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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Powell v. Powell (10/10/2008) sp-6314
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
| REBECCA POWELL, | ) |
| ) Supreme Court No. S- 12532 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-04- 11788 CI | |
| v. | ) |
| ) O P I N I O N | |
| DENNIS POWELL, | ) |
| ) No. 6314 October 10, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: G.R. Eschbacher, Anchorage, for
Appellant. Dorothea G. Aguero, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
PER CURIAM
I. INTRODUCTION
Dennis and Rebecca Powell divorced in December 2004.
They jointly agreed to a proposed division of their assets and
this division was incorporated in the superior courts decisions.
Ten months after the divorce, Rebecca filed a Civil Rule 60(b)
motion for relief from the property division. After conducting
an evidentiary hearing, the superior court denied Rebeccas
petition. We affirm because the superior court did not abuse its
discretion in so ruling.
II. FACTS AND PROCEEDINGS
Dennis and Rebecca Powell have married and divorced
twice. They originally married in 1992. The two divorced,
reconciled, and resumed living together in 1993. They were re-
married in 1994. In 2004 they divorced again. They had no
children together, but both have children from prior marriages.
At the time of the second divorce, Dennis was retired, having
left his job at the Federal Aviation Administration in 2002.
Rebecca is a realtor.
Approximately ten months after the 2004 divorce,
Rebecca filed a Civil Rule 60(b) motion for relief from the
property division. While the parties dispute many of the
relevant facts, Rebecca argued in her Rule 60(b) motion that the
allocation was based on a mistake and was the result of duress
and oppressive conduct.
A. Marital Assets and the Property Division
The couples primary assets, owned either jointly or
individually, consisted of a home in Anchorage, a cabin in
Sterling, a cabin in Rainbow Shores, and Denniss retirement
account. The two also, jointly or individually, had various
debts, the most sizable of which were two mortgages on the
Anchorage home and credit card debt.
As part of their petition for dissolution of marriage,
Dennis and Rebecca jointly submitted a proposed allocation of
property. The superior court accepted this allocation and
incorporated it into its findings of fact and conclusions of law
and its decree of divorce. Dennis and Rebecca reached this
property division after negotiations via telephone and e-mail.
Rebecca explains that the negotiations mainly concerned two items
consisting of who would be responsible for the $100,000.00 second
mortgage on the Anchorage home and how the credit card debt would
be divided.
Both parties retained attorneys and indicated on their
proposed property division form that they had received legal
advice. However, the two negotiated and reached the division
largely, if not entirely, on their own. In an October 20, 2004 e-
mail to Dennis, Rebecca stated, I REALLY want to work this out
without attorneys it would give each of us, immediately, most of
our $3500 [retainer] back. Rebecca claims that she contacted her
attorney after she and Dennis reached a tentative property
division, but that she declined to send her attorney a copy of
the draft agreement.1
Dennis owned the home in Anchorage before the marriage
and retained title solely in his name during the marriage.2 The
two valued the property at $395,000. It was subject to two
mortgages: a first mortgage of $160,000 and a second mortgage of
$100,000. Rebecca received the house subject to the first
mortgage. According to the property division form, the two split
the second mortgage, but provided that it would be paid off from
the sale of the house.3
The two jointly owned the cabin in Sterling and valued
it at $400,000. The second mortgage on the Anchorage home was
largely spent on the Sterling cabin. Dennis received the cabin.
Rebecca alleged that it was her understanding that the cabin
would always be available for their children from prior marriages
and that the children would inherit the property. Rebeccas
understanding was not included in the written property division.
Finally, the two jointly owned a cabin in Rainbow
Shores. They valued it at $86,000 and evenly allocated its
ownership upon divorce. They agreed to sell the property and
equally divide the proceeds.
During the negotiations, neither party obtained an
estimate of the present value of Denniss retirement account.
However, they both knew, or should have known, the size of the
annual retirement salary that Dennis was receiving and that he
would be receiving these checks for the rest of his life.4
Rebecca asserted that the marital portion of the account has an
estimated present value of $730,000.5 Dennis received the entire
retirement account in the settlement.6
Rebecca and Dennis also divided their credit card debt.
While Rebecca claimed that she had been paying some of his credit
cards, the property allocation agreement does not include such a
requirement. As Dennis explained the agreement, many of the
credit cards were in his name (due, allegedly, to Rebeccas
troubled credit history) but Rebecca did not take over any of the
credit card debt Dennis himself accrued.
By Rebeccas calculations, Dennis received property and
assets with a net value in excess of $1 million (even excluding
the retirement accounts estimated present value, in excess of
$300,000), while Rebecca received property and assets with a net
value of slightly over $100,000.
B. Rebeccas Rule 60(b) Motion
At the conclusion of the divorce hearing on December 1,
2004, Rebecca sent Dennis an e-mail stating that she thought
everything went well. Dennis remarried in 2005, but did not tell
Rebecca. In September 2005 Rebecca learned of Denniss marriage
from her children. Two of Rebeccas children visited Dennis at
the cabin in Sterling in August and met his new wife. Rebecca
claimed that Dennis made it clear that the children were not
welcome at the cabin. Dennis denied this claim, explaining that
he only refused to vacate the cabin for her children during their
visit.
In October 2005, about ten months after the divorce and
property judgment, Rebecca filed a Rule 60(b) motion to vacate
the property division. The motion cited three grounds for relief
under Rule 60(b): (1) mistake, (3) misconduct, and (6) injustice.
Rebeccas motion did not contain any discussion of the
mistake claim.
Rebeccas claim of extortion or misconduct was based on
events that occurred before the divorce and around the time of
the property allocation negotiations. In August 2004 Rebecca
went to California, ostensibly to help her son find an apartment
and to attend a real estate class. After she returned to Alaska,
Dennis accused her of having met someone in California. Denying
it, Rebecca invited Dennis to look at her computer and read her e-
mails. Dennis accepted. He purchased a computer program to
allow him to access an e-mail account to which he did not have a
password. On or before September 14, 2004,7 Dennis accessed this
account and found a number of e-mails, some of which were
sexually explicit, between Rebecca and Bill Miles. Dennis
printed these e-mails and confronted Rebecca, who again denied
having an affair.
Rebecca and Dennis provided different accounts of what
happened next. Both agreed that Dennis asked Rebecca what she
would think if her children, friends, and co-workers knew about
her affair. As the superior court explained, Dennis likely
intended this to be a rhetorical statement while Rebecca
interpreted it as a threat.8 Rebecca maintained that Dennis began
revealing tidbits of information to her children, establishing
his possession of her e-mails as a credible threat.9 Rebecca
claimed that this threat of exposure dominated their property
division negotiations.
Though the motion focused on the Rule 60(b)(3) claim,
Rebecca argued that she was alternatively entitled to relief
under Rule 60(b)(6). She offered as the basis of that argument
that the property settlement was not well thought out and . . .
highly inequitable even on its face.
Superior Court Judge Sharon L. Gleason held an
evidentiary hearing on December 1, 2006, and heard closing
arguments on December 7, 2006. The court, in an oral decision,
denied Rebeccas Rule 60(b) motion. It later awarded Dennis Civil
Rule 82 attorneys fees and costs. Rebecca appeals.
III. DISCUSSION
A. Standard of Review
A party may seek relief from a final judgment by filing
a timely motion under Rule 60 of the Alaska Rules of Civil
Procedure. We review the denial of a motion for relief from
judgment for an abuse of discretion.10 We will find an abuse of
discretion when we are left with a definite and firm conviction,
after reviewing the whole record, that the trial court erred in
its ruling.11
We review a superior courts award of attorneys fees
under Rule 82 for an abuse of discretion.12 Whether the superior
court applied the appropriate legal standard in its consideration
of a fee petition presents a question of law that we review de
novo.13
B. Rebeccas Rule 60(b) Motion Was Timely.
Dennis briefly argues that Rebeccas claims under Rule
60(b)(1) and (3) are time barred.14 While Rebecca filed her
motion within one year of the divorce judgment, Dennis contends
that the motion did not meet the independent requirement in Rule
60(b) that the motion shall be made within a reasonable time.
The superior court did not make an express ruling on timeliness,
but apparently found the motion timely because it reached the
merits of Rebeccas claims.
We agree with the superior courts implicit finding of
timeliness. Initially, it appears that Dennis waived this
argument at the evidentiary hearing. His lawyer explained, Just
for clarification, in terms of Mrs. Powells motion under
60(b)(3). It would appear that that is that the motion is
timely.
Moreover, the case Dennis cites in support of his
argument, Sandoval v. Sandoval,15 is unavailing. In Sandoval we
concluded that the superior court did not abuse its discretion by
finding that a movants Rule 60(b) motion filed eleven months
after the judgment was untimely.16 Thus Sandoval was decided on a
different procedural posture than the present case and involved a
longer delay than the present case. It is telling that Dennis
does not claim that Rebeccas delay prejudiced his case.17
C. Rebecca Waived Her Claim to Relief Under Rule 60(b)(1).
In her motion to vacate the property settlement,
Rebecca did not explicitly rely on Rule 60(b)(1) as a basis for
relief. During closing argument, the superior court wanted
Rebeccas attorney to explain the specific subsections of Rule
60(b) that Rebecca was invoking. Her attorney conceded that
Rebeccas claim of mistake was more properly viewed as a claim
under subsection (b)(3) because Denniss alleged misconduct
directly caused the mistake.18 The superior court accordingly
denied relief under Rule 60(b)(1) explaining that, [(b)](1), as I
clarified with Mr. Eschbacher [Rebeccas attorney], is not really
applicable to the facts that were alleged in this case.
On appeal, Rebecca argues that she never learned the
value of Denniss retirement account before the property
allocation and, thus, that her waiver of any rights to the
account constituted a mistake justifying relief from the
judgment. She also argues that Denniss alleged misconduct
regarding her e-mails with Miles deterred her from seeking legal
advice regarding the property division, which led to her mistake.
Dennis responds that Rebecca, through her attorney,
disclaimed Rule 60(b)(1) as a ground for relief. He further
argues that Rebecca knew that she was entitled to a portion of
the retirement account but deliberately chose to waive any claim
to it.
Given that Rebeccas attorney specifically agreed that
Rebeccas claim of mistake was properly viewed as a claim of
misconduct or coercion under Rule 60(b)(3), we conclude that the
superior court did not err when it determined that Rebecca waived
any claim to relief under Rule 60(b)(1).
D. The Superior Court Properly Denied Relief Under Rule
60(b)(3).
Rebecca sought relief under Rule 60(b)(3), contending
that she only accepted the property division because Dennis
threatened to disclose the e-mails documenting her affair to her
family, friends, and colleagues. The superior court found that
Rebecca might have interpreted Denniss statement to the effect
of what would people think if they knew about the affair as a
threat, but that Dennis meant it to be rhetorical. The court
found quite persuasive Rebeccas August 30, 2004 e-mail to Miles
in which she stated her discovery that Alaska is a no-fault
divorce state, meaning that her affair would not affect her
rights to the marital property. Examining the text of later
communications, the court explained that:
really, the tone of communications in the end
of October, when the negotiations took place,
has no hint of any concern by Ms. Powell of a
sense of over-reaching, of feeling in any way
threatened, or that, she better not push too
hard, or, who knows what will happen. Theres
simply an indication of two competent adults
negotiating a property division, and without
any sense of one person holding anything over
the other person . . . .
The court concluded that it did not find on balance that Ms.
Powell has established by clear and convincing evidence . . .
that any misconduct of Mr. Powell . . . was a factor with the
parties property decision agreement that they reached.19
Moreover, the superior court distinguished Rebeccas citation to
persuasive authorities, finding that the cases she cited involved
coercion that was more extreme than Denniss alleged acts.
On appeal, Rebecca argues that Dennis threatened that
he would reveal her e-mails with Miles to her family, friends,
and colleagues. Rebecca contends that Denniss statement was
coercive, even if Dennis did not intend his statement to be a
threat. Rebecca argues that Dennis established a credible threat
by revealing information about the affair to her children.
Rebecca contends that Denniss conduct met the
definition of extortion contained in Alaskas criminal code20 and
that this justifies relief under Rule 60(b)(3). But her argument
assumes that Dennis threatened that he would reveal Rebeccas e-
mails with Miles if she did not accept a lopsided property
division. While Dennis conceded that he made one rhetorical
statement to Rebecca, he never admitted, and the superior court
in its findings never found, that Dennis tied his statement into
the property negotiations. Moreover, the superior court never
found that Dennis intended his statement to be a threat.
Rebecca attempts to distinguish the superior courts
findings regarding the tenor of her e-mails with Miles and Dennis
by comparing the dates of her e-mails to the dates of Denniss
discovery of her e-mails and Denniss alleged threat. Rebecca may
be correct that the superior courts reliance on an August 30 e-
mail in support of its findings that Rebecca was not concerned
about Dennis revealing her affair was misplaced. But Rebecca
ignores the superior courts findings that her e-mails during the
October negotiations negotiations occurring after Denniss
discovery of Rebeccas e-mails with Miles still demonstrated a
lack of fear or coercion. For example, in an e-mail from mid-
October, Rebecca sent Dennis a proposal for a property division
and suggested, Let me know what you think or come back with
something else. I REALLY want to work this out without attorneys
it would give each of us, immediately, most of our $3500 back.
Moreover, the tenor of non-negotiation e-mails between Dennis and
Rebecca from October 2004 through 2005 reflected no signs of
intimidation or coercion.
After reviewing the record as a whole, we conclude that
the superior court did not abuse its discretion by denying relief
under Rule 60(b)(3).
E. The Superior Court Properly Denied Relief Under Rule
60(b)(6).
Rebecca claims that the ratio of assets in the property
division is so disproportionately in favor of Dennis that it is
facially unjust and must be vacated. Because there is a
presumption that an equal division is an equitable division,21
Rebecca claims that there should be a presumption that an unequal
division is an inequitable division of assets.22
Rebecca also argues that Denniss behavior regarding the
e-mails documenting her affair and her lack of knowledge
regarding the value of Denniss retirement account presented an
extraordinary circumstance justifying relief from the judgment.
Dennis responds that the factors that this court ordinarily
considers in a Rule 60(b)(6) analysis do not justify reversal of
the superior courts decision.
1. Most of Rebeccas claims are not cognizable under
Rule 60(b)(6).
Dennis initially argues that Rebeccas Rule 60(b)(6)
motion is based largely on impermissible considerations. We have
consistently explained that [a] party can invoke subsection
(b)(6) only if none of the other five clauses apply and
extraordinary circumstances exist.23 Thus clause (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.24 The superior court recognized the narrow scope of
Rule 60(b)(6) in its decision when it explained that Rule
60(b)(6) really is not meant to apply when you almost make a
(b)(3) showing . . . but not quite, and then you say, well, then
you should apply (b)(6) for relief.
Rebecca argues that she did not know the estimated
present value of Denniss retirement account. But this assertion
amount[s] to a claim of mistake or inadvertence under subsection
(1).25 Rebecca argues that Dennis misled her about the value of
his retirement account. But this assertion amounts to a claim of
misconduct under subsection (3) or of newly discovered evidence
under subsection (2).26 Rebecca also argues that she was
pressured and threatened into accepting the property division.
But this assertion is essentially a claim of duress under
subsection (3).27
After removing impermissible considerations, Rebecca
only has one argument remaining: the sizable disparity in the
ratio of assets divided between Rebecca and Dennis. However,
Rebecca ties this disparity to her claims of Denniss coercion;
she does little to argue that the disparity independently
justifies relief.
2. The superior court did not abuse its discretion
when it denied Rule 60(b)(6) relief on the merits.
We have highlighted four factors that should be
considered in a Rule 60(b)(6) motion in the context of a property
division in a final divorce. The factors are: (1) the
fundamental, underlying assumption of the dissolution agreement
had 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 [property in dispute] was the
parties principal asset.28 Because these factors are rooted in
equity, relief can be granted even if some factors are not
applicable.29
The superior court analyzed these four factors and
determined that the factors did not weigh in favor of vacating
the judgment. Assuming that Rebeccas claims are cognizable under
Rule 60(b)(6), we conclude that the superior court did not abuse
its discretion by denying relief under this subsection.
The superior court found the first factor considering
if a fundamental, underlying assumption of the dissolution
agreement has been destroyed inapplicable. The court determined
that the alleged oral understanding that Dennis would allow
Rebeccas children free access to the Sterling property was not a
fundamental, underlying assumption of the dissolution agreement.
The court reasoned that, if it was, then Rebecca, a real estate
agent, would not have relied on purely oral assertions of
intentions. Given that Rebecca does not contest the superior
courts resolution of this factor, we will not disturb the
superior courts assessment.
The superior court found the second factor considering
if the parties property division was poorly thought out
inapplicable given the extent of the negotiations between Rebecca
and Dennis and the detailed paperwork that they completed.
Rebecca argues that the disproportionate ratio of asset
distribution, combined with her general lack of knowledge about
the value of Denniss retirement account, demonstrates that the
property division was poorly thought out. Rebecca further argues
that Denniss alleged misconduct involving the e-mails clouded her
examination of the division. Denniss response echoes the
superior courts reasoning: there was an exchange of e-mails
between the parties and a detailed division of assets in the
proposed property division.
We conclude that the superior court did not abuse its
discretion in assessing the second factor. The superior court
reasonably examined the complete and detailed nature of the
property division and concluded that Rebecca and Dennis thought
about the allocation. The courts rejection of Rebeccas coercion
claim under Rule 60(b)(3) undermines her attempt to raise
coercion in the context of Rule 60(b)(6). Rebecca also argues
that she lacked knowledge of the size of Denniss retirement
account. But Rebecca knew that she was entitled to part of
Denniss retirement account and she knew at least the approximate
annual value of his retirement payments because this figure was
listed in the proposed property division.
The superior court found that the third factor
considering if the property division was reached without the
benefit of counsel did not weigh in Rebeccas favor. The court
found that counsel were involved and that Rebecca had the benefit
of counsel in connection with the divorce. The court noted,
however, that counsel for Rebecca was not present at the divorce
hearing. Rebecca argues that she did not discuss the property
division with a lawyer and explains that she did not do so
because Dennis threatened her. Dennis responds that Rebecca had
the benefit of counsel.
Rebeccas strongest argument is that any legal advice
she sought was of a temporary and minimal sort. But the superior
court seemed unimpressed with Rebeccas claim that she did not
discuss the property division with her attorney. In an e-mail
between Rebecca and Dennis, Rebecca encouraged Dennis to
negotiate with her without attorneys so that they both could
receive a refund of their retainers. Notably, this e-mail was
sent in mid-October, after Denniss alleged threat. Rebecca thus
accepted the risks of not having a lawyer in exchange for the
benefit of not paying attorneys fees. Rebecca also admitted that
she called her attorney explaining that she had reached a
property division, but declined the attorneys request to see a
copy of the document. Rebeccas explanation is that Dennis
coerced her into not discussing the division with her attorney.
Given the superior courts rejection of Rebeccas claim of
coercion, a ruling we have upheld, we conclude that the superior
court did not abuse its discretion in finding that this factor
did not favor Rebecca.
The superior court found that the fourth factor
considering if the property in dispute was the parties principal
asset favored Rebecca because Denniss retirement account was a
principal asset acquired by the parties during the marriage. But
the court concluded that this factor alone was insufficient to
justify relief based on Rule 60(b)(6). Both Rebecca and Dennis
agree with the superior courts characterization of Denniss
retirement account.
Examining these considerations as a whole, only one
factor favors granting Rebecca relief from the property division.
We conclude that the superior court did not abuse its discretion
in denying Rebeccas Rule 60(b)(6) motion.
F. The Superior Court Did Not Err in Its Award of
Attorneys Fees.
After deciding in favor of Dennis, the superior court
awarded Dennis $3,255 in attorneys fees and $572 of costs.
Rebecca argues that the superior court erred by relying on a
Civil Rule 82 prevailing party standard rather than the method of
awarding fees used in divorce cases, which is based on the
parties relative economic situations and earning capacities.
Dennis responds that the divorce exception does not
apply to Rule 60 motions and argues that the superior court
properly followed Rule 82. Dennis also appears to argue that he
should have received greater attorneys fees,30 but his brief does
not argue that the superior court made a mistake or that any
mistake amounted to an abuse of discretion.31
The superior court applied the correct legal standard.
Rule 82 governs attorneys fee awards in a Rule 60(b) motion to
modify a divorce decree.32 Because Rebecca does not assert that
the court abused its discretion within the framework of Rule 82,
we affirm the superior courts award of fees and costs.
IV. CONCLUSION
We AFFIRM the decision of the superior court.
_______________________________
1 As explained below, Rebecca alleges that Dennis told
her not to discuss the division with her attorney. She testified
that she told her attorney this reason when he asked her why she
would not send him the draft agreement. Dennis denies her
allegation.
2 Prior to the second marriage, the parties signed a pre-
nuptial agreement whereby Rebecca waived any claims to all of
Denniss pre-marriage property, among other things. However, the
pre-nuptial provided that the two would re-negotiate the
agreement on their fifth wedding anniversary. No such re-
negotiation occurred. The superior court did not discuss the pre-
nuptial agreement in its decision.
3 It is not clear if the two truly split the mortgage.
By agreeing to pay off the mortgage from the sale of the
Anchorage house, it appears that Rebecca essentially took over
the mortgage, subject to some other payment agreements set forth
by the parties later in the proposed property division.
4 Dennis listed his gross wages on the property division
form that the two jointly submitted to the court. Given that
Dennis was retired at the time, his gross wages consisted of
retirement payments.
5 Dennis, for the purposes of Rebeccas Rule 60(b) motion,
did not submit an alternate valuation of his retirement account.
However, the superior court suggested that it might allow Dennis
the opportunity to present his own valuation if it granted
Rebeccas motion.
6 During the marriage Dennis cashed in his Thrift Savings
Plan (TSP) account. While Rebecca occasionally makes mention of
the TSP money, she concedes that most of this money was invested
in the Sterling property, which Dennis received.
7 The print date of the e-mails in the record is
September 14, 2004. The most recent e-mail in the record between
Bill Miles and Rebecca was sent on September 13, 2004. We assume
that the computers date was correct. Based on his testimony,
Dennis might have accessed these e-mails at any time after
Rebecca invited him to look at her computer in August.
Therefore, the date of discovery is likely sometime between
Rebeccas return in August and September 13 or 14, 2004.
8 The court explained:
I think that whether one views the statements
as rhetorical, as Mr. Powell testified, or as
threatening, as Ms. Powell testified, perhaps
the how it was heard and how it was
conveyed, both parties were accurate in that
regard. I simply dont know. They heard and
conveyed what they thought, and interpreted
it differently.
9 Two of Rebeccas children testified that Dennis revealed
information regarding Rebeccas affair to them.
10 Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999).
11 Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007)
(quoting McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999)).
12 Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).
13 See McDonald v. Trihub, 173 P.3d 416, 420 (Alaska
2007).
14 Dennis does not make this argument with respect to
Rebeccas Rule 60(b)(6) claim.
15 915 P.2d 1222, 1223-24 (Alaska 1996).
16 Id.
17 See Alaska Placer Co. v. Lee, 502 P.2d 128, 131 (Alaska
1972) (upholding as being made within a reasonable time a Rule
60(b)(1) motion filed forty-nine days after discovery of a
mistake and noting that there was no indication of prejudicial
delay).
18 The exchange was:
Court: All right. There is one other
topic I wanted.
Eschbacher: Yes, maam.
Court: 60(b)(1), mistake, inadvertent
surprise or excusable neglect.
Which one are you or, which ones
are you alleging of those?
Eschbacher: Well, now, you mean under are
you talking about 60(b)(1)?
Court: Correct. I mean, as I read
your brief, you are alleging
alternative bas[e]s (1), (3) and
(6).
Eschbacher: Thats correct.
Court: And, so, (b)[(1)] is mistake,
inadvertent surprise or excusable
neglect. And my question is . . .
Eschbacher: It would be it would probably
be mistake, inad . . . well, it
would sorta follow under the
excusable neglect or the mistake.
Court: What was the mistake?
Eschbacher: Well, it wasnt a mistake. It
would be the excusable neglect,
because she didnt because she was
laboring under the threat.
Court: So isnt that really a (b)(3)?
Eschbacher: It would be a (b)(3). Youre
right.
Court: I mean, I . . .
Eschbacher: It would it certainly does
fit more neatly under (b)(3). I
dont dispute that.
19 A party who asserts fraud, misrepresentation, or other
misconduct of an adverse party as a ground for relief under Rule
60(b)(3) must prove these assertions by clear and convincing
evidence. Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990).
20 AS 11.41.520(a)(3) (A person commits the crime of
extortion if the person obtains the property of another by
threatening or suggesting that either that person or another may
. . . expose confidential information or a secret . . . .).
21 See Lowdermilk v. Lowdermilk, 825 P.2d 874, 877 (Alaska
1992).
22 While this argument might have some merit, we note that
it is not the contrapositive of the recognized presumption.
Accordingly, it is not an accurate statement as a matter of
logic.
23 Juelfs v. Gough, 41 P.3d 593, 597 (Alaska 2002)
(quoting Lacher v. Lacher, 993 P.2d 413, 419 (Alaska 1999)).
24 Vill. of Chefornak v. Hooper Bay Constr. Co., 758 P.2d
1266, 1270 (Alaska 1988) (quoting Farrell v. Dome Labs., 650 P.2d
380, 385 (Alaska 1982)).
25 Lowe v. Lowe, 817 P.2d 453, 457 (Alaska 1991).
26 See id.; OLink v. OLink, 632 P.2d 225, 230 (Alaska
1981).
27 J.C. v. M.L.C., 668 P.2d 1351, 1352 (Alaska 1983)
(holding that alleged threats that wife would report husband to
the IRS for tax evasion if the husband did not agree to admit
paternity of child must be considered under Rule 60(b)(3)). But
see Lowe, 817 P.2d at 458 (considering threats in the framework
of Rule 60(b)(6)).
28 Lacher, 993 P.2d at 419 (quoting Schofield v.
Schofield, 777 P.2d 197, 202 (Alaska 1989)).
29 See Clauson v. Clauson, 831 P.2d 1257, 1260-61 (Alaska
1992). These factors are not strictly necessary conditions but,
rather, are particular instantiations of the equitable factors
required to justify relief under Rule 60(b)(6). Id. at 1261.
30 Denniss brief states, The trial court properly awarded
$3,255 in attorney fees and $522 in costs. It later asserts, Mr.
Powell is entitled to thirty percent of reasonable actual
attorney fees necessarily incurred, which is $3,900. He is also
entitled to his full costs of $572 for a total award of
$4,472.00.
31 Moreover, Dennis did not appeal the superior courts
award. He is only an appellee. See Alaska R. App. P. 204(g).
32 McGee v. McGee, 974 P.2d 983, 992 (Alaska 1999)
(quoting Lowe, 817 at 460); see also L.L.M. v. P.M., 754 P.2d
262, 263-64 (Alaska 1988).
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