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Sandoval v. Sandoval (5/17/96), 915 P 2d 1222
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NOTICE: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT GALINDO SANDOVAL, )
) Supreme Court No. S-6602
Appellant, )
) Superior Court No.
v. ) 3AN-91-3822 CI
)
LOIS MAE SANDOVAL, ) O P I N I O N
)
Appellee. ) [No. 4351 - May 17, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. Grant Stewart, Wasilla, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice, pro tem. [Moore, Justice, not
participating.]
CARPENETI, Justice, pro tem.
I. INTRODUCTION
This appeal presents the question whether Robert
Sandoval's Rule 60(b) Motion to Set Aside Judgment should have been
granted. The trial court found that his motion was untimely filed.
We affirm.
II. FACTS AND PROCEEDINGS
Lois Sandoval and Robert Sandoval were married from 1972
to 1981, for about half of 1984, and from 1985 until 1993. Lois
filed for divorce in April 1991. They have five children, one
adult and four minors. One child, a daughter, is Lois's natural
child and Robert's adopted child.
In August 1991, Robert was ordered to pay child and
spousal support to Lois. After an April 1992 hearing on an order
to show cause for alleged contempt, the court found that Robert had
not made the required payments since the last hearing. The court
ordered Robert to find a job that would pay him for at least forty
hours of work per week.
In February 1992, Lois filed a Motion for Appointment of
Guardian Ad Litem, alleging that Robert had sexually abused his
adopted daughter. In March 1992, Robert left Alaska. On April 8,
1992, Lois was granted sole interim custody of the children, and
stringent limits were placed on Robert's visitation rights.
Robert testified that he left Alaska because he "couldn't
bear being here any longer [and] had to leave." He also had a
promise of employment in Phoenix, Arizona. The job "did not work
out"and Robert spent about a month in Phoenix looking for other
employment. Robert went to California and found a job that paid
$6.53 per hour. He claims that in November 1992 he was offered a
mining job in Venezuela at $10.00 per hour that paid "lots of
overtime." He apparently was flown by the investors in the
operation to Miami in preparation for this new job, but he claims
a coup in Venezuela prevented the operation from hiring him.
Robert claims that the investors sent him to Guyana
instead, where he arrived on December 1, 1992. He stayed in
Georgetown, Guyana, until March 1993, "when he was sent into the
interior of the country to begin an operation, expecting to be gone
from one to two weeks." Robert contends that he had no access to
communications or transportation in the interior, and discovered
that the person for whom he was to work did not have a valid mining
claim. This individual, according to Robert, prevented him from
leaving.
The divorce hearing was scheduled for March 30, 1993.
Robert had notice of the hearing. He maintains that he was unable
to be present at the trial because he was stranded in the interior
of Guyana at that time. He did not get out of the interior and
back to Georgetown until early April 1993.
When Robert did not appear at the divorce hearing, Lois's
attorney drafted proposed Findings of Fact and Conclusions of Law
for the court. He mailed them to Robert in California. Robert
arrived in California on April 26, 1993, and saw the proposed
Findings and Conclusions. He did not object to them in any way at
that time. He returned to Alaska in late April or early May. The
proposed Findings of Fact and Conclusions of Law were signed by
Judge James Hanson on May 11, 1993, and served by mail on May 13.
Robert did not appeal, contact the court to explain his situation,
or otherwise move for relief.
On May 24 Robert talked with an attorney about his case,
with "negative results."(EN1) On May 26, 1993, Robert found
another attorney who he thought could help him, but who would not
do so without a $3,000 retainer. That attorney suggested filing a
Civil Rule 60(b) motion, but Robert did not have the money to pay
him.
On April 26, 1994, almost one year after the decree had
been entered, Robert produced the necessary retainer and his
attorney filed a Motion to Set Aside Judgment. On June 22, 1994,
Lois moved to reduce to judgment both the child support arrearages
and the spousal support arrearages. Both motions were heard in
August 1994. On August 15, 1994, Judge Rene Gonzalez granted
Lois's motion to reduce the arrears to judgment. On August 16 the
court denied Robert's Motion to Set Aside Judgment. Robert
appeals.
III. DISCUSSION
A. Standard of Review
The standard for review of an order denying relief from
judgment is whether the trial court abused its discretion. Bauman
v. Day, 892 P.2d 817, 828 (Alaska 1995); Gregor v. Hodges, 612 P.2d
1008, 1009-10 (Alaska 1980) (per curiam); McCracken v. Davis, 560
P.2d 771, 776 (Alaska 1977).
B. Robert's Rule 60(b) Motion Was Not Timely Filed
Robert's Motion to Set Aside was brought under Alaska
Rule of Civil Procedure 60(b)(1), which provides that a court may
relieve a party from a judgment or order if the court finds there
was mistake, inadvertence, surprise, or excusable neglect. The
motion must be made within a "reasonable time"and in no case later
than one year after notice of the judgment. Alaska R. Civ. P.
60(b). (EN2)
The trial court ruled:
This court finds from the record in this
case that no excusable neglect exists to allow
vacation of the judgment entered by Judge
Hanson on May 11, 1993. The defendant knew of
the service proceedings and of the disputed
provisions in the decree and yet attempted to
take no action until almost a year later. The
defendant knew of the disputed provisions in
the decree before Judge Hanson entered his
final judgment and yet he took no action to
bring the issue before Judge Hanson in a
timely manner. The defendant does not have a
good reason for his delay in filing his Civil
Rule 60(b) motion and for his failure to take
action sooner said motion is DENIED.
A party moving for relief from judgment has the burden of
proving his entitlement to relief. Markland v. City of Fairbanks,
513 P.2d 658 (Alaska 1973). Even if we were to accept all of
Robert's factual assertions at face value, he does not adequately
explain his failure to challenge the judgment within a reasonable
time after his return from South America. When he was unable to
retain an attorney, he took no action at all on his case: neither
filing a motion pro se, nor seeking pro bono legal assistance, nor
even communicating with the court in any way. We cannot say that
it was an abuse of discretion for a trial court to find that such
conduct does not constitute excusable neglect, inadvertence, or
surprise.
IV. CONCLUSION
Robert did not demonstrate excusable neglect sufficient
to make it an abuse of discretion for the court to deny his Rule
60(b)(1) motion. The decision of the trial court is AFFIRMED.
ENDNOTES:
1. The cited affidavit states it was 1994, not 1993. From
the context of the affidavit and both parties' briefs, it is clear
that the "1994"date in the affidavit was a typographical error.
2. Lois argues that the trial court's decision is mandated
by Kenai Peninsula Borough v. English Bay Village, 781 P.2d 6
(Alaska 1989). In Kenai Peninsula Borough we held that contentions
based on facts known to a party at the time when a direct appeal is
possible must be raised on direct appeal or by a Rule 60(b) motion
that is brought within the time for an appeal. Id. at 7. We take
this opportunity to note that the rule of Kenai Peninsula Borough
applies only to Rule 60(b) motions that claim a mistake of law was
made by the trial court. See Cleary Diving Serv., Inc. v. Thomas,
Head and Greisen, 688 P.2d 940, 942 (Alaska 1984); State v.
Continental Dev. Corp., 630 P.2d 977, 996 n.24 (Alaska 1980); 11
Charles A. Wright et al., Federal Practice and Procedure  2858, at
296-98 (2d ed. 1995). Kenai Peninsula Borough should not be read
as extending to all Rule 60(b) motions, and especially to those
that claim mistake, inadvertence, surprise, or excusable neglect of
a party to the action. To the extent that Kenai Peninsula Borough
stands for this overbroad view, we now limit it.
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