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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richard v. Boggs (07/20/2007) sp-6141
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
| KEITH W. RICHARD, | ) |
| ) Supreme Court No. S- 12138 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-02-2897 CI | |
| v. | ) |
| ) O P I N I O N | |
| ROBIN J. BOGGS, f/k/a ROBIN | ) |
| RICHARD, | ) No. 6141 - July 20, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: John J. Connors, Law Office of
John J. Connors, P.C., Fairbanks, for
Appellant. Craig B. Partyka, Cook Schuhmann
& Groseclose, Inc., Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Keith W. Richard and Robin J. Boggs agreed to divide
their marital property at dissolution in a way that significantly
favored Richard. Applying Alaska Civil Rule 60(b)(6), the
superior court later vacated the portion of the dissolution
decree that adopted their property division agreement. Because
the superior court did not abuse its discretion when it vacated
that portion of the decree, we affirm.
II. FACTS AND PROCEEDINGS
Keith Richard and Robin Boggs (formerly known as Robin
Richard) separated in April 2002 after twenty-one years of
marriage. In December 2002 they jointly filed a dissolution
petition that included their agreement for dividing their marital
property. This original property division agreement heavily
favored Richard, who took between sixty-eight to seventy-five
percent of the marital estate.1 Notably, the parties agreed that
Boggs would assume responsibility for all the marital debts and
that their most significant marital asset, their house, would be
awarded solely to Richard. They valued the house at $104,458.
After a hearing, Standing Master Alicemary L. Closuit
issued findings of fact and recommendations regarding the
dissolution petition. Master Closuit found that [t]he parties[]
agreements regarding division of the assets of the marriage and
division of the debts of the marriage appear to be patently
inequitable. Accordingly, Master Closuit ordered the parties to
provide her with a written statement that explained why their
agreement was fair and just under the circumstances.
In response, the parties jointly amended their
agreement to explain their rationale. After stating that their
top priority was to continue being good parents to [their]
children and that open communication was integral to their
success in that respect, they declared that any other division of
[their] assets and debts would hinder [their] ability to maintain
good communication[ ] in parenting [their] children. The parties
also declared that because they built their house for their
children, they wanted to preserve their childrens ability to live
there. Thus, with regard to how they would divide ownership of
the house, they stated that
If a 50/50 division of property were required
in this agreement, a mortgage would need to
be placed on the house. Given the uncertain
future of Keiths employment,[2] neither of us
are willing to jeopardize the house with a
lender in order to make this agreement appear
more equitable.
After reviewing the parties amendment, Master Closuit
concluded that the property allocations were just and recommended
them for approval by the superior court. In March 2003 the
superior court agreed with Master Closuits recommendation and
issued a decree of dissolution of marriage that adopted the
proposed property division.
About one year later, Boggs filed a motion to reopen
the dissolution decree under Alaska Civil Rule 60(b)(6); she
alleged that the justifications for the disparate terms of their
agreement had not come to pass. She specifically argued that the
lopsided division of assets had not resulted in open
communication between the parties and that the parties assumption
that the house would be placed in jeopardy upon financing with a
lender [had] proved incorrect because Richard could afford to
make home equity loan payments, partly because he had secured
employment with the military. Richard filed a pro se opposition
in which he argued that the property division was fair and should
be upheld. Master Closuit recommended that the superior court
grant Boggss Rule 60(b)(6) motion as a matter of law. The
superior court eventually granted Boggss Rule 60(b)(6) motion
without a hearing and vacated the property division.
To resolve the parties now-unresolved property division
and child support issues, Master Closuit held an evidentiary
hearing in late 2004. Although Rule 60(b)(6) relief had already
been granted, Master Closuit allowed both parties to present
evidence about whether such relief was appropriate under the
circumstances. In January 2005 Master Closuit submitted her
findings of fact and recommendations to the superior court. She
found sufficient evidence to vacate under Rule 60(b)(6) the
portion of the parties dissolution decree that adopted their
property division agreement and recommended that the parties
assets be redistributed as provided in a spreadsheet she attached
to her recommendation. On June 15, 2005 the superior court
issued an order adopting Master Closuits findings and
recommendations. The court distributed this order to the parties
on June 22.
On November 17, 2005 the superior court distributed
various Qualified Domestic Relations Orders (QDROs) relating to
Richards retirement accounts and issued a document titled Final
Judgment granting Boggs $79,806.01.
Richard appeals the superior courts November 17, 2005
judgment. He filed his notice of appeal with this court on
November 23, 2005. Boggs then moved to dismiss Richards appeal
as untimely; an individual justice of this court denied her
motion to dismiss. We allowed Boggs to raise the issue of the
appeals timeliness in her appellees brief.
III. DISCUSSION
A. Standard of Review
Richard raises four main arguments on appeal. He
challenges the courts decision to vacate the portion of the
parties dissolution decree that adopted their property division
agreement under Rule 60(b)(6) because: (1) the requisite
extraordinary circumstances do not exist; (2) relief under that
rule is unavailable if any other Rule 60(b) clause applies, and
Boggss claim falls under Rule 60(b)(1) or Rule 60(b)(3); and (3)
setting aside the portion of the parties dissolution decree that
adopted their property division agreement will cause him undue
prejudice. Richard also argues that the superior court erred by
issuing QDROs that treat his retirement accounts as marital
property because the parties waived their rights to each others
retirement accounts.
We review for abuse of discretion the superior courts
order reopening the parties dissolution decree under Rule
60(b)(6).3 [R]elief from a judgment is addressed to the sound
discretion of the trial court and [the] courts ruling will not be
disturbed except upon a showing of abuse of discretion.4 An
abuse of discretion occurs when we are left with the definite and
firm conviction on the whole record that the judge had made a
mistake.5
B. Richards Appeal Is Timely.
On June 15, 2005 the superior court issued an order
that adopted Master Closuits findings and recommendations,
including her recommendation that the portion of the parties
prior dissolution decree that adopted their property division
agreement be vacated under Rule 60(b)(6) and that the parties
assets be valued and distributed as provided in Master Closuits
findings. Boggs argues that because the superior courts June 15
order resolved all issues in the case and ordered [Richard] to
make payment to equalize the property division, it was a final
judgment for purposes of appeal. Boggs contends that, per Alaska
Rule of Appellate Procedure 204(a)(1), the time for appeal began
to run when the order was distributed to the parties on June 22.
Because Richard filed his appeal more than thirty days after June
22, Boggs argues that the appeal is untimely.
Richard responds that the June 15 order was not a final
judgment because Master Closuits underlying findings contained
unresolved issues. He thus observes that Master Closuit was
unable to resolve the question whether Richards military pension
should be valued at the parties separation, as is the practice in
Alaska, or whether federal law requires his pension to be valued
at the date of the divorce. Richard contends that the division
of the three retirement accounts was not decided until the
superior court distributed its QDROs on November 17, 2005.
Richard asserts that the final judgment for purposes of appeal
was the document titled Final Judgment that the superior court
entered in November with the QDROs.
Appellate Rule 204(a)(1) requires a litigant to file a
notice of appeal within thirty days from the date of the judgment
appealed from. This time limit is not jurisdictional, and may be
relaxed to avoid injustice.6 The judgment referred to in
Appellate Rule 204(a)(1) is the judgment that, per Civil Rule 58,
must be set forth on a separate document and that is to be
entered after the court makes its decision.7 This separate
document provision in Civil Rule 58 was added in 1983 to prevent
any uncertainty concerning the date a judgment becomes final and
effective, for the purposes of determining when the time
limitations for post verdict motions and appeals begins to run.8
To determine whether a decision is a final judgment that triggers
the time limit for an appeal, the reviewing court should look to
the substance and effect, rather than form, of the rendering
courts judgment.9 A final judgment is one that disposes of the
entire case and ends the litigation on the merits.10
Because Master Closuit left open the question whether
Richards military pension should be valued at separation or
divorce, the superior courts June 15 order that adopted Master
Closuits recommendations did not dispose of the entire case.
That open question was not resolved until the superior court
distributed its QDROs on November 17. On that same day, the
court also distributed a separate Final Judgment that complied
with the requirements of Civil Rule 58. This step would have
been redundant and unnecessary if the superior courts June 15
order had been the final judgment. Because the Rule 204(a)(1)
clock did not begin to run until the superior court distributed
its final judgment on November 17, 2005, Richards appeal is
timely.
C. The Superior Court Did Not Abuse Its Discretion when It
Vacated the Portion of the Parties Dissolution
Decree that Adopted the Property Division Agreement
Under Rule 60(b)(6).
Rule 60(b) permits a court to relieve a party from an
unjust final judgment.11 The superior court granted Boggss motion
to reopen the parties dissolution decree under Rule 60(b)(6). It
also adopted Master Closuits January 4, 2005 findings of fact and
recommendations, including Master Closuits finding that there was
a sufficient evidentiary basis for Rule 60(b)(6) relief to Boggs.
1. The superior court did not abuse its discretion
when it ruled that extraordinary circumstances
exist.
In Schofield v. Schofield,12 we listed four factors that
may establish extraordinary circumstances that justify relief
from a dissolution decree under Rule 60(b)(6):
(1) the fundamental, underlying assumption of
the dissolution agreement [has] been
destroyed; (2) the parties property division
was poorly thought out; (3) the property
division was reached without the benefit of
counsel; and (4) the [asset in controversy]
was the parties principal asset.[13]
As we have previously recognized, we have never held that all
four factors must be present for relief under Rule 60(b)(6).14
Instead, we view these four factors as instantiations of the
equitable factors required to overcome the principle that, at
some point, litigation [must] be brought to an end. 15
Master Closuit found that extraordinary circumstances
exist in this case because
the fundamental underlying assumptions of the
parties did not come to pass,[16] the division
of the assets was clearly inequitable[,] the
parties failed to list many of [their]
assets, the marital residence is the largest
asset of the parties and was not properly
valued, and the parties had very limited
contact and advice from attorneys before
entering into their agreements.
The superior court adopted this finding in its June 15 order.
Richard argues that none of the four Schofield factors is present
and that the superior court therefore abused its discretion when
it determined that extraordinary circumstances exist. We
disagree.
Richard first argues that no fundamental, underlying
assumptions of the parties property division agreement have been
destroyed. He contends that his fortuitous change in employment
post decree and Boggss subjective disappointment with his level
of communication are not extraordinary circumstances that justify
relief under Rule 60(b)(6). But extraordinary circumstances
exist where the equity of a property division agreement is
destroyed by the parties mutual mistake regarding one of their
agreements fundamental, underlying assumptions.17 In Williams v.
Crawford, the parties based their property division agreement on
their mutually mistaken belief that the wife would be eligible to
receive the husbands pension survivorship benefits.18 We held
that those were extraordinary circumstances under Rule 60(b)(6)
because the wifes eligibility for the husbands survivorship
benefits was one of the fundamental assumptions underlying their
property division.19
The parties here based their agreement to give Richard
outright ownership of their marital house on the assumption that
if they had divided their property equally Richard would need to
mortgage the house and thereby place himself in danger of losing
it to a third-party lender. This assumption was mistaken.
Because their property division agreement did not call for
Richard to buy out Boggss interest in the house, Richard did not
need to obtain a commercial mortgage that he might not have been
able to service. Instead, Richard could have simply issued a
note payable to Boggs to secure his obligation for the property
division. This would have avoided any danger of losing the house
altogether. The parties did not face an inherent risk of losing
the house that they built for their children. The equity of the
parties agreement was destroyed by their mutual mistake regarding
this fundamental, underlying assumption.
Furthermore, the parties property division agreement
was poorly thought out because it failed to dispose of
substantial items of marital property.20 The parties property
division agreement allocated between $187,032 and $199,147 of
their marital estate but did not include at least $17,373 of
marital assets and $963 of marital debts. Given that the parties
poorly thought-out agreement was reached without the benefit of
counsel, disposed of the parties principal asset21 (their marital
home), and was inequitable because the parties were mutually
mistaken regarding one of the agreements fundamental, underlying
assumptions, we cannot say that the superior court abused its
discretion in ruling that Boggss claim for relief met the
standards of Rule 60(b)(6).
2. Boggss claim does not fall under any other clause
of Rule 60(b).
A party may only obtain Rule 60(b)(6) relief if no
other Rule 60(b) clause applies.22 Richard argues that Rule
60(b)(6) relief is unavailable to Boggs because her claim falls
under either Rule 60(b)(1) or Rule 60(b)(3).
Rule 60(b)(1) permits the court to relieve a party from
a judgment for mistake, inadvertence, surprise or excusable
neglect. Richard argues that Boggss Rule 60(b)(6) motion falls
under clause (1) because it is based on Boggss mistake about
Keith being able to financially afford the house. Boggs responds
by arguing that her motion does not fall under Rule 60(b)(1)
because the mistake at issue here was a mutual mistake and not
Boggss unilateral mistake; her claim therefore falls under Rule
60(b)(6).
We have stated that
Alaska case law does not clearly pinpoint
which claims for relief are properly
cognizable under Rule 60(b)(1). However, it
appears that when a party is seeking relief
due to the movants mistake or neglect the
claim falls under Rule 60(b)(1); but when the
parties are mutually mistaken the claim falls
under Rule 60(b)(6).[23]
As Boggs observes, the language of the agreement indicates that
it represented their mutually held beliefs. The parties belief
that Richard needed to mortgage their home if their property was
divided equally was therefore a mutual mistake. The superior
court did not abuse its discretion by ruling that Rule 60(b)(1)
does not apply.
Rule 60(b)(3) permits a court to relieve a party from a
judgment for fraud, misrepresentation, or other misconduct of an
adverse party. Richards theory for arguing that Boggss claim
falls under Rule 60(b)(3) is that if [Boggss] claim is that she
was pressured (or subjectively felt coerced) to sign the
Dissolution Agreement to maintain good communication with Keith
about the children[ ], she is asserting a Rule 60(b)(3) claim.
But Boggs has never claimed that she was pressured or felt
coerced to sign the dissolution agreement. In fact, Boggs points
out that Master Closuit specifically found that [Richard] never
pressured [Boggs] to draft or prepare or sign the amendment [to
the] agreement. We are therefore unpersuaded that Boggss claim
falls under Rule 60(b)(3).
3. Richard did not suffer undue prejudice from the
superior courts grant of Rule
60(b)(6) relief.
Richard contends that the superior court abused its
discretion when it failed to consider the prejudice to him when
it decided Boggss Rule 60(b)(6) motion. He asserts that he was
prejudiced in three ways. First, he argues that he was
prejudiced when the superior court revalued the parties house at
its fall 2004 value, even though the parties agreed that the
house would be valued at the date of separation (April 2002).
Second, he argues that he was prejudiced when the superior court
ordered him to split with Boggs $12,000 of income he earned post
separation. Third, he argues that he was prejudiced when the
superior court ordered him to split his pension with Boggs
despite the parties reciprocal waiver of rights to each others
retirement accounts.
In deciding Rule 60(b)(6) motions, courts give
consideration to the following factors: the prejudice, if any,
to the non-moving party if relief from judgment is granted,
whether any intervening equities make the granting of relief
inappropriate, and any other circumstances relevant to
consideration of the equities of the case.24 Courts must balance
the interest in the finality of judgments against the interest in
granting relief from judgment when justice so requires.25 In
doing so, courts should liberally construe Rule 60(b)(6) to do
justice where extraordinary circumstances demand it.26
Richard has not suffered undue prejudice. Contrary to
Richards contention, the superior court did not revalue the
parties house at its fall 2004 value; the court established the
proper value of the house as of the time of the parties April
2002 separation. Furthermore, Richards pension and the $12,000
of income he received post-separation were marital property. The
prejudice that Richard allegedly suffered was therefore caused by
a series of superior court decisions that stripped him of the
windfall he received from the parties poorly thought-out property
division agreement. Because Richard presented no evidence that
he would suffer unfair prejudice if the portion of the parties
dissolution decree that adopted their property division is
vacated, the superior court did not abuse its discretion when it
granted Boggss Rule 60(b)(6) motion.
D. The Parties Reciprocal Waiver of Rights Is No Longer
Operative.
Finally, Richard argues that the superior court
committed clear error when it issued QDROs that classified
Richards retirement accounts as marital property despite the
parties reciprocal waiver of rights to each others retirement
accounts. Richard points to no authority to support his
contention that the parties original waiver of rights survived
the grant of Rule 60(b)(6) relief. Because the court vacated the
parties entire property division agreement, the original
reciprocal waiver of rights is no longer operative.
IV. CONCLUSION
The superior court did not abuse its discretion by
granting Boggss motion for Rule 60(b)(6) relief. We therefore
AFFIRM.
_______________________________
1 There is differing evidence regarding the exact
percentage that Richard took of the marital estate. Of the
property listed in the original property division agreement
(including real property, personal property, debts, and nine
miscellaneous financial accounts), Richard took $149,135 of the
net total of $199,147, or seventy-five percent. The summary of
their agreement that the parties later prepared, however, lists
Richard as taking $127,061 of the total of $187,032, or sixty-
eight percent.
2 The uncertain future clause referred to the uncertain
status of Richards continued employment with the United States
Army when the parties entered into their agreement.
3 Alaska Truck Transp., Inc. v. Inter-Alaska Credit
Serv., Inc., 397 P.2d 618, 61920 (Alaska 1964).
4 Id.; see also Morris v. Morris, 908 P.2d 425, 427
(Alaska 1995).
5 Juelfs v. Gough, 41 P.3d 593, 596 (Alaska 2002)
(quotation omitted).
6 In re Adoption of Erin G., 140 P.3d 886, 889 (Alaska
2006) (citing Isaacson Structural Steel Co., Div. of Isaacson
Corp. v. Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska 1982)
(holding that requirement of timely notice of appeal is not
jurisdictional and can be relaxed to avoid surprise or
injustice)).
7 Schneider v. PayN Save Corp., 723 P.2d 619, 62223
(Alaska 1986) (holding that formal judgment entered on separate
document triggered appeal process, even though summary judgment
was awarded much earlier).
8 Id. (quotation omitted).
9 Denali Fed. Credit Union v. Lange, 924 P.2d 429, 431
(Alaska 1996) (citations omitted).
10 Mattfield v. Mattfield, 133 P.3d 667, 673 (Alaska 2006)
(citations omitted).
11 Lacher v. Lacher, 993 P.2d 413, 418 (Alaska 1999)
(citations omitted) (holding divorce decree properly set aside
because it failed to dispose of substantial items of marital
property).
12 Schofield v. Schofield, 777 P.2d 197, 202 (Alaska
1989).
13 Lowe v. Lowe, 817 P.2d 453, 45859 (Alaska 1991)
(quoting Schofield, 777 P.2d at 202).
14 Williams v. Crawford, 982 P.2d 250, 25556 (Alaska 1999)
(citation omitted).
15 Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(quoting Lowe, 817 P.2d at 459).
16 Master Closuit explained that the fundamental
underlying assumptions of the parties agreements did not come to
pass because [Richard] was unable and unwilling to openly and
freely communicate with [Boggs] even regarding the children and
his income earning capacity proved to be neither uncertain nor
less than adequate to pay [Boggs] an equitable share of the
marital estate.
17 Williams, 982 P.2d at 255.
18 Williams v. Crawford, 982 P.2d 250, 255 (Alaska 1999).
19 Id. at 256.
20 See Lacher, 993 P.2d at 41920.
21 See Foster v. Foster, 684 P.2d 869, 87172 (Alaska 1984)
(holding that poorly thought-out property division based on
assumption parties would continue to live in marital home after
dissolution was properly set aside when that assumption proved
unworkable because underlying assumption of property division was
destroyed, division was reached without benefit of counsel, and
marital residence was principal asset).
22 Lacher, 993 P.2d at 419.
23 Williams, 982 P.2d at 255 (citations omitted) (holding
that claim for relief based on parties mutual misunderstanding
regarding wifes ineligibility for survivorship benefits falls
under Rule 60(b)(6)).
24 Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713,
717 (Alaska 1988).
25 Id.
26 Id. at 715.
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