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Opinion # 4840
D.L.M v. M.W. (4/18/97) sp-4806
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, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
D.L.M. and N.C.R., )
) Supreme Court No. S-7546
) Superior Court No.
v. ) 3AN-93-990 PA
M.W., COOK INLET TRIBAL ) O P I N I O N
COUNCIL, and THE NATIVE )
VILLAGE OF NANWALEK, )
Appellees. ) [No. 4806 - April 18, 1997]
Appeal from the Superior Court of the State of Alaska,
Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: R. Scott Taylor, Rice, Volland, Taylor &
Hensley, P.C., Anchorage, for Appellants. Claire
Steffens, Law Offices of Claire Steffens, Anchorage, for
Appellee M.W. Kari L. Bazzy Garber, Garber & Bazzy,
P.C., Anchorage, for Appellees Cook Inlet Tribal Council
and The Native Village of Nanwalek.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
D.L.M. and N.C.R. appeal from the superior court's grant
of costs and attorney's fees under Alaska Civil Rules 79 and 82.
II. FACTS AND PROCEEDINGS
In 1993 D.L.M. and N.C.R. petitioned to adopt M.W.'s
daughter, their own granddaughter, without M.W.'s consent. M.W. is
the child's father. The child's mother, L.M., had already
consented to the adoption. The Village of Nanwalek intervened on
the side of M.W., an Alaska Native. In the course of his
opposition to the adoption, M.W. filed a motion to compel return of
his daughter. M.W. also filed a separate action for permanent
custody of his daughter. In May 1994, following trial in the
adoption case, the superior court entered written "Findings of Fact
and Conclusions of Law"in which the court denied the petition for
adoption and issued an order awarding physical custody of the child
D.L.M. and N.C.R., conceding that "the findings and order
of the trial court are not appealable under Appellate Rule 202,"
sought discretionary review of the custody determination contained
in the court's Findings of Fact and Conclusions of Law. This court
granted review and issued a stay of the superior court's order.
D.L.M. and N.C.R. also filed a timely appeal as of right, seeking
reversal of the adoption decision. M.W.'s separate action for
custody proceeded toward trial throughout this period.
In July 1994, in response to the petition for review,
this court vacated the custody order and remanded the case for a
supplemental custody hearing. The adoption appeal continued to
proceed separately, and in December 1994 we affirmed the denial of
the adoption petition.
On January 3, 1995, the superior court formally dismissed
the adoption petition in accordance with this court's holding.
That same day, M.W. and Nanwalek filed motions for costs and
attorney's fees. The superior court never ruled on the motions.
M.W. and Nanwalek then filed a proposed "judgment"in their favor,
along with motions to deem their costs and attorney's fees requests
timely, or accepted although late.
The parties settled the separate custody case. Following
the settlement, the dispute over interim custody which remained
from the adoption case was resolved. The judge presiding over the
adoption dispute also signed M.W.'s proposed "judgment." Within
ten days of the distribution on that "judgment," M.W. and Nanwalek
filed in the adoption case a motion for costs and attorney's fees,
which the superior court granted. This appeal followed.
A. The Motions of M.W. and Nanwalek Seeking Recovery of
Costs and Attorney's Fees Were Time Barred.
Under Civil Rules 79 and 82, motions for costs and
attorney's fees must be filed within ten days of the entry of a
final judgment. (EN1) Failure to act within that time constitutes
waiver of the right to recover costs and attorney's fees. Id.
This dispute centers on which of the orders in this case
constituted a final judgment for purposes of Civil Rules 79 and 82.
(EN2) We conclude that the superior court's Findings of Fact and
Conclusions of Law constituted a final judgment, and therefore the
motions of M.W. and Nanwalek to recover costs and attorney's fees,
which were filed several months after distribution on that
judgment, were time-barred.
Under Alaska Civil Rule 54(a), a "judgment"is defined as
"a decree and any order from which an appeal lies." There is no
distinction between a judgment for purposes of appeal and a
judgment for other purposes, such as recovery of costs and
attorney's fees. Only "final"judgments are properly subject to
appeal as of right. Alaska R. App. P. 202(a). An order must be
"final"for purposes of appeal in order to trigger the ten-day time
period for seeking costs and attorney's fees.
"A 'final' judgment is one that disposes of the entire
case and ends the litigation on the merits." Borg-Warner Corp. v.
Avco Corp., 850 P.2d 628, 634 (Alaska 1993) (citations omitted)
(appealability was not required in order to trigger collateral
estoppel). In determining whether an order is "final"for appeal
purposes, we look to "the substance and effect, rather than the
form, of the rendering court's judgment,"focusing primarily on
operational or "decretal"language. Id. An order which effects
the final disposition of a case qualifies as a final judgment, and
begins the time period for post-trial actions, regardless of
whether it is formally labeled as a judgment.
The Findings of Fact and Conclusions of Law effectively
disposed of both the adoption petition and the custody motion,
leaving nothing more for the superior court to resolve. The
Findings of Fact and Conclusions of Law also contain key
operational language, stating that "the Petition for Adoption . . .
is DENIED . . . [and] it is HEREBY ORDERED that . . . the physical
custody of [the child] be turned over . . . to [M.W.]." Moreover,
to the extent that a final judgment is an order "from which an
appeal lies,"the Findings of Fact and Conclusions of Law qualify
since an appeal as of right was taken from them. In addition, the
Findings of Fact and Conclusions of Law were set forth in writing
on a separate document, as required by Alaska Civil Rule 58. The
Findings of Fact and Conclusions of Law possess all the elements of
a final judgment, despite the fact that they were not labeled as
such. Accordingly, the Findings of Fact and Conclusions of Law
constituted a final judgment within the meaning of Civil Rules 79
and 82. To hold otherwise would be to elevate form over substance,
and to unfairly prejudice D.L.M. and N.C.R., who settled the
separate custody case in the belief that all issues in the adoption
case had been resolved. We decline to do so.
Since the Findings of Fact and Conclusions of Law
constituted a final judgment, the period for appeal and other post-
trial proceedings, including motions for costs and attorney's fees,
commenced upon distribution on the Findings of Fact and Conclusions
of Law pursuant to Civil Rule 58.1. M.W. and Nanwalek did not
attempt to recover costs and attorney's fees until several months
after the distribution on that judgment. As a result, M.W. and
Nanwalek waived their right to recover costs and attorney's fees.
B. The Petition for Review of the Interim Custody Order Had
No Effect on the Finality of the Findings of Fact and
Conclusions of Law.
M.W. and Nanwalek contend that the fact that D.L.M. and
N.C.R. filed a petition for discretionary review of the interim
custody decision contained in the Findings of Fact and Conclusions
of Law suggests that the Findings of Fact and Conclusions of Law
were not final, at least with respect to the custody issue. (EN3)
However, the superior court only had jurisdiction to make an
interim custody determination in the course of the adoption case.
M.W. conceded that the custody order, and the supplemental custody
proceedings ordered by the supreme court, "must be limited to a
determination of interim custody pending appeal,"because any
"hearing to determine custody on a permanent basis would be outside
the jurisdiction of the court in [the adoption] case." The fact
that the order which resolved the adoption case was accompanied by
an interlocutory custody order has no effect on the finality of the
adoption order. The Findings of Fact and Conclusions of Law
completely disposed of the adoption litigation, leaving nothing
more for resolution at the trial court level. As a result, the
Findings of Fact and Conclusions of Law qualify as a final judgment
notwithstanding their inclusion of an interim custody order.
C. The Stay of the Superior Court's Order Did Not Affect the
Superior Court's Jurisdiction to Entertain Motions for
Costs and Attorney's Fees.
Finally, M.W. and Nanwalek argue that even if the
Findings of Fact and Conclusions of Law qualified as a final
judgment, this court's order staying the superior court's decision,
a decision issued prior to the running of the ten-day time limit,
deprived the superior court of jurisdiction to entertain motions
for costs and attorney's fees, and thus tolled the limitations
period. This contention is without merit. Stays are issued in
response to party requests, and do not extend beyond the scope of
those requests. The stay in question was issued to enjoin
enforcement of the custody order contained in the Findings of Fact
and Conclusions of Law, not to divest the superior court of its
jurisdiction to proceed with any other matters. The stay barred
only the custody order, and had no effect on the superior court's
jurisdiction to consider costs and attorney's fees.
The Findings of Fact and Conclusions of Law constituted
a final judgment, appealable as permitted by the Civil Rules.
Since the motions for costs and attorney's fees were not filed
within ten days of the distribution on that judgment, they were
time-barred. The decision of the superior court is REVERSED.
1. Civil Rule 79 provides that "[w]ithin 10 days after the date
shown in the clerk's certificate of distribution on the judgment,
a party entitled to costs shall serve on each of the other parties
to the action or proceeding a cost bill, together with a notice of
the date and time of the cost bill hearing . . . . Failure of a
party to [do so] shall be construed as a waiver of the party's
right to recover costs." Civil Rule 82(c) provides that "[t]he
motion [for attorney's fees] must be filed within 10 days after the
date shown in the clerk's certificate of distribution on the
judgment . . . . Failure to move for attorney's fees within 10
days, or such additional time as the court may allow, shall be
construed as waiver of the party's right to recover attorney's
2. The superior court's interpretation of civil rules is a
question of law, and is therefore subject to de novo review. Ford
v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991)
("Since this case involves the interpretation of a civil rule, we
exercise our independent judgment.").
3. M.W. and Nanwalek argue that since D.L.M. and N.C.R. filed
this petition, which was based on a characterization of the
Findings of Fact and Conclusions of Law as interlocutory, they
should be estopped from arguing that the Findings of Fact and
Conclusions of Law constituted a final judgment. This argument
fails. As noted, the petition concerned the custody decision
alone, and had no impact on the adoption issue. The appeal as of
right clearly demonstrated the finality of the adoption decision.
Moreover, there is no evidence that M.W. and Nanwalek actually
relied on the petition, since they did not contest the propriety of
the appeal as of right.