
argument is that the judgment was outside the prayer for relief,
we rejected this argument above and hold that the language in the
prayer for relief served to place Hicks on notice that the court
would consider all property and debts of the parties. Moreover,
the record does not support Hickss claim that he was not afforded
the right to participate in the hearing. Hicks was notified of
and attended the originally scheduled June hearing. Master Brown
informed Hicks of his right to counsel and postponed the hearing
over six weeks in order to allow the parties time to prepare and
gather evidence. Master Brown informed the parties they should
be prepared to discuss real issues, property, debts, any
retirement to be divided . . . . Hicks testified. Hicks cross-
examined Pleasants. Master Brown questioned Hicks with respect
to nearly every item listed on Hickss property spreadsheet.
Master Brown afforded Hicks the opportunity to introduce
exhibits, make closing remarks, and to raise any additional
issues.
Thus, because the complaint placed Hicks on notice of
the property adjudication, and because he was afforded the
opportunity to collect and introduce evidence, testify, and cross-
examine Pleasants, Hickss argument on this point is without
merit.
V. CONCLUSION
Because the language in the prayer for relief was
sufficient to put Hicks on notice that the court would consider
all assets and debts of the parties in adjudicating the property
rights of the parties, the court properly exercised jurisdiction
in dividing the marital estate. However because the courts
application of Syndoulos was incorrect as a matter of law, and
because the record lacks independent findings that might
otherwise support the courts conclusions, we VACATE the property
division order and REMAND to the trial court for further
proceedings consistent with this opinion.47
_______________________________
1 See Kennecorp Mortgage & Equities, Inc. v. First Natl
Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984).
2 Melendrez v. Bode, 941 P.2d 1254, 1256 (Alaska 1997).
3 Lovell v. Lovell, 645 P.2d 151, 152 (Alaska 1982).
Accord Cook v. Rowland, 49 P.3d 262, 264 (Alaska 2002).
4 Leis v. Hustad, 22 P.3d 885, 887 (Alaska 2001).
5 When an application for default is made under Alaska
Civil Rule 55, a trial court must exercise its discretion in
determining whether a judgment should be entered. Peter Pan
Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378 (Alaska 1982).
While Hicks did not contest the entry of default or request that
the court set the default aside, we recognize that he was not
represented by counsel. We have held that a trial judge should
inform pro se litigants of the proper procedure for the action
they are attempting to accomplish. Breck v. Ulmer, 745 P.2d 66,
75 (Alaska 1987). Civil Rule 55(e) provides that [f]or good
cause shown the court may set aside an entry of default. Good
cause is a question of equity left to the discretion of the trial
court upon showing of a meritorious defense. Hertz v. Berzanske,
704 P.2d 767, 771 (Alaska 1985) superseded by statute on other
grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n.4
(Alaska 1996). In this case Hicks arrived at the June hearing a
few minutes late. He promptly informed the court that while he
had agreed to be defaulted to the divorce, he did not intend to
stipulate to the values of any of the property and debts at
issue. In light of the relative ease of setting aside a default
and Hickss status as a pro se litigant, we note that the court
could have construed Hickss statements as a request to set aside
the default.
6 Alaska Civil Rule 60(b) provides, in 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 [if] . . . the judgment is void. A judgment is void
where the defendant was not given proper notice of the action and
opportunity to be heard . . . or where there was a failure to
comply with such requirements as are necessary for the valid
exercise of power by the court. Rowland v. Monsen, 135 P.3d
1036, 1038 (Alaska 2006).
7 Melendrez, 941 P.2d at 1256-57; 46 Am. Jur. 2d
Judgments 296 (1964).
8 46 Am. Jur. 2d Judgments 296 (1964). See also 10A
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure 2663 (1st ed. 1983); Brown v. Lange, 21
P.3d 822, 825 (Alaska 2001) ([I]n interpreting our civil rules we
have often looked to identical federal counterparts for
guidance.).
9 Valley Hosp. Assn, Inc. v. Brauneis, 141 P.3d 726, 728
(Alaska 2006) (quoting 10A Federal Practice and Procedure 2688).
10 Rule 55 provides for judgment by the clerk under 55(b)
only where the claim is for a sum certain, and judgment by the
court under 55(c) in all other cases. Rule 55 states in
pertinent part:
(b)(1) Failure to Appear. If the defendant
has been defaulted for failure to appear and
the plaintiffs claim(s) is for a sum certain
or for a sum that can by computation be made
certain, upon the filing of an application
for default judgment . . . the clerk shall
enter default judgment for the amount due . .
. .
. . . .
(c)(1) In all other cases the party entitled
to a default judgment shall apply to the
court therefor. . . . If the party against
whom default judgment is sought has appeared
in the action, that party . . . shall be
served with written notice of the application
for judgment. . . . If, in order to enable
the court to enter judgment or to carry it
into effect, it is necessary to take an
account or to determine the amount of damages
or to establish the truth of any averment by
evidence or to make an investigation of any
other matter, the court may conduct such
hearings or order such references as it deems
necessary and proper.
. . . .
(c)(3) If the amount of damages claimed in an
application to the court for default judgment
is unliquidated, the applicant may submit
evidence by affidavit showing the amount of
damages and if, under the provisions of
paragraph (1) of this subdivision, notice of
the application is necessary, the parties
against whom judgment is sought may submit
affidavits in opposition.
11 370 P.2d 902 (Alaska 1962).
12 Id. at 904
13 Id.
14 Id. at 904-05. While Rhodes was not a default judgment
case, its recognition of the courts authority to make a fair and
just disposition of the property rights of parties where a
defendant is aware of the need to adjudicate those rights is
equally applicable here.
15 Cassell v. Sullivan, Roche & Johnson, 90 Cal. Rptr. 2d
899, 903 (Cal. App. 1999).
16 Civil Rule 90.1(e) provides: In divorce cases involving
property division disputes . . . the parties shall file and serve
. . . 5 days before trial is scheduled to begin . . . (1) a list,
including a brief description of all assets and liabilities of
the parties, whether owned jointly or individually . . . .
17 377 P.2d 1001 (Alaska 1963).
18 Id. at 1003.
19 Id. at 1002.
20 Id.
21 Id.
22 Hicks cites Fehlhaber v. Fehlhaber, 681 F.2d 1015 (5th
Cir. 1982), as authority for the proposition that a default
judgment that exceeds the amount specified in the complaint must
be reduced. However, California has subsequently rejected this
approach. See In re Marriage of Andresen, 34 Cal. Rptr. 2d 147,
152-53 (Cal. App. 1994) (noting due process satisfied in marital
dissolution action where petitioner checked box on standard court
form indicating type of relief requested; no greater specificity
required).
23 662 P.2d 109, 112 (Alaska 1983).
24 Id. at 110.
25 Id. at 110-11.
26 Id. at 111.
27 Id. at 112.
28 Id. (quoting In re West Sec. Litigation, 436 F. Supp.
1281, 1289 (N.D. Cal. 1977)).
29 Id. at 113.
30 No hearing on damages is required when damages are for
a sum certain or for a sum that can by computation be made
certain, Alaska R. Civ. P. 55(b)(1), or where the amount of
damages claimed is not unliquidated. Alaska R. Civ. P. 55(c)(3).
31 119 P.3d 996 (Alaska 2005).
32 Id. at 997.
33 Id. at 997-98.
34 Id. at 1002.
35 Id. at 1002 n.8.
36 See Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska
1983). See also Inman v. Inman, 67 P.3d 655, 659 (Alaska 2003);
Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002); Root v.
Root, 851 P.2d 67, 68 (Alaska 1993); Carlson v. Carlson, 722 P.2d
222, 223-24 (Alaska 1987).
37 Faulkner, 46 P.3d at 996.
38 If the [equitable distribution issue] does go to trial,
the parties are entitled to a full hearing at which they can
present their case to the judge. Even if one party defaults, the
court must still grant a hearing and base the decision on the
evidence presented. Brett R. Turner, Equitable Distribution of
Property 3:15, at 171 (3d ed. 2005).
39 While the order makes clear that the court invoked
Syndoulos with regard to the five specific issues discussed
below, the ruling also indicates that other disputed credibility
determinations were also resolved in Pleasantss favor on that
basis: [C]onsideration of the facts and law has been based on the
Syndoulos rule. . . therefore, except in the particular instances
noted below, while Mr. Hicks may have disputed various parts of
Ms. Pleasants testimony, her testimony has been given the greater
weight.
40 See Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska
2004).
41 See Nicholson v. Wolfe, 974 P.2d 417, 423 (Alaska 1999)
(parties may by their actions demonstrate intent to treat
separate property as marital).
42 While Pleasants assumed this debt in the ultimate
property division, the court included it as part of the marital
estate.
43 Root v. Root, 851 P.2d 67, 69 (Alaska 1993).
44 Id.
45 See Berg v. Berg, 983 P.2d 1244, 1248 (Alaska 1999).
46 The parties disputed the value of household items in
both the Anchorage condominium and their Girdwood home. For
example, Pleasants valued a freezer in the Anchorage condominium
at $1,200, a cd collection at $3,000, and tools at $1,000. Hicks
valued the freezer at $500, the cds at $1,500, and the tools at
$400.
47 We remand for new findings under the proper standard as
set forth above and recognize that the court may be required to
direct both parties to provide supplemental evidence. The court
may also require a re-hearing of all or a select number of the
issues. However, we leave to the trial court the discretion to
determine the extent of further proceedings and additional
evidence that may be needed.
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