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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. Johnson (5/19/2017) sp-7169

Johnson v. Johnson (5/19/2017) sp-7169, 394 P3d 598

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

CYNTHIA  A.  JOHNSON,                                        )  

                                                             )          Supreme  Court  No.  S-16234  

                               Appellant,                    )  


                                                             )          Superior Court No. 3PA-12-02502 CI  

                    v.	                                      )  


                                                                        O P I N I O N  


ROBERT N. JOHNSON,                                           )  


                                                                        No. 7169 -  May 19, 2017  

                               Appellee.	                    )



                    Appeal from the Superior Court of the State of Alaska,  Third  


                     Judicial District, Palmer, Vanessa White, Judge.  


                    Appearances:               Cynthia  A.   Johnson,  pro   se,   Chugiak,  


                    Appellant.   Notice  of nonparticipation  filed by  Kenneth J.  


                     Goldman, Kenneth J. Goldman, P.C., Palmer, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     MAASSEN, Justice.  



                    As the superior court announced its ruling at the close of a divorce trial, the  


wife physically assaulted the husband's attorney.  The incident led to criminal charges  


against  the  wife,  and  the judge  who  presided  over  the  divorce  case  testified  at  the  


criminal trial about what she had witnessed of the assault.  


                     The property distribution in the divorce allocated the marital home to the  


wife on condition that she refinance it in her name.  She was ultimately unable to do so,  

----------------------- Page 2-----------------------

and the husband exercised an option to refinance it himself and take possession of it.  


The wife then filed several motions asking the court to reopen the case, order that certain  


items of personal property be delivered to her, and redistribute the marital estate because  


of the change in the home's ownership.  She also filed a motion for change of venue,  


which she now characterizes as a motion to recuse the judge.  The court denied all her  



                    The wife appeals.  She argues that the superior court erred when it denied  


her motions to redistribute the marital estate and that the judge should have recused  


herself after witnessing the assault in the courtroom and testifying about it at the wife's  


criminal trial.  But because the superior court did not abuse its discretion in any of its  


challenged rulings, we affirm.  




                    Robert Johnson and Cynthia Johnson married in 1998, and Robert filed for  


divorce in December 2012.   Superior Court Judge Vanessa White presided over the  


divorce trial in March 2014.  At the close of trial, while the judge was placing her oral  


decision on the record, there was an altercation in the courtroom.  The details of the  


incident are not clear from our record, but Cynthia admits that she struck Robert's  


attorney.  The State of Alaska brought criminal charges against her.  In October 2014  


Judge White was called by the defense to testify at Cynthia's criminal trial as a fact  




                    In the meantime, in April 2014, Judge White issued written findings of fact  


and conclusions of law memorializing her decision of the divorce case. The findings and  


conclusions addressed in detail the disposition of the marital home and how the property  


allocation would be equalized under different scenarios.   The home was awarded to  


Cynthia on condition that she refinance it in only her name by December 31, 2014.  If  


                                                               -2-                                                        7169

----------------------- Page 3-----------------------


she met the deadline and retained the home, she would make an equalization payment  


to Robert of $18,983, while Robert would receive the full value of his "SBS rollover"  


account.  On the other hand, if Cynthia failed to meet the deadline, Robert would have  


until June 30, 2015, to refinance the home in only his name and take possession.  In that  


event, Cynthia would receive 56% of Robert's "SBS rollover" account "to achieve a  


50/50 division of property."  If neither party could refinance the home, it would be sold.  


                    In late 2014, on Cynthia's motion, the court extended her refinancing  


deadline to March 31, 2015.  On March 10 Cynthia filed another motion to extend the  


deadline, which the court denied.  Cynthia did not refinance by March 31, and in April  


the court directed that Robert receive a clerk's deed to the marital home.  


                    Both parties had been represented by counsel up to this point, but Cynthia's  


attorney withdrew in May 2015.  Beginning in September 2015 and continuing through  


February 2016, Cynthia, now representing herself, filed a series of motions asking the  


court to reopen the case for the purpose of redistributing the marital estate now that  


Robert had the marital home.  


                    The court denied Cynthia's motions and warned that if she filed "similar  


motions . . . in the future," the court would entertain a motion from Robert for attorney's  


fees.   Cynthia then filed a "Motion for Change of Venue," in which she argued that  


Judge White and "the court system . . . in Palmer" could not "give [her] a fair trial." The  


court denied this motion in a brief handwritten order that read: "This matter is closed.  


There is no need for further proceedings.  Even if further proceedings were warranted,  


Palmer is the proper venue."  


                    Cynthia appeals. She argues that (1) the superior court erred when it denied  


her motions to reopen the case and redistribute the marital property and (2) Judge White  

                                                                -3-                                                         7169

----------------------- Page 4-----------------------

 should have recused herself after witnessing the assault in the courtroom and testifying                                                                                                                

about it at Cynthia's criminal trial.                                                       Robert is not participating in this appeal.                                                                  

III.              STANDARD OF REVIEW                               

                                   Cynthia seeks both to enforce and to modify the divorce decree.                                                                                                                  "We  

review questions regarding a trial court's response to a motion to enforce a [divorce                                                                                                                    


decree] under the abuse of discretion standard."                                                                                                                                                        

                                                                                                                               We also review for abuse of discretion  

                                                                                                                                       2                                                                            3  


decisions on motions for relief from final judgments,  motions for change of venue,  and  



motions to recuse the trial judge.                                                          We will find an abuse of discretion only if the trial  



court's decision was "manifestly unreasonable." 

                  1                Ford v. Ford                        , 68 P.3d 1258, 1263 (Alaska 2003) (citing                                                                              Dickerson v.   

 Williams, 956 P.2d 458, 462 (Alaska 1998));                                                                        see Beal v. Beal                         , 88 P.3d 104, 111 (Alaska                      

2004) ("We review superior court orders that merely enforce a property division or                                                                                                                                         

divorce decree for abuse of discretion." (citing                                                                        Horchover v. Field                               , 964 P.2d 1278, 1281                       

(Alaska 1998))).   

                  2                Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007) (citing McGee v.  


McGee, 974 P.2d 983, 987 (Alaska 1999)).  


                  3                Sever v. Alaska Pulp Corp., 931 P.2d 354, 360 n.7 (Alaska 1996) (citing  


 Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980)).  


                  4                Hanson v. Hanson, 36 P.3d 1181, 1183 (Alaska 2001) (citing Capital Info.  


 Grp. v. Office of the Governor, 923 P.2d 29, 41 (Alaska 1996)).  


                  5                In re Jacob S., 384 P.3d 758, 763 (Alaska 2016) (quoting Ranes & Shine,  


LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508 (Alaska 2015)).  


                                                                                                             -4-                                                                                                    7169

----------------------- Page 5-----------------------



          A.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  


                     Cynthia's Motions To Reopen The Case And Modify The Property  



                    When Cynthia asked the court to reopen the case, she did not specify under  


which statute or rule she sought relief.  She did, however, make two distinct requests.  


First, she sought recovery of some personal property "previously awarded" to her but  


which she alleged was still in Robert's possession.  This request implicates the court's  


equitable power to enforce its own judgments; we have held that a court has not only the  



right but the "duty to make its decrees effective and to prevent evasions thereof." 


 Second, Cynthia asked the court to reconsider its property division in light of the fact that  


Robert ultimately received the marital home.   The mechanism for modifying a final  


judgment is found in Alaska Civil Rule 60(b), which provides that "[o]n motion and  


upon such terms as are just, the court may relieve a party . . . from a final judgment."  


                    Analyzing Cynthia's motions in part as motions to enforce the judgment  


(for return of her personal property) and in part as motions for relief from judgment  


under Rule 60(b) (for a redistribution of the marital estate), we conclude that the superior  


court did not abuse its discretion in denying them.  


                     1.	       Cynthia did not show that she was entitled to an order enforcing  


                              the judgment.  


                    At the time Cynthia filed her first motion to reopen the case and modify the  


property distribution in September 2015, the superior court hadalready addressed -and  


resolved  - Cynthia's claims that Robert was violating the divorce decree by refusing  

          6         Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975) (quoting Goodsell v.  


 Goodsell, 228 P.2d 155, 157 (Wash. 1951)).  


                                                               -5-	                                                            7169  

----------------------- Page 6-----------------------


to deliver her personal property.  After Robert took possession of the marital home, his  


attorney asked Cynthia to remove her personal property by June 15, 2015. Cynthia filed  


a motion explaining that she was incarcerated and asking the court to allow her 60 days  


after her projected release date in August to remove her things.  Robert opposed the  


motion, saying he "object[ed] to storing [Cynthia's] property any longer."  He attested  


by affidavit that Cynthia's relatives and friends were able to pick up her property and in  


fact had already retrieved some of it.  He asked the court to require Cynthia to "arrange  


for [the rest of] her property to be picked up."  


                     In July the superior court granted Cynthia's motion in part, giving her until  


August 20 "to remove her personal items" from the marital home.  But because Cynthia  


could not personally retrieve her property without violating a protective order from a  


different  case,  the  court  required  that  she  "have  a  third  party  .  .  .  coordinate  with  


[Robert]" and decide on "a mutually agreeable time" for retrieval.  If Cynthia "fail[ed]  


to make arrangements to remove the property" before August 20, Robert could "dispose  


of the items."  


                    Almost a month after the August 20 deadline had passed, Cynthia filed her  


first motion to reopen the case and modify the property distribution.  Her motion read in  


part:  "I did not receive the home in the divorce and I feel I should get other marital  


assets and the rest of my personal property."  Attached to the motion was a six-page list  


of the items Cynthia contended should now be awarded to her or else were already hers  


but still in Robert's possession.  The superior court denied this motion, and Cynthia  


quickly  filed  another,  stating,  "I  am still trying  to  rectify  getting my  personal .  .  .  


propert[y] back" and again attaching the list of personal property she claimed either  


should or did belong to her.   Before that motion was decided Cynthia filed a third,  


asserting that Robert was planning to sell the house, arguing that she should have a right  

                                                                -6-                                                          7169

----------------------- Page 7-----------------------

to repurchase it, and again asking the court to review her list of personal property and                                                                                                                                                  

"consider that these items be returned to [her]."                                                                                       The court denied Cynthia's request to                                                                  

reopen the case, adding that it would "not award attorney fees [to Robert] at this time but                                                                                                                                                 

would entertain such a motion if similar motions are filed in the future."                                                                                                                                    

                                      Viewing Cynthia's request for return of her property as a motion to enforce                                                                                                               

the judgment, we conclude that the superior court did not abuse its discretion by denying                                                                                                                                     

it.    The court had addressed the subject conclusively in its July order, directing that                                                                                                                                                 

Robert was allowed to "dispose of" anything Cynthia failed to pick up by August 20.                                                                                                                                                                     

Cynthia did not file a timely motion for reconsideration of that order or seek appellate  

                                  7   And her later motions did not demonstrate that Robert was in violation of  

review of it.                                                                                                                                                                                                                                  

the divorce decree, as effectuated by the July order; they simply indicated Cynthia's  


continuing dissatisfaction with the court's resolution of the personal-property issue.  


Having decided the issue in its July order, the superior court was not required to reopen  


the case to consider it again.  


                                      2.	                Cynthia  did  not  show  that  she  was  entitled  to  relief under  


                                                         Alaska Civil Rule 60(b).  


                                      To the extent Cynthia's motions to reopen the case asked the court to  


redistribute the marital estate, they may be characterized as motions for relief from the  


divorce decree - the final judgment in the case.  Rule 60(b) lists six bases on which a  


final judgment may be set aside:   "(1) mistake, inadvertence, surprise or excusable  


neglect; (2) newly discovered evidence . . . ; (3) fraud, . . . misrepresentation, or other  


misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been  


satisfied, released, or discharged . . . ; or (6) any other reason justifying relief . . . ."  


                   7                  See  Alaska  R.  Civ.  P.  77(k);  Alaska  R.  App.  P.  204.  

                                                                                                                       -7-                                                                                                                        7169  

----------------------- Page 8-----------------------

                              Cynthia's requests to revisit the property distribution                                                              werenot timely under                

 subparts (1), (2), and (3), which require a party seeking relief to file within one year of                                                                                                   

                                8    We have held that trial "courts do not have the power to enlarge the  

the judgment.                                                                                                                                                                               

                                                                                                                                                                 9   Cynthia filed  

one-year time limit for motions brought under Civil Rule 60(b)(1)-(3)."                                                                                                                  


her first motion to modify the property distribution roughly a year and five months after  


the court signed the written divorce decree.  


                              The remaining bases for Rule 60(b) relief are subparts (4), (5), and (6).  


Cynthia does not argue that the judgment is void or that it has been satisfied, released,  


or discharged.10                       That leaves only Rule 60(b)(6), a "catch-all" provision offering relief  


 for "any other reason."11  Subpart (6) "is reserved for extraordinary circumstances not  


covered by the preceding clauses."12                                                 We have held that a property division may be set  


 aside under Rule 60(b)(6) upon consideration of four factors:  "(1) the fundamental,  


underlying assumption of the [division] ha[s] been destroyed; (2) the parties' property  


               8              Alaska R. Civ. P. 60(b) ("The motion shall be made within a reasonable                                                                     

time, and for reasons (1), (2) and (3) not more than one year after the date of notice of                                                                                                      

the judgment or orders as defined in Civil Rule 58.1(c).").                                                 

               9               O'Link v. O'Link, 632 P.2d 225, 229 (Alaska 1981) (citing Alaska R. Civ.  


P. 6(b); Fed. R. Civ. P. 6(b); Ackermann v. United States , 340 U.S. 193, 197 (1950);  


Keys v. Dunbar, 405 F.2d 955, 957 (9th Cir. 1969); 11 CHARLES   ALAN   WRIGHT   &  




               10             See  Alaska  R.  Civ.  P.  60(b)(4)  -  (5).  

               11              O'Link,  632  P.2d  at  229  (quoting  Alaska  R.  Civ.  P.  60(b)(6)).   

               12             Id.   (citing   Ackermann ,   340   U.S.   at   202;   Goland   v.   Cent.   Intelligence  

Agency ,   607  F.2d   339,   373   (D.C. Cir. 1978);  Livingston   v.  Livingston,   572  P.2d   79,  

 85-86  (Alaska  1977);  Isemoto  Contracting  Co.  v.  Andrade ,  616  P.2d  1022,  1025  (Haw.  

App.   1980)).  

                                                                                              -8-                                                                                       7169

----------------------- Page 9-----------------------

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."                                                       

                      The allegations made in Cynthia's motions did not satisfy the requirements  


for Rule 60(b)(6) relief.  First, although Cynthia strongly implies that a "fundamental,  

underlying assumption" of the divorce decree was "destroyed" by Robert's ultimate  


possession of the house, the divorce decree, as related above, specifically contemplated  


that possibility and accounted for it by adjustments in the allocation of other marital  


property. Second, Cynthia does not argue that the "property division was poorly thought  


out"; indeed, the court's consideration of the contingencies and its allocation of many  


items of personal property on an incorporated spreadsheet demonstrate a high degree of  


involvement and deliberation by both the parties and the court.  Third, both parties were  


represented by counsel at trial and for over a year afterward, until Cynthia's attorney  


withdrew in May 2015. And finally, while the marital home may have been "the parties'  


principal asset," the court's decision provided for a "50/50 division of property" in all  


foreseeable circumstances, regardless of what happened to the home.  


                      We conclude that Cynthia's various motions to reopen the case did not  


demonstrate that she was entitled to Rule 60(b)(6) relief from the original property  


division.  The superior court did not abuse its discretion when it denied the motions.  


           B.	        The Superior Court Did Not Abuse Its Discretion When It Denied  


                      Cynthia's Motion For Recusal.  


                      On  February  9,  2016,  the  superior  court  distributed  its  order  denying  


Cynthia's motions to reopen the case.  The next day Cynthia filed a "motion for change  


of venue," which on appeal she characterizes as a motion to recuse the judge; she  




                      Hopper v. Hopper, 171 P.3d 124, 130 (Alaska 2007) (last two alterations  


in original) (quoting Lacher v. Lacher, 993 P.2d 413, 419 (Alaska 1999)).  

                                                                    -9-	                                                                 7169  

----------------------- Page 10-----------------------

contends that the motion was "obviously mislabeled because she was seeking to remove                                                                                                                                                                                            

Judge White." Her motion alleged that Judge White was "very prejudice[d] . . . because                                                                                                                                                                                   

of   the   incident   that   happened   in   her   courtroom   .   .   .   when   [Cynthia]   hit   [Robert's  

attorney]," but also that "the court system here in Palmer" was unable to give her a "fair                                                                                                                                                                                              

trial" because all the other judges knew about the incident as well.                                                                                                                                                               Judge White denied                              

the   motion,   noting   that   "[t]his   matter   is   closed.     There   is   no   need   for   further  

proceedings," and "[e]ven if further proceedings were warranted, Palmer is the proper                                                                                                                                               


                                              We   agree   that   the   motion   could   be   read   as   a   motion   for   recusal   and  

therefore analyze it as Cynthia asks. We conclude, however, that Cynthia failed to show                                                                                                                                                                                                 

that Judge White exhibited an improper bias.                                                                                                               14  

                                              Alaska Statute 22.20.020(a) requires a judge to disqualify herself when her  


"impartiality  might  reasonably  be  questioned."15                                                                                                                                    In  addition,  Canon  3(E)  of  the  


Alaska Code of Judicial Conduct requires disqualification if the "judge has a personal  


                                                                                                                                                                                                         16        But we have held that "a  

bias or prejudice concerning a party or a party's lawyer."                                                                                                                                                                                                                                        


                       14                     We also note that the case was indeed over when the recusal motion was                                                                                 

filed, as the superior court observed in the order denying it; the divorce decree had been                                                                                                                                                                                                

entered nearly two years before and there were no substantive post-judgment motions                                                                                                                                                                                           

still pending.                                 We assume that Cynthia intended to file additional motions to reopen the                                                                                                                                                                        

case if she could first be assured that a different judge would hear them.                                                                                                                                                                                                Without  

approving this tactic, we consider the recusal motion on its merits because of Cynthia's                                                                                                                                                                                

unrepresented status and presumed lack of familiarity with the judicial process.                                                                                                                                                                                                   

                       15                     Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (citing Amidon v.  


State, 604 P.2d 575, 578 (Alaska 1979); Perotti v. State, 806 P.2d 325, 327 (Alaska  



                       16                     Id. (quoting Alaska Code Jud. Conduct Canon 3(E)(1)(a))  


                                                                                                                                              -10-                                                                                                                                       7169

----------------------- Page 11-----------------------

judge is not          disqualified  from presiding                  over  a case merely               because the judge has            


previously   made   adverse   findings   regarding   a   party."                                                               

                                                                                                       And  a  party  seeking  


disqualification "must show that the judge's actions 'were the result of personal bias  



developed from a nonjudicial source.' " 

                      Cynthia argues that Judge White should have recused herself "after she  


became a material witness against Cynthia in a related criminal proceeding."19                                                  But we  


do not presume an improper bias when a judge witnesses events that take place during  


court proceedings, even if those events prompt the judge to form a negative opinion of  


a party.20        "[A] judge is not disqualified if the judge's 'knowledge and the opinion it  


produced were properly and necessarily acquired in the course of the proceedings, and  


are  indeed  sometimes  (as  in  a  bench  trial)  necessary  to  completion  of  the  judge's  



task.' "        


                      Cynthia does not point to any aspect of Judge White's factual testimony at  


the criminal trial that would support a claim of bias, let alone bias developed from an  


extrajudicial source.  She claims, however, that a bias based on what Judge White saw  


           17         Id.   (citing  Lacher, 993 P.2d at 421;                    Pride v. Harris           , 882 P.2d 381, 385         

(Alaska 1994)).   

           18         Id. (quoting Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989)).  


           19         We  note  that  Judge  White  was  actually  called  as  a  defense  witness.  


Furthermore, to the extent Cynthia's reference to Judge White as a "material witness"  


indicates an intent to rely on AS 22.20.020(a)(3), that reliance is misplaced.  Under that  


provision a judge "may not act in a matter in which . . . [the judge] is a material witness";  


but Judge White did not act as a judge in the case in which she was a witness.  


           20         See, e.g., Hanson, 36 P.3d at 1184.  


           21         Id. (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).  


                                                                   -11-                                                             7169

----------------------- Page 12-----------------------

in her courtroom is evident in the judge's later decisions, specifically that the "judge                                                                                                                                    

frustrated Cynthia's efforts to refinance the home." But a judge's decision on the merits                                                                                                                                     

                                                                                                                                                                                                      22  and we have  

of any particular motion or claim can only rarely indicate personal bias,                                                                                                                                                         

affirmed the specific decisions that Cynthia challenged on this appeal.  


                                     Because Cynthia does not support her claim that the judge had an improper  


bias against her, we conclude that it was not an abuse of discretion to deny the motion  


for recusal.23  


 V.                CONCLUSION  

                                     The decisions of the superior court are AFFIRMED.                                                           

                   22                See Liteky                  , 510 U.S. at 551 (suggesting that in rare cases, a judicial opinion                                                                                     

might be "so extreme as to display clear inability to render fair judgment," even though                                                                                                                                    

it "springs from the facts adduced or the events occurring at trial" (citing                                                                                                                          Davis v. Bd. of                     

Sch. Comm'rs of Mobile Cty.                                                      , 517 F.2d 1044, 1051 (5th Cir. 1975))).                                                                        

                   23                Cynthia also argues that the superior court did not adequately inform her,  


a self-represented party, of the proper procedures for what she was obviously trying to  


accomplish by her post-judgment motions. We have held that a trial court must hold pro  


se litigants to a " less stringent standard[]" and assist pro se litigants who file defective  


pleadings if their purpose can be ascertained.  Breck v. Ulmer, 745 P.2d 66, 75 (Alaska  


 1987).  But we have read Cynthia's pleadings generously, in light of what she contends  


on appeal she was trying to accomplish, and still conclude that she was not entitled to  



                                     Finally, we note that the superior court did not refer its denial of the recusal  


motion to another judge for review, as AS 22.20.020(c) requires.   Cynthia does not  


address this issue on appeal. And given the anomalous procedural posture of the recusal  


motion in this case - "mislabeled" as a motion for change of venue, and filed when no  


other matters were still pending - we decline to consider it further.  


                                                                                                                  -12-                                                                                                           7169

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