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Dixon v. Pouncy (5/21/99), 979 P 2d 520


     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.


             THE SUPREME COURT OF THE STATE OF ALASKA

IRVIN K. DIXON,               )
                              )    Supreme Court No. S-7645
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-92-7637 CI
                              )
FRANCINE D. POUNCY,           )    O P I N I O N
                              )
               Appellee.      )    [No. 5116 - May 21, 1999]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage
                     Rene J. Gonzalez, Judge.

          Appearances: Melinda D. Miles and Darin B.
Goff, Miles & Goff, P.C., Anchorage, for Appellant, and Irvin K.
Dixon, pro se, Anchorage.  Diane L. Wendlandt, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          COMPTON, Justice.
          MATTHEWS, Chief Justice, with whom FABE,
Justice, joins, dissenting.


I.   INTRODUCTION
          Irvin Dixon appeals the superior court's denial of his
Civil Rule 60(b) motion to set aside the portion of a 1993 Decree
of Divorce declaring him the father of C.D. and ordering him to pay
child support.  We conclude that the superior court abused its
discretion when it relied solely on res judicata to deny Irvin's
Rule 60(b) motion.  Because we cannot as a matter of law affirm the
order denying Irvin's Rule 60(b) motion on alternate grounds, we
reverse it and remand for further proceedings.  
II.  FACTS AND PROCEEDINGS
          Irvin Dixon and Francine Pounce [Fn. 1] married in March
1983. On January 30, 1988, Francine gave birth to C.D. Irvin's name
appears on C.D.'s birth certificate as her father. 
          In February 1988 Francine began to receive Aid to
Families with Dependent Children (AFDC).  She periodically received
AFDC support for C.D. from February 1988 until November 1996.  In
December 1988 the Child Support Enforcement Division (CSED)
notified Irvin that he should pay $292 per month in child support
and $146 per month towards his accrued debt.  The Department of
Revenue (DOR) upheld the order requiring Irvin to pay the support
and arrears.  
          In August 1992 Irvin filed for divorce.  In his complaint
for divorce Irvin stated: "There is one child born the issue of
this marriage, namely: [C.D.], whose date of birth is January 30,
1988."  He asked for joint legal custody of C.D.  Francine's answer
denied the allegation that there was a child born the issue of the
marriage.
          Shortly after Irvin filed for divorce, Irvin and Francine
stipulated to an interim custody and visitation order.  The order
stated that Francine and Irvin had joint legal custody of C.D., but
that Francine had physical custody.  The order gave Irvin
visitation rights.  A number of problems arose concerning Irvin's
visitation of C.D.  In October Irvin moved for an order to show
cause why Francine should not be held in contempt for violating the
order granting him visitation rights.  In support of his motion, he
stated that Francine was denying that he was the father of C.D. and
that Francine had demanded blood tests be taken.  The superior
court entered a judgment against Francine for violating the terms
of the visitation order.  It ordered her to pay a fine and
attorney's fees.   
          In July 1993 the superior court issued a Decree of
Divorce.  The court found that C.D. was a child born the issue of
the marriage.  The court also found that it was in C.D.'s best
interests that the parties have "joint legal custody pursuant to
the terms of the oral settlement agreement."  The court ordered
Irvin to pay child support of $50 per month pursuant to Civil
Rule 90.3 and to pay one half of C.D.'s uninsured healthcare
expenses. 
          In September Irvin moved for an order holding Francine in
contempt of court for again violating the Decree of Divorce by
denying him visitation of C.D.  Francine opposed the order to show
cause and moved to modify Irvin's visitation.  In support of her
opposition and motion to modify, Francine stated that there was
evidence that Irvin had abused C.D.  In November the superior court
found Francine in contempt "for her bad faith and willfull [sic]
refusal to permit visitation between June 17, 1993 and November 15,
1993."  The court further ordered that an appropriate adult be
present at all times during visits between Irvin and C.D. 
          Following continued disputes over visitation and custody,
Irvin, Francine, and the child submitted to single-locus probe DNA
testing for paternity.  The tests excluded Irvin as the father of
the child.  On January 22, 1996, Irvin moved the superior court,
pursuant to Rule 60(b), to set aside the portion of the 1993 Decree
of Divorce "which determined that he was the father of [C.D.]." 
Irvin's only evidence in support of setting aside the Decree was
the 1995 DNA test which concluded that he was "excluded from being
the biological father of [C.D.]."  Francine did not oppose the
motion.  The court treated his motion as a request for relief under
Rule 60(b)(6) and denied it.  The court held that "the plaintiff's
motion for relief from judgment is DENIED as barred by the doctrine
of res judicata."  The court stated that the Decree of Divorce "was
a final judgment of the court which adjudicated Irvin K. Dixon the
father of [C.D.]."  Furthermore, the court held that the doctrine
of res judicata does not require that a claim have been actually
litigated; rather, res judicata can also bar a party from
relitigating claims that he could have litigated during the prior
proceedings.  The court found that Irvin had had a clear
opportunity to fully litigate the issue of paternity during the
divorce proceedings, and thus Irvin was precluded from relitigating
the issue now.  This appeal followed.
          In January 1997 CSED moved the superior court to modify
the 1993 Decree of Divorce to comply with Civil Rule 90.3.  CSED
alleged that the administrative order requiring Irvin to pay $146
per month [Fn. 2] in child support was a material change warranting
a modification of the portion of the Decree of Divorce that
required Irvin to pay only $50 per month in support.  In 1997 CSED
contacted the court records division to determine the status of its
motion to  modify the divorce decree.  It learned that Irvin was
appealing the 1996 order denying his Rule 60(b) motion.  CSED then
moved this court for leave to participate as the appellee in
Irvin's appeal.  We granted CSED's motion. [Fn. 3]
III. DISCUSSION
     A.   Standard of Review
          This court reviews an order denying a Rule 60(b) motion
to determine if the trial court abused its discretion.  See 
Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996). 
Reversal of the trial court "is justified only if this court
concludes the trial court was clearly mistaken."  Grothe v.
Olafson, 659 P.2d 602, 611 (Alaska 1983).  However, the superior
court's determination of whether the doctrine of res judicata
applied is a legal question "reviewable under the 'independent
judgment' standard."  Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994). 
"All questions of law are reviewed de novo with this court adopting
the rule of law that is most persuasive in light of precedent,
reason and policy."  Id.
     B.   Irvin's Rule 60(b) Motion Should Not Have Been Denied
Based on Res Judicata.

          The superior court's order denying Irvin's Rule 60(b)
motion was based solely on the ground that res judicata barred him
from litigating the issue of paternity.  Res judicata consists of
both claim preclusion and issue preclusion.  Claim preclusion
"prevents a party from suing on a claim which has been previously
litigated to a final judgment by that party . . . and precludes the
assertion by such parties of any legal theory, cause of action, or
defense which could have been asserted in that action."  18 James
Wm. Moore et al., Moore's Federal Practice sec. 131.10[1][a] (3d
ed.
1997).  A claim includes "not only those matters actually addressed
by the prior judgment, but those matters which could have been
raised in that action."  Id. sec. 131.10[3][c], at 131-19.  Issue
preclusion, on the other hand, "prevents relitigation of issues
actually litigated and necessary for the outcome of the prior suit,
even if the current action involves different claims."  Id.
sec. 131.10[1][a], at 131-19.            
          The superior court decided that res judicata barred Irvin
from seeking relief from the judgment on claim preclusion grounds. 
The court stated that "[a] fundamental tenet of res judicata
doctrine is that it precludes relitigation between the same parties
not only of claims which were raised in the initial proceeding but
also of those relevant claims which could have been raised then."
Furthermore, the court found that "the issue of paternity was
raised in the complaint and answer, that Irvin K. Dixon had a clear
opportunity to fully litigate the issue of paternity and is now
precluded from relitigating the issue." 
          Irvin's motion for relief from the Decree of Divorce
pursuant to Rule 60(b) was a direct attack on the Decree.  See,
e.g., Moore, at sec. 131.02[1][a] (3d ed. 1997) ("A direct attack
on a judicial proceeding is an attempt to have it corrected,
annulled, reversed, vacated or declared void. . . .  A litigant may
also seek
to have the judgment vacated under [Rule 60(b)].").  Direct attacks
on judgments, such as motions for relief pursuant to Rule 60(b),
"are not subject to the claims [sic] preclusion doctrine."  Id. 
Only if "a party . . . fails to utilize the appropriate statutory
procedure for direct attack on a judgment will [he] be barred by
the claim preclusion doctrine from asserting a new claim in a
different proceeding to accomplish the same end."  Id.  Many courts
have concluded that direct attacks, such as attacks on judgments
pursuant to Civil Rule 60, cannot be barred on res judicata
grounds.  See, e.g., Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir.
1985) (holding that Rule 60(b)(4) attack on the judgment was
direct, not collateral, and that "[t]he doctrine of res judicata
does not apply to direct attacks on judgments."); Jordon v.
Gilligan, 500 F.2d 701, 710 (6th Cir. 1974) ("[T]he doctrine of
'res judicata does not preclude a litigant from making a direct
attack [under Federal Rule 60(b)] upon the judgment before the
court which rendered it.'") (quoting 1B James Wm. Moore et al.,
Moore's Federal Practice  0.407, at 931 (2d ed. 1973)) (alteration
in original).
          The superior court cited Calhoun v. Greening, 636 P.2d 69
(Alaska 1981) as its authority for dismissing Irvin's Rule 60(b)
motion on res judicata grounds.  Calhoun is distinguishable. 
Calhoun first moved pursuant to Rule 60(b) "to set aside the
judgment [against him] as obtained in violation of [his] due
process rights."  Calhoun, 636 P.2d at 71.  In December 1978 the
motion was denied; Calhoun did not appeal the denial.  See id.  In
August 1979 opposing counsel moved to set aside a conveyance of
real property Calhoun had made.  See id.  In his opposition to the
motion, Calhoun moved again for relief from the judgment.  See id. 
Calhoun argued that "his second [Rule 60(b)] motion raises issues
not addressed by his first. . . . [because the first] simply
asserted denial of due process, while this motion claims a
violation of Civil Rule 55(c)."  Id. at 72.  In affirming the
denial of Calhoun's second Rule 60(b) motion, this court stated:
"[A] fundamental tenet of the res judicata doctrine is that it
precludes relitigation between the same parties not only of claims
that were raised in the initial proceeding, but also of those
relevant claims that could have been raised then."  Id.  This court
concluded that Calhoun had had a "full opportunity to present his
Rule 55(c) argument as part of his initial [Rule 60(b)] motion; his
failure to raise it then precludes him from raising it now."[Fn.
4]  Id.
          Res judicata thus barred Calhoun from bringing a second
Rule 60(b) motion, because he could have asserted the issue that
the second motion raised in his first Rule 60(b) motion. [Fn. 5] 
By contrast, Irvin's Rule 60(b) motion for relief from the judgment
ordering him to pay support for C.D. was his first motion for
relief.  Irvin has not filed a previous Rule 60(b) motion in which
he could have raised the issue of paternity. 
          We conclude that it was error to deny Irvin's motion on
res judicata grounds.  The superior court misread Calhoun as
standing for the proposition that res judicata can bar Rule 60(b)
motions generally.  Calhoun does not stand for that proposition. 
We conclude that the rule that res judicata cannot bar a direct
attack upon a judgment applies to this case.  Res judicata should
not bar Irvin's direct attack, pursuant to Rule 60(b), upon the
Decree of Divorce.  Moreover, we conclude that it was error to
dismiss Irvin's Rule 60(b) motion without evaluating his claim to
determine whether Irvin was entitled to relief under any of the six
subsections of Rule 60(b).
     C.   This Court Cannot, as a Matter of Law, Affirm the
Superior Court's Order Denying Irvin's Rule 60(b) Motion.
 
          Although it was an error to deny Irvin's Rule 60(b)
motion on res judicata grounds, we may affirm the order denying
relief if we conclude that Irvin is not entitled as a matter of law
to relief under any section of Rule 60(b).  Because the denial was
based solely on res judicata, and contained no findings as to
whether Irvin could have succeeded in his Rule 60(b) motion were it
not barred, we can affirm the order denying Irvin relief only if,
as a matter of law, he cannot satisfy the requirements of any of
the six subsections of Rule 60(b). [Fn. 6]
          Irvin's motion did not specify that he was seeking relief
from the judgment pursuant to Rule 60(b)(1), (2), (3), (4), (5), or
(6).  Rather, it merely stated that he was seeking relief from the
judgment.  While the superior court considered Irvin's motion to be
pursuant to Rule 60(b)(6), we can affirm its denial of the motion
only if we conclude that Irvin is not entitled to relief under any
section of Rule 60(b) as a matter of law.  We address whether Irvin
could be granted relief under sections (1) through (5). [Fn. 7] 
          1.   Irvin is ineligible for relief pursuant to Rule
60(b)(1), (2), and (3) as a matter of law.

          Rule 60(b)(1)-(3) provides in part:
          [T]he court may relieve a party . . . from a
final judgment, order, or proceeding for . . . :

               (1)  mistake, inadvertence, surprise or
excusable neglect;

               (2)  newly discovered evidence . . . ;

               (3)  fraud . . . , misrepresentation, or
other misconduct of an adverse party;

               . . . . 
     
               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 . . . . 

          The superior court entered the Decree of Divorce on
July 7, 1993.  Irvin moved for relief from the Decree under
Rule 60(b) on January 22, 1996.  We conclude that Irvin is time
barred from obtaining relief from the judgment pursuant to
Rule 60(b)(1), (2), or (3) as a matter of law. 
          2.   Irvin is ineligible for relief pursuant to Rule
60(b)(4) as a matter of law.

          Rule 60(b)(4) provides in part:

               On motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment, order, or
proceeding for the following reasons:

               . . . .

               (4) the judgment is void.

This court has held that a judgment is void under Rule 60(b)(4) "if
the court that rendered it lacked subject matter jurisdiction." 
Perry v. Newkirk, 871 P.2d 1150, 1153 (Alaska 1994).  Additionally,
a judgment can be void if the court lacked personal jurisdiction or
if the court acted in a manner inconsistent with due process.  See
id. at 1157 n.5 (stating that it is an accurate summary of Aguchak
v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974) to say
that Rule 60(b)(4) encompasses lack of personal jurisdiction and
inconsistencies with due process of law).  We conclude that the
order denying Irvin relief from the Decree of Divorce is not void,
and Irvin is thus ineligible for relief pursuant to Rule 60(b)(4)
as a matter of law. 
          3.   Irvin may be eligible for relief pursuant to Rule
60(b)(5).

          Rule 60(b)(5) provides in part:
               On motion and upon such terms as are
just, the court may relieve a party . . . from a final judgment,
order, or proceeding for the following reasons:

               . . . . 

               (5)  the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application;

               . . . . 

               The motion shall be made within a
reasonable time . . . . 

This court has stated that Rule 60(b)(5) "requires 'some change in
conditions that makes continued enforcement inequitable.'"  Dewey
v. Dewey, 886 P.2d 623, 627 (Alaska 1994) (quoting 11 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure sec.
2863,
at 207 (1973)).  The DNA test results revealing that Irvin is not
C.D.'s biological father present a change in conditions that could
make the continued enforcement of a support order inequitable. 
However, a party must move for relief pursuant to Rule 60(b)(5)
within a reasonable time.  
          Irvin brought his motion for relief two and a half years
after the divorce decree was entered.  As evidenced by his
complaint for divorce, Irvin believed that C.D. was his biological
daughter.  His belief was reinforced by the 1993 divorce
settlement.  The agreement, read in open court, referred to
Francine as C.D.'s "mom"and Irvin as C.D.'s "dad."  Furthermore,
Francine agreed on the record that the settlement agreement was
"[absolutely] in the best interest of [C.D.]."  These facts,
coupled with the evidence that Irvin thought that C.D. was his
biological daughter, and that Francine was alleging that he was not
in fact C.D.'s father merely to keep him from seeing C.D., would
support a finding that Irvin challenged paternity within a
reasonable time.  They thus compel the conclusion that challenging
paternity two and a half years after the divorce was not
unreasonable as a matter of law.  See Lowe, 817 P.2d at 459
(remanding case because this court could not "say that a motion for
relief made four and a half years after entry of judgment is per se
unreasonable."); see also Taylor v. Haven, 633 N.E.2d 1197, 1200
(Ohio App. 1993) ("We are not prepared to hold that a twelve-year
interval between a final judgment and a movant's Civ.R.60(B) motion
is per se unreasonable.").
          On the merits, we note that the Decree of Divorce orders
Irvin to pay $50 per month to support C.D. until she turns eighteen
years old, dies, marries, or otherwise becomes emancipated.  The
DNA test results which reveal that Irvin is not C.D.'s biological
father may make the prospective application of this judgment
inequitable.  See Crowder v. Commonwealth ex rel. Gregory, 745
S.W.2d 149, 151 (Ky. App. 1988) ("Justice is the court's constant
destination, relentlessly pursued.  It is not arrived at where a
court in a paternity action adjudicates a man to be the father of
a child while knowing full well that the biological relationship
has been clearly disestablished.").  Furthermore, a motion pursuant
to Rule 60(b)(5) seeking relief from the prospective application of
a judgment requires the court to balance the equities and decide
whether relief is warranted.  See Propst v. Propst, 776 P.2d 780,
784 & n.9 (Alaska 1989) (balancing children's reliance on a
father's post-majority support with the father's generosity in
paying college expenses while reasonably believing himself not
under an enforcement obligation to do so and concluding that "the
equities in this situation require that [the father's] motion for
relief from judgment be granted").  We cannot say as a matter of
law that a court balancing the equities of this case could not find
that they warrant relief.  Therefore, we conclude that we cannot,
as a matter of law, affirm the superior court's denial of Irvin's
motion for relief from the judgment, because relief pursuant to
Rule 60(b)(5) may be warranted in this situation. [Fn. 8]   
IV.  CONCLUSION
          We conclude that the superior court abused its discretion
when it denied Irvin's Rule 60(b) motion solely on res judicata
grounds.  Furthermore, we conclude that we cannot affirm the order
denying Irvin's motion for relief on alternate grounds. [Fn. 9]  We
thus REMAND this case to the superior court to determine whether
Irvin is entitled to relief from the Decree of Divorce under
Rule 60(b)(5).  Specifically, the superior court must determine
whether seeking relief two and a half years after the Decree of
Divorce was unreasonable.  If it is not, the court must determine
whether prospective application of the portion of the Decree
requiring Irvin to support C.D. is inequitable.

MATTHEWS, Chief Justice, with whom FABE, Justice, joins,
dissenting.
          In my view Dixon is not entitled to relief under either
Civil Rule 60(b)(5) or (6).  Where a change in conditions is
reasonably foreseeable at the time of judgment Rule 60(b)(5) relief
must be denied.  Relief under Rule 60(b)(6) is unavailable to undo
a party's deliberate litigation choice.  That Dixon was not the
father of C.D. was not only foreseeable at the time of trial, it
was pled.  Dixon made a deliberate litigation choice to contest
Pouncy's claim that he was not C.D.'s father.  Therefore Dixon does
not qualify for relief under either section.
          The principles on which this case should be decided are
well illustrated by our decision in Dewey v. Dewey, 886 P.2d 623
(Alaska 1994).  Dewey was a stepfather who entered into a
settlement stipulation in which he agreed to pay child support. 
Later, when payments got too burdensome, he moved for relief from
this obligation.  We held that relief was not available under Rule
60(b)(5) or (6).
          Concerning Rule 60(b)(5), we wrote that the change in
conditions on which the motion is based must not have been
reasonably foreseeable when the judgment was entered.  Id. at 627.
          With respect to Rule 60(b)(6), we stated that this
subsection does not afford relief from a party's deliberate
litigation choices:  "Relief under Civil Rule 60(b)(6) is inappro-

priate when a party takes a deliberate action that he later regrets
as a mistake."  Id. at 628 (citing Hartland v. Hartland, 777 P.2d
636, 645 (Alaska 1989)).
          It was reasonably foreseeable at the time of the divorce
that Dixon was not the father of C.D.  He alleged in his complaint
that C.D. was "born the issue of this marriage."  In her answer
Pouncy specifically denied this allegation.  With the issue thus
joined Pouncy demanded blood tests.  After the superior court
entered a judgment for sanctions against her for violating a
visitation order, Pouncy relented and stipulated to Dixon's
paternity.  Given this history a reasonable person in Dixon's
position would believe that there was a serious question about his
paternity.  It follows that such a person should reasonably
anticipate the possibility that his assertion of paternity was
wrong and his wife's assertion that he was not the father was
right.  Therefore Dixon has not met the requirement of Rule
60(b)(5) that changed conditions not be reasonably foreseeable at
the time of judgment.
          Dixon chose to contest his wife's denial of his
paternity.  His choice was deliberate, and he prevailed.  He
therefore cannot meet the absence of deliberate choice requirement
of Rule 60(b)(6).
          I would affirm the decision of the superior court on the
above grounds.  But there are two additional reasons why Rule
60(b)(5) and (6) relief is not available. 
          First, relief under Rule 60(b)(5) requires a significant
change in either factual conditions or in law.  See Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367, 384 (1992).  Obviously there
has been no legal change.  It seems wrong to consider the DNA test
as a factual condition.  The relevant factual condition in this
case is Dixon's nonpaternity.  It has not changed since the
judgment.  The DNA test is merely newly discovered evidence of this
condition.  Relief on the grounds of newly discovered evidence is
available on a Rule 60(b)(2) motion only if the motion is filed
within the one-year time limit and the evidence could not have been
discovered before trial by due diligence.  Relief on the grounds of
newly discovered evidence is not available on a Rule 60(b)(5) or
(6) motion. [Fn. 1]
          Second, Dixon's claim is essentially that of mistake.  He
thought he was C.D.'s father, but he was wrong.  Relief on the
grounds of mistake is available under Rule 60(b)(1) and is subject
to a one-year time limitation.  It is not available under Rule
60(b)(6).  We made this point in Dewey and it seems applicable here
as well:
               Relief under Civil Rule 60(b)(6) is
inappropriate when a party takes a deliberate action that he later
regrets as a mistake.  Here, Michael deliberately agreed to support
Tisha but now regrets the consequences. . . .  Michael is
essentially alleging a "mistake."  Post-judgment relief for a
mistake is governed by Civil Rule 60(b)(1), and is time-barred if
not brought within one year.

886 P.2d at 628 (footnote and citation omitted).


                            FOOTNOTES


Footnote 1:

     Francine is referred to as "Francine Pouncy"throughout the
Appellee's brief.  Francine signed a release form allowing DNA
tests to be performed as "Francine Pouncy."  Francine's driver's
license states that her name is "Francine Pounce."  Francine signed
her November 1993 sworn affidavit as "Francine Pounc‚."  We refer
to her as Francine.  


Footnote 2:

     The sequence of events leading up to CSED determining that
Irvin owed $146 per month in support is uncertain.  A 1988 Notice
and Finding of Financial Responsibility stated that Irvin owed $292
per month in ongoing support and $146 per month toward his accrued
debt.  A 1996 Notice of Proposed Adjustment in Child Support stated
that: "CSED proposes an adjustment in the child support amount, in
accordance with the child support guidelines, to: $146 for 1
child."


Footnote 3:

     We refer to the appellee throughout this opinion as CSED.  


Footnote 4:

     Justice Matthews dissented.  Although Calhoun had brought two
Rule 60(b) motions, Justice Matthews concluded that res judicata is
inapplicable to direct attacks upon a judgment.  He stated: "I
believe that the majority has erred in basing today's opinion on
the doctrine of res judicata.  The doctrine of res judicata relates
to the effects of a judgment in a subsequent separate lawsuit. . .
.  Res judicata has no application to a direct, as opposed to
collateral, attack on a judgment."  Calhoun v. Greening, 636 P.2d
69, 76 (Alaska 1981) (Matthews, J., dissenting) (citations
omitted).  


Footnote 5:

     See also Satterfield v. Satterfield, 558 P.2d 108, 109 (Kan.
1976) ("A second or successive [Rule 60(b)] motion on the same
grounds is thereafter barred by the doctrine of res judicata.").


Footnote 6:

     See Carlson v. State, 598 P.2d 969, 973 (Alaska 1979)
("Although we have determined that the decision of the superior
court was incorrect as a matter of law, we may nevertheless uphold
that decision if there is any other ground which, as a matter of
law, would support the result reached by the superior court."); see
also Lowe v. Lowe, 817 P.2d 453, 457 & n.9 (Alaska 1991)
(considering whether to affirm relief from judgment granted under
Rule 60(b)(6) on alternate grounds of fraud upon the court under
Rule 60(b)(3), despite fact that superior court "did not find that
there was a fraud perpetuated upon the court,"but declining to do
so because this court was unable to hold that the circumstances
complained of rose to the level of fraud-upon-the-court as a matter
of law); Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 67
n.16 (Alaska 1977) ("Even if the trial court's decision as to
Paragraph J were incorrect as a matter of law, this court on appeal
may uphold the trial court's decision if there exist independent
grounds which as a matter of law support the trial court's
conclusion.").


Footnote 7:

     For Irvin to be granted relief pursuant to Rule 60(b) he must
have a meritorious defense to the Decree of Divorce, which states
that he is the father of C.D. and orders him to pay support.  See
McCall v. Coats, 777 P.2d 655, 659 (Alaska 1989) ("In order to
justify relief under Civil Rule 60(b) a meritorious defense to the
matter on which the judgment or order rests must typically be
presented.").  The DNA test showing that Irvin is not C.D.'s
biological father provides Irvin with a potentially meritorious
defense.                            


Footnote 8:

     Because we conclude that relief may be warranted pursuant to
Rule 60(b)(5), we need not address the possibility of relief
pursuant to Rule 60(b)(6).  As we have previously held, relief
under Rule 60(b)(6) may only be granted if relief under the
preceding sections is not possible.  See, e.g., Hartland v.
Hartland, 777 P.2d 636, 645 (Alaska 1989) ("Relief under clause (6)
is not available unless the other clauses are inapplicable.").


Footnote 9:

     Contrary to any implication in the dissent, we do not hold
that Irvin may be entitled to relief under Rule 60(b)(6).  We hold
only that he may be entitled to prospective relief under Rule
60(b)(5).  Further, contrary to the statement in the dissent, Irvin
did not "ma[k]e a deliberate litigation choice to contest Pouncy's
claim that he was not C.D.'s father"prior to entry of the Decree
of Divorce.  He asserted paternity, which Francine initially
denied.  Thereafter, in all pleadings and in statements made in
open court at the time of entry of a Decree of Divorce, Francine
treated the child as though she were a child of the marriage;
Francine never again formally denied paternity.  Thus there was no
issue to litigate; Francine conceded the issue.       




                       FOOTNOTES (Dissent)


Footnote 1:

     Strack v. Pelton, 637 N.E.2d 914 (Ohio 1994), supports these
propositions.  The court held that a genetic test establishing
nonpaternity was newly discovered evidence, but no relief from the
decree was available because the motion was made more than one year
after the judgment.  Relief was not available under the Ohio
counterparts to Rule 60(b)(5) and (6) because they do not apply to
newly discovered evidence claims.  The Ohio court stated the policy
rationale for its decision in terms that are also applicable here:

               We are not unaware that our decision in
effect declares as static a state of facts that reliable scientific
evidence contradicts.  Nonetheless, there are compelling reasons
that support such a decision.  A claim under Civ. R. 60(B) requires
the court to carefully consider the two conflicting principles of
finality and perfection.  In Knapp v. Knapp, 493 N.E.2d 1353, 1356
(Ohio 1986), this court declared, 

               [f]inality requires that there be
some end to every lawsuit, thus producing certainty in the law and
public confidence in the system's ability to resolve disputes. 
Perfection requires that every case be litigated until a perfect
result is achieved.  For obvious reasons, courts have typically
placed finality above perfection in the hierarchy of values.

          Finality is particularly compelling in a case
involving determinations of parentage, visitation and support of a
minor child.

Strack, 637 N.E.2d at 916.