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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blaufuss v. Ball (7/12/2013) sp-6796
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANDREA BLAUFUSS, )
) Supreme Court No. S-14484
Appellant, )
) Superior Court No. 3KO-06-00285 CI
v. )
) O P I N I O N
MELVIN BALL, )
) No. 6796 - July 12, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kodiak, Steve W. Cole, Judge.
Appearances: Andrea Blaufuss, pro se, Bellevue,
Washington, Appellant. Jรผrgen Jensen, The Law Office of
Jรผrgen Jensen, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
Justices. [Bolger, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
After a trial the superior court granted a decree of divorce, distributed
marital debts and property, and ordered the husband to pay spousal support for an
indefinite time period. More than three years later - in front of a different superior
court judge - the wife sought relief for the husband's failure to pay any spousal support.
The husband in turn filed a motion to set aside the original spousal support award,
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arguing the judgment was void: (1) for lack of personal and subject matter jurisdiction
at the trial; and (2) because he had not received due process during the trial. The
superior court granted the husband's motion, declaring the spousal support judgment
void because the husband had not received due process during the trial. The wife
appeals; we reverse.
II. FACTS AND PROCEEDINGS
Melvin Ball and Andrea Blaufuss (f/k/a Andrea Ball) were married in
Washington in 1980. Ball left Blaufuss and moved to Alaska in 2002, but he continued
to support Blaufuss and their minor child until 2006. In October 2006 Ball filed for
divorce in Alaska. The trial court issued a domestic relations pretrial order listing the
documentation requirements for spousal support motions - the order explained that
"[a]ll motions and oppositions involving spousal support must be accompanied by a
financial declaration affidavit." This order was served on Blaufuss.
Blaufuss did not timely respond to the divorce complaint, and in March
2007 Ball filed a default application. In April Blaufuss's sister, Kathie Price, emailed the
superior court a response explaining that Blaufuss: (1) suffered from mental illness and
her condition had been deteriorating; (2) was classified as categorically needy by
Washington state; (3) was dependent on Ball as her sole source of income; (4) was in
arrears for six months on her mobile home lot space fees; (5) owed more than $4,000 in
property taxes on her mobile home; (6) had no money to pay her electric bill; (7) had a
broken furnace and had been heating her home using the oven; and (8) had moved in
with Price. Price requested spousal support for Blaufuss. Blaufuss signed a note
authorizing Price's response.
The trial court accepted the email as Blaufuss's answer, denied Ball's
default request, and scheduled a trial-setting conference. After that conference the court
issued an order explaining that divorce, spousal support, and property and debt would
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be addressed at trial. Trial took place in June 2007. Ball, Blaufuss, and Price appeared
telephonically.
Ball testified that he sent Blaufuss money after he moved to Alaska in 2002,
but stopped supporting her in November 2006 because he "found out about her use of
cocaine and spending the money on . . . drugs and [that] she also was . . . being
unfaithful." Ball testified that he had earned approximately $94,000 a year, but that his
income recently had dropped to approximately $54,000 a year. When asked about
Blaufuss's assertion that she "suffers from mental illness, severe depression and anxiety
disorders and is not able to care for herself," Ball testified that Blaufuss was
fine as long as she doesn't take a lot of drugs. She had a job,
she was holding a job until she started using narcotics,
painkillers, and mixing them with antidepressants. She'd
been through rehab, been through a program to get cleaned
up a couple of times, and she finally ended up resorting to
illegal street drugs. . . . I know that she can - she would be
able to hold a job.
Ball also asserted that between 2002 and 2006 he had provided for Blaufuss by
depositing more than $20,000 into Price's bank account, but that he did not want to pay
further spousal support because he did not "feel that [he] should have to take care of her
because of her problems that . . . obviously she's born with."
After Ball testified, the court requested Blaufuss's testimony. Price
responded, explaining that she did not know if her sister was in an emotional condition
to testify and offered to "answer any questions that [the court] would have." The court
voir dired Price and then Blaufuss.
Price testified that Blaufuss and Ball owed property taxes and space fees
on their mobile home and that they had incurred a $1,700 cellular telephone debt in
Price's name. Price explained that Blaufuss "suffers from mental illness, severe
depression and anxiety disorders." When the court asked if Blaufuss's mental illness
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was documented, Price responded "I have numerous pieces of documentation," but none
were produced at trial. Price testified that ten years earlier Blaufuss had worked for less
than a year but had not been emotionally stable enough to continue working. Price
further explained that Blaufuss lived with her and that she administered Blaufuss's
medication and kept drugs and alcohol out of the home. Finally, Price testified about her
expenses incurred in caring for Blaufuss and the amount of state assistance Blaufuss
received.
The court again requested Blaufuss's testimony. Blaufuss stated that she
agreed with her sister's testimony. Blaufuss added that she had not used cocaine for
almost a year.
Later that month the trial court issued findings and a decree of divorce. The
court found that Blaufuss suffered from mental illness and had chronic substance abuse
problems, was unemployable, and needed supervision and assistance. The court awarded
Blaufuss $1,000 monthly, indefinitely, for spousal support. The trial court also awarded
Blaufuss the mobile home and the property tax liability, and ordered Ball to pay unpaid
mobile home space fees and $1,700 to Price for the cellular telephone debt.
In January 2010, having received no spousal support payments, Blaufuss
moved to find Ball in contempt. On November 14, 2010, Superior Court Judge Steve W.
Cole, who had not been the divorce trial judge, scheduled a December 2010 hearing.
The hearing was continued, and on December 30 Ball filed an Alaska Civil Rule 60(b)(4)
motion1 alleging that at the time of the original divorce the superior court: (1) lacked
personal jurisdiction over Blaufuss because she was not an Alaska resident; (2) did not
1 Alaska R. Civ. P. 60(b)(4) provides: "On motion and upon such terms as
are just, the court may relieve a party . . . from a final judgment, order, or proceeding [if]
. . . the judgment is void."
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have subject matter jurisdiction over property outside of Alaska to address the mobile
home debt; and (3) did not have jurisdiction to address Price's $1,700 claim because
Price "never submitted herself to the personal jurisdiction of the court." Ball also alleged
that he had not received due process during the divorce trial because: (1) the court
ordered spousal support with no financial documentation and relied on hearsay testimony
from Price; (2) Blaufuss provided no evidence supporting her allegations; (3) the court
required no documentation supporting Blaufuss's medical claims; and (4) the court
ignored Ball's testimony even though Blaufuss's testimony was inconsistent.
Blaufuss responded, arguing that: (1) the court had subject matter
jurisdiction under AS 25.24.010; 2 (2) Ball subjected himself to the court's personal
jurisdiction by filing his original divorce complaint; (3) the court had personal
jurisdiction over Blaufuss after she voluntarily participated in the divorce trial and
waived lack of personal jurisdiction as a defense; and (4) Ball was estopped from arguing
the court lacked jurisdiction because he had invoked the court's jurisdicition. Blaufuss
also argued that Ball had received a fair hearing and due process because Ball:
(1) instituted the action and had notice of the trial; (2) had been notified by Blaufuss's
email answer to the divorce complaint and the court's scheduling order of the issues the
court planned to address at trial; (3) had the opportunity to be heard, and actually
testified at trial, about Blaufuss's mental illness and the couple's debts; and (4) did not
appeal - the proper avenue for redress when disagreeing with a judgment.
In August 2011 Judge Cole granted Ball's Rule 60(b)(4) motion in part,
vacating the spousal support award. Judge Cole rejected Ball's jurisdictional arguments,
explaining that at the time of the original divorce action the court had subject matter
2 AS 25.24.010 provides: "A husband or wife may maintain an action
against the other for divorce or to have the marriage declared void."
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jurisdiction, Blaufuss had waived any personal jurisdiction claims, and Ball was estopped
from arguing against jurisdiction four years after he had invoked the court's jurisdiction
and received a judgment. But Judge Cole agreed with Ball's due process argument as
to spousal support. Judge Cole was concerned that there was no documentation or expert
testimony regarding Blaufuss's mental health and ability to support herself, that there
was no financial documentation despite a court order requiring disclosures,3 and that the
original decision relied on Price's hearsay testimony. He determined that expert
testimony and mental health documentation, financial documentation, and Blaufuss's
own testimony would have had immense value because grants of permanent spousal
support require "substantial evidence" that a spouse is not employable and may only be
awarded when "just and necessary." Finally, he concluded that while Ball received an
opportunity to be heard and challenge evidence, "[d]ue process dictates that testimony
beyond the lay testimony presented in these original proceedings [is available] before
making a determination of Ms. Blaufuss's mental state, her prospect of future
employment and whether an award of alimony was just and necessary."
Blaufuss appeals pro se, arguing that the superior court erred by granting
Ball's Rule 60(b)(4) motion and vacating the spousal support award.
III. STANDARD OF REVIEW
We review the superior court's decision on a Rule 60(b)(4) motion de novo
"because the validity of a judgment is strictly a question of law."4 When considering due
3 Judge Cole presumably was referring to the domestic relations pretrial order
issued at the beginning of the case requiring financial declarations to accompany
spousal-support motions and oppositions. Blaufuss apparently did not file a motion for
interim spousal support, leaving the matter for trial. It is not at all clear that an order for
financial declarations in connection with spousal support was violated by either party.
4 Lesnoi, Inc. v. Merdes & Merdes, P.C. , P.3d , 2013 WL 386373, at
(continued...)
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process questions we adopt "the rule of law that is most persuasive in light of precedent,
reason, and policy."5
IV. DISCUSSION
Alaska Statute 25.24.160 provides the superior court discretion to award
spousal support after considering enumerated factors.6 Alaska Statute 25.24.170 clarifies
that spousal support awards may be modified at any time after final judgment.7
Generally, modification of a support order is warranted only after a party shows a
material and substantial change in circumstances.8 But Ball did not request a spousal
4 (...continued)
*4 (Alaska, Feb. 1, 2013) (quoting Aguchak v. Montgomery Ward Co. , 520 P.2d 1352,
1354 (Alaska 1974)).
5 In re Estate of Fields , 219 P.3d 995, 1003 (Alaska 2009) (quoting S.B. v.
State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10
(Alaska 2002)).
6 AS 25.24.160 provides: "In a judgment in an action for divorce . . . the
court may provide . . . for the recovery by one party from the other of an amount of
money for maintenance, for a limited or indefinite period of time, . . . an award of
maintenance must fairly allocate the economic effect of divorce . . . ." See Hanlon v.
Hanlon , 871 P.2d 229, 232-33 (Alaska 1994) ("Permanent awards of spousal support are
particularly disfavored, 'because it is generally undesirable to require one person to
support another on a long-term basis in the absence of an existing legal relationship.' "
(quoting Jones v. Jones, 835 P.2d 1173, 1179 (Alaska 1992))).
7 AS 25.24.170 provides: "any time after judgment the court, upon the
motion of either party, may set aside, alter, or modify so much of the judgment as may
provide for alimony . . . or for the maintenance of either party to action."
8 Burrell v. Burrell , 696 P.2d 157, 161 (Alaska 1984). We have not yet
decided whether spousal support may be retroactively modified, but we recently noted
that although not barred by statute in Alaska, retroactive modification is not allowed in
the majority of states. Wirtz v. Wirtz, Mem. Op. & J. No. 1360, 2010 WL 1135765, at
(continued...)
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support modification; rather, he relied on Rule 60(b)(4) and argued that the 2007 spousal
support order was void.
"Rule 60(b)(4) permits relief from a void judgment if the issuing court
lacked subject matter jurisdiction or violated due process. Void judgments may be
attacked at any time."9 But the rule "is not a substitute for a party failing to file a timely
appeal; nor does it allow relitigation of issues that have been resolved by the
judgment." 10 Further, "[a] judgment is not void merely because it is erroneous." 11
Judge Cole's decision to vacate the spousal support order relied on his
determination that the divorce trial proceedings violated Ball's due process rights. We
have explained that "[t]he right to due process is violated if a party is deprived of 'the
opportunity to be heard at a meaningful time and in a meaningful manner.' "12 Due
process "expresses a basic concept of justice."13 Determining the process due to an
individual is a case-by-case inquiry based on the interest implicated - the interest being
8 (...continued)
*14 n.48 (Alaska, Mar. 24, 2010).
9 Ray v. Ray , 115 P.3d 573, 577 (Alaska 2005) (citing State v. Maxwell, 6
P.3d 733, 736 (Alaska 2000); Dewey v. Dewey , 969 P.2d 1154, 1159-60 (Alaska 1999)).
10 Cook v. Cook, 249 P.3d 1070, 1083 (Alaska 2011) (quoting Morris v.
Morris , 908 P.2d 425, 429 (Alaska 1995)).
11 11 CHARLES ALAN WRIGHT ET AL ., FEDERAL PRACTICE & PROCEDURE
ง 2862 (3d ed. 2012).
12 Heustess v. Kelley-Heustess , 259 P.3d 462, 477 (Alaska 2011) (quoting
Matson v. State, Commercial Fisheries Entry Comm'n , 785 P.2d 1200, 1206 (Alaska
1990)).
13 State, Dep't of Natural Res. v. Greenpeace, Inc., 96 P.3d 1056, 1063
(Alaska 2004) (citing Green v. State, 462 P.2d 994, 996-97 (Alaska 1969)).
-8- 6796
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deprived - by state action.14 The process due is not solely dependent on the deprived
interest but rather "depends on the 'appropriate accommodation of the competing
interests involved.' "15
Three distinct factors are balanced in our due process analysis:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.[16]
Blaufuss contends that Judge Cole erred by granting the Rule 60(b)(4)
motion and vacating the spousal support award because Ball received "a fair and
adequate hearing." She argues that Ball received a full evidentiary hearing and that he
"was allowed to introduce evidence, give testimony and to cross-examine witnesses. He
was given advance notice of the issues to be decided." She asserts that Judge Cole
erroneously "analyzed the quality of the presentations by Mr. Ball and Ms. Blaufuss at
[the] hearing," instead of reviewing the adequacy of the notice and hearing Ball received.
Blaufuss further asserts that Judge Cole's decision was based on alleged judicial error
such as insufficient evidence, and that Ball failed to show any due process violation. She
argues that judicial error must be addressed on appeal and that a Rule 60(b) motion is not
a substitute for an appeal.
14 See id. at 1065 (citing Fuentes v. Shevin , 407 U.S. 67, 92 n.22 (1972);
Mathews v. Eldridge , 424 U.S. 319, 334-35 (1976)).
15 Borkowski v. Snowden , 665 P.2d 22, 27 (Alaska 1983) (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982)).
16 Id. at 27-28 (citing Mathews , 424 U.S. at 335).
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Ball responds that his Rule 60(b)(4) motion was a proper avenue for relief
because it challenged the sufficiency of process he received in 2007. Ball contends that
he had inadequate notice before the 2007 trial because there had been no discovery, no
pretrial pleadings, no financial disclosures by either party despite a court order,17 and no
pretrial disclosure of Blaufuss's arguments regarding her mental health diagnoses. Ball
also applies the three-part due process balancing analysis and argues that: (1) his interest
is substantial; (2) the divorce trial court's decision to rely on lay testimony without
financial documentation or additional evidence of Blaufuss's alleged mental illness
created a high risk of erroneous deprivation; and (3) the government's interest is limited
because "[t]here would be no extra burden on the government to re-hear the issue of
alimony." Finally, Ball argues that his due process rights were violated because
"findings [were] based on lay testimony by Mr. Ball and Ms. Price without notice of the
evidence to be presented, any documentary evidence at trial or any reliable testimony
from one party to the case."
We agree with Blaufuss. There can be no dispute that Ball had notice that
spousal support would be addressed at trial because: (1) he received Price's 2007 email
response that Blaufuss's mental state and indigence would be relied upon for an award
of spousal support; and (2) the pretrial order explicitly included spousal support as an
issue for trial. Ball nonetheless argues that he received inadequate notice because:
(1) both parties ignored the trial court's order to file financial declaration affidavits;18 and
(2) he was not informed of specific medical diagnoses that would be raised at trial. Ball
argues that the lack of this information deprived him of the right to adequately represent
his interests at trial.
17 Cf. note 3, supra .
18 Cf. note 3, supra .
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But Ball does not assert that the trial court somehow prevented him from
discovering the financial information or Blaufuss's medical diagnoses. Ball's argument
implies that a party who fails to prepare for trial, despite knowing the issues to be tried,
somehow has inadequate notice for due process purposes.19 Despite knowing the spousal
support issue would be resolved at the trial, Ball failed to conduct any discovery or to
gather and present evidence on the issue beyond his own testimony (which tended to
support Blaufuss's position). Ball now complains that his due process notice rights were
violated in part because he did not have Blaufuss's financial or medical information for
trial. Ball provides no support for this expansive interpretation of the due process notice
requirement. Ball cites Aguchak v. Montgomery Ward Co. ,20 in which we decided due
process required that the defendants in that case receive notice of their right to file
written pleadings in response to civil complaints.21 Aguchak did not address notice of
specific issues and arguments to be presented at trial and does not support Ball's
expansive due process interpretation.
Ball also misapplies the three-part due process balancing test, repeating
Judge Cole's analysis and arguing that: (1) his interest in not paying spousal support is
significant; (2) the trial court ran a high risk of erroneous deprivation; and (3) the state
has a minimal interest here and additional safeguards would impose no burden. But the
19 Cf. VinZant v. Elam, 977 P.2d 84, 86-87 (Alaska 1999) (deciding due
process requires notice of issues to be addressed and decided at trial); A.M. v. State , 945
P.2d 296, 302 (Alaska 1997) ("Notice reasonably calculated to afford the parties an
opportunity to present objections to a proceeding, and affording them a reasonable time
do so, is a fundamental requirement of due process." (quoting Kerr v. Kerr , 779 P.2d
341, 342 (Alaska 1989))).
20 520 P.2d 1352 (Alaska 1974).
21 Id. at 1357-58.
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purpose of the three-part due process analysis is to determine the sufficiency of the
procedures provided when there is a deprivation of a protected interest.22 Judge Cole's
conclusion that there was a high risk of erroneous deprivation was based entirely on the
sufficiency of the evidence presented to the trial court, not the sufficiency of the
procedures provided before or during trial. Judge Cole looked at the limited evidence
Ball and Blaufuss presented to support their trial arguments and concluded that there had
been insufficient evidence presented at trial to support a spousal support award. This
conclusion does not implicate the process Ball received, but rather implicates alleged
decisional error by the trial court. And the correct procedure to remedy such an error is
a direct appeal to this court.
Ball received notice and the opportunity to gather and present evidence at
trial. The trial court did not prevent Ball from conducting discovery, testifying, cross-
examining other witnesses, or presenting his own expert testimony. Nor did Ball
unsuccessfully object to any trial procedures the trial court employed. Ball only
belatedly challenged the evidence presented at trial and the final decision rendered by the
trial court, essentially using his Rule 60(b)(4) motion as an original appeal. But his
remedy after trial was a timely appeal to this court, and his Rule 60(b)(4) due process
argument - an attempt for another bite at the apple after he failed to timely appeal -
must be rejected.
V. CONCLUSION
We REVERSE and REMAND for further proceedings consistent with this
decision.
22 ERWIN CHEMERINSKY , CONSTITUTIONAL LAW : PRINCIPLES & POLICIES 594
(4th ed. 2011). See Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 181 (Alaska 2009)
("Alaska has adopted the U.S. Supreme Court's three-part balancing test from Mathews
v. Eldridge for determining the necessary extent of due process." (footnote omitted)).
-12- 6796
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